Strengthening the International Regime for the Prevention of the Illicit Trade in Cultural Heritage

Article excerpt

[Whilst the illicit movement and trade of movable cultural heritage has long been of international concern, it has re-emerged in recent times as a contemporary problem for international law--states in conflict, such as Afghanistan, Iraq and Palestine, have opened up new sources of terrestrial cultural heritage in need of protection, and improved diving technologies have exposed the riches of underwater cultural heritage to unscrupulous operators. The UNESCO Convention was adopted in 1970 to address such issues, with only limited success due to the reluctance of 'market' states to become state parties. This commentary considers a number of recent moves that have contributed to a strengthening of the current regime to prevent the illicit recovery, movement and trade in cultural heritage, including the adoption by UNESCO of a convention specifically aimed at protecting the underwater cultural heritage. Given the difficulty of enforcing foreign cultural heritage laws in 'market' states, 'source' states have had to rely on claims of ownership, rather than illicit recovery and exportation claims, as the basis for repatriation. This commentary also considers the landmark Schultz case in the US, the world's major market state for cultural heritage, which has taken a more stringent approach to enforcing foreign state ownership laws.]

CONTENTS

I   Introduction
II  The Illicit Traffic in Underwater Cultural Heritage
III The Exportation of Cultural Heritage and Conventional International
    Law
      A The Problem of Enforcing Source State Exportation Laws
      B The Protection Regime under the UNESCO Convention
      C The UNIDROIT Convention
      D The UCH Convention
      E A New Wave of Membership for the UNESCO Convention
IV  A Private International Law Perspective: Repatriation on the
    Basis of Ownership
V Conclusion

I INTRODUCTION

In 1970, due to concern with the growing market demand for cultural heritage and the illicit trade that has resulted from this demand, the United Nations Educational, Scientific and Cultural Organisation ('UNESCO') adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. (1) Despite this, the hope of reducing exploitation of the world's archaeological and cultural heritage has been eroded as illicit trade has increased over the past three decades. (2) The trade is now estimated to be worth up to US$2 billion a year, second only to the illicit trade in drugs and weapons. (3) Recently, however, there has been a resurgence in the battle against this illicit trade, both in the international and domestic spheres. In part, this may be a result of concerns with regard to cultural heritage in danger from military activities and regimes which often spawn an illicit trade, as demonstrated by the destruction of the Bamiyan Buddhas in Afghanistan, (4) the historic town of Nablus in Palestine (5) and more recently, the destruction and looting of the National Museum of Iraq, Baghdad's National Library and other archaeological sites in Iraq. (6) These concerns have necessitated a reconsideration of the international regime of conventional international cultural heritage law as embodied in a series of conventions. In a similar manner, the discovery in 1985 of the RMS Titanic wreck has indirectly contributed to the development of a new instrument aimed at the protection of underwater heritage.

In November 2001, UNESCO adopted the Convention on the Protection of the Underwater Cultural Heritage. (7) The UCH Convention, while not yet in force, will supplement UNESCO's three other heritage conventions: the 1954 Convention on the Protection of Cultural Heritage in the Event of Armed Conflict, (8) the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage (9) and the 1970 UNESCO Convention. The adoption of a new international convention in this sphere enables the provision of a more integrated protection regime for terrestrial and underwater cultural heritage. …

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