International and National Legal Efforts to Protect Cultural Property: The 1970 UNESCO Convention, the United States, and Mexico

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1 International and National Legal Efforts to Protect Cultural Property: The 1970 UNESCO Convention, the United States, and Mexico SUMMARY I. INTRODUCTION II. THE 1970 UNESCO CONVENTION A. Background to the Convention: The Role of the United States and Mexico B. Text of the UNESCO Convention Purpose, Definitions, and Export Controls Articles 7 and Expectation of Additional Measures III. U.S. IMPLEMENTATION OF THE UNESCO CONVENTION A. Cultural Property Implementation Act B. Judicial Protection Under the Cultural Property Implementation Act IV. BILATERAL TREATY A. U.S.-Mexico Treaty of Cooperation V. UNILATERAL MEASURES A. Mexico: Federal Law of U.S. Judicial Recognition of Mexico s Federal Law B. United States: Pre-Columbian Act C. United States: National Stolen Property Act VI. CONCLUSION I. INTRODUCTION A nation s cultural heritage, as embodied in its cultural property, 1 stands as a testament to the origins of its civilization, is a source of pride and identity for the nation s inhabitants, and serves as a link between the past and the present. 2 Unfortunately, the 1. Cultural property refers to objects of archaeological, historical, ethnographic, and artistic value, as well as other ancient treasures, that contribute to a nation s cultural definition and expression. See John Henry Merryman, Thinking About the Elgin Marbles, 83 MICH. L. REV. 1881, 1888, 1913 (1985) [hereinafter Merryman, Elgin Marbles]; Ronald D. Abramson & Stephen B. Huttler, The Legal Response to the Illicit Movement of Cultural Property, 5 LAW & POL Y INT L BUS. 932, 935 (1973). 2. See Leslie S. Potter & Bruce Zagaris, Toward a Common U.S.-Mexican Cultural Heritage: The Need for a Regional Americas Initiative in the Recovery and Return of Stolen Cultural Property, 5 TRANSNAT L LAW. 627, 629 (1992); RICHARD E.W. ADAMS, ANCIENT CIVILIZATIONS OF THE NEW WORLD (1997); Abramson & Huttler, supra note 1, at 935. An example is the National Museum of Anthropology and History in Mexico City, whose impressive display of materials from Mexico s pre-columbian civilizations, along with representations of modern indigenous culture, helps foster a sense of identity and national pride in its visitors. See John Henry 145

2 146 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:145 cultural heritage of many countries is in jeopardy. One of the primary causes is the illegal trade of antiquities, which involves billions of dollars each year and is as large as any international crime outside of drug trafficking. 3 The countries most affected are generally developing, art-rich countries whose cultural treasures are illegally exported to feed the antiquities market in economically wealthy countries. 4 The loss of cultural treasures leaves a people culturally impoverished 5 and deprives the country of origin and local populations of an important source of revenue. 6 International cooperation is necessary to effectively protect cultural property. While varying degrees of concern have existed for many years, 7 it was not until the 1960s that efforts to protect cultural property began to gain serious international support. 8 The negotiations for and adoption of the Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 9 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) signaled the beginning of a sustained impetus among the international community toward the Merryman, The Public Interest in Cultural Property, 77 CALIF. L. REV. 339, 350 (1989) [hereinafter Merryman, Public Interest]; 117 CONG. REC (1971). 3. See James A.R. Nafziger, Seizure and Forfeiture of Cultural Property by the United States, 5 VILL. SPORTS & ENT. L.J. 19, 20 (1998) [hereinafter Nafziger, Seizure and Forfeiture]; Jordana Hughes, The Trend Toward Liberal Enforcement of Repatriation Claims in Cultural Property Disputes, 33 GEO. WASH. INT L L. REV. 131, 131 (2000). 4. Lyndel V. Prott, International Control of Illicit Movement of the Cultural Heritage: The 1970 UNESCO Convention and Some Possible Alternatives, 10 SYRACUSE J. INT L L. & COM. 333, 334 (1983); Potter & Zagaris, supra note 2, at Merryman, Elgin Marbles, supra note 1, at The symbolic value of many cultural objects to the country of origin far exceeds their economic value in the art market. See Gilda Cubillo Moreno, El Coleccionismo y la Compraventa de Bienes Culturales en México, in EL PATRIMONIO CULTURAL A LA VENTA 105, 106 (Francisco Amezcua Pérez ed., 2000). 6. The revenue generated from archaeological sites and museums can be substantial. In Mexico, for example, the Maya ruins of Chichén Itzá drew over 756,000 visitors in 1998, generating more than 50 million pesos in revenue. Alfredo Tecla Jiménez, El Patrimonio Cultural y la Escuela Nacional de Antropología e Historia (ENAH), in EL PATRIMONIO CULTURAL A LA VENTA 67, 79 (Francisco Amezcua Pérez ed., 2000). Another Maya site in Mexico, Palenque, draws more than 400,000 tourists per year. Daniel Schávelzon, LA CONSERVACIÓN DEL PATRIMONIO CULTURAL EN AMÉRICA LATINA: RESTAURACIÓN DE EDIFICIOS PREHISPÁNICOS EN MESOAMÉRICA: , 214 (1990). Local populations can also benefit from accessibility to a country s cultural heritage. See, e.g., Magalí Daltabuit Godás, El Patrimonio Cultural y el Ecoturismo: El Caso del Mundo Maya, in EL PATRIMONIO CULTURAL A LA VENTA 39 (Francisco Amezcua Pérez ed., 2000) (discussing the use of an ecotourism program, Mundo Maya (Maya World), in Belize, Guatemala, and southern Mexico to promote the development of marginalized indigenous communities, as well as the preservation of natural resources and the archaeological and historical heritage of the region). Archaeological sites in Mexico and Central