On Articles 7, 8 and 9 of the 1970 UNESCO Convention

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Derek Fincham claims that "some accounts" of the bilateral cultural property agreement between the US and Greece might lead to what he calls "misapprehensions" of what the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property is all about. He then goes about presenting an Amerocentric interpretation of its text. He polemises with those who argue that U.S. implementation of the Convention seems not really to reflect a particularly deep commitment to fight the illicit trade in antiquities. He labels such views "an intellectually lazy assertion, particularly when it has little supporting evidence or argument". He suggests that those who see US policies towards the antiquities market in this way:

might be well-served by actually reading the text of both article 7 and 9 of the convention, and even seeking out Patrick O'Keefe's very fine commentary on the convention itself.

[He gives no reference but presumably referring to: Patrick J. O'Keefe 2007, 'Commentary on the 1970 UNESCO Convention' (2d ed.) London (Institute of Art & Law), ISBN 9781903987162. He himself quotes an unsourced passage of this work.]

Well, let's read the text of these two articles of the Convention, and let's do the authors of the text the courtesy of not omitting the Article that falls between them. So, let's skip over as read the preamble and Articles 1-6 (but Articles 3 and 6 are actually crucial ones, it's a shame Fincham does not dwell on them). He does however talk about the next of the Convention's 26 articles. Dr Fincham, misusing an apostrophe, suggests "Art.'s 7(b) & 9 taken together are the key provisions" of the Convention. Well, no they are not. Not by any means. Japan for example legislates the Convention in an entirely different manner. The US finds it convenient to focus on Art. 9 and ignore the rest.

So let's have an "actual read of the text" itself, not what Dr Fincham says about it:

Article 7
The States Parties to this Convention undertake:
(a) To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible, to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from that State after the entry into force of this Convention in both States;

(b) (i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution;

(ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property. Requests for recovery and return shall be made through diplomatic offices. The requesting Party shall furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and return. The Parties shall impose no customs duties or other charges upon cultural property returned pursuant to this Article. All expenses incident to the return and delivery of the cultural property shall be borne by the requesting Party.

Now, I am sorry, but Dr Fincham is clearly twisting the wording and sense of the 1970 Convention when he says that article 7[a] does not apply to the US because:

"what does consistent with national legislation mean? Which museums are 'instrumentalities' of the US government? Just the Smithsonian? There is after all no 'American Museum' along the lines of the British Museum or the Louvre. As a consequence, the U.S. has not implemented this article."

The US has not implemented this article more probably because at the time when this Convention was written and at the time the US became a state party (and for long after), its museums were being filled up with illicitly exported artefacts, both which they bought themselves, or were donations from private collectors who'd bought them earlier. What the Convention says is that governments should be taking steps, consistent with national legislation, to stop entities like museums (the main buyer of antiquities back before the 1970s) buying dodgy objects. I guess the authors of the Convention thought it was going to be signed by philistine nations, they might have added, and "if you ain't got any such legislation to get some", but they did not, they thought it was enough to say that states party would try to stop it and would actually do it rather than shrugging shoulders.

But this is not just about museums is it? We should remember that UNESCO is primarily concerned with educational and cultural establishments (such as museums and libraries - as mentioned specifically in the convention's preamble). It should also be realised that before c. 1970, the museums were responsible for far more purchases than the private collecting of antiquities (and here in this phase of the development of the antiquities market, we are talking about Greek vases and statues rather than broken bits of Roman metal keys and belt buckles or bulk lots of uncleaned Roman coins produced by the metal detector and shiftable only because of the internet). The Convention was written for a different antiquities market. Obviously the "measures" that should be taken to prevent illicit objects being on the market in a state party nation should also prevent them reaching private collectors. It is obvious from the second part of Art 7(a) that it is the MARKET which is to be monitored, not the museums. And tell me, pray, what measures does the United States of America take to inform even those countries with which it has an MOU "of an offer of such cultural property illegally removed from that State" on eBay or in a New York auction house for example? When was the last time that happened? Let it be clearly noted, this is not just about the US reacting when asked to, but the US taking the initiative and contacting the "source" country and saying that material has appeared on their market which is dodgy.

There are further Finchamian snideswipes presumably aimed at those non-American foreigners:

"Art. 7 (b)(i) requires [...] an inventory. Very few museums have created such an inventory".

Echoing Fincham's own words, I would say that is a statement unsubstantiated by any "supporting evidence or argument". I have in my time visited quite a few museum storerooms in several countries; now I really do not know what the situation is in provincial museums in Mr Fincham's own homeland, maybe American museums are just rooms full of randomly acquired and uncatalogued objects, but as an archaeologist who has done quite a lot of research in storerooms, I have never yet met a museum which has no accessions register. I certainly think Dr Fincham needs to adduce some evidence that "very few museums" have accession registers.

