APPENDIX 53
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 http://e.usia.gov/educational/culpropr/chart.html. 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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