March, 2016

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Putting the Brakes on Imports of Cultural Property

Mark K. Neville, Jr.

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 there 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 these deliberate acts of wanton destruction of these sites which 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 that we might expect to that possibility is one of 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 which 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 US.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.

UN Convention and Statutory Background

The Convention on Cultural Property Implementation Act (CPIA),4 The Convention on Cultural Property Implementation Act (CPIA), sets forth the law of the US as it became a party to 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 (hereinafter “UNESCO Convention”). CBP regulations providing the administrative regime for the US application of the CPIA are set forth at19 CFR 12.104 et seq. The relevant portion of the Tariff Act of 1930, 19 USC § 2601, provides definitional standards, in pertinent part, noting that:

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 USC § 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 sixteen current bilateral agreements is shown at 19 CFR 12.104g (a).5

As will be seen, the administrative regime is built around formal import restrictions on certain property designated for protection. These import restrictions are effective for 5-year periods and they may be renewed at the request of the other State Party. A recent example of such a renewal is offered by the January, 2016 extension of the import restrictions on articles from the pre-classical, classical and imperial periods in Italy, roughly corresponding to the 9th century BC to the 4th century AD.6

Via a series of Executive Orders dating to 1986, this authority has been delegated to the United States Information Agency in consultation with the Department of State and the Department of Treasury. 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 the Department of Treasury to the Department of Homeland Security). Beyond the route of a bilateral agreement between the US and another nation, under 19 USC § 2603, the President is authorized to implement emergency import restrictions on archeological or ethnological materials from a State party in accordance with 19 USC § 2606.7 To date, no such emergency action has been taken.

Under 19 USC § 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 shall promulgate a list by regulation of archeological or ethnological material of the State Party that is covered by the bilateral agreement. 8

Under 19 USC § 2606, no designated archaeological or ethnological material that is exported from the State Party after the designation of such 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 which certifies that such exportation was not in violation of the laws of the State Party. Section 2606 sets forth the substance of “satisfactory evidence” that the certification requirements for establishing lawful importations have been met.9 The importer or consignee must prove that the article was exported from the State Party (1) at least 10 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.10

Under 19 USC § 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 [this 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, 1983.11

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 2609.12 An example is offered up by the 2009 case of two 18th century religious oil paintings from the Cuzco school in present day Bolivia or Peru.13 The importer had imported them 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 US 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 US14 and thereafter specifically list the property to be so protected on a Designated List. Failure to do so will allow most cultural property access to the US except for stolen property, which merely requires accession to the CPIA.

That should prompt us to determine the status under the CPIA and the US trade law scheme of some of the countries most affected by the depraved turmoil in the Middle East and North Africa. We refer to Afghanistan, Iraq, Syria and Libya. We find that each of them has accepted or ratified the CPIA15 but none of these countries has yet entered into a bilateral agreement with the US. Therefore, only cultural property that has been stolen from museums or religious or secular monuments or similar institutions in any of these countries enjoys the protections we have been discussing.

What is really disturbing is that the US has had a significant presence in Afghanistan and Iraq during the course of the past two presidential administrations. Admittedly, I have not been closely following the issue of trade in cultural property from these countries but I do no 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 US and one of the other State Parties and the promulgation of a Designated List or, in the absence of such an agreement, perhaps 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), to the emergency implementation of import restrictions for an initial period of five years, 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 US buyers of some looted property with aiding ISIS.16

Conclusion

These protections afforded cultural property illustrate yet another intersection between the trade laws and other vexing activities, such as violations of human rights, trafficking in products of prison and child labor or in the buying and selling of products from protected species. All of these, and others besides, are of great concern.17 While the trade laws may not prescribe the complete solution to such 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, we should employ them in their fullest rigor in curbing these abuses.

That’s the least we can do.

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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?, N.Y. Times, Sunday Review, Jan. 31, 2016, at 5, col. 1.

2. For a September 2015 CBS report, see http://www.cbsnews.com/news/isis-looted-syrian-ancient-artifacts-black-market-us-and-europe/

3. To be sure, I had previously written about the trade law protections for cultural property five years ago, but this 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 No. 2 at 23 (Feb. 2011). In addition to The Convention on Cultural Property Implementation Act (CPIA), see n. 4 below, that discussion also focused on the separate regime dating from 1972 which protects pre-Columbian artifacts from Mexico, Central and South America and the Caribbean Islands, see 19 USC §§ 2091 et. seq. and 19 CFR §§ 12.105-109. That discussion is outside the focus of this present note.

4. The implementing legislation is at 19 USC §§ 2601-2613.

5. You will notice that 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, Greece 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, whose colonial-era art is exposed? And where are Egypt and the rest of the countries of the Middle East?

6. CBP Dec. 16-02, 81 Fed. Reg. 2086 (Jan. 15, 2016). For another recent example, see the notice of the 5-year extension of restrictions for cultural property from Nicaragua, CBP Dec. 15-13, 80 Fed. Reg. 60292 (Oct. 6, 2015).

7. The customs regulation is at 19 CFR § 12.104g (b).

8. The list comprising the Designated Articles for Italy is in TD 01-06 and CBP Dec. 11-03. The list of Designated Articles for Nicaragua is at TD 00-75.

9. The applicable customs regulation is 19 CFR § 12.104c.

10. For two examples of successful efforts to import cultural articles under the CPIA, see ruling nos. I89448 (12/19/02) and H200697 (1/20/12).

11. See United States v. An Original Manuscript Dated November 19, 1778, 1999 U.S. Dist. LEXIS 1859 (SDNY 1999). See also 19 CFR § 12.104a(a).

12. 19 USC § 2609.

13. United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 597 F. Supp 2d 618 (ED VA 2009). See discussion at https://www.fbi.gov/news/stories/2010/april/peru_040810/restoring-cultural-heritage-18th-century-paintings-returned-to-peru

14. We must be mindful that the statute also anticipates multilateral agreements. 19 USC § 2602 (a) (2) (B).

15. The alphabetical list of countries that are State Parties to the CPIA is at 19 CFR § 12.104b. For another source for an alphabetical list of the countries which have signed or ratified the CPIA, see http://www.unesco.org/eri/la/convention.asp?KO=13039&language=E&order=alpha

16. Reported at https://www.rt.com/usa/313654-fbi-isis-looted-artifacts/

17. For a wider treatment of these trade law regimes, see chapter 9 of my treatise, International Trade Laws of the United States: Statutes and Strategies (Thomson Reuters).

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