America, for example, draw tourists to rural and undeveloped communities and create jobs for the locals as guides or guards, in hotels, restaurants, and stores, as well as temporary work in archaeological excavations, although the communities as a whole may not benefit significantly. Id. at 51, 55. Although the local populations may have a generally positive view of tourism because it trae dinero a la comunidad (brings money to the community), they often believe that the government keeps an excessive share of the revenue generated by tourism in the area and does not give enough back to the community in the form of better public services. See id. at 47, 55 (discussing the case of eco-tourism in the rural Maya community of Cobá, Mexico). But see Enrique Nalda, Mexico s Archaeological Heritage: A Convergence and Confrontation of Interest, in ILLICIT ANTIQUITIES: THE THEFT OF CULTURE AND THE EXTINCTION OF ARCHAEOLOGY 205, , (Neil Brodie & Kathryn Walker Tubb eds., 2002) (discussing some of the negative effects that increased tourism to archaeological sites can have on local communities). 7. See Prott, supra note 4, at (discussing formal international attempts to protect cultural property during the twentieth century). 8. UNITED STATES INFORMATION AGENCY, PRESERVING MANKIND S HERITAGE: U.S. EFFORTS TO PREVENT ILLICIT TRADE IN CULTURAL PROPERTY 9 (1991) [hereinafter USIA, PRESERVING MANKIND S HERITAGE]. 9. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter UNESCO Convention].

3 2003] THE 1970 UNESCO CONVENTION, THE UNITED STATES, AND MEXICO 147 preservation of mankind s cultural heritage. 10 The United States and Mexico were crucial to the successful adoption of the Convention 11 and have taken a number of legal measures that offer guidance on how the protection of cultural property can be coordinated through a combination of national and international efforts. One challenge faced by the drafters of the UNESCO Convention was reaching a compromise that would be acceptable to a broad international community due to the diverging views and priorities among states. 12 Debates over the protection of cultural property have centered on two primary views: cultural nationalism and cultural internationalism. 13 The cultural nationalist view regards cultural property as part of the cultural heritage within the territorial borders of a particular nation. 14 This view recognizes each nation s special interest in its own cultural property and legitimizes the national retention of such property. 15 Cultural internationalism, on the other hand, regards cultural property as the product of a common human culture, independent of a particular national interest. 16 Under this view, the interest in cultural property lies with all nations and people collectively, and claims of individual states are thus subordinate to the common global interest. 17 The fundamental dichotomy surrounding the protection of cultural property is that of market nations 18 and source nations. 19 Most market nations are developed countries in which the demand for cultural artifacts exceeds the internal supply. 20 These nations generally support the cultural internationalist view because of its emphasis on free trade and the circulation of cultural objects. 21 Source nations, by contrast, are usually developing countries in which the supply of cultural property exceeds the internal demand. 22 Because 10. Marlene Alva González, New Legal Tools to Curb the Illicit Traffic in Pre-Columbian Antiquities, 12 COLUM. J. TRANSNAT L L. 316, 316 (1973). The Convention was the first global agreement concerning the illegal international trade in cultural property. Potter & Zagaris, supra note 2, at See infra Part II.A. 12. See Abramson & Huttler, supra note 1, at See generally John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT L L. 831 (1986) (describing and comparing the cultural nationalist and internationalist views) [hereinafter Merryman, Two Ways]. 14. Id. at Id. at 832, 844; cf. Stephanie O. Forbes, Securing the Future of Our Past: Current Efforts to Protect Cultural Property, 9 TRANSNAT L LAW. 235, 242 (1996). The UNESCO Convention adopted the cultural nationalist view with its emphasis on the national cultural heritage. Merryman, Two Ways, supra note 13, at (emphasis added). 16. See Merryman, Two Ways, supra note 13, at An example of the cultural internationalist view is UNESCO s 1954 Hague Convention, which speaks of the cultural heritage of all mankind. Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 215 (emphasis added) [hereinafter Hague Convention]. 17. Forbes, supra note 15, at 243; see also Merryman, Two Ways, supra note 13, at The term market nation is used to refer to a country whose citizens purchase many foreign artifacts. Lisa J. Borodkin, The Economics of Antiquities Looting and a Proposed Legal Alternative, 95 COLUM. L. REV. 377, 385 (1995). Other designations for such a country include purchaser nation, collector nation, artifactpoor nation, and demand nation. Id. 19. The term source nation refers to a country in which artifacts are primarily found. Other terms used to describe such a country include artifact-rich nation, nation of origin, and supply nation. Id. 20. Merryman, Two Ways, supra note 13, at 832. The United States, much of Western Europe, and Japan are examples of market nations. Id.; see also LYNDEL V. PROTT & PATRICK J. O KEEFE, 3 LAW AND THE CULTURAL HERITAGE: MOVEMENT 576 (1989). 21. See Merryman, Two Ways, supra note 13, at Id. at 832. Examples of source nations include Mexico, Guatemala, Peru, Egypt, and Greece. Id. at 832, 844, 846; see also Proceedings of the Panel on the U.S. Enabling Legislation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 4 SYRACUSE J. INT L L. & COM. 97, 108 (1976) [hereinafter Panel on the U.S. Enabling Legislation].

