North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

U.S.-UNESCO Withdrawal: Will Illicit Art Market Soar?

By: Lauren Toole

General Dwight D. Eisenhower, Supreme Allied Commander, accompanied by Gen. Omar N. Bradley, and Lt. Gen. George S. Patton, Jr., inspects art treasures stolen by Germans and hildden in salt mine in Germany. April 12, 1945. Lt. Moore. (Army)
NARA FILE #: 111-SC-204516
WAR & CONFLICT BOOK #: 1099

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hailed by novices and experts alike as an artistic haven, the Metropolitan Museum of Art (MET) in New York City houses one of the largest art collections in the world. Lurking behind that austere reputation, however, is a complicated legal and cultural battle surrounding the origin of some of its works. In August, a Greco-Roman vessel originally belonging to the collection of an art dealer convicted of looting antiquities was sent to the Manhattan District Attorney’s Office.[1] Then again in September, the District Attorney’s Office seized an ancient marble bulls head from the museum that was reportedly stolen during the Lebanon Civil War.[2]

This is not the first time the MET has had to turn over a piece, and it certainly is not the only museum that has had to respond to a summons. Museums across the country and around the world have faced allegations of stolen art in their collections given the lucrative and exploitative nature of looting in unstable countries.[3] The United Nations Educational, Scientific and Cultural Organization (UNESCO)—a branch of the United Nations—created conventions that specifically addressed this problem, but has faced obstacles, given the specificities in its treaties and issues surrounding enforceability.[4] These treaties and subsequent issues will be discussed later on in this report.

The United States announced it will withdraw from UNESCO at the end of year, citing issues with perceived anti-Israel bias and debt accruals.[5]  Yet the U.S.’s withdrawal could affect the procedures and mechanisms currently in place for dealing with stolen international art. With no governing body to report works identified as stolen, the U.S. could face international legal implications if it does not work to put such a framework in place.

UNESCO and Stolen Cultural Property   

Second only to illicit drug trafficking, illicit trafficking in cultural property is the world’s most lucrative underground markets.[6] Though looting has been an issue for thousands of years, it was not until after World War II that the international community first addressed the problem through the creation of UNESCO.[7] The agency was formed in response to Nazi looting and the destruction of works of art and cultural property belonging to Jewish collectors. [8] UNESCO sought to define cultural property and stress the importance of preserving and protecting art and heritage sites.[9] At its core, UNESCO values preservation and protection, visibility and accessibility, and crime prevention.[10]

Through three important agreements, UNESCO has attempted to afford protections to illicitly traded cultural objects. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Hague Convention”) was UNESCO’s first international treaty and provided for protection of cultural property during wartime.[11] The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (“1970 Convention”) provided greater depth and protections, and has the most signatories to date.[12] Finally, the 1995 International Institute for the Unification of Private Law (“UNIDROIT”) sought to address the 1970 Convention’s weaknesses.[13] Through these three treaties, UNESCO aimed to address legal, ethical, and social issues surrounding stolen cultural property.[14]

UNESCO’s Difficulties

The 1970 Convention is UNESCO’s most significant treaty to date because it extended protection to cultural property during peacetime.[15] It requires states adopting the treaty to create protective measures in their territories, control movement of cultural property, and return stolen cultural property.[16] Unfortunately, its provisions apply only to works imported or exported after 1970—the year the treaty took effect.[17] Pieces that made their way into museums or art collections prior to 1970 do not enjoy the treaty’s protections.

