Author: Mark K. Neville, Jr., LL.M. (International Legal Studies), NYU, is Principal of International Trade Counsellors and may be reached at firstname.lastname@example.org. He has served as an adjunct professor at the University of California, Berkeley’s Haas School of Business and NYU’s Stern School. Mr. Neville is the Journal’s Customs & Trade correspondent and a member of the Board of Advisors.
As I write these lines I am reminded that scarcely a week passes without another fresh horror revealed in the Middle East. One recurring theme is the widespread destruction of our cultural patrimony represented by ancient monasteries, Roman antiquities, and other treasured sites. It appears that the atrocities that darken our mood as we pore over the morning newspaper are visited on every facet of life. They include concerted efforts to eradicate our shared cultural heritage.
But that is not all. There are reports of other doings, less obvious than an explosion or a bulldozer’s path perhaps, but equally posing a threat to that cultural heritage. Apart from deliberate acts of wanton destruction of sites that have survived millennia only to be blown or ground to bits, there is a certain amount of organized looting of these sites.1 Apparently, the sales of these looted articles, as well as the sales of artifacts pulled from museums and other repositories, generate cash to fuel the full range of terrorist activities.2 Presumably, some of those artifacts might be sold to buyers in the United States.
Certainly one of the reactions to that possibility is frustration. One might be expected to exclaim, “Is there nothing we can do to prevent this from happening?” Of course, if we are to focus on possible actions, we must first make a distinction between preventing destruction of sites and cultural property and preventing the sales of the looted property.
Trade Statute Protection of Cultural Property
There may not be anything short of military intervention that will put a halt to the former, but as to the latter, there are mechanisms in place to prevent trading in looted cultural property, at least from the perspective of preventing their importation into the United States.3 As will be seen, however, there are limits to what can be done to prevent trade in looted articles from the areas that are at risk to ISIS or the Taliban.
U.N. Convention and Statutory Background
The Convention on Cultural Property Implementation Act (CPIA)4 is the U.S. law implementing the 1970 UNESCO (United Nations Educational, Scientific and Cultural Organization) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (“UNESCO Convention”). Customs and Border Protection (CBP) regulations providing the administrative regime for the U.S. application of the CPIA are in 19 C.F.R sections 12.104 et seq.
The relevant portion of the Tariff Act of 1930, 19 U.S.C. section 260119 U.S.C. section 2601, provides definitional standards, in pertinent part, and says:
For purposes of this chapter-
(2) The term “archaeological or ethnological material of the State Party” means-
(A) any object of archaeological interest;
(B) any object of ethnological interest; or
(C) any fragment or part of any object referred to in subparagraph (A) or (B); which was first discovered within, and is subject to export control by, the State Party….
(9) The term “State Party” is defined as any nation which has ratified, accepted, or acceded to the Convention.
Under 19 U.S.C. section 260219 U.S.C. section 2602, the President is authorized to enter into a bilateral agreement with another state party that requests protection of cultural property under the CPIA. The list of the 16 current bilateral agreements is in 19 C.F.R section 12.104g(a).5
As discussed below, the administrative regime is built around formal import restrictions on certain property designated for protection. These import restrictions are effective for five-year periods and may be renewed at the request of the other state party. A recent example is the January 2016 extension of the import restrictions on articles from the pre-classical, classical, and imperial periods in Italy, roughly corresponding to the ninth century B.C. to the fourth century A.D.6 Via a series of Executive Orders dating to 1986, this authority has been delegated to the U.S. Information Agency in consultation with the State Department and Treasury.7
Beyond bilateral agreements between the United States and another nation, under 19 U.S.C. section 260319 U.S.C. section 2603, the President is authorized to implement emergency import restrictions on archeological or ethnological materials from a state party in accordance with 19 U.S.C. section 260619 U.S.C. section 2606.8 To date, no such action has been taken.
Under 19 U.S.C. section 260419 U.S.C. section 2604, the United States may enter into a bilateral agreement with another state party or multilateral agreements with other nations to restrict the importation of specifically designated archeological or ethnological materials that are in jeopardy of pillage. The Secretary of Homeland Security will promulgate a list by regulation of archeological or ethnological material of the state party that is covered by the bilateral agreement.9
Under 19 U.S.C. section 260619 U.S.C. section 2606, no designated archaeological or ethnological material that is exported from the state party after the designation of the material under section 2604 may be imported into the United States unless either the state party issues a certification or the importer provides other documentation that certifies that the exportation is not in violation of the laws of the state party. Section 2606 provides the substance of “satisfactory evidence” that the certification requirements for establishing lawful importations have been met.10 The importer or consignee must prove that the article was exported from the state party (1) at least ten years prior to the date of entry and that the party in whose interest the entry is being made has acquired the article no more than one year before the entry into force of the bilateral agreement; or (2) prior to its being included on the designated list.11
Under 19 U.S.C. section 260719 U.S.C. section 2607, no stolen article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution may be imported into the United States after the effective date of the statute or after the date of entry into force of the convention for the state party. The effective date of section 2607 was 90 days after January 12, 1983, approximately April 12, 1983.12
Seizure and Civil Forfeiture
A failure to establish that the article is entitled to entry under section 2606, or to rebut a claim that the article is not stolen and thus captured by section 2607, will lead to seizure and civil forfeiture pursuant to section 2609.13 An example is the 2009 case of two 18th century religious oil paintings from the Cuzco school in present day Bolivia or Peru.14 The importer brought them into the country from Bolivia but was unable to establish that the paintings were not designated ethnological materials subject to the CPIA.
