Understanding the 1970 UNESCO Convention

There appear to be common misconceptions about a Convention adopted at the 16th General Conference of UNESCO on 14 November 1970 in Paris. Its full - and somewhat unwieldy - title is 'Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property'. (I'm hoping to propose a 'Convention on the Benefits of Not Trying to Cram an Entire Synopsis into a Title' at the next General Conference.) Its purpose was to combat the illicit trafficking of cultural property (including of course ancient artefacts).

The Convention came into force on 24 April 1972 but it is important to bear in mind that it was just an agreement and was not in itself a law. It was left up to individual nations to implement the Convention in their own laws upon ratifying or accepting it. Since laws are not usually retroactive, compliance with them typically dates from the year each of those laws was passed, not that of the Convention. A chronological list of the years that nations ratified or accepted the Convention is published on the UNESCO website.

Although many museums and other institutions have adopted the year 1970 as a cut-off point in the acquisition of antiquities, that year is purely voluntary - based on ethical rather than legal considerations. The Convention itself (Article 7a) advises that they should be prevented from acquiring cultural property which has been illegally exported after the date that both the country of origin and the country of the institution ratified or accepted the Convention. In the case of the UK acquiring an object from Turkey, for instance, that date would be 1 August 2002 (although Turkey ratified the Convention in 1981, it was not accepted by the UK until 21 years later). It is of course up to the institution to determine if an object is likely to contravene that rule and, as said, most set a much earlier date for ethical reasons.

A similar responsibility (and ethical awareness) is placed on dealers and collectors to ensure they do not acquire illicit cultural property (Article 5e). Although nations are exhorted to keep an up-to-date inventory of their national heritage (Article 5b), that cannot of course include individual objects as yet unknown in archaeological sites (Article 1c) and it is therefore incumbent on dealers and collectors to establish that an archaeological object was legally exported.

If a nation declares that its archaeological material is under threat of pillage, other signatories undertake to control international trade in the relevant material (Article 9). In the US, such measures are normally effected by means of a bilateral memorandum of understanding (MoU) under its implementation of the Convention (Convention on Cultural Property Implementation Act 1983). A summary of that Act is published by the US government.

The Convention also seeks to prohibit the import of cultural property stolen from a museum or similar institution or from a public monument (Article 7b), and return the property to its country of origin providing that it was documented and that compensation is paid where appropriate (the latter provision subject to certain conditions in the US). The UK stipulated that, in its own case, return was subject to its rules on limitation to claims (typically six years under the Limitation Act 1980). 

Misconceptions

As said, there appear to be common misconceptions about what the 1970 UNESCO Convention is and what it is not. This was recently highlighted by the comment submitted by an archaeologist to an online article regarding the questionable collecting habits of an elderly Australian digging up artefacts in the Middle East:

“The short answer is, yes, it was illegal [...] International law sets the deadline at 1970 — the date of the 1970 UNESCO Convention — for the removal of artifacts from the ground for collection. So if she began in 1967 and continued for 11 years (as the article states), then she was breaking the law.”

The archaeologist was right to be outraged but, in fact, he was wrong about the 1970 UNESCO Convention. It is not "international law". Nor is there any "deadline at 1970". Australia did not accept it until 1989. Neither of course does the Convention have anything to do directly with "the removal of artifacts from the ground for collection". As its full title suggests, it concerns import, export and transactions.

The laws that the elderly Australian was probably breaking were those of the countries she was digging in. Her blatant disregard of those laws is reprehensible but it is important to employ the correct framework to condemn its illegality. In the case of Australia, the pertinent legislation is the Protection of Movable Cultural Heritage Act 1986, which sets no time limit for "unlawful imports".

Who owns my land? Heritage as a shared resource

Since many people recoil in indignation that anyone can dare to tell them what to do on their private land, I thought it might be interesting to examine what "land" actually is. Leaving aside the niceties of legal semantics, I'll have a brief look at the issue from a broader perspective.

