Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence


Memorandum submitted by Rena Moulopoulos, Senior Vice-President, Sotheby's

  I submit this letter in response to our brief discussion regarding the implementation in the United States of the UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Ownership of Cultural Property (the "Convention").

  The United States ratified the Convention in 1972, however, only limited aspects of the Convention were implemented, in part, because the concept of enforcing the export control laws of every signatory to the Treaty seemed unworkable. In 1983, the Convention was finally implemented in the form of the Convention on Cultural Property Implementation Act ("CCPIA").[55]

  The CCPIA is more narrow in scope that the Convention and is a limited exception to the US policy of not enforcing the export control laws of foreign nations.[56] The CCPIA attempts to balance the interests in prohibiting the import into the United States of recently smuggled works of art with the interests of protecting the import into the United States of cultural property that is rightfully owned. To achieve this balance, the CCPIA contains strict conditions, as further set forth below, that must be met before import restrictions will be imposed.

  The President of the United States[57] may allow import restrictions for certain types of archaeological or ethnological property by either (a) entering into bilateral or multilateral agreements with other State Parties[58]; or (b) authorising temporary emergency import restrictions. In addition, the CCPIA makes it illegal to import property stolen from a museum or religious or secular public monument, as further discussed below.

Bilateral or Multilateral Agreements

  In response to a request by a State Party, it must be established that:

    (a)  the cultural patrimony of the requesting state is in jeopardy from the pillage of the archaeological or ethnographical materials;

    (b)  the requesting state has itself taken steps to protect its cultural patrimony;

    (c)  the US import restrictions, along with similar actions by other nations with an import trade in similar works of art, would be of "substantial benefit" in deterring a "serious situation of pillage";

    (d)  less drastic remedies are not available; and

    (e)  the import controls are consistent with "the general interest of the international community in the interchange of cultural property among nations for scientific, cultural and educational purposes". 19.U.S.C. §2602(a)(1).

  The law requires that each of the foregoing factors must be satisfied before the US may impose import restrictions under the CCPIA. The import restrictions entered pursuant to the bilateral or multilateral agreement provision are temporary in nature and can be terminated by granting six months' notice of the termination.[59] Since 1983, the US has entered bilateral agreements with only five countries.[60]

Emergency Provisions

  Pursuant to the emergency provisions, the US may impose import restrictions in response to a request from a State Party, only if it is established that certain, well defined archaeological or ethnological material is:

    (a)  a "newly discovered type of material which is of importance for the history of mankind and is in jeopardy from pillage, dismantling, dispersal, or fragmentation";

    (b)  identifiable as coming from any site recognised to be of high cultural significance and such pillage is of "crisis proportions"; or

    (c)  part of a remains of a particular culture of civilisation the record of which is in jeopardy from pillage . . . of crisis proportions and the import restrictions on a temporary basis would "reduce the incentive for such pillage . . .".

  Currently, only Cyprus and Cambodia have emergency import restrictions in place.[61]

Inventory Stolen from Museums

  Unlike the bilateral or multilateral agreement or emergency restriction provisions, the third form of remedy under the CCPIA does not require a specific request by a State Party. Rather, the CCPIA renders it illegal to import stolen cultural property that is "documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution". Such property must have been located in a country that is a signatory to the Convention and stolen on the later of: the effective date of the CCPIA (12 January 1983) or a date after the State Party entered the Convention into force. I am aware of only two instances in which this provision has been the subject of a lawsuit.[62]

General Comments

  The imposition of specific import restrictions does not require the importer to obtain a special licence from US Customs. Rather, the importer must simply be able to establish either that the item was exported from the country of origin legally, or that the item was outside of the relevant country prior to the effective date of the specific restriction. For example, the restrictions on importing into the US certain materials from Cambodia went into effect on 2 December 1999. Therefore, it is permissible to import into the United States items that are legally owned and that were outside of Cambodia prior to 2 December 1999. It is not required that the importer establish when or how the item was exported from Cambodia.

May 2000

In addition to the specific import restrictions mentioned here and in footnote 6 above, requests have been made on behalf of the Governments of Italy, Bolivia and Nicaragua. It is unclear if the pending requests have been made pursuant to the bilateral or multilateral agreements provision or the emergency provision.

55    19 USC s2600, et seq. Back

56    See, eg, US Customs Directive regarding Detention and Seizure of Cultural Property, 1991 ("it is important to note that merely because an exportation of an artefact is illegal within a particular country does not necessarily mean that the subsequent importation into the United States is illegal"). Back

57    Initially, the President delegated his decision-making authority to the United States Information Agency. In October 1999, the US Information Agency was merged into the US Department of State, which now has the authority to recommend the imposition of import restrictions. Back

58    As used herein, "State Parties" indicates signatories to the Convention. Back

59    Section 2602(b) of the CCPIA limits the term of any bilateral or multilateral agreement to five years. Renewal for consecutive periods of five years is granted only if the stringent requirements for the original restrictions are met and no cause for suspension exists. The emergency restriction measures discussed below are limited to an initial period of five years, with a possible single extension of up to three years if "the emergency condition continues to apply". 19 U.S.C. §2603(c)(3). Back

60    The five countries as well as the dates of the agreements are: Canada, agreement entered 22 April 1997, El Salvador, agreement entered 10 March 1995 (which continued and expanded the emergency restrictions imposed on 11 September 1987); Guatemala, agreement entered 3 October 1997 (which continued and expanded emergency restrictions entered on 15 April 1991);Mali, agreement entered 23 September 1997 (which continued and expanded emergency restrictions entered on 23 September 1993); and Peru, agreement entered 11 June 1997 (which continued and expanded emergency restrictions entered on7 May 1990). For more detail regarding the import restrictions in effect pursuant to the CCPIA, see Back

61    The Cypriot import restrictions were effective as of 12 April 1999 and the Cambodian import restrictions were effective as of 2 December 1999. The Government of Bolivia had obtained emergency relief on 14 March 1989, but the relief expired in 1996. Back

62    See, United States of America vs An Original Manuscript dated 19 November 1778 bearing the signature of Junipero Serra, located at Sotheby's, 1334 York Avenue, New York, New York 1999 WL 97894 (SDNY), 96 Civ 6221 (ordering the return of a manuscript that had been stolen from the Mexican National Archives); and United States of America vs A tenth century marble wall panel sculpture of a guardian from the tomb of Wang Chuzhi located at Christie's, 20 Rockefeller Plaza, New York, New York 00 Civ 2356 (filing of a complaint that the wall panel was stolen from a site in the People's Republic of China). Back

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