Friday 4 May 2012

US Cultural Property Laws 40 Years Out of Date

Andrew L. Adler & Stephen K. Urice have published a text (an earlier draft of which was discussed here earlier) on "Resolving the Disjunction Between Cultural Property Policy and Law: A Call for Reform" (they forgot to say "US Cultural property policy" - they assume we know). They point out that the US lacks a proper legal system for regulating cultural property issues, that there is a "disjunction between policy and law" and they argue that the US statutory framework "has ossified" in a most unhealthy way:
We submit that the disjunction reflects an outdated legal framework. That framework is the product of the 1970s, when the cultural property field was still forming, and it has not incorporated the dramatic political and normative developments of the last three decades. [...] We therefore argue that statutory reform is necessary to resolve the disjunction, modernize the legal framework, and restore the rule of law. We conclude by offering suggestions for reform.
Well, that's what their abstract says. In fact if you read (re-read for those who followed the earlier discussion on these pages) the article we find that is not exactly the case:
While we have identified specific statutory issues in need of reform, we do not attempt to describe a comprehensive strategy for reform.
They write: "Our primary aim here is not to provide an exhaustive list of possibilities for reform. Instead, it is to describe the disjunction between the Executive’s current cultural property policies and the
existing legal framework", which is of course not what the title says.

The authors do, however, suggest that Congress could "harmonize the ways in which the National Stolen Property Act and CCPIA conflict" (sic). A more ambitious approach would be to create "legislation specifically addressing stolen cultural property", that's funny, we all thought that was the whole idea of becoming a state party to the 1970 UNESCO Convention. Only thirty years in coming.... Another idea they have is that the CCPIA could be rewritten "to afford the Executive the greater flexibility it apparently now exercises".
Alternatively, given the normative developments of the last three decades, Congress could wipe the slate clean and start anew. As a part of any such wholesale reform, Congress could address fundamental issues.
Like for example the sale day after day in the US of material taken from the archaeological record in other countries and 'somehow' appearing on sale in the US (which has no such material in the archaeological record within its territorial boundaries) with no documentation whatsoever of legal origins and legal import. Adler and Urice note:
Unlike other nations, the United States does not have a Ministry of Culture providing for centralized coordination in this field. Congress could supplement statutory reform by creating an interagency committee to facilitate policy discussion, planning, and coordination
Which is again one of the things the 1970 UNESCO Convention (Art. 5 and 14) recommends to all member states, somehow the US seems to think it can get by without doing this. Adler and Urice's paper shows the results of such a flawed thirty-year old decision. But why a mere "interagency committee"? Why not actually create a dedicated and adequately resourced state body responsible for culture?

What is amazing about this whole article (which starts from the basic premise that there is only one country in the whole world that matters, so there is no need to specify in the title it is US policy being discussed) is that the whole scope of the [US] "cultural property policy" issue  discussed concerns material imported into the US from other countries. It is almost as if the US has no policies on cultural property originating in the US itself. Is that the case? The notion "cultural property policy" in other countries refers primarily to that country's own holdings of cultural property originating, or curated in, that country, such as paintings in national and private collections. One axis of interest is the measures taken to prevent important items leaving the country, here the whole US "cultural property policy" is presented as a wholly topsy-turvey one. Perhaps it is just an issue of a poorly-chosen title for this article, but if so, that is something a good editor should have picked up.

Adler and Urice conclude:
our hope is that stakeholders and policymakers will recognize that the time for statutory reform is overdue and that the opportunity to address these complex issues in open discussion and debate is ripe.
Yes, that is my hope, and what I have been arguing, too. Let us have stiffer and more comprehensive laws to cope with the unlawlessness of the no-questions-asked market in imported dugup antiquities in the United States of America. About time too.

There are of course very many more "stakeholders" in the common global cultural heritage than a few thousand ranty and greedy dealers and collectors and their lobbyists. These things and the information about the past which they constitute belong to us all and are not the sole preserve of self-centred acquisitive hoarders who feel few responsibilities for the consequences of their actions for others. 

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