Analysis and Implications for the Middle East
For the most part, the foregoing statutory scheme requires that the foreign country interested in restricting access to the U.S. market as a means of protecting its cultural property must sign or accede to the CPIA and then enter into a bilateral agreement with the United States,15 and thereafter specifically itemize the property to be protected on a designated list. Failure to do so will allow most cultural property access to the United States, except for stolen property, which merely requires accession to the CPIA.
That should prompt us to determine the status under the CPIA and the U.S. trade law scheme of some of the countries most affected by the depraved turmoil in the Middle East and North Africa-Afghanistan, Iraq, Libya, and Syria. Each of them has accepted or ratified the CPIA16 but none has yet entered into a bilateral agreement with the United States. Therefore, only cultural property that has been stolen from museums or religious or secular monuments or similar institutions in any of these countries receives the protections discussed above.
What is really disturbing is that the United States has had a significant presence in Afghanistan and Iraq during the past two presidential administrations. Admittedly, I have not been following closely the issue of trade in cultural property from these countries but I do not recall any discussion of the issue. There is simply no excuse for this failure. Perhaps this matter could be pursued and this oversight remedied without further delay? A proper remedy might take the form of a bilateral agreement between the United States and one of the other state parties and the promulgation of a designated list or, absent such an agreement, the President could solicit a state party request for a presidential determination of an “emergency condition” under section 2603. This would lead, under the authority of subsections (b) and (c) of section 2603, to the emergency implementation of import restrictions for an initial five-year period, subject to an extension for a further three-year period. Still another dimension to this discussion was suggested by a report in August 2015 that the FBI was considering charging U.S. buyers of some looted property with aiding ISIS.17
The protections afforded cultural property illustrate yet another intersection between the trade laws and other vexing activities, such as violations of human rights, trafficking in prison products, child labor, and the buying and selling of products from protected species. All of these, and others besides, are of great concern.18 While the trade laws may not prescribe the complete solution to these nagging problems, they can, as they do here and in the other areas noted, do double duty in normative and remedial roles. They should not be overlooked; rather, they should be used in their fullest rigor to curb these abuses. That is the least that can be done.
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1 For an interesting story about a Syrian Christian painting that has been at Yale since its excavation in 1932, with reference to this wider issue of the risk to other artwork in situ, see Peppard, “Is This the Oldest Image of the Virgin Mary?,” NY Times, Sunday Review, January 31, 2016, at 5, col. 1.
2 For a September 2015 CBS report, see www.cbsnews.com/news/isis-looted-syrian-ancient-artifacts-black-market-us-and-europe.
3 I previously wrote about trade law protections for cultural property five years ago, but the crisis in the Middle East is pressing and compels me to revisit the issue. See Neville, “Customs and Border Protection as Cultural Guardians,” 22 JOIT 23 (February 2011) . In addition to the Convention on Cultural Property Implementation Act (CPIA) (see note 4 infra) that discussion also focused on the separate regime dating from 1972 that protects pre-Columbian artifacts from Mexico, Central and South America, and the Caribbean Islands; see 19 U.S.C. sections 209119 U.S.C. sections 2091 et. seq. and 19 C.F.R. sections 12.105-109. That discussion is outside the focus of this column.
4 The implementing legislation is at 19 U.S.C. sections 2601-261319 U.S.C. sections 2601-2613.
5 Eight of the 16 agreements are with some Central and South American countries, presumably concerned about their legacies of both pre-Columbian and colonial-era treasures. The other countries are Cambodia, Canada, China, Cyprus, Greece, Italy, and Mali. The list is striking in its limited reach. Only one African country and two Asian countries are represented. Where are Ecuador, Mexico, and others, the colonial-era art of which is exposed? And where are Egypt and the rest of the Middle Eastern countries?
6 CBP Dec. 16-02, 81 Fed. Reg. 2086 (January15, 2016). For another recent example, see the notice of the five-year extension of restrictions for cultural property from Nicaragua, CBP Dec. 15-13, 80 Fed. Reg. 60292 (October 6, 2015).
7 See Executive Order 12555, 51 Fed. Reg. 8475 (March 10, 1986), amended by Executive Order 13286 (February 28, 2003) (concerning the transfer of functions from Treasury to the Department of Homeland Security).
8 The customs regulation is 19 C.F.R. section 12.104g(b) .
9 The list of designated articles for Italy is in TD 01-06 and CBP Dec. 11-03. The list of designated articles for Nicaragua is in TD 00-75.
10 The applicable customs regulation is 19 C.F.R. section 12.104c .
11 For two examples of successful efforts to import cultural articles under the CPIA, see ruling nos. I89448 (December 19, 2002) and H200697 (January 20, 2012).
12 See An Original Manuscript Dated November 19, 1778, 1999 WL 97894 , 1999 U.S. Dist. LEXIS 1859 (DC NY, 1999). See also 19 C.F.R. section 12.104a(a).
13 19 U.S.C. section 260919 U.S.C. section 2609.
14 Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 597 F. Supp 2d 618 (DC Va., 2009). See discussion at www.fbi.gov/news/stories/2010/april/peru_040810/restoring-cultural-heritage-18th-century-paintings-returned-to-peru.
15 The statute also anticipates multilateral agreements. 19 U.S.C. section 2602(a)(2)(B)19 U.S.C. section 2602(a)(2)(B).
16 The alphabetical list of countries that are state parties to the CPIA is at 19 C.F.R. section 12.104b . For another source for the alphabetical list of the countries that have signed or ratified the CPIA, see www.unesco.org/eri/la/convention.asp?KO=13039&language=E&order=alpha.
17 Reported at www.rt.com/usa/313654-fbi-isis-looted-artifacts.
18 For a wider treatment of these trade law regimes, see chapter 9 of Neville, International Trade Laws of the United States: Statutes and Strategies (Thomson Reuters/WG&L, 2012).