For those who detest the very concept of communism, it may come as a nasty shock that a tiny element of it (common property) has already been almost universally accepted for a very long time. In Britain and most other countries under common law, land is regarded as a shared resource and, in the strict literal sense, there is seldom any such thing as a fully private landowner. Almost all land in the country - every square millimetre of it, no matter if built upon or empty - is ultimately owned by the government (aka the 'Crown' in Britain). With few exceptions, no other entity - no matter how rich or how poor - can truly own land in an absolute sense (unconditionally allodial). A clue to the true status of land lies in terms such as 'freehold' or 'leasehold'; in other words, we hold the land rather than actually own it.

If you really think that no one has a superior claim on your land than you, try telling that to the government when they want to build a road through it.

Generally, when we think we own land, what we actually own is an "estate in land", i.e. not the land itself but the right to use it. Moreover, even that right is subject to overriding powers (such as taxation, compulsory purchase, police power and escheat). There are also likely to be certain restrictions: not only on such things as form of usage (agricultural, residential, etc.), mineral rights and water rights but on whatever structures are built on the land. New buildings typically require planning permission and, in countries such as Britain, old buildings may be protected by 'listed' status. In other words, no matter who currently owns the old building, it is regarded as part of the shared heritage of the entire country.

Thus, it should really come as no surprise that since the government owns the actual land, they may also lay claim to whatever lies buried beneath it. While some landowners (in the popular sense) may have contracted certain underground mineral or water rights and so on, in many countries with a rich archaeological heritage such rights seldom extend to buried archaeological remains. Much like listed old buildings, the remains are regarded as part of the shared heritage of the entire country.

Any individual who assumes that anything found buried on their land automatically belongs to them, and bristles at the notion that the government should have any right to intervene, would do well to ponder what "their land" actually means. Assumptions can be very misleading.

Seizures of antiquities: a glance at the law behind them

Seizures of antiquities by government agents are a recurring theme in the United States - and sometimes the seizures seem to be carried out on only the flimsiest of evidence that the items may be contravening the law. Outraged dealers and collectors typically cry that the frequently successful outcomes of such actions where evidence is relatively weak are a flagrant breach of a legal principle enshrined in national law: surely, they protest, something must be "innocent until proven guilty".

Well actually, that principle still holds true in such cases - the seized items are indeed "innocent until proven guilty" (much like a person being arrested) - but the clue is in the word "proven". "Proof" is not a universal paradigm in law; what may be demanded as proof in one type of legal action may not necessarily be required as proof in another.

A Canadian coin dealer recently suggested that the prevalence of seizures in the United States as opposed to Canada or Britain was the result of a difference in legal systems: whereas Canada and Britain are governed by "common law", the US has no such protection. In fact, he was quite wrong. The legal systems of Britain, Canada and the United States are all largely based on "common law" (a system originating in England and grounded on judicial precedent as opposed to "civil law" grounded on statutes, etc.). The legal systems vary between those nations in the way in which they are implemented and by other factors but their systems are all founded on common law.

The differences in what counts as proof arise from differences in the type of legal action - between "criminal cases" and "civil cases" - and that distinction exists in both Britain and the United States. Most of the American cases of antiquities confiscation come under the heading of "civil forfeiture" (more commonly known as "civil recovery" in Britain), more specifically "in rem". Whereas in a criminal action, the burden of proof is "beyond a reasonable doubt"; in a civil action in rem, the government sues the property itself (in rem) and all it needs is a "preponderance of the evidence" ("balance of probabilities" in Britain), a far lower burden of proof.

That may explain why American seizures of antiquities are seldom accompanied by a conviction of the people involved. A civil action in rem is far easier than a criminal action (or indeed a civil action in personam) and far more likely to be successful. Even if the artefacts are licit, the cost of legal defence is often not financially viable, especially in the absence of documentation. Cynically, it might be said that the US government gains the political kudos of repatriating antiquities to their countries of origin and the favourable publicity of proactively being seen to do the "right thing" with the minimum of effort. Whether the seizure was truly justified or not seems almost irrelevant from that perspective.

However, political motivations aside, such seizures do serve as a warning that dealers and collectors of antiquities would do well to heed. Insisting on documentation of items considered for acquisition is not only a responsible means of stemming the flow of recently looted artefacts, keeping and preserving records is a vital precaution in increasing the chances of holding on to those licit items they already own.

