Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Working Papers Faculty Scholarship 2-19-2009 Protecting against Plunder: The United States and the International Efforts against Looting of Antiquities Asif Efrat Cornell Law School, [email protected] Follow this and additional works at:http://scholarship.law.cornell.edu/clsops_papers Part of theArts and Entertainment Commons,Commercial Law Commons,International Law Commons, and theInternational Trade Commons Recommended Citation Efrat, Asif, "Protecting against Plunder: The United States and the International Efforts against Looting of Antiquities" (2009).Cornell Law Faculty Working Papers.Paper 47. http://scholarship.law.cornell.edu/clsops_papers/47 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Working Papers by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please [email protected]. Protecting against Plunder The United States and the International Efforts against Looting of Antiquities ∗∗∗∗ Asif Efrat Word Count: 21,297 Abstract. In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern of US policymakers about looting abroad resulted from a series of scandals which exposed the involvement of American museums and collectors with looted material. Advocacy efforts of American archaeologists also played a key role in educating policymakers about the loss of historical knowledge caused by looting and the necessity of regulation. The article further analyzes how antiquities dealers and certain museums lobbied Congress against implementing the UNESCO Convention and why Congress decided in favor of implementation as an act of international moral leadership. Following the analysis of the Congressional battle, I examine how the US debate over looted antiquities has evolved to the present. The article concludes with implications for the role of values versus interests in international law. ∗ Visiting Assistant Professor, Cornell Law School; Ph.D., Government, Harvard University; LL.B., Tel Aviv University. I thank Jack Goldsmith, Jens Ohlin and Beth Simmons for helpful advice and comments. 1 I. INTRODUCTION The international trade in antiquities, many of which have been illegally excavated and illegally exported, results in the destruction of the world’s archaeological heritage.1 As part of this ongoing trade, archaeological sites and monuments all over the world are plundered, and the loot comes to rest in museums and private collections primarily in Europe and North America, and increasingly in East Asia.2 While some maintain that the problem of antiquities looting “has grown out of all control” in recent years3, the problem itself is far from new and so are the international efforts to address it. At the center of these efforts has been a 1970 UNESCO convention intended to stem the flow of looted antiquities4 from poor archaeologically-rich countries to rich market countries: Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereafter the UNESCO Convention or the Convention). While this Convention was embraced by developing countries facing archaeological plunder, the majority of market countries – including Britain, Germany, and Japan – rejected the Convention. From their point of view, the Convention harmed the 1 Neil Brodie and Jenny Doole, Illicit Antiquities, in TRADE IN ILLICIT ANTIQUITIES: THE DESTRUCTION OF THE WORLD’S ARCHAEOLOGICAL HERITAGE 1, 1 (Neil Brodie, Jennifer Doole, & Colin Renfrew eds., 2001). 2 Neil Brodie, An Archaeologist’s view of the Trade in Unprovenanced Antiquities, in ART AND CULTURAL HERITAGE: LAW, POLICY AND PRACTICE 52, 52 (Barbara Hoffman ed., 2006). 3 Neil Brodie, Introduction, in ILLICIT ANTIQUITIES: THE THEFT OF CULTURE AND THE EXTINCTION OF ARCHAEOLGY 1, 1 (Neil Brodie & Kathryn Walker Tubb eds., 2002). See Brodie, supra note 2, at 52: “The trade in unprovenanced antiquities has exploded over the past 40 years as barriers to communication have fallen and technology has improved”. 4A term commonly used in the debate over antiquities is “illicit antiquities”. The term “illicit antiquities” was coined by archaeologists to highlight the fact that the trade consists largely of antiquities which have been illegally excavated and/or illegally exported from source countries, where archaeological heritage is typically in public ownership. The antiquities are “illicit” inasmuch as their original removal and export were illegal; yet later on they change hands in a process that erases their illegal origin and allows them to be bought legally by museums and private collectors. Brodie, supra note 3, at 2. Since the antiquities ultimately obtain legality, I use the term “looted antiquities”, rather than “illicit antiquities”. 