BALANCING MARKETS, MORALS AND LAW: THE FIGHT TO REGULATE ILLICIT TRAFFICKING IN CULTURAL GOODS AND THE EU REGULATION ON THE IMPORT OF CULTURAL GOODS.

Author:Dehouck, Maja R.J.
 
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Introduction

The start of 2019 marks both the end of the European Year of Cultural Heritage and the adoption by the European Parliament of a new Regulation on the import of cultural goods. (1) The aim of the Year of Cultural Heritage was to focus attention on the EU's rich diversity in cultural heritage, (2) as well as on its shadier side: an annual market in illicit trade in cultural property from all over the world worth 3 to 6 billion dollars. (3) Pottery, artwork, jewellery, objects of religious worship, armour and statues from ancient Mayan civilisation (4) or from temples in Cambodia (5) or the Iraqi National Museum (6) are passing through the hands of looters, smugglers, terrorists, and auction houses only to end up on display in European museums, on the shelves of American interior decorators, or in the vaults of private collectors. New objects enter the market every day as legal and illegal excavations continue. (7) The lines between the legal and illegal, moral and immoral aspects of this trade are blurred because of the various dubious practices connected to it at all stages, such as its ties to the drugs and arms trades, terrorism and corruption. (8)

There are many reasons to seek to put a stop to illicit cultural property trafficking, but this requires a concerted international effort. The most important milestones of international law in this effort are the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, (9) and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (10) and, most recently, the new EU Regulation on the Import of Cultural Goods which will require importers to provide evidence that cultural goods have been legally imported into the European Union. (11)

However, the international regimes aimed at protecting cultural property are notorious for their shortcomings. (12) The process towards ending illicit cultural property trafficking by the creation, ratification and implementation of the instruments of international law has been a slow and arduous one. The premise of this paper is that this is due to their being the result of a very difficult balancing act between the different stakeholders, interests and viewpoints in the cultural property world. These are rooted in the complex history and networks of the international art and antiquities trade, where economic interests, human rights arguments and ethical considerations are traded off against each other, resulting in instruments which are largely considered weak and ineffective compromises. As a result, the illicit trade in cultural property has continued to grow every year since the 1970 UNESCO Convention. (13)

This paper aims to deconstruct the elements of compromise which have influenced the drafting and success of legal instruments in the past, in order to frame the creation of the new Regulation in the long-standing divides and debates in the field.

Part I firstly seeks to define illicit cultural property trafficking, considering why it is problematic, and where it fits in the international art market. Part II discusses the ideological divides characterising the cultural property world, and where the relevant actors in the field position themselves in these debates.

Part III discusses the most important milestones in international law aimed at stopping illicit cultural property trafficking: the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. This Part will critically deconstruct them using the elements presented in the first two Parts, in order to demonstrate how they are the result of compromises, and how these compromises have affected their effectiveness. This will answer the second set of research questions: how does established international law frame and counter the illicit trade in cultural property, and how have the contradictions in the cultural property world influenced this system? What balance have the instruments of international law struck between source and market nations, market interests and human rights, cultural property nationalism and internationalism? How successful has the resulting compromise been? This section will pay specific attention to the European context.

The final Part builds on the framework of the previous sections to examine the EU's latest initiative to counter cultural property trafficking, namely the Regulation on the Import of Cultural Goods in the EU. This Part will answer the final set of research questions: how can we frame the EU Regulation in a broader context? To what extent are the predominant debates which influenced past efforts towards regulating illicit cultural property trafficking, significant for the creation of this Regulation? What suggests that the balance struck this time will be different, and what suggests it will merely perpetuate the choices made in the past?

To answer those questions, this paper conducts a review of the relevant literature and incorporates information gleaned from informal interviews, personal discussions and lectures by several experts working in the field of cultural heritage and the art trade.

Discussing the illicit trade in cultural property is necessarily an interdisciplinary endeavour. Since 1969, when a paper by Clemency Coggins turned the eyes of the international community towards the topic of looted cultural property,14 academic efforts have been directed to the study of this trade, conducted, in the first instance, primarily by archaeologists and art historians. Neil Brodie (15) was a leading voice within this field. This body of research was supplemented by ethnographic research into the social realities of illicit cultural property trafficking by anthropologists and other social scientists. (16) In the field of criminology, much attention has been paid to the illicit trade in cultural property. Leading voices such as Bowman (17) and Mackenzie (18) have expanded the discussion by studying it as a form of organised crime, including it in wider criminological debates and connecting it to other forms of organised crime and conflict. Another important voice in this field is Erik Nemeth, (19) who identifies illicit cultural property trafficking as a security issue.

Since the first regulatory efforts in the aftermath of Coggins' paper, significant legal research has also been done in this field. The tone was primarily set by John Merryman in 1986. (20) After that, legal research has approached the issue of cultural property trafficking from various angles related to international public and private law, such as its interconnections with human rights law, international criminal law and humanitarian law. (21) Thus, in order to achieve a complete picture of illicit cultural property trafficking and its interconnections with other forms of organised crime, armed conflict, law and the art world, this paper will consider not only legal perspectives, but also those from fields ranging from criminology to art history, anthropology and other social sciences. It will focus on matters of international and European law to explore in depth how these both reflect and influence the dynamics between source and market nations.

PART I: MARKETS AND MORALS: THE STATE OF THE ILLICIT CULTURAL PROPERTY WORLD

I.1 Cultural Property Trafficking

1.1.1 What is Cultural Property Trafficking?

Cultural objects have had an allure for mankind throughout history, which endures to this day. The trade in cultural property goes back to ancient times. Tellingly, Karl Meyer goes as far as calling tomb robbing 'the second-oldest profession'. (22)

Not only in the context of conquest and warfare has cultural property been moved around. Objects of cultural significance have also changed hands as gifts to foreign dignitaries and as objects of trade. (23) Of course, in ancient times, the goods that today are seen as antiquities moved around in the ordinary course of daily life, as jewellery, architectural material, art objects or funeral objects. The business of trading them was part of general business relations. It was not until more recently that the art and antiquities trade as a specialised business emerged. Art auctions started in the eighteenth century, establishing the art trade as a specialised profession occupied by various actors. (24)

In the development of this trade, innumerable cultural objects have moved around the world throughout the ages, removed from their original finding places, smuggled across borders, traded, shipped, disguised, auctioned, discovered, bought, lent, gifted, ... However, the concept of 'trafficking' is generally understood as:

the illicit import, export and transfer of ownership of cultural property [...] ranging from theft from cultural heritage institutions or private collections, through looting of archaeological sites to the displacement of artefacts due to war. (25)

To speak of an 'illicit trade' means that somewhere in the process from excavation (or discovery) to purchase, something illegal happens. This can be, depending on the legislation in force: theft from collections or museums, illegal excavation, removal during armed conflict or military occupation, illegal exportation or importation of objects, forging documentation, dealing in fakes or forgeries, the illegal transfer of ownership through sale, exchange, donation or legacy, etc. (26) Art theft, looting, forgeries and smuggling fall under the umbrella of 'art crimes', according to Conklin: (27) "criminally punishable acts that involve works of art".

Parellels can be drawn between the illicit trade in antiquities and other transnational crimes such as trafficking in humans or body parts, (28) the illicit arms trade and drug trafficking. (29)

However, there is one major difference: antiquities and art objects are, unlike narcotics for example, a fully legal commodity. Possessing and trading in antiquities is not illegal perse. (30)

Illicit cultural...

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