4 148 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:145 the demand for cultural objects in market nations encourages export from source nations, 23 most source nations adhere to the cultural nationalist view in order to inhibit the export and justify the national retention of their cultural property. 24 The United States and Mexico exemplify the market nation/source nation dichotomy. The United States is a wealthy country with a major market for the purchase of art and cultural objects, as well as for international trafficking in stolen cultural property. 25 Conversely, Mexico is a developing country that is home to one of the world s richest collections of antiquities and archaeological treasures. 26 The dichotomy is further accentuated by the close proximity and substantial traffic carried on between these two countries. 27 The important role played by the United States and Mexico in the adoption of the UNESCO Convention, as well as the dynamics of the illegal trade in pre-columbian artifacts between these two nations, provides insight into a range of responses available to states in the preservation of their cultural heritage. This comment examines various international and national approaches available for the protection of cultural property by focusing on the UNESCO Convention and the measures taken by the United States and Mexico. Part II analyzes the approach adopted by the UNESCO Convention to protect cultural property by creating a legally binding instrument that established general goals and provided means for the international community to combat the illegal traffic in cultural property. Part III discusses how the UNESCO Convention s provisions were interpreted and implemented into the domestic legislation of the United States. Part IV examines the use of a bilateral treaty between the United States and Mexico to address a specific problem facing the two nations. Part V describes the different unilateral approaches adopted by Mexico and the United States under domestic legislation to confront the illegal traffic in cultural property. This part also discusses the use of criminal laws to protect foreign cultural property rights in U.S. courts. II. THE 1970 UNESCO CONVENTION Any discussion on the protection of cultural property must include the 1970 UNESCO Convention. 28 Its significance stems from the international involvement in its preparation, its broad acceptance, and its effectiveness in promoting the general attitude toward the protection of cultural property. 29 The adoption of the final text of the Convention was the result of a decade of work, with approximately fifty countries significantly involved in the 23. Merryman, Two Ways, supra note 13, at 832; PROTT & O KEEFE, supra note 20, at See Merryman, Two Ways, supra note 13, at Sean D. Murphy, Trafficking in Stolen Cultural Property, 94 AM. J. INT L L. 544, 544 (2000). The United States is distinct from most market nations, however, as its practices tend to support the cultural nationalist view by protecting the retentive laws and policies of other countries. Merryman, Two Ways, supra note 13, at Mexico possesses a rich collection of prized archaeological monuments and artifacts, remnants of a number of advanced pre-columbian civilizations, including those of the Maya, Aztecs, Olmecs, Zapotecs, Mixtecs, Totonacs, Toltecs, Teotihuacanos, and Tarascans. See generally ADAMS, supra note 2, at (1997); MICHAEL D. COE, MEXICO: FROM THE OLMECS TO THE AZTECS (1994). 27. Potter & Zagaris, supra note 2, at See PROTT & O KEEFE, supra note 20, at See id. at ; Etienne Clément, The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 1970), in ILLICIT TRAFFIC IN CULTURAL PROPERTY: MUSEUMS AGAINST PILLAGE 45, 51 (Harrie Leyten ed., 1995).

5 2003] THE 1970 UNESCO CONVENTION, THE UNITED STATES, AND MEXICO 149 drafting process. 30 Convention. 31 Today there are more than ninety states that are parties to the A. Background to the Convention: The Role of the United States and Mexico An analysis of the UNESCO Convention is aided by an understanding of the efforts of the United States and Mexico due to their key role in the process that culminated in the adoption of the Convention. The actual process was initiated in 1960 when Mexico, along with Peru, urged the UNESCO General Conference to adopt global measures to stem the unlawful trade in cultural property. 32 In 1968, it was at the initiative of Mexico that authorization to convene a special committee to draft a convention was adopted by the UNESCO General Conference. 33 Mexico was a strong supporter of the resulting document, the Secretariat Draft, 34 which provided for strong national protection of cultural property by imposing blanket export and import controls. 35 The final text of the Convention was strongly influenced by the United States. When the United States became involved in the drafting process, 36 it expressed objections to many provisions in the Secretariat Draft, which were considered too ambitious. 37 The State Department subsequently prepared its own draft to serve as an alternative basis for discussion. 38 The eventual key to the successful adoption of the Convention was working out a position that both the United States and Mexico would support. 39 In negotiations prior to the final adoption, the United States led one faction that agreed with the U.S. position almost completely. 