Illicit Import Research Articles

The Ongoing Quest to Return Nepal's Looted Cultural Heritage

The Ongoing Quest to Return Nepal's Looted Cultural Heritage Emiline Smith (bio) Nepal's living cultural heritage is under continuous threat from looting, theft, and trafficking. As a result, many of its cultural objects have ended up in foreign private and public collections. Now, activists both from within and outside of Nepal are collectively demanding their return. Contested cultural objects should always be repatriated to their rightful owners when claimed, but those possessing these contested cultural objects should also proactively seek other ways to work towards restorative justice. Introduction Cultural objects can be admired in countless museums, galleries, and dealerships around the world. Many visitors walk around these spaces, never wondering whether the communities from which the cultural objects on display originated know that they are there, have access to them, or are comfortable with their exhibition. Many were taken by colonial powers or acquired through other unethical or illegal means, and so these cultural objects continue to be symbols of colonial violence, injustice, exploitation, and exclusion. For centuries, cultural objects have been looted, stolen, and trafficked—ending up in private and public collections far removed from their communities of origin and worship. In the process, these communities are denied access and agency over their own material culture. For example, demand for "exotic," "oriental," or "Asian art" has caused the extensive looting and trafficking of sacred Asian cultural objects. Although strict legal frameworks are in place to protect cultural objects, they continue to be ripped from pedestals, chiseled from carved walls, or stolen from inner shrines, eventually ending up for sale on the international marketplace. These are not art objects that should be for sale. They are living cultural objects at the core of ongoing worshipping practices involving festivals, rituals, dance, food, stories, and other expressions of the rich cultural diversity of the Asian continent. They belong both legally and morally in their countries of origin, and so many are demanding their return. The repatriation of cultural objects has gained momentum since the Second World War. Initially, restitution efforts for Nazi-looted art raised questions around the meaning and shape of restorative justice. Further debates around the possession and display of sacred indigenous cultural heritage in North America and Australasia provided a broader understanding of its importance to individual and cultural identity as well as how (living) heritage and culture should be defined. Such debates are emotive topics, inciting powerful sentiments regarding individual and collective identity, morality, and belonging. This is reflected in several relevant UNESCO Conventions recognizing culture and cultural diversity—including its tangible and intangible aspects—as a human right.1 More recently, it was the publication of the ground-breaking Sarr-Savoy report on the restitution of African cultural heritage that reignited the debate around display, custodianship, and ownership of (colonial) looted cultural objects.2 Private and public dealers and collectors around the world are now taking long-overdue steps to engage with the problematic narratives that surround their collections. For decades, countries of origin have requested the return of their cultural objects. These repatriation claims are based on law: national legislation and international agreements, such as [End Page 264] the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which facilitate the protection and repatriation of a nation's cultural heritage and prevent its illegal removal, export, import, or trade. However, they are also based on ethical arguments: the desire to right a past or ongoing wrong. This makes repatriation claims extremely difficult, as countries, institutions, and individuals are rarely willing to admit wrongdoing. In the past year, Nepal has accelerated its pursuit for the repatriation of its foreign-held cultural objects. Social media have been particularly helpful in connecting activists, local and abroad, to pressure museums and other collectors to return the looted deities, worshipping items, architectural elements, and other cultural objects in their possession. Policymakers, experts, activists, and law enforcement both from within and outside of Nepal have united to make a wave of repatriation claims and with success, as dozens of objects were repatriated to Nepal from various countries in 2021. But more needs to be done by the international...

1970년 유네스코 협약 이행법제의 현황과 실무

1970년 유네스코 협약 이행법제의 현황과 실무

Urgency of Determination of Regional Cultural Reservoir Cultural Results in the Process of Criminal Measurement of the Storage of Cultural Reserve Culture in Indonesia (In Perspective of Law Number 11 of 2010)

Crime theft of Cultural Heritage objects on the site or museum is a legal problem that occurred in Indonesia and became an international concern with the issuance of International Convention No. 11806. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property has regulated the prohibition and prevention of imports, exports and the illegal transfer of cultural property rights. Based on the description of the background, then the problem formulation, then the problem can be formulated as follows “what is the effectiveness of PPNS investigations in the theft of Cultural Heritage objects in Indonesia (PPNS)?”. Based on the background and analysis of the research results, the following conclusions can be obtained investigation of theft of Cultural Heritage objects by PPNS as regulated in Article 100 of Act Number 11 Year 2010 is not effective at the investigation stage, PPNS investigators and the National Police in investigating criminal acts of theft of Cultural Heritage objects are guided by the Decree on the stipulation of Cultural Heritage issued by the Regional Government.

