It’s time to stop abusing UNESCO’s 1970 cultural property Convention for political ends

It’s time to stop abusing UNESCO’s 1970 cultural property Convention for political ends

Fifty-two years ago today, the UNESCO 1970 Convention on the prevention of illicit trade in cultural property first came into force. Nine days ago, Kenya became the latest country to finally ratify the Convention, adopting it into domestic law. It comes into force there on May 15.

It’s worth remembering that delay: 52 years plus three weeks.

And it’s well worth revisiting the terms of the Convention because so many people these days misinterpret it for their own ends.

As its articles set out, it was designed to protect exceptional objects – national treasures specifically designated as important in published lists by the countries where they originated (Article 1). Today those campaigning against the art market argue that it covers every last commonplace artefact: it doesn’t. What’s more, few if any States Parties have submitted such lists of important works.

States Parties to the Convention make seven pledges under Article 5. These include a further commitment to keeping an updated national inventory of protected property (few, if any do); organising the supervision and protection of archaeological excavations (few do); and ensuring that interested parties such as curators, collectors and the market observe the principles of the Convention (these parties tend to do this themselves).

Article 6 commits States Parties to introducing a system of export licensing that includes the issuance of an export certificate or licence (only some do).

Article 7.b(ii) introduces one of the key elements of the Convention: “The States Parties to this Convention undertake: at the request of the State Party of origin to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.” [emphasis added].

The words highlighted here in Article 7.b(ii) are vital. They show that the terms of the Convention only apply to a State Party after it has adopted them into its national legislation either automatically or via ratification. So, in Kenya’s case that is May 15, 2024.

Who signed up to the Convention and when?

The adoption list shows that the first countries to adopt the Convention were Bulgaria, Ecuador and Nigeria, which did so on the first day of enforcement, April 24, 1972.

Apart from Kenya, countries that have ratified or accepted the Convention much more recently include Switzerland (2004), Afghanistan (2005), Germany (2008), The Netherlands (2009), Austria (2015), Ethiopia (2018), Yemen (2019) and Malawi (2022). Many countries in Africa and Asia did not accede to the Convention until the 21st century.

An interesting case in point is Egypt, which did not accept the Convention until July 5, 1983. Up to that time, not only had Egypt overseen a system of licensed dealers selling antiquities for legal export, it even ran a saleroom from the Cairo Museum. The picture here shows a visitor inspecting items for sale there around 1965.

Why is this important? Because under numerous proposals now being made – in particular via Regulation (EC) 2019/880 within the European Union – a widespread attempt is being made to enforce the terms of the Convention on a global basis from April 24, 1972.

This means imposing its rules on States Parties that have not agreed to such a move. In Egypt’s case, it will effectively outlaw any item sold and exported legally from Egypt in the 11-year period between 1972 and 1983 for which documentary proof to the standards demanded today cannot be provided to show that the purchase and export were legal. In reality, that will mean just about everything, because the export licence, which it would be essential to produce today, probably no longer exists and, in the extremely rare cases where it did, it would probably not have sufficient identifiable detail to meet the exacting standards now imposed for import.

It should be remembered that in 1980, for instance, no requirement would have existed to retain an export licence once used – indeed it would have expired. (Even today no requirement subsists to retain such licences once used and expired.) In many, if not most cases, a single export licence would have covered multiple items, and so would not have stayed with any or all of them once the export/import process had been completed. Items then sold on to new owners legally would not have been accompanied by the export licence, and many of these items would have changed hands several times since.

The challenge for the private citizen

How would a current owner supply the required proof under such common circumstances?

The retroactive application of the 1970 UNESCO Convention terms by national law enforcement bodies such as customs would effectively outlaw objects that have been exported and traded since entirely legitimately. Such an imposition would be in direct contravention of human rights conventions (as well as basic principles of international law) to which the countries imposing these new rules are signatories. As a reminder, Article 17.2 of the Universal Declaration of Human Rights states: “No one shall be arbitrarily deprived of his property,” while Article 1 of the Protocol to the European Convention of Human Rights states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

‘Arbitrary’ has a meaning that includes “unrestrained and autocratic in the use of authority”, while “general principles of international law” include the concept of innocent until proven guilty.

By retroactively outlawing legitimate activity and doing so in a way that an individual cannot demonstrate their innocence, the authorities effectively breach the human rights conventions, yet this is what is proposed.

