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Unintended Consequences

I’d like to take this post and discuss the problem of unintended consequences.  It is a problem which plagues the rules governing antiquities and stolen art, but also international law generally.  To begin we can take a few prominent examples. 

First, the United States has waged a decades-long “War on Drugs”, in which it has exported arms and military know-how to nations to its South.  It has enacted stiffer penalties for the use of drugs, and made it a prominent part of its foreign policy.  Whatever we think of the illegal drug trade, I think anyone can agree that many of these efforts are ill-advised or even serve to increase the use of these substances. 

The same can perhaps be said of some international law, or perhaps even the efforts of the United Nations.  When a goal is set by more than one person—and even though all those individuals are eager to pursue one goal—the collective can sometimes have great difficulty producing the result everyone seemingly wishes to bring about.  The Onion satirizes this problem, imagining what would happen if the U.N. were to acquire a nuclear weapon: 

“Tremble before the awesome might of this cooperative assembly of appointed representatives,” said Ban, boldly holding a stack of diplomatic resolutions in his hand. “At last, when the United Nations calls for the development of more sustainable agricultural practices, the world at large will listen.”

Added Ban, “We will no longer be ignored.”

That of course is satire, but I’ve tried to argue something along these lines with respect to the art trade. 

Many of the rules which attempt to protect art and antiquities from looting and theft only make the problems more acute.  Cultural heritage is a precious and limited resource. The transfer of these objects typically involves highly educated, skilled individuals who are trained and are expected to know the laws regarding the import and export of cultural items throughout the world. No presumption as to good faith should be tolerated any longer.  Rather, increased scrutiny of the antiquities trade is needed in which objective evidence of a purchaser’s investigation of the legitimate title of the object in question must be the bare minimum for the acquisition of good faith in a given transfer.  The question though, is why can’t the international community come together to resolve these difficulties?

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property discusses the good faith acquisition of objects specifically.  Article 7(b) (ii) states that the good faith purchaser should be compensated when she must return stolen or illegally exported cultural property. 

The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was an ambitious effort aimed at harmonizing the private laws of various states so as to reduce the harmful effects occur when laws conflict.  Under the UNIDROIT Convention, good faith acquirers of stolen or illegally exported cultural property are entitled to fair and reasonable compensation if they lose title to the original owner.  Many of the relevant provisions strike an effective compromise.  Giving sole title to either the good-faith purchaser or the original owner is a crude legal remedy, especially when one considers that many of these disputes span decades, require evidence and testimony that is difficult and expensive to procure, and implicate a number of legal systems.  By compensating the diligent, the Convention is rewarding and promoting thorough provenance research.

As early as 1972, American museums began voluntarily creating new ethical guidelines to restrict acquisition policies in light of the 1970 UNESCO Convention.  A number of reforms have been proposed for the acquisition of antiquities.  Clemency Coggins has proposed that museums should cease all acquisitions of antiquities for decades.  In fact, by failing to establish guidelines that respect the history of an object and its deeper value to heritage and archaeology, museums may be breaching their fiduciary obligations to the public.  Others have speculated that rigorous due diligence procedures would encourage nations of origin to “pillage back” from museums of the world.  What can international law do?  What should it do?  What role do scholars play in all this?  How do policymakers craft rules which accommodate the wide variety of solutions to these problems, while also actually tackling the problems?  Part of the difficulty will always be many of these treaties and conventions are relegated to the aspirational.  Nations enact them, but often don’t enforce them with any of the zeal necessary to really tackle the problem. 

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