THE ILLICIT TRADE IN PRE- COLUMBIAN ARTIFACTS Kayce A. Horgan April 16, 2008

CULTURAL PROPERTY “Movable and immovable property that has cultural significance, whether in the nature of antiquities and monuments of a classical age or important modern items of fine arts, decorative arts, and architecture.” Black’s Law Dictionary, 4 th Ed.

The World Divided  Art-Rich Nations  Nations where the supply of cultural property exceeds the internal demands  Usually undeveloped or developing nations  Example: Mexico  Associated with Cultural Nationalism  Art Poor Nations  Nations where the demand for cultural property exceeds the internal supply  Usually developed nations  Example: United States & Great Britain  Associated with Cultural Internationalsim SOURCE NATIONSMARKET NATIONS

2 Competing Mindsets  Cultural property is part of the cultural heritage within a specific nation  Restrictions on the flow of cultural property  Restrict flow of property because property is important to the identity of the people  Cultural property is part of the cultural heritage of the world  Free-Flow of cultural property  Important to export cultural property because source nations do not have the means to care for the cultural property CULTURAL NATIONALSIMCULTURAL INTERNATIONALSIM

Pre-Columbian Artifacts “Pre-Columbian is a term used to refer to cultures of the New World in an era before Christopher Columbus. In practice, the term usually includes indigenous cultures as they continued to develop prior to being conquered or significantly influenced by Europeans.” CBP News Release, April 1, 2008,

United States Customs & Border Protection Returns Pre-Columbian Artifacts to Mexico  On March 31, 2008, U.S. Customs and Border turned over pre-Columbian artifacts to the Mexican Government. The returned artifacts are considered priceless cultural treasures in Mexico and date back between 1250 BC and 900 BC.  Archeologists believed the artifacts are Pre- Columbian from the northern regions of Mexico and must have been part of funeral offerings.  The items had been in Customs’ custody since All of the items returned were seized from would be smugglers in a variety of enforcement actions conducted by CBP officers and/or ICE agents at various ports of entry in the states of Texas and New Mexico. CBP News Release, April 1, 2008,

ILLICIT TRADING: WHY?  Profitability  Revenues are in the billions  Comparable to the Drug Trafficking business in size and profitability  High Demand  Sign of wealth  Investment  Scarcity

PROBLEMS LATIN AMERICA FACES  REMOTENESS OF EXCAVATION SITES  Inability to Police  Many sites are not known about  THE PEOPLE ARE ENGAGED IN THE LOOTING  Their ancestors = Right to Sell  Quick money  Protects property from confiscation

LATIN AMERICA’S RESPONSE  NATIONAL LAWS  REGIONAL AGREEMENTS  INTERNATIONAL AGREEMENTS

NATIONAL LAWS  PATRIMONY LAWS  Export restrictions Cultural property cannot be removed from the country without permission.  National ownership declarations All cultural property found within the territorial borders of the country are owned by the nation. Applies to objects that are excavated & unexcavated, located on private & public land. May reach to objects in private collections. Relies on the theory of constructive possession.

REGIONAL AGREEMENTS  1935 CONVENTION  ROERICH PACT  CONVENTION OF SAN SALVADOR

1935 Convention  Members: Chile, El Salvador, Guatemala, Mexico & Nicaragua  Serves to limit the exportation of certain movable cultural property.  Cannot import movable cultural property without an export permit.

Roerich Pact  Signed same year as the 1935 Convention  Members: Brazil, Chile, Columbia, Cuba, Dominican Republic, El Salvador, Guatemala, Mexico, Venezuala & U.S.  Provides for the respect and protection of “cultural treasures”  Provides system of designating and recognizing “cultural treasures”  Red flags

Convention of San Salvador  Member nations may seek the aid of other member nations in the return of stolen property  Must use appropriate diplomatic channels  Requesting nation bears all costs  Serves to limit the exportation of cultural property  May only export for purpose of promoting knowledge of culture

INTERNATIONAL RESPONSE  UNESCO CONVENTION  UNITED STATES

United Nations Educational, Scientific and Cultural Organization (UNESCO)  The main objective of UNESCO is to contribute to peace and security in the world by promoting collaboration among nations through education, science, culture and communication in order to foster universal respect for justice, the rule of law, and the human rights and fundamental freedoms that are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.  To fullfil its mandate, UNESCO performs five principal functions: 1) prospective studies on education, science, culture and communication for tomorrow's world; 2) the advancement, transfer and sharing of knowledge through research, training and teaching activities; 3) standard-setting actions for the preparation and adoption of internal instruments and statutory recommendations; 4) expertise through technical co-operation to Member States for their development policies and projects; and 5) the exchange of specialized information.

UNESCO Convention of 1970  International response to the increase in peace-time looting of archeological & sacred sties following WWII.  “The States Parties to this Convention recognize that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international co-operation constitutes one of the most efficient means of protecting each country's cultural property against all the dangers resulting therefrom. To this end, the States Parties undertake to oppose such practices with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping to make the necessary reparations.” (Article 2)

UNITED STATES  CULTURAL PROTECTION IMPLEMENTATION ACT  PRE-COLUMBIAN ACT  NATIONAL STOLEN PROPERTY ACT

CULTURAL PROPERTY IMPLEMENTATION ACT (CPIA)  Implements the 1970 UNESCO Convention  Imposes import restrictions on archeological & ethological artifacts. Artifacts can only be imported with an export permit.  Provides for bilateral agreements & emergency import decrees

Bilateral Agreements  Custom-tailored to address the needs and issues of the two nations.  Certain conditions must be met in order for the United States to enter into a bilateral agreement. 19 U.S.C.A. §2602  A nation’s cultural property is in jeopardy of pillage;  The nation has taken measures to protect its cultural patrimony that are consistent with UNESCO;  The application of an import restriction “would be of substantial benefit in deterring a serious situation of pillage,” and less drastic remedies are not available; and  The implementation of the import restrictions is consistent with the international community’s general interest

Emergency Import Restrictions  If a nation does not have a bilateral agreement with the US they can petition the US to implement an emergency import restriction on their behalf Must show that 1 of 3 conditions exist : 19 U.S.C.A. §2603(a)  1) “a newly discovered type of [object] which is of importance for the understanding of mankind and is in jeopardy from pillage, dismantling, dispersal, or fragmentation;”  2) is from a site identified and recognized to be of ‘high cultural significance” and the site is in peril of “pillage, dismantling, dispersal, or fragmentation which is, or threatens to be, of crisis proportions;” or  3) is the cultural remains of a “particular culture or civilization, the record of which is in jeopardy from pillage, dismantling, dispersal, or fragmentation which is, or threatens to be, of crisis proportions.”

Pre-Columbian Act  Purpose of is halt the flow of Pre-Columbian goods before they enter the United States.  Allows customs to seize illegally imported Pre- Columbian artifacts.  All seized artifacts are offered back to the country of origin.

National Stolen Property Act (NSPA)  NSPA makes it a crime subject to criminal sanctions for any person to “transport, transmit, or transfer in interstate or foreign commerce any good…of the value of $5000 or more, knowing the same to have been stolen.” 18 U.S.C.A. §2314  Also, NSPA imposes criminal sanctions on “whoever receives, possess, conceals, stores, barters, sells, or disposes of any good…of the value of $5000 or more…which have crossed a State or United States boundary after being stolen…knowing the same to have been stolen. 18 U.S.C.A. §2315

What does the future hold?  How effective have these measures been?  Is the support of the United States enough to halt the illicit flow of cultural property?