Restitution of stolen cultural properties: Lessons and challenges from recent Korean cases

The Republic of Korea adopted the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property on 14 February, 1983. The Convention has some disadvantages in that its scope does not cover the cultural properties stolen from Korean territory during the Japanese colonial era, which lasted from 1910 to 1945, and the Korean War from 1950 to 1953 because it cannot be retroactively applied to cultural properties stolen during these years, and it falls within the field of public international law. Hence, in order for the Korean government and the legal community to seek more effective methods of restitution of cultural properties stolen during these periods, alternative legal tools need to be discussed. Some good examples include the donation or purchase of stolen cultural property, arbitration of disputes over the restitution of cultural property, bilateral international instruments concerning the restitution of cultural property, and the restitution of stolen cultural property though the application of foreign domestic public law or private international law. In particular, the main focus of this article is on the restitution of stolen cultural property though foreign domestic public law or private international law. At the beginning of the article, it is illustrated where overseas Korean cultural properties are located. The article then delves into why the focus is on the restitution of stolen cultural property though the application of foreign domestic public law or private international law. Three examples are discussed based on these scenarios. The article concludes by looking at the lessons learned from these cases and the challenges that the Korean government and legal community are likely to face.

Potentiating Loopholes: How Erratic and Piecemeal Implementation of the 1970 UNESCO Convention Has Failed to Protect Cultural Antiquities

Despite centuries-old international concerns, American protection of international cultural antiquities is a relatively recent phenomenon. For example, the United States joined a 1954 multilateral treaty on the protection of cultural antiquities only once the treaty had become binding international customary law, and thus likely binding on the United States nonetheless. The United States has been reticent to join many of the major treaties that protect cultural antiquities, and its adoption of these treaties remains piecemeal and inconsistently enforced. There are loopholes in the present international system that continue to permit looting and pillaging to take place worldwide. In this Note, I posit that the current implementation scheme of the 1970 UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership and Cultural Property (1970 UNESCO Convention), both in the United States and in other countries, creates these loopholes, which in turn render the entire system ineffectual. Despite the many attempts at creating broad, multilateral conventions to globally protect cultural antiquities, the United States is only party to two sections of the 1970 UNESCO Convention,9 and it only joined the 1954 Hague Convention in 2009. Additionally, joining the 1954 Hague Convention was merely a formality for the United States because several provisions had already become customary international law and were thus binding on the United States nonetheless.10 As I will show below, the United States’ failure to fully adopt international law on the protection of cultural antiquities hinders the judiciary, as well as our fellow signatories to the 1970 UNESCO Convention, in protecting international cultural antiquities.

Review of International Arrangements Relating to Ownership Status of The Foreign Historical Shipwrecks in Indonesian Water

At the international level there have been international conventions that accommodate the regulation of historic sinking vessels, although only in general, namely the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982), Convention on the Protection of the Underwater Cultural Heritage 2001, International 1989 Convention on Salvage, and The United Nations Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. However, if you see the contents of the regulation from the international provisions, it seems that there is no firmness regarding the legal owner of the historic sinking vessel in Indonesia. This study uses a normative juridical research method by examining library materials or other secondary materials. The data collection method used is the literature study. The tool used is a document in the form of primary, secondary and non-legal materials. The data obtained were analyzed qualitatively then presented descriptively.

Dodgy fossils: international legislation and the meaning of 'cultural property'

In our small world of palaeontology, it has ended friendships and ruined careers. Important fossils are lost to science, or are in limbo. In the wider world, people get shot or imprisoned. Through it, fortunes are made by rich people in the West, while peasant farmers in the South lose the fortunes they never had. 'It' is UNESCO 1970: The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This paper looks back at the ancestry of UNESCO 1970, to suggest that its ethically inspired progenitors probably would not have wanted it to turn out the way it did. The wrong turn seems to have been in the ambiguity (perhaps intentional, certainly not articulated) of the meaning of 'cultural property' in the 1970 Convention. Merryman (1986) reviewed 'cultural property'; he explained that it has two almostopposite meanings, whose complex bases, in semantics, nationalism and money, are explored in this paper. I ruminate on how differently the word 'culture' might be understood in the minds of legislators (and politicians) in the Signatory Countries to the 1970 Convention, and speculate about how their interpretations might, from one point of view, be inadvertently ('culturally', 'lost in translation') mistaken and how, from another point of view, they might coincide neatly with national interests. Maybe UNESCO 1970 itself did turn out the way its authors intended. The purpose of the Convention's Articles was to police international trade in national and personal property, arguably in support of the principles of capitalism, as variously applied in the signatory counties - and now, nearly 50 years on, globally. Finally, I question whether fossils should be in the Convention at all; I ask: except possibly for fossil hominins, whose 'cultural' property are they?