It should also be remembered that the articles of the UNESCO Convention were drawn up specifically to prevent such an imbalance of interests, as noted by one of its architects Mark B. Feldman in his 2023 book Footnotes to History.

Under Article 7.b(ii) of the Convention, in Kenya’s case, its terms should only apply from May 15, 2024, not 52 years ago.

As we celebrate the 52nd birthday of the UNESCO Convention on the means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, it is timely to remind those who support its aims that they should follow its terms and not abuse it for their own undemocratic ends.

Crucial thoughts of one of the fathers of the 1970 UNESCO Convention on cultural property

Crucial thoughts of one of the fathers of the 1970 UNESCO Convention on cultural property

Published last year and highlighted in a recent talk is the fascinating book by Mark B. Feldman, Footnotes to History: Law and Diplomacy

Feldman has been engaged in U.S. foreign relations law and transnational litigation since 1965, including 16 years at the U.S. Department of State, where he played a pivotal role in developing the concept of the bilateral treaty and the 1970 UNESCO illicit cultural property Convention.

More than 50 years on from his work on the UNESCO Convention, he shares his thoughts on its origins and objectives, as well as what he thinks now.

When the idea of the convention arose, Feldman noted how museums, collectors and dealers feared that a clampdown via UNESCO “would lead to demands for the repatriation of the great collections of ancient art in the United States and Europe”.

He clearly saw his role as balancing interests, describing how he brought together stakeholders across the American art world – archaeologists, art museums, antiquities dealers, and attorneys – later co-authoring a report, which addressed a bilateral treaty with Mexico; an Act of Congress prohibiting the import of Pre-Columbian sculptures from Latin America without the permission of the country of origin; and a multilateral UNESCO Convention based on the principle of non-retroactivity with import controls on archaeological materials threatened by pillage.

Original objectives of the Convention lost over time

Feldman was precise and targeted in his approach. On the pre-Columbian Act of Congress, he writes: “It was the first step by any art importing country to address illicit trade in stolen cultural property, but the reciprocal obligations ‘to recover and return’ were limited to pre-Columbian and colonial objects ‘of outstanding importance’ [and official archives] that had become government property in the other country.”

The bilateral treaty with Mexico was “in practice” a one-off, and has been superseded by “more aggressive actions by U.S. agencies”.

He is enlightening on just how ambitious original plans for the UNESCO Convention were, explaining that the Secretariat “proposed a comprehensive scheme, brutal but coherent, that would have required all parties to refuse import of any cultural property, broadly defined, not accompanied by an export certificate from the country of origin”.

Needless to say, art rich countries blocked measures that they considered would destroy the international art market.

The United States continued to take the lead, drafting a compromise convention.

“The most fundamental points were two: first the convention would not be retroactive – acquisition guidelines would be forward looking – and two, import controls would be limited to cultural property stolen from museums and to specific categories of archaeological interest threatened by pillage to be determined by agreement among the countries concerned.”

Even at that point, however, the antiquities trade was alert to potential abuses. Feldman describes how dealers were “always doubtful about the convention” and “opposed import controls because they feared the State Department would use that authority as a bargaining chip for diplomatic purposes unrelated to protecting the cultural heritage…”. Prescient indeed.

How the concept of bilateral treaties backfired

The U.S. market was also concerned that as it abided by the terms of the convention, others would not, putting it at a competitive disadvantage, leading to Feldman proposing that the State Department “make bilateral agreements for import controls with countries damaged by pillage of their cultural heritage”.

Next came the establishment of the Cultural Property Advisory Committee (CPAC). The idea was for it to be a bulwark in defence of the art market, but, as history, has shown, if anything its role has been the opposite.

“Over the years the State Department has negotiated dozens of bilateral agreements and there have been numerous complaints that State has abused the process for diplomatic reasons as the dealers originally feared,” Feldman accurately observes, as he acknowledges that times have changed, and the behaviour of the trade and wider market “has got a great deal better.”

He also considers that current U.S. policy on cultural heritage protection in relation to foreign patrimony is out of step and “contrary to the U.S. position negotiated in UNESCO in 1970 and adopted by Congress in 1983.”

Many in the market hope that the State Department will take as much notice of what Feldman has to say today on these matters as it did in the late 1960s.

What exactly are Interpol’s figures for art crime?

What exactly are Interpol’s figures for art crime?

The false claim that illicit trade in cultural property is third only to that in drugs and weapons

So many conflicting claims have been made about Interpol’s art crime figures, including the looting and trafficking of antiquities, that it is difficult to know what to believe these days.