2 interests of art dealers, museums and collectors by limiting their ability to acquire antiquities. Furthermore, market countries saw the Convention as unfairly imposing costs on their law enforcement agencies and bureaucracies to the benefit of foreign countries. Yet the United States, the largest market country, took a different approach. Contrary to other market countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities as established by the UNESCO Convention. Soon after the Convention’s adoption, the United States began the process of its ratification and implementation. This article seeks to explain the following puzzle: Why did the United States choose to join the international efforts against looting and establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market? While this puzzle is intriguing in its own right, it also constitutes a good case-study for one of the fundamental debates in international law scholarship: the relative role of values and interests in the international legal system. Proponents of the interest-based approach understand states’ motivations with respect to international law in instrumental and rationalist terms. For example, according to Goldsmith and Posner, “states act rationally to maximize their interests”, defined as “preferences about outcomes”.5 In their theory, states sign international agreements to achieve joint gains.6 Guzman’s theory of international law rests on similar rationalist assumptions. In his view, “states will only enter into agreements when doing so makes them (or, at least, their policy-makers) better off.”7 The attitudes of most countries toward the 1970 UNESCO Convention are consistent with this interest-based view. The Convention aimed to make archaeologically-rich countries (hereafter source countries) better off by helping them to 5 JACK GOLDSMITH & ERIC POSNER, THE LIMITS OF INTERNATIONAL LAW 6-7 (1995). 6 Id. at 84-85. 7 ANDREW GUZMAN, HOW INTERNATIONAL LAW WORKS 121 (2008). 3 curb the looting and outflow of their antiquities. These countries indeed have been the Convention’s most ardent supporters from its inception. By contrast, the Convention did not offer any gains to market countries and, in fact, threatened to make them worse off by restricting their import of antiquities and by imposing law enforcement and administrative costs. Most market countries thus judged the Convention to be adverse to their interests and refused to join it. One would be hard-pressed, however, to explain the American choice to join the UNESCO Convention in self-interested terms. The United States is not archaeologically-rich, and looting of American archaeology has never been a major concern. Rather, the US goal in supporting and implementing the UNESCO Convention was to help foreign countries protect their archaeological heritage. An interest-based rationalist approach will find it difficult to account for the willingness of the United States to put curbs on its own art market in order to tackle the plunder of antiquities abroad. The competing view in the values-versus-interests debate attributes an important role to values in the international legal system. Indeed, proponents of the value-based view do not deny that interests and “politics” play an important role in shaping states’ attitudes toward international law. They acknowledge that international law “is made by political actors, through political procedures, for political ends”8 and that treaties are based on “well-developed conceptions of national interest.”9 Yet they also maintain that international law is a means to further values that transcend self-interest, like the welfare of individual human beings and the common good of mankind. 10 In their view, international law “does and should reflect and 8 LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 4 (1995). 9 Abram Chayes & Antonia Handler Chayes, On Compliance, 47 INT’L ORG. 175, 183 (1993). 10 HENKIN, supra note 8, at 4-5, 97, 168, 279. 4 promote values – the highest moral beliefs of international society.”11 While this value-based view of international law is seemingly consistent with the American support for the UNESCO Convention, the two are not easily reconciled. The Convention has clearly sought to promote values, those of protection of archaeological heritage and preservation of historical knowledge. Why, then, was the United States the only major market country who cared enough about those values to support the Convention upon its adoption? Why did other market countries favor their self-interest in free movement of antiquities over the values promoted by international regulation of antiquities? The article answers these questions by examining the evolution of the American policy on international antiquities regulation from the late 1960s to the present. My analysis closely examines the revolutionary period in US policy (late 1960s to early 1980s), in which the traditionally-liberal approach to the antiquities trade gave way to the acceptance of regulation. I argue that the concern of US policymakers about looting abroad resulted from a series of scandals in the early 1970s which exposed the involvement of American museums and collectors with looted material. These scandals convinced policymakers that the United States ought to put its own house in order. Advocacy efforts of the American archaeological community also played a key role in generating concern about the negative externalities12 of the antiquities trade in foreign countries. Using their knowledge and expertise, the archaeologists educated policymakers about the destruction and loss of historical knowledge caused by looting and the necessity of regulation. The article further examines how antiquities dealers and certain 11 Jonathan Charney, Donald Anton & Mary Ellen O’Connell, Politics, Values and Functions: International Law in the 21st Century, in POLITICS, VALUES AND FUNCTIONS: INTERNATIONAL LAW IN THE 21ST CENTURY 1, 2 (Jonathan Charney, Donald Anton & Mary Ellen O’Connell eds., 1997). 