Introduction: The Power of Place at the U.S. Overseas Research Centers, Heritage Diplomacy, and Archaeology

Introduction: The Power of Place at the U.S. Overseas Research Centers, Heritage Diplomacy, and Archaeology

Syria and its Regional Neighbors: A Case of Cultural Property Protection Policy Failure?

Abstract:Cultural property protection policy as implemented in Syria since 2011 is structured around standards and practices enshrined within the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (including its First and Second Protocols) and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Policy emphasis is on thein situprotection of cultural sites and the recovery and return of stolen or looted cultural objects. But policy initiatives have very obviously failed to stop the plunder and illegal trade of cultural objects in Syria, as they have failed before for neighboring countries. This paper describes why policy initiatives aimed at site protection and object recovery have failed and how policy might be improved by a market reduction approach aimed at subduing demand.

Provenance and Price: Autoregulation of the Antiquities Market?

It is becoming common to read that antiquities without a provenance stretching back to before the 1970 adoption by UNESCO of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property are increasingly difficult to sell because of customer concerns over possible illicit trade in the past and reduced resale prices in the future. This paper proposes the term autoregulation to describe the phenomenon, and presents the results of several quantitative analyses designed to investigate its action.

The (Legal) Culture of Cultural Property

The paper contains the Summary Report presented by the author at the end of the Conference on "The Globalization of the Protection of Cultural Heritage. The 1970 Convention: New Challenges" held in Mexico City, on 21-23 March 2013. Unfolding a common thread among the many contributions to the conference, the Report examines how the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property has up to now dealt with the pluralism underlying both the notion and the law of cultural property. To this purpose, the Report emphasizes that the notion of cultural property is crisscrossed by the multiplicity of identities that its producers, users, and traders embody and convey into it. On a similar note, and consequently, the Report shows that cultural property law could be seen as a transnational, multilayered and multi-centric body of law, consisting of layers of rules with different origins and rationales. Against this framework, the Report examines how the UNESCO Convention has not only been able to influence the mainstream national and international legal and political debate over cultural property protection, but has also successfully penetrated the legal layers where official law usually does not have a say, providing a new narrative, model and vocabulary for the public and scholarly discourse about heritage protection.

L’ATTUALE FASE DI ATTUAZIONE DELLA CONVENZIONE UNESCO 1970 SULLA PROTEZIONE DEI BENI CULTURALI. GLI ESITI DI UN SEMINARIO INTERNAZIONALE (MEXICO SEMINAR 2013)

The Note reports about the Mexico Seminar 2013 organized by the International Association of Legal Sciences (International association affiliated with UNESCO). The Seminar has focused its attention on the state of implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, followed by the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 24 June 1995 and the 2011 UNESCO-UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. In the Mexico seminar jurists and officials of various parts of the world have pointed out the weakness of the legal framework created by the conventions and therefore the difficulties in the exercise of restitutionary remedies by the States from which a cultural object has been removed.

Extraordinary Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

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First Session of the Subsidiary Committee of the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

First Session of the Subsidiary Committee of the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

The meaning of 1970 for the acquisition of archaeological objects

Many museum and professional associations, particularly in the United States, have adopted a 1970 standard for the acquisition of archaeological materials–that is, in recognition of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, archaeological objects should be documented has outside of their country of origin before 1970 or have been exported legally after 1970. This article explores the extent to which this standard has been adopted, its influence on restitutions and claims for restitution of archaeological objects, and the policies that this standard attempts to promote.

