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

by | Mar 15, 2024 | Views | 0 comments

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The bilateral treaty with Mexico was “in practice” a one-off, and has been superseded by “more aggressive actions by U.S. agencies”.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

How the US needs to develop cultural heritage policy from now on

by | Jul 30, 2021 | News, Uncategorized

In what is arguably the most significant article on cultural heritage in the past month, Peter Tompa’s Art Newspaper comment on July 22 explains what is wrong with US policy and how to begin to put it right.

Tompa, a cultural heritage lawyer and the executive director of the Global Heritage Alliance, analyses the United States’ approach to cultural policy and how that affects attitudes and the market.

At the heart of his argument is the need to deal with the in-built bias against the market among the advisory and decision-making bodies that help formulate policy in the US. He targets, in particular, Memoranda of Understanding that ramp up import restrictions come up against Constitutional rights.

“These restrictions deeply concern collectors and the trade because they do not focus only on artefacts proven to be illicitly exported, but also embargo any items of a similar type that enter the US from legitimate markets, particularly those in Europe,” Tompa writes.

While this can affect legitimate market activity, dealers and collectors are not the only interested parties here: “…recent MOUs with some Middle Eastern and North African governments, such as Turkey and Egypt, have riled the representatives of displaced minority religious and ethnic groups, whose personal and community property has been seized by those same authoritarian governments.”

Tompa acknowledges that the US rightly has a significant duty to take a leading role in fighting the looting of cultural objects, especially as part of its recognition of ethnic and religious minorities. But he argues that this can be done in a more effective way that is also less damaging to legitimate market interests.

His advice?

Firstly to broaden the representation on Washington’s influential Cultural Property Advisory Committee (CPAC). Currently, it has no market professional on it. “The sole representative of the trade is a collector, and no dealers have been appointed to the committee for years,” he explains.

Import embargoes are also too broad and bloated rather than targeted at where the potential problem lies, and they do not help protect vulnerable sites. The incoming US Assistant Secretary for the Bureau of Educational and Cultural Affairs, Lee Satterfield, who will oversee this sector “should refocus current import restrictions back to narrow ranges of culturally significant items that have proven to be illicitly exported,” argues Tompa.

His third priority is for the US government to give at least as much consideration in policy formation to ethnic minorities and exiles living abroad as it does to foreign state interests.

“The assumption that nations are great protectors of cultural property is all too often misplaced,” he writes. “In countries where minorities have been driven into exile by authoritarian governments, it makes no sense to recognise the rights of those governments to the material culture of displaced communities.”

How far Tompa’s concerns will be listened to is not clear. What is clear, however, is that cultural property protection is not a standalone issue; it is clearly tied up with international economic and political interests that can dictate policy in what is an area of soft-power diplomacy. Because of this, the valid public interests within the cultural sphere continue to be at risk.