Import restricted, the efficacy of bilateral cultural agreements
Rooted in the pursuit of profit and personal collection, the spoilage of cultural property is a trade that has, since antiquity, been a valuable economic exchange. From the trial of Roman Magistrate Gaius Verres by Marcus Cicero for the looting of Syracuse to the Roman practice of lining villas with seized Greek art, the market for illicit cultural property seems eternal. The United States has played an ever-increasing role in the expansion of this repugnant market, and with lax international enforcement and regulations, little has stymied the growth of this lucrative yet unethical practice. However, in 1995, the U.S. took a large step towards combating looting by creating its first bilateral cultural property agreement with El Salvador, and later penning agreements with Peru, Mali, Guatemala and Canada. With only 28 in existence, bilateral cultural agreements are challenging to obtain and do not operate as blanket bans on looted goods, but analyzing their efficacy and underutilization in U.S. foreign policy is nonetheless essential as the existence of bilateral agreements and conjoining criminal law indicates a changing attitude towards safeguarding cultural heritage.
One of the first international agreements regarding cultural property and the impetus for bilateral agreements came in 1970 when the United Nations Educational Scientific and Cultural Organization (UNESCO) adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. Despite the urgency of the convention, it took Congress,, 13 years to respond when it enacted the Cultural Property Implementation Act of 1983 (CPIA). The CPIA grants the U.S. the authority to enter into bilateral agreements only with signatories of the 1970 UNESCO Convention, enabling the United States to close its borders to illicitly traded materials while protecting legitimate markets. In initiating an agreement, a signatory must present to the State Department a detailed “statement of facts” and supporting documentation that addresses four requirements. The application is then reviewed by the Cultural Property Advisory Committee, a Presidentially appointed eleven-member committee that recommends approval or disapproval. Once approved, import restrictions are agreed upon with notice posted in the Federal Register and a list of protected objects is subsequently published.
Unfortunately, bilateral agreements lack retroactive capability and remain valid for only five years. While they can be indefinitely renewed, the current total of 28 agreements (including bilateral agreements and emergency actions) remains small compared to the 40-year existence of the CPIA and potential 167 countries. Notably, an agreement with Cambodia is set to expire in 2023, followed by four agreements with Algeria, Bulgaria, China and Honduras expiring in 2024. While President Biden and Indian Prime Minister Narendra Modi expressed a desire for an agreement in June 2023, its realization remains uncertain with limited updates. Furthermore, ICE and CBP are responsible for enforcement under the CPIA, and can enact a seizure and forfeiture of the goods but cannot attach any individual liability, as the government does not need to establish a mens rea but only the physical presence of the items in the United States.
Cultural property law holds both civil and criminal implications. While the CPIA is civil legislation, criminal legislation like 18 U.S.C. §§ 545 and 2315 as well as the National Stolen Property Act (NSPA), are often seen in combined force. While smuggler Ana Cecilia Marcillo Muirragui pled guilty to one violation of 18 U.S.C. § 545 for the smuggling of nine pre-Columbian artifacts and subsequent forfeiture of 165 more, the largest mechanism for criminal enforcement can be found through the NSPA. Not as widely known as NAGPRA or ARPA, the NSPA is a legal mechanism that enables foreign countries with patrimony laws to claim ownership of cultural property and prosecute removal as theft. The largest case under the NSPA was United States v. McClain, which held that foreign laws can vest ownership of heritage objects that must be recognized by United States courts. However, to some, McClain held the ability of the NSPA to accept all patrimony law as valid, challenges and possibly invalidates the CPIA’s mandate for control of looted archeological sites. Following McClain, Congress sought to remove cultural property as actionable under the NSPA but failed to do so. As of 2019, there have only been three convictions under NSPA. In United States v. Schultz, the 2nd Circuit affirmed the NSPA’s applicability and rejected the notion that the CPIA supersedes the NSPA and affirmed that violations of the CPIA and NSPA may coexist. However, the court failed to define a circumstance in which they could coexist, keeping open the possibility of an accompanying criminal prosecution despite the CPIA serving as a civil matter.
The scarcity of cultural property agreements under the CPIA, which operates as a civil law with limited criminal prosecution, raises the question of why so few agreements exist. One potential reason is the lack of legal and prosecutorial harmony between the NSPA and the CPIA, which has seen many tumultuous cases like Schultz and McClain challenging the efficacy of each and questioning the civil and criminal implications that come with the CPIA. Clearing up some confusion from McClain, the court in Schultz reasoned there is a chance of the CPIA being brought in conjunction with NSPA criminal charges. However, the CPIA brings no individual charges upon an illicit smuggler; rather, it is through the addition of charges under the NSPA or 18 U.S.C. § 545 and 2315 that criminal action can be taken. For some signatories, knowledge of unlikely prosecution and legal disharmony may be a non-participatory desire; however, some challenges can be seen in the lack of publicity or notice of these agreements, the difficulty in establishing rightful ownership for objects from vast ancient civilizations and the increasing popularity of internet sales, especially on platforms such as eBay and Facebook. As cultural property is seized and institutions promulgate new standards, practitioners should closely examine imported cultural property and advise clients of existing safeguards accordingly, albeit with the knowledge of the seemingly liminal enforcement of these restrictions.