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UNESCO CONVENTION UNDER FIRE
he Archaeological Institute of America (AIA), ARCHAEOLOGY Magazine's parent organization, has taken a strong stand against legislation to amend the 1983 Convention on Cultural Property Implementation Act, which implemented in U.S. law the 1970 UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property. Under the 1983 law, foreign governments have been able to request U.S. assistance in stopping the looting of archaeological sites in their countries through emergency import restrictions and bilateral agreements. Democratic senators Patrick Moynihan and Charles Schumer, both of New York, have innocuously titled bill, "The Cultural Property Procedural Reform Act" (S. 1696) to amend the 1983 law. According to Moynihan, the need for the amendments "arises from the recent proliferation of import restrictions imposed on archaeological and ethnological artifacts from a number of countries, including Canada and Peru. Restrictions may soon be imposed on imports from Cambodia, and I am told that the Government of Italy has now requested that the United States impose a sweeping embargo on archaeological material dating from the 8th century B.C. to the 5th century A.D." In a letter to William Roth (R-DE), chairman of the Senate Finance Committee, AIA President Nancy wrote, "The AIA strongly opposes this bill, which would drastically restrict the ability of the Cultural Property Advisory Committee to implement effectively the 1970 UNESCO Cultural Property Convention. If enacted, the amendments would put the world's cultural patrimony, including our own country's, in greater jeopardy of pillage."
The full text of the Archaeological Institute of America's comment on the Cultural Property Procedural Reform Act (S. 1696) follows. Links to the text of the act and comments by Senator Moynihan and Senator Schumer, as well as contact information for them and for Senator Roth may be found at the end of this document.--MARK ROSE
S. 1696: THE CULTURAL PROPERTY PROCEDURAL REFORM ACT
Comments submitted to the Senate Committee on Finance by the Archaeological Institute of America
May 29, 2000
The Archaeological Institute of America (AIA) is the largest archaeological organization in the United States, with over 11,000 professional and avocational members participating in 100 local chapters throughout the country. Founded in 1879 and chartered by an Act of Congress in 1906, it is dedicated to the preservation of the world's archaeological resources and the information they contain, and to the encouragement and support of archaeological research and publication. Among its public and educational programs, the AIA publishes ARCHAEOLOGY Magazine, with a circulation of 210,000 and an estimated half million readers.
S. 1696 seeks to amend the Convention on Cultural Property Implementation Act (CCPIA), passed by Congress in 1983, which makes the United States a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The AIA has supported the objectives of the UNESCO Convention since the earliest stages of its drafting and was an active participant in the efforts that led to the passage of U.S. implementing legislation. The AIA now strongly opposes these proposed amendments. By nullifying the restraints on the international trade in stolen and illicitly exported cultural property established by the CCPIA, passage of S. 1696 would increase the demand for looted objects, increase pillage of archaeological sites and thereby rob humanity of its past.
The 1970 UNESCO Convention establishes an international cooperative framework aimed at combating the trade in stolen and illicitly exported artifacts. While theft is an obvious crime and one addressed by various domestic legislation, the AIA's concerns go beyond the unauthorized appropriation of another's property. Archaeological sites are a non-renewable resource that are part of the world's cultural heritage. The market in illicitly exported antiquities is overwhelmingly supplied by-and indeed stimulates-the plundering of archaeological sites. When sites are looted so that individual artifacts may be obtained illicitly for the art market, the scientific, cultural, and historical information which is contained in those sites is lost forever. This loss of knowledge about past human life far outweighs the loss of individual objects; the CCPIA was enacted to help prevent this destruction of cultural patrimony.
Far from being a "clarification" of the CCPIA or a "reform" to improve the effectiveness of its procedures, as claimed by its proponents, the proposed amendments in S. 1696 would drastically undermine United States participation in the international regime established by the UNESCO Convention. The changes to the CCPIA that would be imposed by the passage of S. 1696 would create insurmountable obstacles that would severely limit U.S. participation in these international protective measures and jeopardize the U.S.'s standing to receive reciprocal protection for its own rich and diverse cultural heritage. It would mire the Cultural Property Advisory Committee (CPAC), established under the CCPIA, in a morass of impractical, costly, and unproductive procedural requirements, and it would effectively convert the CPAC into a haven for special interests. In short, S. 1696 would radically alter the current policies of our country, which encourage protection of our national cultural patrimony and respect for that of other nations.