There are also clear enforceability issues with the Convention’s text. Nations must “admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners,” and requires states to adopt legislation within their own territories to repatriate works of art.[18] Without a framework within the state to repatriate a piece, the Convention cannot work.[19] It also gives no consideration to bona-fide purchasers and provides no remedy for collectors who bought works in good faith—sometimes for millions of dollars.[20] Similarly, there is no statute of limitations for bringing a restitution or recovery suit.[21] Without much guidance on when an action has ripened, museums and good-faith purchasers can lose pieces they have owned for years. Finally, there is no international court that governs these suits.[22] It is up to the country housing the allegedly stolen work to adjudicate the claim according to its laws.[23]

The UNIDROIT Convention, to its credit, attempted to address these ambiguities. However, its revisions favored the idea that a work of art should be returned to the country of origin, regardless of how long ago the item was taken, or where it was currently housed.[24] This fails to create remedies for good-faith purchasers, museums, or galleries that had no reason to suspect the work was looted. It likewise does not consider the political, social, or economic climate of the country of origin. Looted works are either taken from impoverished and unstable countries or wealthy countries with robust collections.[25] In the first instance, the UNIDROIT provisions would appear to advocate returning a work to countries unable to protect or properly conserve a piece.[26] For example, great debate surrounds the Elgin Marbles, which Greece argues were illegally seized by Britain.[27] The British Museum counters that they have saved the Marbles from damage that the original structures have since sustained.[28] Given Greece’s unstable economic climate, concern also surrounds Greece’s fiscal ability to protect this work.[29]

Do We Even Need UNESCO?

            UNESCO faces material issues today. It raises questions about whether the U.S.’s withdrawal will have much, if any, effect on the illicit art market. However, UNESCO’s problems stem primarily from a lack of uniformity, which in turn results from its lack of signatories.[30]

Turning first to uniformity issues, the 1970 Convention and UNIDROIT require states party to the treaties to take on measures within its own borders to police the art market.[31] This results in conflicting domestic laws that produce inconsistent and inadequate regulation. In the U.S., the Convention on Cultural Property Implementation Act (“CPIA”) governs stolen cultural property.[32]  Its provisions only cover art acquired by museums—leaving out private museums, institutions, and collectors that are much more difficult to monitor unregulated.[33] And instead of creating an international registry of stolen or lost art, each state creates such a list within its own borders.[34] This means that every time law enforcement—or a museum—wants to run a check on a piece of work, it will have to crosscheck against hundreds of databases that use different systems to record cultural property.[35]

Remedies for bona fide purchases are equally problematic under the 1970 Convention and UNIDROIT. The 1970 Convention requires return of the object only after just compensation to the original buyer.[36] UNIDROIT shifts the burden to the good faith purchaser to prove that buyer neither knew nor should have known that she was in possession of illegal cultural property.[37] Under the 1970 Convention, unstable or non-fiscally solvent countries of origin will likely be unable to afford their own work. While UNIDROIT protects both the purchaser from a theft charge and country of origin by returning the work without financial compensation, not enough countries have signed onto the treaty to make it workable.[38]

Despite UNESCO’s flaws, at its strongest, the agency is able to do exactly what it was designed to do—curb the illicit art market. Earlier this year, Interpol and UNESCO joined together to recover over 3,500 pieces of stolen art from a smuggling ring active across Europe.[39] Named the “Pandora” operation, UNESCO aided authorities in 18 countries with arresting and recovering the looted work.[40] The agency opened 92 investigations after the operation’s close.[41]

Operation Pandora’s success illustrates exactly what UNESCO is capable of when it functions with the full force of multiple nations behind it. If more states are party to the conventions and adhere to the governing framework already in place, UNESCO as a whole would have more power. This will require nations to make compromises in order to adopt a more uniform system—a truly international regulatory scheme. In order to have the fullest impact for the preservation and protection of cultural property, more nations need to be a party to the treaty. This includes countries like the U.S., one of the world’s largest consumers of cultural property.[42]

So, do we even need UNESCO? To answer it succinctly—no, maybe the U.S. does not need UNESCO, but it certainly needs the U.S.

 

[1] See Laurel Wamsley, Met Museum Turns Over Ancient Vase Suspected Looted From Italy, NPR (Aug. 1, 2017, 4:39 PM), http://www.npr.org/sections/thetwo-way/2017/08/01/540930943/met-museum-turns-over-ancient-vase-suspected-looted-from-italy.