Now let's look at Article 8, it's shorter than the previous one, but that is no reason for Dr Fincham to ignore it:

The States Parties to this Convention undertake to impose penalties or administrative sanctions on any person responsible for infringing the prohibitions referred to under Articles 6(b) and 7(b) above.

Well, the US cannot prosecute anyone for taking ancient artefacts out of America without an export licence, because it has no procedure in place for issuing export licences for cultural property at all. Why would that be? Perhaps its in recognition that compared to the rest of us, countries like the USA have no real cultural property to export, a few "Shaker chairs" and Wild West memorabilia etc, the rest of the older stuff is "injun" and who gives a hoot about that? That seems a very short-sighted approach.

Let's pass on to Article 9:

Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural heritage of the requesting State.

Now why is this here? This Convention as a whole covers a wide range of items which could be cultural property (see Art 1 for a list of what can - and thereby by implication what can't - be considered as covered by its provisions). As we have seen items in collections have to be identifiable by virtue of having been inventoried as part of a specific collection or appurtenance of a particular monument or complex. This obviously cannot apply to dug up (ie previously hidden) artefacts from an archaeological site, or items in use in a folk, or ethnographic content.

Article 1 ... specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories...
(c) products of archaeological excavations (including regular and clandestine)
or of archaeological discoveries ;
(f) objects of ethnological interest;

Here a state which finds the resources being depleted by disturbing exploitation may inform other states of this and request them to help prevent "the impoverishment of the cultural heritage of the countries of origin of such property" when it is in jeopardy of pillage. When illicit removal to the markets of a second country is involved, the source state cannot do this by itself, which is the reason for the creation of a Convention creating conditions for a "concerted international effort", collaboration between the country being pillaged of material and the country or countries whose dealers and citizens are known to be buying this material in quantity.

Fincham suggests:

Art. 9 is the crisis provision of the Convention.

Well, no it is not, it is first and foremost the means envisaged for dealing with archaeological and ethnographic material which has not come from a pre-existing collection and has not formed the inventoried appurtenances of any specific monument or complex which is covered by many of the Conventions' other articles. It is as simple as that. The word "emergency" does not appear at any point of the text of the Convention (check it out, and look at the context of the word "danger" too). Fincham claims that it is in some way important that "terms like cultural patrimony, jeopardy and pillage are undefined", as if there were some hidden meaning here and in another context their meaning would be unclear ("whose health is in jeopardy from the misuse of narcotic substances"). The lawyer suggests that in order to implement Art. 9:

first you need to determine whether the looted objects at issue are part of the cultural patrimony of an aggrieved nation.

He does not explain who in his opinion "you" is (the country being pillaged, or the country asked to stop buying the pillaged objects). In fact the Convention's Art 9 has no such prerequisite. The Convention has four parallel language versions. If he was to look at the French version (it was adopted à Paris, du 12 octobre au 14 novembre 1970 ) Dr Fincham would see that the word patrimoine is used 14 times where in the English text (except in the translation of Art. 9) other words or phrase are used. The word "patrimony" of the English translation is merely a synonym for the phrases used in the Convention's preamble (x3), Articles 2, 4, 5 (x4), 9 (x3), 10, 12 and 14. Likewise in the case of of ethnographic material (like the Benin bronzes) we should recognise that in discussions of the international movement of cultural property the word "looting" has a usage (in the Hague Conventions for example) somewhat more specific than the general term "pillage" (used in the French text too). I really do not see the difficulties in understanding the fragment of the Convention's text (i.e., Art. 9) raised by Derek Fincham and the no-questions-asked-dealers/collectors' lobby.

[neither in this context do I understand the use of the Patrick O’Keefe quote: "a State Party to refuse to act on the ground that, in its opinion, the pillage complained of was not in fact putting the cultural heritage of the requesting State in danger. [...] …the requesting State should not, therefore, be required to produce evidence as to the degree of damage or size of the illicit trade in these objects", which is of course precisely what the CCPIA does and the CPAC debates.]

Fincham seems to be using his text on the US-Greece bilateral cultural property agreement to uphold the argument of US dealers and collectors of dugup antiquities which I have here called the 'Witschonke Argument' (after one of its noisiest proponents). This holds, contrary to the wording of the 1970 Convention (5th para of the preamble for example), that the USA is enabled to dictate the conditions under which it will adhere to the moral obligation at the core of the Convention itself to respect the cultural heritage of all other nations. There is in fact no justification in the 1970 UNESCO Convention and in particular in its Article 9, for this attitude born of US collectors' concupiscence. Why don't the US dealers and collectors stop thinking up pathetic and self-serving excuses (roping their lawyer friends in to help them), and get on with the task of cleaning up the US market?