Part of the problem was that for years Interpol published conflicting claims on the Art Crime home page of its website, as the screenshots here show:

Headlining was the claim that “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods”. Earlier claims by Interpol valued the global illicit market in cultural property at around $4 billion to $5 billion annually.

This has never been true, and recent figures in the World Customs Organisation’s annual Illicit Trade Reports demonstrate this clearly. In fact, cultural property crime, which includes categories such as household goods is, by a very long way indeed, the smallest risk category.

The admission that Interpol has never had any figures to demonstrate its headline claim, nor is ever likely to obtain such figures, appeared in a click-through section lower down on the same page (see above).

Unfortunately, bodies such as the European Commissionthe Carabinieri and UNESCO have promoted the headline claim while ignoring the admission lower down, leading to the widespread dissemination of what amounted to a false claim. This matters because the false claim has directly influenced new policy and further restrictions on the art market.

Fortunately, after having the discrepancy pointed out to it for several years, Interpol finally removed the conflicting claims from its website in March 2019. However, the headline claim’s pervasiveness, in what amounted to a long-term viral online campaign against the art market, means that it is still widely quoted and believed to this day.

  • Transnational operations (Operation Pandora etc)

For the past decade and more Interpol has co-ordinated with Europol and national police forces in dozens of countries on an annual basis to mount operations aimed at stemming the flow of illicit cultural property that might be involved in money laundering and terrorism financing.

With names such as Odysseus, Athena and Pandora, these huge operations target individuals, households, business and transport. The resulting media releases enumerate vast numbers of seizures, as well as arrests, while also providing examples, including photographs of important items that have been seized.

While this all looks impressive, what neither Interpol nor Europol have ever done is to follow these data up with the crucial information about how many of these seized items later turned out to be illicit and linked to money laundering or terrorism financing. Nor do they ever publish conviction rates for those arrested.

The ADA and IADAA have twice asked Europol for these figures.

The first occasion was in February 2017, when Europol told us: As your questions are very detailed and some are focused on particular countries, I suggest you get in contact with the countries involved. We can only communicate on a general level and don’t hold all the details of the different participating countries.”

The second occasion was in May 2023, when Europol told us: “Unfortunately, we won’t be able to help as we do not have these figures. Europol is not a statistical organisation – Europol’s priority is to support cross-border investigations and the information available is solely based on investigations supported by Europol.

Interpol has published numerous media releases on the same subjects and has included operational results in separate reports, including its 2020 report, Assessing Crimes Against Cultural Property.

This included data on Operation Pandora V, which took place across 32 countries and resulted in more than 56,400 cultural goods being seized and 67 arrests. 27,300 of the items seized came in a single haul in France where Customs officers arrested a man who had been illegally digging up archaeological pieces.

The leading publicised highlight from the operation was a set of three gold coins that “could have been worth up to €200,000 on the black market”, which were recovered after the arrest of two men in Spain. 

Data in the Interpol report relating to global crime referred to arrests, but shed no light on convictions or how much of what was seized later proved to be illicit. No mention of terrorism financing was made.

Page 14 of the report revealed that of the 567,465 items seized in Europe, 83% (or 472,933) were library materials. This single category of library items accounted for 55% of the global total of 854,742 objects seized for the whole of 2020.

  • Ongoing issues

Despite supposedly cleaning up its act with the 2019 relaunch of its website, Interpol has continued to promote false and unsubstantiated claims.

In the introduction to its 2021 report it stated: “The illicit trafficking of cultural property is a major source of revenue for organized crime groups and terrorists alike…” (see page 4) – It is clear from Interpol’s other statements on data that it has no evidence to show cultural property to be a major revenue source for terrorists.

Following these conflicting claims and lack of vital intelligence, what does Interpol publish on its website in 2024?

Despite providing no data, and having admitted that it has never had it, nor is ever likely to obtain it, Interpol’s headline claim on its Cultural Heritage home page is: “Trafficking in cultural property is a low-risk, high-profit business for criminals with links to organized crime.”

Click through to the section on Crimes: The issues – cultural property, and it is largely populated by general statements. The one hard claim is that “the majority of thefts are carried out from private homes”.

The related news section at the bottom includes links to other news, including the most recent release on a transnational operation, Pandora VII, from May 2023, which again limits data to arrests and seizures, but gives no information on outcomes.

