The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property is the foremost international agreement to combat the looting and trafficking of cultural heritage. It states explicitly in Article 3 that “the import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit.” The 140 State Parties to the Convention work together against cultural racketeering by removing its causes, closing the channels of illicit trade, and repatriating looted and stolen cultural objects to their country of origin. Over the last half-century, this groundbreaking treaty has brought the world together in a shared mission to safeguard our cultural heritage, as well as return looted and stolen objects to their rightful owners. The 1970 UNESCO Convention remains the primary international convention governing the trade in cultural property. Having achieved so much over the last half-century, some question whether it is the best legal tool for the next fifty years and whether it adequately protects minority and indigenous rights.
Art and antiquities have been admired and desired as objects of beauty and symbols of status for time immemorial. These objects have also become a source of capital and investment - something to be collected, owned, and traded. This commodification of art and antiquities accelerated in the last century, as the commercial demand for antiquities grew. By the 1960s and 1970s, archaeological sites that had been preserved for millennia by local communities were being destroyed by thieves targeting them in search of objects to sell; often starting with violent criminal groups like Coso Nostro in Italy and Cambodia’s Khmer Rouge.
Newly independent States in Africa, Asia, and Latin America began sounding the alarm - the illicit art and antiquities trade was chipping away at their very national identities, leading to the adoption of the UNESCO Convention. The 1970 Convention signatories established for the first time an international framework of cooperation aimed to reduce incentives for the future pillage of archaeological and ethnological material, based upon bilateral agreements. In so doing, it codified the concept that the trade in illicit cultural property should be treated as illegal by the governments of the world. In the years since 1970, we have seen the growth in transnational organized crime and armed conflicts which put additional strain on the protection of art and antiquities. Like blood timber in Southeast Asia or blood diamonds in Africa, ‘blood antiquities’ are cultural objects that are looted from archaeological sites or stolen from collections (such as museums) in war zones, and then trafficked across borders - funding brutal dictatorships, drug cartels, and terrorist organizations around the world. The need for the protection of cultural property, and the importance of the Convention, has never been greater.
The United States was the first major market country to join the Convention in 1983 and implements it through the U.S. Convention on Cultural Property Implementation Act (CPIA). Under the CPIA, the United States can enter into bilateral agreements or memoranda of understanding (MOUs) with other foreign governments that are signatories to the 1970 UNESCO Convention. These MOUs close U.S. borders to illegally exported cultural property from the requesting country, while simultaneously protecting the legitimate American art and antiquities market from trading in looted and stolen cultural property— which is especially important, because the U.S. makes up some 43 percent of the (legal) global art market— and promoting responsible cultural exchange and strengthening relationships between the United States and other nations. They provide access to key financial and practical assistance from the United States to protect cultural heritage, and open doors to greater collaboration with the museum, heritage, law enforcement, trade, security, and legal communities. Countries have received capacity-building training, increased opportunities for academic and professional exchange, and funds for conservation, historic preservation, museum collection care and management, and site security.
MOUs put the burden of proof on importers of antiquities into the United States to show U.S. customs authorities that they have valid proof of legal export from the country of origin, or that the objects were outside of the country of origin before the date of the agreement. It is important to stress here that an MOU does not affect the legal trade in art and antiquities. The United States only restricts the import of the cultural objects specified by the requesting country, and any antiquity with a valid export permit may still enter the U.S., regardless of whether it is covered by the import restrictions or not. MOUs can also have a substantial impact on the incentives to loot. For example, when the United States imposed import restrictions on Cambodian antiquities, sales of unprovenanced pieces at a major New York auction house plunged by 80%.
MOU negotiations are narrowly confined to questions outlined in U.S. law. In addition, the presidentially-appointed Cultural Property Advisory Committee, which meets two to three times per year, provides advice to the State Department on the proposed agreements. The State Department will provide key information requirements for each negotiation, but typically center around establishing several critical facts:
- That a country’s cultural patrimony is jeopardized by the plunder of archaeological or ethnological materials;
- That a government has taken measures consistent with the 1970 UNESCO Convention to protect cultural patrimony;
- That the application of import restrictions is needed to deter serious pillage; and
- That the application of the import restrictions would be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.
Though it has been questioned whether this is the rightful place of the state to make determinations of repatriation, it is certainly without question that some action must be taken to protect art and culture. The Convention and the subsequent MOUs are an important step in the right direction: a process is affirmatively in place that gives foreign governments and the State Department a tool to curb the illegal export of antiquities to U.S. markets.
As heads of state and government turn a global spotlight on the illicit trade in cultural property, it is more important than ever that policymakers and law enforcement fully understand the problem. Yet, when compared with other black markets, there is still much we don’t know, and many of the available statistics on the size and scale of the illegal trade in antiquities or the dollar amount of the trade are widely contradictory. In a 2019 study for the European Commission, Neil Brodie stated that European dealers are selling antiquities in the 64 to 318 million euro range annually and the value of antique and medieval coins sold by Europe alone totaled at least 56 million euros annually. The Manhattan District Attorney’s Office, responsible for the New York market alone, reported that in just 2022 alone, the office has returned nearly 300 antiquities valued at over $66 million to 12 countries. Since its founding, the Antiquities Trafficking Unit has returned more than 1,900 antiquities, valued at over $135 million, to 22 countries. The Rand Report, released in 2020, backed by research conducted within the Rand Homeland Security Operational Analysis Center (HSOAC), makes claims downplaying the size and scale of the illicit art and antiquities market which it does not support. For example, the RAND report describes the many empirical constraints on quantifying the size and scale of the illicit art and antiquities market, and yet, proceeds to make an estimate of its own. That some of these numbers are outliers, and that others have since been adjusted, does not change the reality that law enforcement, governments, and the United Nations all recognize cultural racketeering is a “threat to international peace and security.”
World governments have continued to build on the Convention through additional treaties and declarations, such as the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and other actions, such as governments drafting stronger cultural heritage laws, and creating specialized art and antiquities squads to enforce these laws. The Convention sets out in its preamble that “cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.” For the State Parties to the Convention, it remains as important and valuable a tool as ever for protecting minority and indigenous rights, keeping such cultural property off the illicit market, and returning stolen property.
The principles of shared responsibility and cultural equity established by the Convention recognize the value of all cultures - not for the cash value, but for the intangible and universal value of diversity and history. The Convention is therefore one of the most important existing tools in protecting art and antiquities from the illicit trade, as well as the value it holds for communities, at a global scale.