40 Another large group of states, the most important of which was Mexico, was attracted to the more protective Secretariat approach, but was also interested 30. Forbes, supra note 15, at U.S. Dep t of State, Treaties in Force 414 (2000). See also UNESCO Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, List of States Parties, at (last updated Sept. 13, 2002). The Convention entered into force for Mexico in 1973 and the United States in KIFLE JOTE, INTERNATIONAL LEGAL PROTECTION OF CULTURAL HERITAGE (1994); PATRICK J. O KEEFE, COMMENTARY ON THE UNESCO 1970 CONVENTION ON ILLICIT TRAFFIC 12 (2000). This resulted in the adoption of a nonbinding instrument in Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, Nov. 19, 1964, reprinted in UNESCO, THE PROTECTION OF MOVABLE CULTURAL PROPERTY I: COMPENDIUM OF LEGISLATIVE TEXTS 382 (1984) [hereinafter UNESCO Recommendation]. Later in the decade, Mexico was one of the primary states to push for a legally binding instrument to replace the 1964 Recommendation. UNESCO, THE PROTECTION OF MOVABLE CULTURAL PROPERTY I: COMPENDIUM OF LEGISLATIVE TEXTS 21 (1984) [hereinafter UNESCO COMPENDIUM]. 33. Abramson & Huttler, supra note 1, at This was a preliminary draft convention meant to serve as a point of departure for the legislative process leading up to the eventual Convention. Paul M. Bator, An Essay on the International Trade in Art, 34 STAN. L. REV. 275, 371 (1982). 35. Abramson & Huttler, supra note 1, at This is known as the blank check approach. Bator, supra note 34, at The United States was largely uninterested in the process until the late 1960s. PROTT & O KEEFE, supra note 20, at 727. U.S. interest in the Convention was a result, at least in part, of a desire to develop better relations with, and gain the support of, a number of developing states in its own hemisphere given the changing political composition of international organizations at the time. Id. at 727; Abramson & Huttler, supra note 1, at 957. The United States was also alarmed at the increase in a large-scale, multimillion dollar enterprise in the illegal traffic of art, particularly pre-columbian artifacts. Abramson & Huttler, supra note 1, at Bator, supra note 34, at Id. 39. Id. at 374; O KEEFE, supra note 32, at Bator, supra note 34, at 374.

6 150 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:145 in a draft that the United States could accept. 41 The final text of the Convention was substantially similar to the nonbinding recommendation adopted in 1964, 42 but many provisions were amended by inserting language such as consistent with national legislation or as appropriate for each country to appease the United States by giving states leeway in their implementation of the Convention. 43 B. Text of the UNESCO Convention 1. Purpose, Definitions, and Export Controls The basic purpose of the UNESCO Convention is to inhibit the illicit 44 international trade in cultural objects, which was declared to be one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property. 45 The goals and basic principles envisioned by the Convention are set forth in its Preamble. 46 The Convention articulates both national and international goals 47 and declares international cooperation to be one of the most efficient means of protecting each country s cultural property Despite the recognition of both national and international goals, the Convention primarily adopts the nationalist view on cultural property. 49 Support for this view is evident in the Preamble, which declares that it is incumbent upon every State to protect cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export. 50 Claims for national retention by source states find support in the Convention s statement that the true value of cultural property can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting, 51 suggesting that the importance of cultural property is diminished when removed from its traditional setting in the country of origin. 41. Id. 42. UNESCO COMPENDIUM, supra note 32, at Prott, supra note 4, at Although such language may have decreased the UNESCO Convention s efficacy by leaving great discretion to each state in implementing the provisions of the Convention, it was probably necessary to secure the support needed for the Convention to be adopted. See Bruce Zagaris & Jessica Resnick, The Mexico-U.S. Mutual Legal Assistance in Criminal Matters Treaty: Another Step Toward the Harmonization of International Law Enforcement, 14 ARIZ. J. INT L & COMP. L. 1, 69 (1997). 44. Although illicit may be defined as [i]llegal or improper, BLACK S LAW DICTIONARY 750 (7th ed. 1999), some ambiguity arises from the use of illicit in the UNESCO Convention because the terms illegal and unlawful are generally preferred in English language statutes as illicit tends to imply immorality. O KEEFE, supra note 32, at 44. The text was probably intended to mean that the import, export, or transfer of ownership of cultural property effected contrary to provisions adopted under the Convention were to be considered contrary to law, as suggested in the French text, rather than merely improper or unethical. Id.; see also infra text accompanying notes UNESCO Convention, supra note 9, art. 2(1). 46. The preamble is significant because it may be used as an aid in the interpretation of an international convention. Vienna Convention on the Law of Treaties, May 23, 1969, art. 31(2), 1155 U.N.T.S. 331, 340; see also PROTT & O KEEFE, supra note 20, at For example, the Preamble encourages the interchange of cultural property among nations and states that cultural property is considered to constitute one of the basic elements of both civilization and the national culture. UNESCO Convention, supra note 9, pmbl. The Preamble also directs each state to become alive to the moral obligations to respect its own cultural heritage and that of all nations. Id. (emphasis added). 48. Id. art. 2(1). 49. See Merryman, Two Ways, supra note 13, at UNESCO Convention, supra note 9, pmbl. (emphasis added). 51. Id.