Nowhere on its website does Interpol provide clear data as to the scope and value of illicit cultural property.

However, despite admitting that it does not have the data, and despite WCO and other figures showing it not to be true, and despite updating the Art Crime home page, Interpol still promotes false claims via an out-of-date video from 2015 on its web page How we fight cultural crime.

Worse still is that the person making the claims in the video is Interpol’s Secretary General Jürgen Stock, who states that the illicit trade in cultural property is as lucrative as those for drugs, weapons and counterfeit goods, and then directly links them to terrorist financing, even though no evidence of this happening has been provided beyond the very limited Abu Sayyaf case of May 2015. In doing so, he directly links these purported crimes to the international art market, despite providing no evidence to support this.

The Secretary General makes his claims based on UN sanctions relating to Syria (2199) and Iraq, but these are preventive measures, not evidence of executed crimes. At the time of adoption in 2014, the sanctions’ text stated that terrorists were benefiting from trade in cultural property but gave no examples of this happening. As noted above, the Abu Sayyaf raid in 2015 – after the sanctions were introduced – remains the only cited example of this happening, and the sums involved were small and not clearly identified.

It is not clear from the website that the video is from 2015, so viewers may think this is current thinking at Interpol. Mr Stock must surely know better now nine years on from this recording and should remove it from the website. The ADA and fellow trade association IADAA have contacted him directly recently and asked him to update the website, but so far we had no reply.

To repeat: Nowhere on its website does Interpol provide clear data as to the scope and value of illicit cultural property

Fake’s progress – how misinformation gains traction over time Part 1

Fake’s progress – how misinformation gains traction over time Part 1

Sources quoted by authorities to clamp down on the art market rarely stand up to scrutiny

How does false data come to influence policy and even law making on such a widespread basis when it comes to cultural property?

One reason is confirmation bias: if the results of your research match what you hope to find, you are less likely to check their validity – a point made by statistics guru Dr Tim Harford when discussing claims made about antiquities and crime.

Another can be the authority of the source. This is very common in the cultural heritage sphere.

This two-part article analyses two studies from what should be an impeccable single source, showing how false data can spread from one official report to another to gain traction, and ultimately become an unchallenged authority among those who should know better.

They also demonstrate that many apparently learned pieces of research published by acknowledged authorities simply can’t be trusted, because it is clear that these professionals are not checking their sources adequately.

Both reports were published by the United Nations Office of Drugs and Crime (UNODC).

One was titled PRACTICAL ASSISTANCE TOOL to assist in the implementation of the International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offences. It was published in 2016.

The two relevant claims it included were as follows:

• The Museums Association has estimated that profits from the illicit antiquities trade range for $225 million and $3 billion per year.

AND

• The Organized Crime Group of the United Kingdom Metropolitan Police and INTERPOL has calculated that profits from the illicit antiquities trade amounted to between $300 million and $6 billion per year.

Footnotes indicated the source for each of these statements.

For the first it was “See Neil Brodie, Jenny Doole and Peter Watson, Stealing History: The Illicit Trade in Cultural Material (Cambridge, McDonald Institute for Archaeological Research, 2000); and Simon Mackenzie, “Trafficking antiquities” in International Crime and Justice, Mangai Nataajan, ed. (Cambridge, Cambridge University Press, 2011).”

For the second it was “United Kingdom, House of Commons, Culture, Media and Sport Select Committee, Cultural Property: Return and Illicit Trade, seventh report, vols. 1, 2 and 3 (London, 2000).”

These were very precise references, if rather out of date for a 2016 report by the UNODC.

The problem is that whoever researched the UNODC report failed to check where its quoted sources got their data from. If they had, they would have found the following:

– The Brodie, Doole and Watson report from 2000 did not refer to the Museums Association $225 million and $3 billion per year claim at all. Instead, on page 23 in the introduction to section 1.9, The Financial value of the illicit trade, it stated: “Geraldine Norman has estimated that the illicit trade in antiquities, world-wide, may be as much as $2 billion a year.” The footnote for this statement identified the source as journalist Geraldine Norman’s November 24, 1990, Independent article Great sale of the century. However, apart from the fact that the article was actually titled Great sale of the centuries, it included no such claim or figure.

The Simon Mackenzie chapter on Trafficking Antiquities is not open source data, but is available on subscription to CUP.

