South-South Cooperation on the Return of Cultural Property: The Case of South America

By Fabris, Alice Lopes | Case Western Reserve Journal of International Law, Spring 2017 | Go to article overview

South-South Cooperation on the Return of Cultural Property: The Case of South America


Fabris, Alice Lopes, Case Western Reserve Journal of International Law


CONTENTS  I.   INTRODUCTION II.  LEGAL INSTRUMENTS ON THE FIGHT AGAINST ILLICIT TRAFFICKING        of Cultural Property        A. 1970 UNESCO Convention on the Means of Prohibiting and           Preventing the Illicit Import, Export and Transfer of           Ownership of Cultural Property        B. 1995 UNIDROIT Convention on Stolen or Illegally Exported           Cultural Objects.        C. 1972 San Salvador Convention        D. Regional Organizations           1. MERCOSUR           2. UNASUR        E. Bilateral Agreements           1. Chile and Peru           2. Colombia and Ecuador III. CASES        A. Cases of Restitution of Cultural Property           1. Chile           2. Argentina           3. Ecuador           4. Peru        B. Cases of Return of Cultural Property           1. Argentina and Paraguay           2. Chile and Peru           3. Brazil and Paraguay IV. CONCLUSION 

I. INTRODUCTION

The return of cultural property occurs for various reasons: (1) to fulfill a legal obligation; (1) (2) to demonstrate a spirit of cooperation; (2) and (3) to facilitate negotiations. (3) Some argue that, among those reasons, demands for restitution of cultural property to origin countries have been made as acts of reprisal or revenge. (4)

Most of the demands for restitution of cultural property are made from the so-called "south" countries to the "north" countries. (5) According to some art dealers: "South American States, [like] Mexico (sic) (6) or Peru, search systematically to eradicate the market of archeological objects." (7) Some have perceived this fact as an act of reprisal or revenge for historical injustices or even to gain political advantage, and this reasoning has been used to justify the refusal to return cultural property. (8) Members of the art market, mostly located in north countries, also complain about the lack of policies, enforcement, and surveillance by the south countries in the fight against illicit trafficking of cultural property, trying to shift the protection responsibility to the countries of origin. (9)

As one of the world's main criminal financial activities, the illicit trade of cultural property ranks behind only the illicit trafficking of weapons and drugs. (10) In South America, these types of trafficking are often linked to each other, and therefore to the countries' security policy. (11)

Often defined as the removal of cultural objects in violation of the law, acts of illicit cultural property trafficking depend largely on the applicable national and international law. Although a case-by-case analysis is usually required, several practices are universally considered to be illicit trafficking of cultural property: thefts from places of conservation; illegal archeological excavations; illicit export and import of cultural assets; illegal ownership transfer of cultural property; and producing, using, or trading forged documents related to cultural property. (12)

The theft of cultural objects is recurrent among South American countries due to their rich archeological sites, (13) since it is estimated that many of them have not yet been identified. (14)

In South America, countries can be classified as countries of origin and transit countries. The former, also called source countries, are States where most of the cultural objects came from. (15) The latter are countries where ancient cultural materials pass through as "laundered" objects until they arrive in market States, where they will be sold. (16)

When a cultural object is removed from its place of origin without proper archeological study, the source country loses important pieces of its local history and identity, while the world at large loses valuable knowledge about this culture. (17) The fight against illicit trafficking of cultural property is therefore a priority for several South American countries and regional organizations, notably MERCOSUR (18) and UNASUR. …

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