7 2003] THE 1970 UNESCO CONVENTION, THE UNITED STATES, AND MEXICO 151 The principle definitions of the Convention give further evidence of the cultural nationalist view. In establishing what would qualify as cultural property under the Convention, individual states were granted wide latitude in determining what property would be protected within their territory. Article 1 52 set forth a two-part definitional test for cultural property. First, cultural property was defined as property which, on religious or secular ground, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science. 53 The language specifically designated by each State gave individual states broad power to determine what they would protect as cultural property. 54 The second part of the definition circumscribed state discretion to some extent by establishing a number of general categories into which objects must fall to qualify as cultural property under the Convention. 55 The other key term of the Convention, illicit, was also given meaning through the national laws of individual states. Article 3 declares that [t]he 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. 56 Thus, any transfer of cultural property in violation of the laws enacted by the country of origin to protect its cultural heritage is illicit, and thus prohibited under the Convention. 57 The full effect of Article 3 can be best appreciated in relation to Article 6, which imposes a broad restriction by prohibiting the export of cultural property that is not 52. For the purposes of this Convention, the term cultural property means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; (g) property of artistic interest... ; (h) rare manuscripts and incunabula, old books, documents and publications of special interest... ; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments. Id. art Id. The phrase specifically designated by each state could presumably be accomplished by placing export restrictions or prohibitions on important cultural items that have been classified and supplemented by a general description of objects not yet known about or discovered, or through a categorization system in which a very general description indicates what is covered. O KEEFE, supra note 32, at 37. At least one author believes the specifically designated restriction should be regarded as merely a reminder to exporting countries to try to restrict their controls to significant items. Bator, supra note 34, at UNESCO Convention, supra note 9, art. 1 (emphasis added). The 1954 Hague Convention provides an example of how the cultural internationalist view defines cultural property: the term cultural property shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people.... Hague Convention, supra note 16, art. 1 (emphasis added). 55. UNESCO Convention, supra note 9, art. 1(a) (k). See supra note UNESCO Convention, supra note 9, art. 3; see also supra note See UNESCO COMPENDIUM, supra note 32, at 22.

8 152 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:145 accompanied by an export certificate. 58 Article 6 requires that states undertake to control exports from their territory through the use of a certification system to specify that the export of a cultural item has been legally authorized. 59 The combination of the export restriction in Article 6 and the Article 3 definition of illicit means that it is illegal for a state to import cultural property without export authorization from the country of origin. 60 Thus, although an object may otherwise be legally imported, under the Convention it should be considered illicit based on the exporting state s laws. 2. Articles 7 and 9 The heart of the UNESCO Convention is composed of Articles 7 and 9, which contain the major substantive provisions 61 and emphasize the need for international cooperation in the preservation of cultural property. While Article 6 imposes export restrictions, Article 7 is concerned with import restrictions. 62 Article 7(a) 63 imposes an obligation on states to prevent museums and similar institutions within their territories from acquiring cultural property that has been illegally exported from the country of origin. 64 The strength of this Article is limited by the language consistent with national legislation, which was inserted at the request of the United States and was interpreted to confine the provision to museums whose acquisition policies are under governmental control. 65 The acquisition policies of nongovernmental museums were left subject only to moral persuasion. 66 Article 7(b) 67 contains two complementary subparts: Article 7(b)(i) requires states to prohibit the import of cultural property stolen from a museum or other public institution, 68 while Article 7(b)(ii) requires states to take appropriate steps to recover and return such property. 69 However, to fall within the protection of Article 7(b), cultural property must 58. Bator, supra note 34, at The States Parties to this Convention undertakes: (a) To introduce an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorized... ; (b) to prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate. UNESCO Convention, supra note 9, art. 6(a) (b). 60. See JOTE, supra note 32, at 207; O KEEFE, supra note 32, at Bator, supra note 34, at Originally both sets of restrictions were to be in the same article and would have essentially prevented anything illegally exported from one country to be imported by another. John B. Gordon, The UNESCO Convention on the Illicit Movement of Art Treasures, 12 HARV. INT L L.J. 537, 549 (1971). In the final draft of the Convention, however, import restrictions were much more limited than the general export restriction. Id. 63. The States Parties to this Convention undertake: (a) To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. UNESCO Convention, supra note 9, art. 7(a). 64. Id. 65. O KEEFE, supra note 32, at 58. The effect of this provision on the United States is minimal since it would only limit the policies of at most four museums in the country: the Library of Congress and the National Archives are subject to government control, while the status of the National Gallery and the Smithsonian Institution is unclear. Id. 66. Bator, supra note 34, at The States Parties to this Convention undertake:... (b)(i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution; (ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned.... UNESCO Convention, supra note 9, art. 7(b). 68. Id. art. 7(b)(i). 69. Id. art. 7(b)(ii).