UNESCO, Palestine and Archaeology in Conflict

On 23 November 2011, Palestine became a member of the United Nations Educational, Scientific and Cultural Organization (“UNESCO”), and acceded to and ratified a number of UNESCO’s Conventions. Some observers view this membership as decisive, or at least significantly dispositive, in the debate on the international recognition of Palestinian statehood. UNESCO is characterized as a springboard by which Palestine can further recognition of its international sovereignty, which, at the present time, is inexorably stalled. However, this recognition is not without challenge – for example, the Prosecutor of the International Criminal Court has not recognized Palestine’s acceptance of the Court’s jurisdiction. UNESCO has, in turn, descended into a budgetary crisis with the withdrawal of funding from the U.S. and other states, which represent twenty-two percent of its budget. In February 2012, UNESCO responded to this crisis with a plan to “re-engineer” the organization, implicitly confirming that it will not allow any revocation of the Palestinian membership vote, despite a campaign to “un-admit” Palestine. This paper analyzes the legal consequences of Palestine’s membership in UNESCO and its ratification of UNESCO conventions through an examination of the protections afforded by the UNESCO treaty framework governing cultural, amongst other forms of, heritage. This is particularly relevant as Palestine’s application for UNESCO membership took place in the context of what are termed the Palestinian U.N. initiatives, intended to further Palestine’s status and activate its rights as a state in the international legal order. The initiatives manifested in a resolution adopted by the U.N. General Assembly on 29 November 2012 “upgrading” Palestine’s observer status.For more than a century, Palestinian cultural heritage and property has been the subject of capture and destruction by other states. Palestine’s accession to various UNESCO conventions testifies to the effect that no other sovereign controls its cultural heritage and property. Palestinians have habitually asserted internationally-recognized principles as a point of departure in “final status” negotiations on what is termed the “archaeology file,” yet have been unable to maintain complete control of such property. Ahmad A. Rjoob of the Palestinian Ministry of Tourism and Antiquities describes Palestinian cultural heritage as “one of the most intensively abused, excavated and subsequently disturbed worldwide,” a result of more than a century of management from different administrations, each with its own methods of research and distinct political purpose. “The Palestinian Ministry of Tourism and Antiquities and Israeli sources estimate that between 1967 and 1992 about 200,000 artifacts were removed from the occupied Palestinian territory annually,” with approximately 120,000 removed each year since 1995. This hemorrhaging of Palestinian cultural property is occurring in a context where archaeology has been used by Israel “as a pretext to gain territorial control” and exercise sovereign rights “over Palestinian lands [in order] to further its settlement enterprise” and exploit natural resources.Section II traces the history of archaeological laws and practices in Palestine, from the Ottoman era to contemporary Israeli military orders. Section III examines the rules governing the protection of cultural property during military occupation under the aegis of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and the consequences of future Palestinian ratification of the Convention and its 1999 Second Protocol. Section IV tracks the illicit trade in antiquities from Palestine, and the potential effects that ratification of two instruments would have on regulation and restitution – particularly, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Section V focuses on the underwater cultural heritage off the coast of Gaza and the maritime zones of legal control granted by the 2001 Convention on the Protection of the Underwater Cultural Heritage, the first international treaty that Palestine has ratified. Finally, Section VI assesses the consequences of UNESCO membership, including whether membership of a U.N. agency means that Palestine can ratify instruments outside of UNESCO’s competence.