[2] See Colin Moynihan, Looted Antiquity, Once at Met Museum, To Return to Lebanon, N.Y. Times (Oct. 11, 2017), https://www.nytimes.com/2017/10/11/arts/design/looted-antiquity-once-at-met-museum-to-return-to-lebanon.html.

[3] See Nick Romeo, Museum-Goers Beware: That Ancient Artifact May Be Stolen, Nat’l Geographic Mag. May 1, 2017), https://news.nationalgeographic.com/2017/04/museum-artifacts-looting-christos-tsirogiannis-met/.

[4] See Jane Warring, Underground Debates: The Fundamental Differences of Opinion that Thwart UNESCO’s Progress in Fighting the Illicit Trade in Cultural Property, 19 EMORY INT’L L. REV. 227, 245 (2005); See also Alexandra Love Levine, The Need for Uniform Legal Protection Against Cultural Property Theft: A Final Cry for the 1995 UNIDROIT Convention, 36 BROOK. J. INT’L L. 751, 779 (2011).

[5] See Eli Rosenberg & Carol Morello, U.S. Withdraws from UNESCO, the U.N.’s Cultural Organization, Citing Anti-Israel Bias, Wash. Post (Oct. 12, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/10/12/u-s-withdraws-from-unesco-the-u-n-s-cultural-organization-citing-anti-israel-bias/?utm_term=.c34f0a20c2b2.

[6] See Warring, supra note 4, at 245.

[7] UNESCO, About UNESCO, http://portal.unesco.org/en/ev.php-URL_ ID=3328&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited Oct. 23, 2017).

[8] See Warring, supra note 4, at 245.

[9] Id.

[10] Id. at 260.

[11] UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter 1954 Hague Convention].

[12] See Warring, supra note 6, at 249.

[13] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, 2421 U.N.T.S. 457 [hereinafter UNIDROIT].

[14] Id.

[15] UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter 1970 Convention].

[16] Id. at Art. 2.

[17] Id. at Art. 20.

[18] Id. at Article 13(c).

[19] See Zsuzsanna Veres, The Fight Against Illicit Trafficking of Cultural Property: The 1970 UNESCO Convention and the 1995 UNIDROIT Convention, 12 Santa Clara J. Int’l L. 91, 98 (2014).

[20] See Moynihan, supra note 2.

[21] See Warring, supra note 4, at 252.

[22] See Veres, supra note 17, at 98.

[23] See 1970 Convention, supra note 14.

[24] See Warring, supra note 4, at 260.

[25] See Veres, supra note 17, at 94.

[26] See id.

[27] See Nadia Banteka, The Parthenon Marbles Revisited: A New Strategy for Greece, Univ. of Penn J. of Int’l Law, 1231, 1241 (2016).

[28] Id.

[29] Id.

[30] See Veres, supra note 17, at 102; See also Warring, supra note 4, at 266.

[31] See 1970 Convention and UNIDROIT

[32] See Molly Torsen, Fine Art in Dark Corners: Goals and Realities of International Cultural Property Protection as Switzerland Implements the 1970 UNESCO Convention, 8 Gonz. J. Int’l L. 1 (2005).

[33] Id.

[34] See Warring, supra note 4, at 265.

[35] Id.

[36] See Veres, supra note 17, at 105.

[37] Id.

[38] See Levine, supra note 4, at 779.

[39] See Rebecca Hersher, 75 People Arrested: Accused of Trafficking Stolen Art and Archaeological Relics, NPR (Jan. 23, 2017), http://www.npr.org/sections/thetwo-way/2017/01/23/511224788/75-people-arrested-accused-of-trafficking-stolen-art-and-archaeological-relics.

[40] Id.

[41] Id.

[42] See Levine, supra note 4, at 764.

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