9 2003] THE 1970 UNESCO CONVENTION, THE UNITED STATES, AND MEXICO 153 have been: (1) stolen after the entry into force of the Convention, (2) removed from a museum or similar institution, and (3) documented as belonging to the inventory of that institution. 70 Thus, cultural property not stolen from a public institution could still be legally imported. 71 Since many legal systems already have legal proceedings for the return of stolen property, Article 7(b) may provide few benefits in substance, although simplified proceedings are created and some civil claims may be permitted that would otherwise be barred by the lapse of time. 72 In addition, Article 7(b) commits the government to lend its aid in seeking the seizure and return of such property. 73 The article also provides for compensation to an innocent purchaser and requires that the requesting party furnish evidence to establish its claim and bear the expenses incident to the property s return. 74 The purpose of Article 9 75 is to encourage multilateral action when a state s cultural patrimony is in danger. 76 This article provides for a state whose cultural patrimony is in jeopardy to call upon other States Parties who are affected and to undertake to participate in a concerted international effort to determine and to carry out the necessary concrete measures. 77 The provision is, however, limited to archaeological or ethnological materials. 78 Article 9 does not impose direct obligations on states to adopt import restrictions, but rather provides for the application of import controls on a case-by-case basis following a process of negotiation. 79 It provides for a flexible approach and places no limitation on the types of concrete measures, including multilateral and bilateral agreements, that can be taken. 80 A strict reading of the obligation for states to participate in a concerted international effort suggests that a state need not adopt measures under Article 9 unless there is cooperation from others in the international community Id. art. 7(b)(i). 71. Abramson & Huttler, supra note 1, at 961. Arguably, the limitations in Article 7(b) are justified because they would cover cultural objects most likely to fall within the core of a nation s patrimony since they would be documented as forming part of a public institution s collection. Bator, supra note 34, at 356. However, other potentially important components of a national patrimony, such as archaeological objects illegally excavated or objects from private collections, would not be protected. Abramson & Huttler, supra note 1, at O KEEFE, supra note 32, at See Bator, supra note 34, at UNESCO Convention, supra note 9, art. 7(b)(ii). The requirement that states must pay compensation to the innocent purchaser of cultural property has been criticized by source nations, many of which lack sufficient economic resources to satisfy the high prices of the international art market. VÍCTOR FUENTES CAMACHO, EL TRÁFICO ILÍCITO INTERNACIONAL DE BIENES CULTURALES 256 (1993). 75. Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. UNESCO Convention, supra note 9, art. 9. This article was adopted at the urging of the United States and was supported by a group of thirteen countries, including the United States and Mexico. Bator, supra note 34, at Bator, supra note 34, at UNESCO Convention, supra note 9, art Bator, supra note 34, at 340. Thus, not all cultural property defined in Article 1 is afforded protection under Article 9. Id. For example, a country such as Italy would be unable to call for assistance under Article 9 to protect its Renaissance paintings and sculpture against extensive art smuggling. See O KEEFE, supra note 32, at Bator, supra note 34, at Abramson & Huttler, supra note 1, at 962; Gordon, supra note 62, at Bator, supra note 34, at 340.

10 154 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38: Expectation of Additional Measures The drafters of the UNESCO Convention recognized that the Convention would not by itself provide sufficient protection against the illicit traffic in cultural property. Because of the diverse interests of individual states and the need for international cooperation, the Convention envisioned that the protection of cultural property would be advanced through additional measures adopted by states. 82 The UNESCO Convention contemplated a range of national and international protective measures that could be taken. The Preamble declares that cultural heritage can only be effectively protected if organized both nationally and internationally, 83 and Article 2 imposes an obligation on states to oppose the illicit traffic of cultural property with the means at their disposal. 84 In addition, Article 9 calls for international cooperation as a means of protecting archaeological and ethnological materials in jeopardy. 85 Bilateral or multilateral agreements among states are encouraged by Article 15, which expressly provides that [n]othing in this Convention shall prevent States Parties thereto from concluding special agreements among themselves or from continuing to implement agreements already concluded regarding the restitution of cultural property removed. 86 III. U.S. IMPLEMENTATION OF THE UNESCO CONVENTION The United States Senate gave its unanimous advice and consent to the UNESCO Convention in 1972, but it was subject to one reservation and six understandings. 87 One 82. See, e.g., Harrie Leyten, Illicit Traffic and the Collections of Western Museums of Ethnography, in ILLICIT TRAFFIC IN CULTURAL PROPERTY: MUSEUMS AGAINST PILLAGE 14, (Harrie Leyten ed., 1995). Additional measures stipulated by the UNESCO Convention to be taken by states include: setting up national services for the protection of cultural heritage (art. 5); establishing a national inventory of protected property (art. 5(b)); introducing export certificates (art. 6(a)); using educational means to create greater respect for cultural property (art. 10(b)); preventing transfers of ownership of cultural property likely to promote the illicit import or export of such property (art. 13(a)); and providing an adequate budget to national services responsible for the protection of cultural property (art. 14). UNESCO Convention, supra note UNESCO Convention, supra note 9, Preamble. 84. Id. art. 2(2). 85. See id. art Id. art. 15. The 1964 Recommendation was even more explicit in calling for additional agreements by declaring, Whenever necessary or desirable, Member States should conclude bilateral or multilateral agreements... to resolve problems related to the illicit traffic in cultural property. UNESCO Recommendation, supra note 32, para. 13 (emphasis added). 87. The U.S. Senate unanimously stated: The United States reserves the right to determine whether or not to impose export controls over cultural property. The United States understands the provisions of the Convention to be neither self-executing nor retroactive. The United States understands Article 3, not to modify property interests in cultural property under the laws of the states parties. The United States understands Article 7(a) to apply to institutions whose acquisition policy is subject to national control under existing domestic legislation and not to require the enactment of new legislation to establish national control over other institutions. The United States understands that Article 7(b) is without prejudice to other remedies, civil or penal, available under the laws of the states parties for the recovery of stolen cultural property to the rightful owner without payment of compensation. The United States is further prepared to take the additional steps contemplated by Article 7(b)(ii) for the return of covered stolen cultural property without payment of compensation, except to the extent required by the Constitution of the United States, for those states parties that agree to do the same for the United States institutions.

