Free Trade and the Protection of Cultural Property: The Need for an Economic Incentive to Report Newly Discovered Antiquities

Article excerpt

I. INTRODUCTION

In the past three decades there have been strong legal and ethical reactions to the international trade of antiquities, or "cultural property."' In 1970 the United Nations Educational, Scientific and Cultural Organization (UNESCO) held a convention and issued a multilateral agreement and recommendations for national action in an effort to achieve cooperation between art-rich and art-collecting nations.2 Unfortunately, this convention has done little to discourage illicit trade in cultural property.3 In response to the increasing destruction of archaeological sites, several artifact-rich nations have passed legislation declaring national ownership and prohibiting the export of any object found in the country's soil.4 Further, the courts of the United States have been called upon to decide several well-publicized cases in which foreign governments sought the return of illegally acquired art.5

The illegal trade in cultural property may be separated into two categories: stolen and looted.fi For the purposes of this Note, art theft constitutes the act of depriving an individual or entity of their rights of ownership.7 Looting is the act of excavating or pillaging a natural site that contains artifacts, whether or not the site was previously discovered.8 Generally, three groups commit looting of cultural property: bands of professionals that use sophisticated equipment to unearth antiquities and fly them out of the country on a large scale;9 dealers and collectors who purchase cultural property without regard for its provenance;lo or local residents who either come across artifacts while working on their land, or dig for them in order to supplement their incomes.ll This Note focuses on the latter, a group whose contributions to the illicit art trade are not founded on a desire to accumulate wealth or to collect objects of beauty, but in the need to support themselves and their families,l2 and in the fear of losing their land to the government.l3 In this situation artifacts are sold at a fraction of their true value, often for the price of a meal or a pair of shoes.l4

Part II of this Note discusses the values involved in cultural protectionism and diversity, and the motivations behind the sale of antiquities by local residents. In addition, Part II examines international agreements aimed at curbing the illegal art trade and compares two models of national legislation, namely, (1) statutes that create an art embargo and provide criminal sanctions as a trade disincentive, and (2) laws that authorize the export of items that are not essential to a culture's identity and provide an incentive for finders to report their discoveries.

Part III considers a refined definition of "cultural property" that would enhance multicultural understanding and serve as a basis for new international agreements and national legislation. Part III also explores economic incentives for residents to report their findings to a proper government authority. Finally, the Note proposes a method of allowing residents to profit from their discoveries by selling nonessential items at prices closer to their true value through the use of local or national catalogs financed by the cooperative efforts of national governments and private enterprise.

II. DISCUSSION

A. Protectionism and Diversity: The Role of the Resident Two schools of thought characterize the debate on international trade in cultural property: protectionism and diversity. Proponents of protectionism argue that the looting of archaeological sites and the export of cultural property strip a civilization of its history and identity.15 As a result, looting prevents members of a culture from rediscovering the past and identifying with their ancestral traditions.lfi Moreover, protectionists argue that indigenous populations become trapped in the values forced upon them by Western civilization,l7 while global society loses an opportunity to discover ancient practices. …