Senator Moynihan, in introducing S. 1696, stated that "the need for this bill arises from the recent proliferation of import restrictions imposed on archaeological and ethnological artifacts from a number of countries." In fact, these import restrictions demonstrate that the CCPIA is functioning as was intended, to help protect the threatened cultural patrimony of countries around the world and thus preserve it for future generations. Far from creating "embargoes" on the exchange of cultural property, as has been claimed by groups having an interest in maintaining the unfettered "anything goes" atmosphere of the art trade, the CCPIA is helping to make long needed distinctions between the legal, documented trade and that fueled by illicit and clandestine sources. The provisions of the CCPIA, as being carried out by the Executive Branch, are helping to establish a regime of international trust and cooperation that actually encourages loans and exchanges among museums, technical assistance, cultural tourism, and academic exchange and interaction.
The true interests of the American public are best served by the development and expansion of such a cooperative regime, not by an unfettered and exploitative international antiquities trade operating without regard for local laws. Millions of Americans throughout the country have been enriched by the opportunity to view extensive and magnificent traveling loan exhibitions, such as the recent "Gold of the Nomads: Scythian Treasures from Ancient Ukraine" and "Royal Tombs of Sipán" from Peru. Such comprehensive presentations of ancient cultures-only possible through international cooperation-increase Americans' understanding of the ancient past to an extent that cannot be rivaled by a single artifact, no matter how magnificent, that has been torn from its ancient context. Moreover, the number of citizens who benefit from these cooperative exchanges far exceeds the number of those who benefit from the trade in undocumented antiquities.
The protection of archaeological heritage-both domestically and abroad-has been a matter of American policy as early as 1906, when the federal Antiquities Act was passed. In its domestic legislation and through the ratification of international treaties devoted to the cultural heritage, the United States has long supported efforts to protect and preserve archaeological sites and objects. This policy is firmly supported by American public opinion. A recent poll by Harris Interactive exploring public attitudes toward archaeology, released in March of this year, revealed that 96% of Americans believe there should be laws to protect archaeological sites. Most relevant to the proposed legislation is the strong majority (90%) that thinks laws should prevent import of artifacts from a country that does not want them exported. It is important to reiterate that this response concerns export laws and not national ownership laws, so the respondents were not considering the implications of theft. In a similar vein, a total of 92% of respondents thought that museums and individuals should not be able to buy archaeological objects from abroad if they were taken out of the country of origin without the country's permission. These responses suggest that the provisions of the CCPIA currently in effect and being administered under the Department of State enjoy nearly universal support among the American public.
The adverse provisions of S. 1696 include the following:
I. Inappropriate and harmful public disclosure
Sections 2(a) and 3(c) of S. 1696 would require public disclosure of numerous types of information that the CCPIA deemed necessary to protect as confidential. Congress, in exempting many of the procedures under the CCPIA from public disclosure, judged that disclosure of this information could be harmful to the intended effects of the Act. Our particular concern is that revealing the details of a foreign nation's request for relief-which must include a full description of the problem of looting and threats to its cultural heritage-would provide a detailed "road map" for the looters themselves. With the prospect that future restrictions may be imposed, the illicit trade can only be encouraged to intensify its efforts in the meantime, thus increasing pillage-the opposite of what the CCPIA is intended to accomplish.
In the adoption of the CCPIA, Congress made no distinction between "fact-finding" and "deliberative" "phases" of the work of the Cultural Property Advisory Committee, but rather envisioned a unified "investigation and review" (Section 306(f)(1)), later referred to as "proceedings" (Section 306(h)), which were exempted from the public disclosure provisions of the Federal Advisory Committee Act. S. 1696's effort (Section 2(b)) to divide the work of the CPAC into separate "phases," one of which would be fully open to the public, would serve only to disclose sensitive and potentially harmful information which Congress has previously seen sufficient cause to protect. Federal Register notices of a foreign nation's request now include a brief summary of the material included in the request: in our view, this is sufficient.
The publication of the CPAC's findings and recommendations, as called for by Section 2(a) of S. 1696, before an agreement has been negotiated or emergency restrictions imposed could alert the looters and smugglers as to what material may soon be protected and thus stimulate the trade in those particular cultural materials, thus defeating the very purpose of the CCPIA. We believe an opportunity for comment on the CPAC's recommendation after the Committee has completed its work is unnecessary: the time for public comment is before the CPAC makes its recommendations, not after, so that any comments may be taken into account by the Committee as it deliberates. Such publication and comment would also intervene in and subvert the Committee's role as advisor to the President and interfere with the Executive Branch's conduct of foreign policy. It could also be detrimental to the preservation of cultural property in the United States in cases where the negotiation of a bilateral agreement would involve the reciprocal protection of American sites.