11 2003] THE 1970 UNESCO CONVENTION, THE UNITED STATES, AND MEXICO 155 understanding was that the Convention s provisions were not self-executing, 88 which meant that implementing legislation was required for the Convention to go into effect in the United States. 89 It took a decade of debate by special interest groups before the legislation was passed, enabling the United States to become a full signatory state to the UNESCO Convention. 90 A. Cultural Property Implementation Act With the passage of the Convention on Cultural Property Implementation Act (CPIA) 91 in 1983, the United States became the first major art-importing country to become a party to the UNESCO Convention. 92 The CPIA adopted the UNESCO Convention s definition of cultural property, although an object need not be specifically designated by the country of origin to qualify for protection. 93 The provisions of the CPIA specifically implement, with modifications, Articles 7(b) and 9 of the UNESCO Convention. 94 The CPIA essentially authorizes the U.S. government to work toward curbing the illicit trade in cultural property in two ways: (1) by allowing the president to impose import restrictions on specific types of artifacts at the request of another state that is losing significant archaeological or ethnological materials to pillage and illegal export; 95 and (2) by prohibiting entry into the United States of cultural property inventoried and stolen from another country s public collection. 96 The U.S. Customs Service is responsible for enforcing the restrictions against the importation of cultural property covered by the CPIA. 97 The United States understands the words as appropriate for each country in Article 10(a) as permitting each state party to determine the extent of regulation, if any, of antique dealers.... The United States understands Article 13(d) as applying to objects removed from the country of origin after the entry into force of this Convention for the states concerned, and... the means of recovery of cultural property under subparagraph (d) are the judicial actions referred to in subparagraph (c) of Article 13, and that such actions are controlled by the law of the requested State, the requesting State having to submit necessary proofs. 118 CONG. REC. 27, (1972). 88. Id. at 27, S. REP. NO , at 24; USIA, PRESERVING MANKIND S HERITAGE, supra note 8, at UNITED STATES INFORMATION AGENCY, CURBING ILLICIT TRADE IN CULTURAL PROPERTY: U.S. ASSISTANCE UNDER THE CONVENTION ON CULTURAL PROPERTY IMPLEMENTATION ACT 2 (1989) [hereinafter USIA, CURBING ILLICIT TRADE]. The congressional report in 1982 on the implementing legislation took into account the reservation and understandings accompanying the Senate s advice and consent to ratification of the UNESCO Convention in S. REP. NO , at 22, 24 (1982). The Secretariat Draft did not permit reservations, but that clause was removed from the final text. Bator, supra note 34, at Convention on Cultural Property Implementation Act, 19 U.S.C (2000). 92. USIA, PRESERVING MANKIND S HERITAGE, supra note 8, at 9. In passing the implementing legislation, the United States was concerned that U.S. relations with countries of origin had been strained by the discovery of stolen or illicitly exported cultural objects in the United States, and that the demand for cultural artifacts had led to the deprivation of cultural patrimonies and the loss of knowledge about the world s past due to the irremedial destruction of archaeological sites and articles. S. REP. NO , at 23 (1982) U.S.C. 2601(6). 94. Potter & Zagaris, supra note 2, at USIA, CURBING ILLICIT TRADE, supra note 90, at 1. The imposition of import restrictions was to be accomplished primarily through ad hoc international arrangements. See S. REP. NO , at 21 (1982). 96. USIA, CURBING ILLICIT TRADE, supra note 90, at Id. at 3. The procedures for carrying out and enforcing the provisions of the CPIA are set forth in the Code of Federal Regulations. 19 C.F.R (2001).

12 156 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:145 Article 9 of the UNESCO Convention was implemented by Section 2602 of the CPIA. 98 Following a formal request under Article 9 of the UNESCO Convention, 99 the President of the United States may enter into bilateral agreements to apply import restrictions on archaeological or ethnological material in jeopardy of pillage, or multilateral agreements under which the United States will apply similar restrictions to those applied by other countries. 100 The president s ability to enter into an agreement under the CPIA is limited by a number of restrictions, however. 101 The president must determine that (1) the state s cultural patrimony... is in jeopardy from the pillage of archaeological or ethnological materials ; (2) the state has taken protective measures consistent with the Convention; (3) import restrictions would substantially deter a serious situation of pillage ; (4) less drastic remedies are not available; and (5) the application of import restrictions would be consistent with the international community s interest in cultural exchange. 102 Most countries avoid using the CPIA because of its complexity and cumbersome requirements. 103 Some relief from the limitations under Section 2602 is available in the form of import restrictions in emergency situations. 104 Section 2603 allows for import restrictions to be imposed on a temporary basis if they would reduce the incentive for pillage, dismantling, or dispersal of archaeological or ethnological materials. 105 The application of emergency import restrictions requires a determination that an emergency condition exists, 106 which is narrowly defined. 