Controlling the Market: An Analysis of the 1970 UNESCO Rule on Acquisition and the Market for Unprovenanced Antiquities

By Baker, Lauren | Stanford Journal of International Law, Summer 2016 | Go to article overview

Controlling the Market: An Analysis of the 1970 UNESCO Rule on Acquisition and the Market for Unprovenanced Antiquities


Baker, Lauren, Stanford Journal of International Law


INTRODUCTION                                                      322 I. BACKGROUND TO MUSEUM SELF-REGULATION                           323    A. U.S. Law on Stolen International Antiquities                323    B. The History of the 1970 Rule on Acquisition                 325 II. THE 1970 RULE AND MARKET SELF-REGULATION                      327     A. Market Self-Regulation                                     327     B. Self-Regulation as Applied to Museum Acquisition Policies  328     C. A Case Study of the U.S. Market for Unprovenanced          329     Antiquities        1. Impact of 1970 Rule on Price of Antiquities             329        2. Proportion of Provenanced Antiquities in the Market     331 III. FLAWS IN THE SELF-REGULATION SYSTEM                          332      A. Cultural Nationalism and Cultural Internationalism:         Forces Two Competing                                      332      B. Lack of External Enforcement                              334 IV. OTHER SOLUTIONS                                               334      A. Stronger Government Intervention in the Market            335      B. Decreased Market Regulation                               336      C. Change Source Nation Laws to the British and Japanese     336      Model CONCLUSION                                                        339 

INTRODUCTION

On May 26, 2015, in the courtyard of a former convent on the Tiber River, Italian and U.S. authorities gathered to display an array of twenty-five artifacts that had been seized from American museums, auction houses, and private collections. (1)

Though the story received coverage from several major news outlets, its content is nothing new. For well over a decade, the market for ancient art has been at the center of a media firestorm as it has become clear that many of the pieces finding their way into museums were not from old Swiss collections, but rather the result of theft and illegal excavations. The controversy, however, has not been without attempted solutions. As the past decade has seen an increase in scandal, so too has it seen an increase in attempts to curtail the illegal trade in antiquities. In particular, due to pressure by source nations and archeological groups, (:) major museums in the United States have overwhelmingly adopted regulations modeled on the 1970 United Nations Educational Scientific and Cultural Organization ("UNESCO") Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property rule on the acquisition of cultural property. (3) As adopted by museums, the UNESCO Rule prohibits acquisition of works unless they have a record demonstrating that they were outside of their country of modern discovery by 1970, or evidence that shows they were legally exported after 1970. (4)

A frequently provided justification for this rule is that preventing museums from acquiring objects that lack provenance (5) will cause the demand in the market for such antiquities to decrease and, as a result, will reduce the illegal excavations of ancient sites. Since in theory most collectors in the U.S. market aim to either lend or donate their pieces to museums, the hope is that the rules governing museums will ultimately govern the entire market.

This paper seeks to analyze the 1970 rule on acquisition and whether this system of self-regulation is an effective tool for decreasing the market for unprovenanced antiquities in the United States. (6) Part I will discuss the history and application of the 1970 rule as well as the current U.S. legal regime addressing antiquities. Part II will discuss market self-regulation and include an analysis of sales from the Christie's and Sotheby's auction houses to determine whether the rule has impacted the market for unprovenanced antiquities in the United States. Part III will discuss the flaws of using self-regulation in the market for antiquities. …

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