– In fact, the Museums Association did give estimated figures as part of its evidence to the UK House of Commons, Culture, Media and Sport Select Committee, Cultural Property: Return and Illicit Trade, seventh report, vols. 1, 2 and 3 (London, 2000) – the same source as the second claim quoted by the UNODC. In the Seventh Report, Chapter II The problem of illicit trade, The nature and scale of illicit trade, paragraph 9 reads: “The scale of the illicit trade taken is said to be very considerable. According to the Museums Association, as an underground, secretive activity, it is impossible to attach a firm financial value to the illicit trade in cultural material. Estimates of its worldwide extent vary from £150 million up to £2 billion per year.” The Museums Association gave as its source the Brodie, Doole and Watson 2000 report, quoted above, which in turn gave the Geraldine Norman article as the source, when, in fact, it provided no such figures.

So, the Museums Association’s actual claim was that “it is impossible to attach a firm financial value to the illicit trade in cultural material”, but that estimates worldwide [by others] varied greatly between £150 million and £2 billion.

This was rather different from the UNODC claim based on this source: “The Museums Association has estimated that profits from the illicit antiquities trade range for $225 million and $3 billion per year.”

To summarise, then, the £150 million to £2 billion claim ultimately came from nowhere. Its claimed primary source, the Geraldine Norman article from 1990, quoted no such figures. The secondary source which mistakenly quoted them was the Brodie, Doole & Watson report from ten years later in 2000, leading to the tertiary source of the Museums Association. In turn, this was quoted by the UNODC in 2016 – 26 years after the Norman article which gave no figures anyway. The UNODC report then became a new ‘primary’ source, with the figures quoted as UNODC estimates, which they weren’t at all.

See Part 2

Fake’s progress – how misinformation gains traction over time Part 2

Fake’s progress – how misinformation gains traction over time Part 2

Decades-old inaccurate figures used to promote tighter anti-money laundering policy

Of more immediate interest is an older UNODC report, Estimating Illicit Financial Flows Resulting from Drug Trafficking and Other Transnational Organized Crimes, from 2011. It is relevant now because in February 2023, the Financial Action Task Force report: Money Laundering and Terrorist Financing in the Art and Antiquities Market quoted it to support its analysis that money laundering risk was high. Now the European Union is using the FATF report to develop further AML policy.

On page 36 of the UNODC’s 2011 report, it gave a value range of $3.4 billion to $6.3 billion as the Global Financial Integrity (GFI) estimates of the global proceeds of crime for art and cultural property, based on information from Interpol and the International Scientific and Professional Advisory Council (ISPAC) of the UN Crime Prevention and Criminal Justice Programme.

The UNODC report stated that its Interpol and UN-related figures came from the February 2011 Global Financial Integrity (GFI) report, Transnational crime in the Developing World, and World Bank indicators (for current GDP).

Page 47 of the GFI report included a section headed Estimated Value of the Illicit Trade of Cultural Property, which began: “The actual value of the global illicit trade in cultural property is unknown and most experts are hesitant to estimate a value.”

Despite this, the UNODC provided an estimate range of $3.4-6.3 billion for the proceeds of transnational crime involving art and cultural property, citing the GFI report “based on Interpol, International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme”.

The remainder of that opening paragraph from the GFI report explained where this range of figures came from: “Estimates that do exist range in size from $300 million to $6 billion per year, with Interpol estimating $4 to $5 billion,and the International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme (ISPAC) estimating $6 to $8 billion. This report creates a range by taking the average of the low estimates and the average of the high estimates reported above. The result is an annual value of $3.4 to $6.3 billion.”

Checking the sources of these sources we come up with the following:

–      $300 million to $6 billion: Not stipulated, but almost certainly from the UK House of Commons, Culture, Media and Sport Select Committee, Cultural Property: Return and Illicit Trade, seventh report, vols. 1, 2 and 3 (London, 2000) (see Part 1 of this article), where they were quoted anecdotally by a Scotland Yard office whose colleague then provided evidence to refute them.

–      $4 billion to $5 billion: Currently unavailable

–      $6 billion to $8 billion: the International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme. ISPAC (2009). Organized crime in Art and Antiquities. Selected Papers from the international conference held at Courtmayeur, Italy 12-14th December 2008. Milan: ISPAC.

UNODC Deputy Director John Sandage wrote the foreword to the published ISPAC paper from that 2008/9 programme. Its second paragraph read: “The value of international trade in looted, stolen or smuggled art is estimated at between US$4.5 billion to US$6 billion per year.”