107 The requesting country must supply documentation to establish that an emergency condition exists 108 and the restrictions are limited to five years, with a possible three-year extension if the emergency condition continues There is debate over whether the U.S. implementation of Article 9 is a proper interpretation of the Article. In passing the CPIA, the United States seems to have accepted a reading of the word jeopardy in Article 9 to limit its application to situations of crisis or emergency. See Bator, supra note 34, at 379; O KEEFE, supra note 32, at 73. Critics of the crisis reading argue that such language never appears in the actual language of the Convention and that the article is meant to be read more broadly. Panel on the U.S. Enabling Legislation, supra note 22, at ; O KEEFE, supra note 32, at Because of the strict requirements imposed for U.S. assistance under Article 9, it has been suggested that the United States has taken the narrowest possible interpretation of the article. Prott, supra note 4, at U.S.C. 2602(a)(1) (2001); USIA, CURBING ILLICIT TRADE, supra note 90, at U.S.C. 2602(a)(2)(A) (B). Agreements are limited to the protection of archaeological or ethnological materials, as defined in Id. 2602(a)(1)(A) Canada, on the other hand, simply requires a request to trigger the relevant provisions of the UNESCO Convention. Prott, supra note 4, at U.S.C. 2602(a)(1)(A) (D) Jamison K. Shedwill, Is The Lost Civilization of the Maya Lost Forever?: The U.S. and Illicit Trade in Pre-Columbian Artifacts, 23 CAL. W. INT L L.J. 227, 245 (1992) U.S.C The United States may take action unilaterally under this section. Potter & Zagaris, supra note 2, at USIA, PRESERVING MANKIND S HERITAGE, supra note 8, at U.S.C. 2603(c)(1) To qualify as an emergency condition, material must fall within one of three categories: (a) a newly discovered type of material which is of importance for the understanding of the history of mankind and is in jeopardy from pillage, dismantling, dispersal, or fragmentation; (b) identifiable as coming from any site recognized to be of high cultural significance if such site is in jeopardy from pillage, dismantling, dispersal, or fragmentation which is, or threatens to be, of crisis proportions; or (c) a part of the remains of a particular culture or civilization, the record of which is in jeopardy from pillage, dismantling, dispersal, or fragmentation which is, or threatens to be, of crisis proportions. Id. 2603(a)(1) (3) Id. 2603(c)(1) Id. 2603(c)(3).

13 2003] THE 1970 UNESCO CONVENTION, THE UNITED STATES, AND MEXICO 157 Once an agreement or emergency action enters into force, the Secretary of State must promulgate a list of the protected archaeological or ethnological materials. 110 After the materials subject to restriction have been designated, Section 2606 prohibits the importation of such materials into the United States, unless accompanied by a certificate proving that it was not exported in violation of the laws of the country of origin. 111 Because the United States only applies a restriction to the importation of cultural objects without an appropriate export certificate when the objects are subject to an agreement, the U.S. implementation of the UNESCO Convention gives only nominal recognition to Article The CPIA s implementation of Article 7(b)(i) of the UNESCO Convention applies nearly identical requirements to the Convention. Section 2607 prohibits the importation of any cultural property stolen from a museum or other public institution, provided that the object is documented as inventory of the institution. 113 Although the CPIA does not implement the recovery and return provision of Article 7(b)(ii), one of the understandings submitted by the United States to UNESCO stated that it was prepared to take steps contemplated by that Article for the recovery and return of stolen cultural property, provided that other states agreed to do the same for U.S. institutions. 114 Section 2607 only applies to property that was stolen after the later of the date on which the CPIA went into effect or the UNESCO Convention entered into force in the other state. 115 Cultural property imported into the United States in violation of Sections 2606 or 2607 is subject to seizure and forfeiture under the CPIA, 116 and foreign property forfeited to the United States is first offered for return to the country of origin. 117 The first significant seizures and returns of cultural property under the CPIA occurred in Objects have since been returned under the stolen property provisions to Greece, Italy, Mexico, Guatemala, and Turkey, although overall statistics are not kept for objects seized and returned under the CPIA. 119 Several executive agreements and emergency actions are currently in effect under the CPIA to protect the cultural property of various nations. 120 Prior to the CPIA, the United States and Mexico signed a bilateral treaty for the protection and return of cultural property, 121 but the United States has not subsequently entered into an agreement with 110. Id The list ensures fair notice to importers of the materials subject to customs restrictions Id. 2606(a) See O KEEFE, supra note 32, at 55. The CPIA does not implement Article 6(b) at all. Id. at 108. With regard to its own cultural property, the United States reserved the right to not impose export controls. 118 CONG. REC. 27,925 (1972) U.S.C Unlike the other provisions in the CPIA, Section 2607 applies to all cultural property, not only archaeological and ethnological materials. Potter & Zagaris, supra note 2, at CONG. REC. 27,925; see also supra note U.S.C Id. 2609(a). Foreign objects may also be subject to seizure under the Pre-Columbian Act, the National Stolen Property Act, or U.S. customs laws. See infra notes 217, 229, and accompanying text Id. 2609(b)(1), (c)(2)(a). The U.S. Customs Service returns seized artifacts to the embassy of the country of origin. USIA, CURBING ILLICIT TRADE, supra note 90, at Several gold pieces were returned to Peru in May 1996 under emergency measures adopted pursuant to the CPIA. Nafziger, Seizure and Forfeiture, supra note 3, at 29. July 1996 marked the first court-ordered return of stolen cultural property under the CPIA. Id. at 19; see also infra note 125 and accompanying text O KEEFE, supra note 32, at ; see also infra Part III.B Bilateral agreements or emergency import restrictions are currently in effect for the following countries: Bolivia, Cambodia, Canada, Cyprus, El Salvador, Guatemala, Italy, Mali, Nicaragua, and Peru. U.S. STATE DEP T, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS, Chart of Current and Expired Import Restrictions Under the Convention on Cultural Property Implementation Act, at (last updated Sept. 30, 2002) See infra Part IV.A.