Intellectual Rigour and American Implementation of the 1970 UNESCO Convention

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The Academic Director of ARCA throws out an accusation of "intellectual laziness" addressed to those who criticise the manner which Ronald Reagan's United States chose to "implement" the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. He is sounding more and more these days like the dugup dealers' lawyer Peter Tompa. Talking of the recent signing of a bilateral cultural property agreement between the US and Greece, he reckons:

"One might be under a misimpression by reading some accounts of this signing by amateur international lawyers"

The link goes to a post I made here [where I do not provide an account of the 'signing', but a commentary on how I see its implications, neither am I a "lawyer" in any shape or form].

Fincham apparently feels any criticism of the United States is some kind of immorality and goes to great length to protest that such criticism is unjustified. I beg to disagree, and in particular feel there is much room for frank discussion about the way the USA treats the cultural heritage of its own territory and in particular that of other countries.

Dr Fincham starts off his defence by asserting, in effect, that the world should be jolly glad that the United State deigned to become a state party to the 1970 UNESCO Convention, because "the United States was the first 'market nation' to sign on to the convention". What does THAT mean? That only the United States and a few other select countries have collectors who buy antiquities? A few moments' thought will show that the use in an exclusive fashion of the term "market nation" is a nonsense, because (as antiquities collectors opposing export restrictions point out) there are antiquities markets in every one of the so-called "source countries" for the dugup antiquities coveted by US collectors. That is precisely where the dealers that supply the US and other markets get their hands on the things (unlike many dealers in meteorites, they do not get in a jeep and go out in the desert and dig them up themselves).We may talk conventionally of "middlemen", but they are dealers operating on a market nevertheless.

Fincham asserts that "U.S. actions with respect to the UNESCO Convention" might be deemed "more rigorous than other nations". Rigorous is not a word I would use; words like pointless, long-winded, unnecessary and tedious come more easily to mind. The CCPIA is an anachronous farce, and already was well on the way to that when it was written, and its CPAC a cumbersome cop-out with no real basis in the wording of the Convention.

Fincham furthermore suggests that the US system is wonderful because it creates lists which "allows for U.S. Customs agents to have clear classes of objects which they are looking out for" from each country. Really? Mummy cases and tomb models are not on any of the MOUs, but somehow the US Customs officers are not always so dumb that they do not realise that their mis-papered import should be questioned nevertheless. Likewise even the Poles, Irish and French over here don't seem to have much problem looking out for smuggled antiquities without such lists.

Dr Fincham suggests:

Without the CPIA, treaties and bilateral agreements would be far more difficult to create because these agreements would have to go through the U.S. Senate for ratification.

Well, what on earth does anyone who is a party to a convention agreeing to do a certain thing (i.e., Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property) need to make an ADDITIONAL "bilateral agreement" with each and every other country also a state party to the Convention to go about "Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property" from that state party? Why not just say, "we the United States are going to fully respect the terms of the Convention to which we have become state party"? NO "bilateral agreement" is necessary between each state party, because becoming a state party of the convention is (understood by the rest of us as) a multilateral agreement to engage in fully international collaboration (i.e., with the other state parties) to those means. You do not need to be a lawyer (amateur or professional) to understand that.

What the US has done is said: "yes, we'll join your silly Convention, but we are not going to do it like that". This is the reason why I hold that they should withdraw from it and continue to apply their "bilateral agreement with selected individual nations" system by themselves. Because only they can understand this as "implementing" the Convention (which is indeed "intellectual laziness"), the rest of us think they are fudging it. So why do they just not cut out the pretence that they are doing this the way everybody else does? Perhaps it is the Americans that need to apply a bit more intellectual rigour to the problem of what implementing a (whole) convention actually means for the rest of the people that are party to it. Is that so difficult?

Fincham seems to be under the impression that only Americans are capable of reading the text of the convention and understanding it, that seems rather arrogant an assumption:

Those who argue that U.S. implementation does not reflect a commitment to fight the illicit trade in antiquities (an intellectually lazy assertion, particularly when it has little supporting evidence or argument) 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.

Or they might just look at how it works in other countries like Poland. They might too look at Article 6 of the Convention (not implemented by the US). Not to mention Art. 5 (which the US has not implemented either - thus not making it possible to implement Art 10 through such an organization, leaving it up to groups like the AIA and SAFE to do). Then of course there is Article 3, which basically makes any further discussion superfluous.

[He gives no reference, but I presume that the work to which Fincham refers is: Patrick J. O'Keefe 2007, 'Commentary on the 1970 UNESCO Convention' (2d ed.) London (Institute of Art & Law), ISBN 9781903987162.]

Frankly, therefore, I think in the circumstances, the last paragraph of Fincham's commentary is the height of amerocentric arrogance. Despite the fact that US "implementation" of the Convention through the CCPIA and lack of any other implementing legislation in effect ignores them utterly:

"It can be tempting for some to lose sight of many of the other sections of the UNESCO Convention".

None more so than those responsible back in the 1980s for creating the CCPIA I would suggest. Fincham rounds off his text with the following comments:

The convention imposes obligations on both market nations and those rich with cultural resources. These obligations represent the other side of the market and obligates nations of origin to protect their own sites and museums, to police their borders and to educate their people about the value of conserving cultural heritage. These obligations include establishing a government agency that will assist in the preparation of laws for the regulation of cultural objects, establish a national inventory of protected property, promote scientific and technical institutions and supervise archaeological excavations; establishing a licensing system for the export of cultural objects and requiring dealers to maintain registers with information on the origin, supplier, description and price of items sold.

But Fincham sees America as (just) a "market nation", and seems to aim these comments therefore at the dark-skinned foreigners of the "source countries" out there. But the United States of America is also a nation with a dig-upable archaeological heritage of some considerable richness and which a whole band of collectors eagerly exploit, sell, collect and otherwise scatter and despoil.

In reality, there is no such thing as a purely "market" nation and a purely exploitable "source" country.

So, it is perfectly acceptable to ask to what degree the United States is fulfilling any of these obligations:

1) What is the United States of America doing to fulfil the obligation to protect its own museums and archaeological sites from looting?
2) What specific measures are in place to prevent the outward flow of archaeological material dug up (whether illegally or not) within the territories of the USA?
3) What specific measures is the government of the USA (Art 10) taking to educate their people about the value of conserving the archaeological heritage?
4) "These obligations include establishing a government agency that will assist in the preparation of laws for the regulation of cultural objects, establish a national inventory of protected property, promote scientific and technical institutions and supervise archaeological excavations". Well, in the case of the United States of America, which became a state party of the Convention in 1983, where is this institution (Art 5)? Certainly the CPAC does not fulfil this function. Where is this national inventory and how many Native American archaeological sites are on it? How does any institution of federal government "supervise" all archaeological excavations?
5) When did the USA establish a licensing system for the export of cultural objects as a fulfilment of one of the obligations of the convention (Art 6)?
6) When did the USA start requiring antiquity dealers to maintain registers (Art 10a) with information on the origin, supplier, description and price of items sold? Investigating the dealers involved in the "Windsor Antiquities Bust" would be cheaper for the taxpayer if there were such registers, wouldn't it?

Frankly, it is not "intellectual laziness" to say that the United States of America is not fulfilling its obligations under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. It is a statement of cold, hard fact, Dr Fincham.

(no "smut" here)



[I'll reply to the comments on Articles 7 and nine below]