Page 30 of the same report cited a figure of $7.8 billion from The 1999 United Nations Global Report, but it was wrong. In fact, the 1999 UN report quoted the range of $4.5 billion to $6 billion (see page 229), attributing it to a New York Times article of November 20, 1995, by Alan Riding titled Art theft is booming, bringing an effort to respond. Riding proved to be a dead end, giving no source beyond “experts”.

Meanwhile, Page 31 of the ISPAC report quoted a figure of £3 billion for London in the early 1990s according to Scotland Yard, and FBI figures of $5 billion and $6 billion for the whole art theft market for 2008.

In total then, the estimated $6 billion to $8 billion figures quoted by the UNODC in 2011 appear to come from a mix of sources, including the FBI and a non-existent rounded up figure from the 1999 United Nations Global Report. The FBI did not give a source for its figures, while the 1999 UN report gave a different range of figures, sourced from a 1995 New York Times article whose only source is unnamed experts.

As they refer to the “art theft market”, they clearly include all associated crime, such as commercial and domestic burglaries, with associated insurance losses – as can be seen from the evidence provided by Scotland Yard to the House of Commons in 2000 – and the ISPAC report confirmed that Interpol attributed the highest levels of cultural property theft to Italy and France.

Now move forward to 2023 and the Financial Action Task Force report, entitled Money Laundering and Terrorist Financing in the Art and Antiquities Market, and the $6.3 billion figure arises once again in paragraph 3 of the Introduction on page 5. The FATF burnishes that figure by stating that it is a UNODC estimate, whose own source (the 2011 report) shows that this is not true. In reality, it is a figure quoted by the UNODC from other uncertain and inaccurate sources, as shown above.

So, a report by the FATF published in February 2023, aimed at influencing current international policy – and now being used by the EU to tighten its anti-money laundering regulations further – quotes a 12-year-old set of figures based on guestimates and unattributed sources dating from the early 1990s to 2008. And it uses this as the key statistic relating to current global art crime to make its point.

As can be seen by the tortuous byways of out-of-date reports and newspaper articles dating back almost 35 years and quoting myriad figures that have contributed to this misleading picture, the truth can be lost very quickly. Nonetheless, the authority of the UNODC means these statistics are quoted as key evidence.

And this is just one example of how this is happening.

See Part 1

Why cultural property is the ultimate political pawn

Why cultural property is the ultimate political pawn

The cheap and easy way to gain diplomatic influence can cost individuals and vulnerable groups dearly

Cultural heritage Memoranda of Understanding are good for diplomacy but can damage the rights of citizens

As anyone from the art market involved in the international world of cultural heritage will know, dealers, auction houses, buyers and sellers have long been the unjustified targets of governments, NGOs and law enforcement.

The message has been that the looting and trafficking of cultural property from vulnerable nations – many of whom are in an almost permanent state of crisis or war – is funding terrorism. Stolen items smuggled to Western markets lead to a flow of cash in the other direction to pay for bombs and bullets, they argue.

The problem is that despite innumerable research projects, studies and other initiatives to show this over the past 20 years and more, evidence of the art market’s role in this is so thin on the ground as to be all but non-existent.

Independent studies, such as the ground-breaking RAND Corporation report of 2020, state that open source evidence clearly demonstrates that the antiquities market could not possibly sustain the billion-dollar level of international crime it is accused of fomenting.

This has not prevented bodies like the European Union, the United States Government and others competing for influence in strategically important countries like Egypt, Iraq and Syria from introducing proposal after proposal – so numerous that they seem to be falling over each other for precedence – to tackle the perceived problem.

Campaigner highlighting injustice

Collector and cultural property lawyer Peter Tompa has been at the vanguard in highlighting abuses of power and influence when it comes to policy in this field.

His latest article, published by Cultural Property News, shows how the US State Department has been harnessing bilateral agreements (Memoranda of Understanding) involving works of art and ancient artefacts to curry favour in geopolitics. In doing so, it is acting against the will of Congress and against the interests of private citizens, including vulnerable ethnic and religious groups, he believes.

At the heart of the problem is the fact that MoUs effectively reverse the burden of proof over the ownership of cultural property at the point of import; you’re guilty until deemed innocent. Importers to the United States must secure a current licence from the source country covered by the MoU confirming that the imported item in question was originally exported legally from there, whenever that might have been – and it could have been centuries ago.