12 Asif Efrat, A Theory of Internationally Regulated Goods, FORDHAM INT'L L. J. (forthcoming 2009). 5 museums lobbied Congress against implementing the UNESCO Convention and why Congress decided in favor of implementation as an act of international moral leadership. Beyond its contribution to the values-versus-interests literature, the article also speaks directly to the contemporary debate over the antiquities trade and its regulation. The debate between the pro-regulation archaeologists and the anti-regulation art community has been raging since the late 1960s; it is still as contentious, polarized and emotional today as it was four decades ago.13 The legal literature addressing the debate is largely normative, offering arguments for and against regulation of antiquities as a means to curb archaeological plunder; the same arguments have persisted since the early days of the debate.14 This article seeks to advance the literature by offering the first political economy analysis of the issue. It traces the policy goals of each of the contending parties; examines their lobbying methods and efforts to shape US policy; and identifies the concerns and considerations guiding policymakers. Understanding the political dynamic of antiquities regulation may allow the circular debate over antiquities to move forward. The article is organized as follows. Part II provides an introduction to the trade in looted antiquities and an overview of the causes of looting. Part III examines the 1970 UNESCO Convention and its rejection by most market countries. Part IV shifts the focus to the United States and analyzes the debate over the implementation of the UNESCO Convention, which culminated in the 1983 enactment of the Convention on Cultural Property Implementation Act (CPIA). Part V examines how the US debate over looted antiquities has evolved from 1983 to the present. Part VI concludes. 13 Alexander Bauer, New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates, 31 FORDHAM INT'L L. J. 690 (2008). 14 See, for example, PAUL BATOR, THE INTERNTIONAL TRADE IN ART (1983); John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT’L L. 831 (1986); Patty Gerstenblith, Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past, 8 CHI. J. INT’L L. 169 (2007). 6 II. THE TRADE IN LOOTED ANTIQUITES: BACKGROUND Why regulate the antiquities trade through an international convention? The motivation for international regulation of antiquities is the negative externalities generated by uncontrolled trade in these objects. More specifically, the source of the problem is the looting process that feeds the trade. Archaeologists identify three negative externalities that result from the looting of antiquities. First, and most obviously, looting of antiquities results in archaeological destruction. The clandestine excavation and removal of the objects causes enormous and irreparable damage to the looted sites and monuments. At times, the destruction caused by the looting itself is accompanied by purposeful destruction intended to eliminate evidence.15 The antiquities themselves are often damaged as well due to the inexpert excavation and lack of proper conservation.16 Also discarded and destroyed in the process are mundane objects or fragmentary pieces which do not command high market value yet may carry archaeological value. Second, looting of antiquities results in the loss of historical information and knowledge. To grasp the magnitude of the loss, one needs to understand the centrality of context to archaeological research. Context, considered by some as the “essence of archaeology”,17 is “where an artefact is found and what is found with it … the set of relationships among artefects 15 Colin Renfrew, Foreword, in TRADE IN ILLICIT ANTIQUITES: THE DESTRUCTION OF THE WORLD’S ARCHAEOLOGICAL HERITAGE , xi (Neil Brodie, Jennifer Doole, & Colin Renfrew eds., 2001); NEIL BRODIE, JENNY DOOLE & PETER WATSON, STEALING HISTORY: THE ILLICIT TRADE IN CULTRUAL MATERIAL 12 (2000); PENILLE ASKERUD & ETIENNE CLÉMENT, PREVENTING THE ILLICIT TRAFFIC IN CULTURAL PROPERTY: A RESOURCE HANDBOOK FOR THE IMPLEMENTATION OF THE 1970 UNESCO CONVENTION 10 (1997). 