The AIA strongly supports a process by which all interested parties have the opportunity to express their views on particular cases. It believes, however, that the procedures currently being followed by the Cultural Property Advisory Committee allow for ample public participation (both during the initial consideration of a foreign request and during subsequent reviews of existing agreements). For more than two years, open public sessions have been held in relation to the consideration of all foreign requests, reviews of current agreements, and extensions of existing agreements (these include requests from Cyprus, Cambodia, Bolivia, Italy, and El Salvador). All who wished to speak have been provided full opportunity at these meetings, and interested parties were also invited to submit unlimited written materials for the Committee's information. In addition, the CPAC consults extensively with a broad range of knowledgeable individuals who may be able to provide information relevant to the request under consideration. Suggestions of knowledgeable individuals who might be consulted in this manner are welcomed by CPAC.
It is indeed ironic that the loudest calls for greater "openness" on the part of the Cultural Property Advisory Committee have come from the art market. The art trade traditionally operates in total secrecy, routinely refusing to reveal even the most basic information that would be openly disclosed in any other legitimate business or type of commerce. Recent scandals concerning price fixing among major auction houses have provided a glimpse into this closed world. If those who trade in ancient art were to reveal publicly the sources of the objects they buy and sell, the problem of the illicit trade in stolen and looted antiquities would rapidly vanish.
II. Limitations on important and relevant evidence from consideration in the deliberative process
Section 2(c)(2) of S. 1696 would limit the use of "historical" evidence of pillage in the CPAC's deliberations, which would severely restrict the Committee's use and consideration of the evidence presented. All information, by the time it comes to light, is "historical," since the events have already taken place. The clandestine nature of archaeological pillage ensures that some interval of time has elapsed before it is brought to light: like any crime, the perpetrator intentionally carries out his activities in a manner that attempts to elude detection. The vagueness and lack of definition of what constitutes "historical" evidence and the failure to specify what would not constitute historical evidence-and thus be valid for use in the CPAC's deliberations-would simply make this standard unworkable and forestall the Committee from taking any action at all.
Considered even more broadly, the historical background of pillage is also directly relevant to the current state of a country's cultural heritage and thus should be an integral part of the deliberations of the CPAC, especially in determining whether the cultural patrimony of the requesting country is "in jeopardy from pillage." If a substantial portion of the archaeological heritage of a nation has already been lost in the past, even moderate levels of looting would constitute a serious threat, and it becomes even more critical to preserve the little that remains.
III. Complex and excessive review procedures
The problems of international trafficking in illicitly acquired artifacts and the archaeological plunder that supplies this trade are complex, long-standing, and deep-seated social ills. The CCPIA was never envisioned as a "quick fix." When it was passed, all parties recognized that change would be gradual and incremental. Agreements were to be monitored on "a continuing" basis; when import restrictions automatically expire at the end of the initial period of agreement-a maximum of five years-full review is required before renewal. In the lengthy discussions that went into producing the final version of the CCPIA, considerable attention was given to the time limits for agreements and renewals. The period of five years was agreed to by all parties: it was anticipated that this was an adequate amount of time to begin to see effects of the measures taken under an agreement (and recognized that a shorter period might not be adequate), while at the same time requiring full review at reasonably short intervals.
The requirement of Section 2(d) that agreements be subject to full review "annually" would expend countless hours and enormous resources in looking for the needle in the haystack. To carry out the burden of such a requirement would necessitate vastly increased staffing and overhead costs. Without the commitment of these substantial new resources, the body charged with carrying out U.S. obligations under the CCPIA would no longer be able to carry out its responsibilities. Thus the amendments proposed by S. 1696 would not improve the procedures of the CCPIA but make them unworkable and paralyze the Committee. The existing provisions of the CCPIA have proven in practice to be effective and appropriate and should be retained in their current form.
IV. Weakened composition of the Cultural Property Advisory Committee
As one of the organizations most active in supporting legislative initiatives to implement the UNESCO Convention and a strong supporter of the resulting CCPIA, the AIA regrets the current lack of dealer representation on the Cultural Property Advisory Committee and would encourage the Executive Branch to appoint qualified individuals to those positions as soon as possible. We agree that art trade participation is vital to the successful functioning of the CPAC as was intended by the CCPIA. However, we also note that the current absence of dealer representation is due at least in part to recent voluntary resignations, and we do not believe that a boycott of the Committee is the most effective way of improving its procedures.