Cases of civil forfeiture seem to have become almost an epidemic in the United States and far commoner than in Britain. Their prevalence has been deeply controversial and an absolute nightmare for some. "America - Land of the Free"? Perhaps more like "America - Land of Litigation" (and a carnival for lawyers). But also a timely reminder for those buying and owning antiquities to take their responsibility seriously.

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Many thanks to Derek Fincham for glancing through my draft before posting. Any errors are my own.

Artwork is my own - with a little help from James Montgomery Flagg.

Collector asks FBI for help - but why the delay?

Peter Tompa, a lawyer in Washington DC, has drawn attention to an American news story about FBI agents "with a team of about 100 people" descending on the home of Dr Donald Miller, a 91-year-old man in central Indiana, to investigate his enormous collection. The eclectic assembly of pieces included "Native American artifacts and relics as well as items from the United States, China, Haiti, Australia, Russia, New Guinea, Italy, New Zealand, Puerto Rico, Greece, Peru and possibly several other countries".

Despite huge media hype making the FBI operation sound like a raid, I gather Dr Miller willingly invited the government to help him dispose of his vast collection and repatriate relevant items since he is old, lives alone and has no heirs. Peter Tompa asks "Couldn't the matter [have] been handled far more discretely?". Well, most law enforcement agencies are not known for acting discretely. All too often, they tend to treat almost every operation like a scene out of Die Hard. However, it should be noted that much of the team consisted of scholarly "archaeologists and anthropologists" to help catalogue the items, not all iron-jawed agents toting guns. An explanation of the large number of people involved in the operation may well be that the FBI thoughtfully wanted to process the items as quickly as possible so that they would soon be out of Dr Miller's way rather than prolonging any disruption.

I feel sorry for the elderly Dr Miller - but my sympathy is mixed with a question. Why has he left all this until he is 91 years old? Collecting entails responsibility. He clearly suspected parts of his collection might be unlawful or at least unethical. If he had dealt with this himself many years ago, this current situation could have been avoided. Now it has to be dealt with at the taxpayers' expense. At this point, we can only speculate on the reasons for the delay.

A Tale of Three Lawyers: Views on LA Times piece

A controversial op-ed piece by Adam Wallwork, a law student at the University of Chicago, appeared in the Los Angeles Times on Monday: "The archaeology paradox: more laws, less treasure". An abbreviated version of his earlier article in a law journal, it argues that the results of his worryingly dodgy "survey" have led him to conclude that "restrictive cultural property laws" have caused a sharp decline in "new archaeological discoveries".

The piece has predictably provoked an outcry from archaeologists, most of whom point out the flaws in a study based on "factual inaccuracies and logical fallacies". However, let's take a look at the opposing reactions of two non-archaeologists, both of whom are also American lawyers.

The reaction of Peter Tompa, a lawyer lobbying on behalf of American coin dealers, was as predictable as that of the archaeologists, though of course in the opposite direction. Unsurprisingly, in view of the anti-conservationist stance of his clients, he heralded the Wallwork study as suggesting "strict laws that only allow state sponsored archaeologists and cultural bureaucrats legal access to uncovering the past actually diminish discoveries" and at one stage commented that opposition to the piece came from those with an "anti-collector agenda".

In stark contrast to that response, the reaction of Rick St. Hilaire, another lawyer and a professor of cultural property law at Plymouth State University, was utterly in tune with the disapproval expressed by archaeologists. Incisively noting an undertone in the original law journal article suggesting "archaeology is akin to a mining operation whose primary mission is to produce fantastic raw materials for consumption", the law professor questions "whether consumer-driven heritage harvesting is under discussion rather than authentic archaeology".

Rick St. Hilaire rightly quotes the AIA: the mission of archaeology is to "preserve, protect, and interpret the precious record of the human past". Archaeology is about the study of the human past by analysing material evidence; it is NOT only about finding new tourist attractions or digging up loads of pretty objects. Nor is conserving the evidence of the past inherently "anti-collector"; it just doesn't pander to those dealers and collectors who wish to exploit it without consideration for anyone else.