16 Lyndel Prott, National and International Laws on the Protection of Cultural Heritage, in ANTIQUITIES: TRADE OR BETRAYED: LEGAL, ETHICAL AND CONSERVATION ISSUES 57, 57 (Kathryn Walker Tubb ed., 1995). 17 Kathryn Walker Tubb & Neil Brodie, From Museum to Mantelpiece: The Antiquities Trade in the United Kingdom, in DESTRUCTION AND CONSERVATION OF CULTURAL PROPERTY 102, 105 (Robert Layton, Peter Stone & Julian Thomas eds., 2001). 7 and between artefects and their surrounding structures.”18 Archaeologists maintain that coherent historical information “comes about only through the systematic study of context.”19 Objects, in their context of discovery, can shed light on past cultures. In fact, objects which seem unimportant by themselves may acquire great significance if found next to other objects or far removed from their usual area of distribution.20 Yet the illegal excavation and removal of antiquities destroys their context with the resulting loss of historical information.21 Indeed, archaeologists maintain that antiquities wrenched out of their context of discovery add very little to the knowledge of the past.22 Looted antiquities may be beautiful objects that please the collector and the museum visitor. From the archaeologist’s viewpoint, however, they are worthless.23 The third negative externality of the trade in looted antiquities is borne by the communities from whom the antiquities have been looted. Archaeological remains are part of a people’s culture and tradition; the illegal removal of those remains and the accompanying destruction eliminate a part of the people’s history and heritage and at times damage sites and monuments that are sacred.24 Moreover, looting deprives the community from a possibly lucrative economic resource. Had the antiquities been on display at the archaeological site or a nearby museum, they would have attracted tourism and could have generated profits for the local economy.25 18 Brodie, supra note 2, at 52. 19 COLIN RENFREW, LOOT LEGITIMACY AND OWNERSHIP: THE ETHICAL CRISIS IN ARCHEAOLOGY 10 (1999). Emphasis in original. 20 BRODIE, DOOLE & WATSON, supra note 15, at 10-11. 21 Brodie, supra note 2, at 52. 22 RENFREW, supra note 19, at 10; Prott, supra note 16, at 57. 23 BRODIE, DOOLE & WATSON, supra note 15, at 11. See Tubb and Brodie, supra note 17, at 105: “Artefacts divested of contextual information are pitifully dispossessed, impoverished of meaning and, as such, are an anathema.” 24 BRODIE, DOOLE & WATSON, supra note 15, at 12-13. 25 BRODIE, DOOLE & WATSON, supra note 15, at 14; Brodie, supra note 3, at 13-15. 8 While the looting itself takes places primarily in poor archaeologically-rich countries, archaeologists identify the demand of market countries as the culprit. Demand from museums and collectors, archaeologists maintain, fuels the looting. This begs a critical question: How can looted objects obtain legitimacy and end up as museum exhibits or collector items? The answer, according to archaeologists, is that most antiquities, 60%-90% according to estimates, “surface” on the market and are sold without provenance, that is, they have no accompanying information as to where they have been found and in what circumstances; nor do they have information about their previous ownership history.26 Obviously, without such critical information it is virtually impossible to investigate the pedigree of a particular object and prove that it has been looted. Nevertheless, archaeologists hold the view that an antiquity without provenance is most likely looted.27 In the strong words of Tubb and Brodie, “[t]here can be little doubt that the majority of antiquities without demonstrable provenance … have been looted from archaeological sites … . They are illicit and it is foolish to pretend otherwise.”28 Archaeologists further charge that looted antiquities are effectively laundered as they pass through the trading network so they can be offered for sale legally in a reputable outlet and be purchased by a respectable consumer. Since the antiquities market has traditionally not required revealing a record of ownership history or original findspot of an object; and, furthermore, given the principle of vendor anonymity29; 26 BRODIE, DOOLE & WATSON, supra note 15, at 26; Brodie, supra note 2, at 52-53. 27 Brodie, supra note 2, at 52-53; Neil Brodie and Colin Renfrew, Looting and the World’s Archaeological Heritage: The Inadequate Response, 34 ANN. REV. ANTHROPOLOGY 343, 343- 344 (2005). 28 Tubb and Brodie, supra note 17, at 106. 29 Id., at 110; As Bator writes, “[t]he most striking thing to a lawyer who comes upon the art world is how deep and uncritical is the assumption that transactions within it should normally be … secret. No dealer or auction house will normally reveal the provenance of an object offered for sale; it is assumed that buyers and the public have no business knowing where and when and for how much the object was acquired. … Indeed the tradition is such that information is rarely ever sought.” Quoted in Morag Kersel, From the Ground to the Buyer: A Market Analysis of the 9