Guest Editorial Introduction

Recent Developments in the International Exchange of Museum Collections The Archaeological Heritage and Ethics column of the Journal of Field Archaeology again welcomes Patty Gerstenblith’s annual summary of legal issues related to cultural heritage. As we shall see, the past year witnessed a legal challenge to U.S. import restrictions on ancient coins under the Convention on Cultural Property Implementation Act (CPIA) and perhaps the first substantive test of the U.S. commitment to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It also saw the appointment of our author as the chair of President Barack Obama’s Cultural Property Advisory Committee (CPAC), the deliberative body that makes recommendations regarding bilateral agreements between the United States and foreign governments on import restrictions related to the protection of cultural property under the CPIA. Given her new responsibilities, it is important to note that the views Gerstenblith shares here are her own and not necessarily those of CPAC or the U.S. Government. At present, much of the attention surrounding archaeology and the law involves the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and its implementation in the United States under the CPIA. The reasons are twofold. This international agreement has long been cited as the ethical benchmark for collecting museums to follow when considering making purchases on the antiquities market. It also has promised some limited means for discouraging the international trade in looted archaeological material through import controls among State Parties. In the United States, the CPIA provides for import restrictions on a ‘‘designated list’’ of commonly pillaged archaeological and ethnological material. This list forms ‘‘Article I’’ of a negotiated bilateral agreement, or memorandum of understanding (MOU), with a foreign government. As Gerstenblith has observed in the past, these agreements do more than intervene in the illicit trafficking of cultural property. They contain provisions in an ‘‘Article II’’ that create formal avenues for introducing and encouraging specific kinds of cultural policies and initiatives. Over the years, these have included the construction of a new national museum in El Salvador (Magness-Gardiner 2004), a licit international trade in Chinese artifacts (Luke and Kersel 2010), and the use of foreign archaeological institutes and schools in fostering intercultural dialogue (Luke and Kersel 2011). Among the cultural policies championed in Article II, the centerpiece has been the encouragement of long-term loans for museum collections. The rationale behind this initiative is couched mainly in economic terms, although it has significant bearing on cultural exchange and diplomacy. If collecting museums could acquire artifacts through diplomatic channels rather than purchasing them, then there might be less demand for looted archaeological material and a reduced incentive for institutions to act as participants in the international art market. The guidelines and the present model for long-term loans were products of negotiations between the U.S. Department of State and the Italian Ministry of Culture and included as part of Article II of a 2001 MOU (Magness-Gardiner 2003). Although under Italian law artifacts can only be loaned to foreign institutions for a one-year term when intended for display, the MOU established that loans for longer periods could be considered when there was a significant research or educational component involved. This situation highlighted the conditions necessary for creating a policy favoring long-term loans of cultural property that could be incorporated into Article II of any MOU under the CPIA. As Luke (2012: 12–13) recently observed, if greater numbers of artifacts can be identified in foreign museums’ inventories and registries, then more loans may be contemplated under an MOU and for increasingly longer durations. The MOUs renewed or entered in 2011 demonstrate the different stages of such an overarching policy. In the case of Colombia, the MOU calls on the country to use its ‘‘best efforts’’ to permit the exchange of archaeological and ethnological materials without discussing the length of the loan. However, there is much greater specificity when the MOU obliges Colombia to ‘‘register and inventory cultural property, with particular attention to the ecclesiastical materials in the stewardship of the

Second Meeting of the States Parties to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was adopted in Paris on 14 November 1970. It came into force on 24 April 1972. It took over 30 years for the first Meeting of States Parties to the Convention to take place on 15 October 2003. The second meeting, the subject of this report, took place after a shorter period of about nine years, on 20–21 June 2012. A Meeting of States Parties to a treaty is primarily a forum to discuss and agree on measures that can be taken to improve its effectiveness and the realization of the aims and objectives of the instrument. Accordingly, the meeting was tasked with examining in depth the impact of the measures taken by States Parties to the Convention in order to optimize its implementation, and also to consider and approve whatever efficacious measures should be taken for its best functioning.

First Special Meeting of the States Parties to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

Fourteen years after the 1995 UNIDROIT Convention came into force, the first special meeting as envisaged under Article 20 of the Convention was held at the UNESCO headquarters in Paris on 19 June 2012. Article 20 provides that “The President of the International Institute for the Unification of Private Law (UNIDROIT) may at regular intervals, or at any time at the request of five Contracting states, convene a special committee in order to review the practical operation of this Convention.” Appropriately, the first special committee meeting took place at UNESCO's head office, preceding by a day the second meeting of States Parties to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership Cultural Property, which convened in Paris on 20–21 June 2012. The UNIDROIT Convention was initiated at the request of UNESCO to fill the gap in the 1970 Convention relating to the private law aspects of the return and restitution of stolen or illegally exported cultural property.

2010 cultural heritage legal summary

The year 2010 was a relatively quiet one for legal developments with respect to archaeological heritage. Some court decisions that were expected this year, such as that concerning foreign sovereign immunity for artifacts on loan from Iran to the Oriental Institute of the University of Chicago, did not materialize, while other disputes remain on appeal, such as that involving the disposition of 500,000 gold and silver coins taken from an early 19th century Spanish shipwreck by Odyssey Marine. One of the most closely watched cases, the trial in Italy of the former J. Paul Getty Museum curator, Marion True, ended inconclusively when time ran out for the prosecution. Nonetheless, recovery and restitution of cultural objects that were brought illegally into the United States continued, as did controversies concerning the bilateral agreements concluded between the United States and other nations, pursuant to the 1983 Convention on Cultural Property Implementation Act, the United States' legislation implementing the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The following review focuses on legal developments primarily in the United States, as the United States participates in international treaty regimes to protect cultural heritage.