Does the International Cultural Heritage System Adequately Protect Minority and Indigenous Rights?

The UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property contemplates that State Parties will assist each other in protecting cultural heritage. The Cultural Property Implementation Act (CPIA) authorizes U.S. import restrictions on cultural goods as part of bilateral agreements with other countries. Several agreements have raised the question whether the current international system adequately protects minority and indigenous rights. Kate Fitz Gibbon and Liz Fraccaro address this question from different perspectives.

For decades, the U.S. has been a global leader in recognizing religious and indigenous rights to culture as a human right. It has done so both internationally and through domestic legislation such as NAGPRA, which protects Native American rights to sacred and community heritage. Regrettably, in recent years an exclusively nationalist perspective has skewed U.S. policy, promoting overbroad, harmful, cultural property agreements, including with authoritarian regimes. Flawed policies and the often erroneous data they are built upon have influenced the international dialog on cultural heritage and encouraged international bodies including the U.N. and UNESCO to place nationalist interests above basic human rights.

For example, art from 29 countries is now virtually embargoed from the U.S. and more agreements are pending. Agreements (MOUs) cover items from tens of thousands of years, from BCE to the 20^th century. They include everything from classical antiquities to commercially made items, from trinkets to ancient coins that circulated in the millions.

The agreements also endorse oppressive regimes’ claims to the property of persecuted, expelled, and massacred Jewish, Greek, Armenian, Uyghur, Tibetan and other minorities. MOUs recognize exclusive state ownership of heritage; if an object is seized on entry to the U.S., it is returned to the foreign government, not to the community, family, or religious organization to which it belonged. Recently, the U.S. State Department approved “emergency import restrictions” requiring cultural goods to be repatriated to Taliban dominated Afghanistan once diplomatic relations are normalized.

All U.S. agreements with foreign nations assume that foreign governments are the best stewards for cultural heritage, an assumption often belied by the facts. Turkey’s government, one with numerous agreements with the U.S., has appropriated and destroyed Greek, Armenian, and Kurdish communal property under color of Turkish law. Istanbul’s Hagia Sophia, a World Heritage site, has been converted to a mosque. It now hosts 40,000 worshippers daily; in consequence, its walls are being defaced and marble tiles irreparably cracked.

An MOU with China has been repeatedly renewed since 2009. A U.S. Holocaust Memorial Museum report described how minority Muslims are brainwashed, tortured, and women are raped “due to non-criminal expressions of culture and religion.” A State Department report identified “almost 900,000 children” taken from parents to locked boarding facilities where use of their language is forbidden. China has destroyed over 15,000 mosques, shrines, and graveyards and ‘Disney-fied’ Kashgar’s Old City. All the world also knows of China’s openly repressive policies against Tibetan language, culture, and religion. China also has the largest domestic antiquities market in the world and auction houses with close ties to government are the largest sellers – so how is its culture protected by a U.S. MOU?

The most recent proposal before the Cultural Property Advisory Committee was for a U.S.-Libya MOU, though Libya is run by factions in an ongoing civil war. No faction has protected heritage – they have bombed antique built heritage and allowed urban encroachment onto ancient sites. State Department reports state that they are also guilty of egregious human rights violations. B’nai B’rith deputy director Eric Fusfield called the Libyan MOU “a de facto U.S. recognition of Libya’s confiscation of Jewish properties in 1958 and 1969.” He urged the U.S. to take a stand in defense of persecuted minority communities instead of conciliating nationalist, authoritarian regimes: “To do less would be nothing short of a betrayal of American values.”

Pro-MOU activists claim that state ownership of minority heritage will build ‘understanding,’ for example by facilitating the teaching of Iraqis about Iraq’s Jewish history and heritage. But Iraq just passed a law criminalizing normalization of any relations with Israel, which the State Department says promotes “an environment of antisemitism” and seems counter to the spirit of such an agreement.

For years, art trade opponents have said that MOUs are necessary to prevent a multi-billion-dollar market that potentially funds terrorists – but a major RAND Corporation study in 2020 debunked these phony claims.

Art is no longer seen as a positive way of sharing our common human values and as a bridge between cultures. MOUs have become self-serving instruments of “soft-diplomacy,” facilitating deals on military issues, interdiction of drugs, or joint terror agreements.

By ignoring statutory criteria that MOUs be “consistent with the general interest of the international community in the interchange of cultural property…” the U.S. has given a green light to the destruction of religious and ethnic minorities’ cultural heritage by repressive, authoritarian governments. That’s not the way the U.S. should lead the world as a democratic state that values culture and heritage.