So, this would apply to a Roman vase that could have left Italy during the 18th century, having been purchased by a wealthy young man on the Grand Tour, and has since changed hands and moved countries numerous times. How likely is it that the current importer would hold paperwork from that original sale and export that would convince the Italian authorities to issue such a licence? But that is what Article 1 of theMoU with Italy stipulates if Customs are not to seize the vase and send it back to Italy.

Similar agreements are in place with 30 other nations, from China to Yemen.

Tompa has previously highlighted the fact that MoUs can also deprive vulnerable minority groups, such as the expelled Jews of Libya, of their moral and legal rights in reclaiming their cultural patrimony. Instead, under the terms of the MoU, objects are returned to these peoples’ oppressors in the states from which they have been expelled or subjugated.

So, how can the State Department justify this rapid spread of these agreements?

Lack of funding for archaeologists has forced many of them to earn a living doing something else, Tompa notes. “Thanks to government largess, however, lucrative new opportunities have arisen for a select few archaeologists working with State Department bureaucrats to help justify cultural property Memorandums of Understanding (MoUs) or “emergency import restrictions.”

‘Jihad against private ownership’

For many, this is an easy choice to make: “Not surprisingly, such work often draws those most committed to the view that cultural artifacts should be clawed back from U.S. collectors and museums for the benefit of countries that have been victimized in the past by Western colonialism. Most collectors, dealers and museum curators have no idea about all the State Department money that is funding this jihad against the private ownership of cultural goods in the U.S.”

Tompa looks at who is running what he describes as a “cottage industry”.

“The U.S. State Department Bureau of Educational and Cultural Affairs (ECA) and its Cultural Heritage Center have done more than anyone to grow this new cottage industry through grants and contracts as part of their ‘soft power’ efforts that seek to make hostile third world governments ‘like us more’,” he writes.

He also explains how the State Department circumvents restrictions imposed by Congress on the former’s ability to exploit MoUs for its own ends.

As always, following the money provides a clearer picture. The State Department needs better evidence of looting and trafficking to justify MoUs. It also needs to show that recipient source countries have appropriate controls in place to protect their cultural patrimony.

Tompa notes that critics have asked how much of an incentive those being funded have to come up with what the State Department wants. He describes the long-established American Society of Overseas Research (ASOR) as a major grant recipient and “evidence maker” for some of the most difficult to justify MoUs and cites examples of how those receiving hundreds of thousands of dollars in funding may be creating false narratives to suit the State Department’s purposes.

Tompa provides several examples of concerning behaviour, in one case citing an archaeologist associated with ASOR, working under a $600,000 State Department contract, who was identified as the source for a widely reported false claim that the ISIS terror group’s profits from antiquities looting were “second only to the revenue the group derives from illicit oil sales”.

Where is the media on this?

This is explosive stuff and a potentially dream investigation for any curious journalist worth their salt, involving, as it does, vast sums of money, Washington insiders and international policy that favours countries with questionable human rights records. So far, though, both the mainstream and leading art market media outlets have remained silent, leaving experts likes Tompa to do all the heavy lifting. This is curious when one considers how frequently and keenly the widespread media reports any example (alleged or actual) of crime involving cultural property.

The harnessing of such bilateral agreements for geopolitical gain – with art traders and private citizens paying the price – has long been a subject of concern. Could fear among journalists of falling out with influential advocacy groups who act as regular story sources be the reason for their apparent lack of interest?

This hands-off approach from hacks may be emboldening the State department. Tompa writes: “The State Department acting as both decision maker and facilitator for cultural property MoUs raises other concerns. More recently, the State Department has dropped all pretense of following the intent of the CPIA (Cultural Property Implementation Act) by showering additional funding on archaeologists to facilitate new and renewed cultural property MoUs.”

What we are seeing on a widespread basis is not the development of evidence-based policy, but policy-based evidence as the stakes rise among MENA nations and in the Far East, as well as in Central and South America. Security, diplomatic influence and other issues may be the real concerns, but cultural heritage Memoranda of Understanding are the currency by which a favourable position can easily and inexpensively be achieved. While that is understandable, the conditions under which they are being issued raise serious ethical, moral – and in the case of the U.S. Constitutional – questions, particularly about the rights of citizens and vulnerable groups, as well as fundamental principles of law.

Let’s not forget that the same U.S. citizens having their goods seized are also unwittingly funding this unjust process.So far, no one in authority has made any serious challenge to this process. It is about time that changed.