S. 1696 (Section 3(a)) proposes to change the requirement that appointees to the CPAC should "be expert in" the fields of archaeology, anthropology, and ethnology, and in the international sale of cultural property, to the much less rigorous qualification that they merely "represent" these fields. This change means that CPAC members would no longer be required to have the expertise in these fields which is necessary for the judicious review and decision making that must be carried out by the Committee. Instead of the objective investigation and review stipulated by the CCPIA, the deliberations of the Committee would become a partisan political debate among special interests.
Section 3(b) would remove members of the Cultural Property Advisory Committee from the conflict-of-interest provisions to which special government employees are subject. However, the CPAC plays an important role related to matters of international sensitivity: it is entirely appropriate that its members should work under restrictions designed to insure that propriety-as well as the appearance of propriety-are maintained. The conflict-of-interest provisions contained in the CCPIA continue to play a vital role, for example, when potential Committee members have a direct and significant financial stake in the types of transactions under consideration by the Committee. Also, one need only recall the event of a few years ago, when a member of the CPAC was sued by the Government of Greece for return of a collection of antiquities that he was offering for sale, to appreciate the need to preserve the integrity of the Committee and forestall a situation in which a Committee member may embarrass the President who appointed him/her.
At the time S. 1696 was introduced, Senator Schumer stated, "The entire CPAC is designed to be a conflict of interest . . ." The AIA strongly disagrees. The CPAC is composed of members who have the various kinds of expertise and divergent interests involved in the international exchange of archaeological and ethnological materials. The Committee's composition is designed to balance these areas of expertise and interests, but surely the fundamental mission of the individual members is to objectively, and fairly, "undertake an investigation and review" of requests made by States Parties to the UNESCO Convention. Senator Schumer is referring to the balancing of interests among committee members that is an essential part of the CCPIA when he referred to "conflict of interest." That is not the same as the possible conflict-of-interest that individuals may have in their capacity as CPAC members. The conflict-of-interest rules are therefore essential to maintain the integrity of the Committee.
V. Deviation from the terms of the international agreement which the CCPIA is intended to implement
Article 9 of the UNESCO Cultural Property Convention, which the CCPIA implements for the United States, begins, "Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological material may call upon other States Parties. . ." Thus under the terms of the Convention, cultural patrimony is considered as a whole, a complex of related features within a particular cultural context, of which individual objects are only a part.
Section 2(c)(1) of S. 1696 would change the CCPIA to refer instead to "particular objects of the cultural patrimonyS in jeopardy from pillagingS" (emphasis added), an entirely different concept. It is not the individual objects that are in jeopardy: indeed, when objects are looted for the international trade, some may be individually well protected, since their salability depends upon their state of preservation. But when artifacts are removed from their cultural context-whether that be an archaeological site or a historical monument-the cultural patrimony as a whole is irremediably damaged. The aim of the UNESCO Convention is to protect a nation's cultural patrimony as a whole, which is damaged when pillaging occurs.
The phrase "particular objects of the cultural patrimony" is also unclear and, in the absence of a definition of "particular objects" may be construed to mean specific, individual objects rather than particular types or categories of objects. This narrow meaning would restrict the coverage of the CCPIA to individual looted objects-for example, a specific Maya polychrome vessel-rather than to categories of objects or sites (e.g., objects of the Maya culture from the Petén region of Guatemala). Such a narrow focus would make it extremely difficult for the United States to assist foreign countries to protect their cultural patrimony in accordance with the UNESCO Convention.
The UNESCO Convention is a reciprocal agreement among 91 current State Parties. The United States, through its implementation under the CCPIA, is entitled to cooperation and assistance from all other State Parties in the protection of our own cultural heritage, which is also threatened by theft and destruction to supply the international art trade. This carefully crafted regime should not be jeopardized by the ill-advised amendments contained in S. 1696, which would severely undermine the ability of the United States to play a positive role in protecting the world's cultural heritage for the future.
The Archaeological Institute of America urges the Senate Finance Committee to reject these amendments. If S. 1696 were enacted, it would put the world's cultural patrimony, including our own country's precious archaeological and ethnological heritage, in greater jeopardy of pillage. It would diminish the United States' ability to fulfill its treaty obligations under the 1970 UNESCO Convention. It would overwhelm the CPAC in an administrative and bureaucratic quagmire. S. 1696 does not serve the public interest but rather serves only to further the narrow financial interests of those involved in the illicit art trade.
If, however, the Committee decides to consider these amendments further, we request that public hearings be held, given the complexity of the issues involved. Public hearings would allow the AIA and other concerned organizations and individuals to express their views in a more substantive and public manner.
For Senator Moynihan's and Senator Schumer's comments and the text of the act, search thomas.loc.gov.
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