CONTROLLING THE MARKET: AN ANALYSIS OF THE 1970 UNESCO RULE ON ACQUISITION AND THE MARKET FOR UNPROVENANCED ANTIQUITIES.

• Author: Baker, Lauren

INTRODUCTION 322 I. BACKGROUND TO MUSEUM SELF-REGULATION 323 A. U.S. Law on Stolen International Antiquities 323 B. The History of the 1970 Rule on Acquisition 325 II. THE 1970 RULE AND MARKET SELF-REGULATION 327 A. Market Self-Regulation 327 B. Self-Regulation as Applied to Museum Acquisition Policies 328 C. A Case Study of the U.S. Market for Unprovenanced 329 Antiquities 1. Impact of 1970 Rule on Price of Antiquities 329 2. Proportion of Provenanced Antiquities in the Market 331 III. FLAWS IN THE SELF-REGULATION SYSTEM 332 A. Cultural Nationalism and Cultural Internationalism: Forces Two Competing 332 B. Lack of External Enforcement 334 IV. OTHER SOLUTIONS 334 A. Stronger Government Intervention in the Market 335 B. Decreased Market Regulation 336 C. Change Source Nation Laws to the British and Japanese 336 Model CONCLUSION 339 INTRODUCTION

On May 26, 2015, in the courtyard of a former convent on the Tiber River, Italian and U.S. authorities gathered to display an array of twenty-five artifacts that had been seized from American museums, auction houses, and private collections. (1)

Though the story received coverage from several major news outlets, its content is nothing new. For well over a decade, the market for ancient art has been at the center of a media firestorm as it has become clear that many of the pieces finding their way into museums were not from old Swiss collections, but rather the result of theft and illegal excavations. The controversy, however, has not been without attempted solutions. As the past decade has seen an increase in scandal, so too has it seen an increase in attempts to curtail the illegal trade in antiquities. In particular, due to pressure by source nations and archeological groups, (:) major museums in the United States have overwhelmingly adopted regulations modeled on the 1970 United Nations Educational Scientific and Cultural Organization ("UNESCO") Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property rule on the acquisition of cultural property. (3) As adopted by museums, the UNESCO Rule prohibits acquisition of works unless they have a record demonstrating that they were outside of their country of modern discovery by 1970, or evidence that shows they were legally exported after 1970. (4)

A frequently provided justification for this rule is that preventing museums from acquiring objects that lack provenance (5) will cause the demand in the market for such antiquities to decrease and, as a result, will reduce the illegal excavations of ancient sites. Since in theory most collectors in the U.S. market aim to either lend or donate their pieces to museums, the hope is that the rules governing museums will ultimately govern the entire market.

This paper seeks to analyze the 1970 rule on acquisition and whether this system of self-regulation is an effective tool for decreasing the market for unprovenanced antiquities in the United States. (6) Part I will discuss the history and application of the 1970 rule as well as the current U.S. legal regime addressing antiquities. Part II will discuss market self-regulation and include an analysis of sales from the Christie's and Sotheby's auction houses to determine whether the rule has impacted the market for unprovenanced antiquities in the United States. Part III will discuss the flaws of using self-regulation in the market for antiquities. Finally, Part IV will analyze proposed solutions that would impact the entire market for stolen and unprovenanced antiquities.

1. BACKGROUND TO MUSEUM SELF-REGULATION

   Like many other industries in the United States, the museum industry is governed by both self-imposed regulations and U.S. law. First, under U.S. law, the acquisition and sale of antiquities is governed by the Cultural Property Implementation Act (the codification of the 1970 UNESCO Convention in the United States) and the National Stolen Property Act. Under these two legal regimes there is potential for both civil and criminal liability for the sale and acquisition of illicit antiquities. On the industry side, museums are bound by the regulations proposed by the two leading museum alliances: The American Alliance of Museums and the American Association of Museum Directors.

   1. U.S. Law on Stolen international Antiquities

      The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ("UNESCO Convention") was the first international attempt to regulate the market for cultural objects. (7) The United States was the first major market nation to ratify the convention in 1972. (8) However, the UNESCO Convention did not have legal force in the United States until eleven years later with the passage of the Cultural Property Implementation Act ("CPIA"). (9)

      The CPIA prohibits the import into the United States of stolen cultural property that has been documented in the inventory of a museum, religious or secular public institution, or another state party. The CPIA also grants authority to the President, pursuant to the request from a foreign state, to impose import restrictions on designated categories of cultural heritage objects that are subject to pillage. (10) Based on these two authorities, foreign nationals, states, and the U.S. government can bring civil claims against those who are in possession of property deemed stolen under the act.

      The CPIA is not the only mechanism for dealing with stolen artifacts and antiquities in the United States. In the landmark case United States v. Schultz, the Second Circuit held that criminal liability pursuant to the National Stolen Property Act ("NSPA") (11) could extend to antiquities and artifacts along with the CPIA without violating U.S. policy. Thus, the NSPA makes it illegal to, inter alia, knowingly receive, posses, sell, or dispose of goods worth $5000 or more which crossed a state or U.S. boundary after being stolen. (12) For the purpose of the NSPA, an object is considered stolen based on the laws of the country of origin. Accordingly, under the NSPA, a good is stolen when it is taken in violation of a foreign patrimony law. (13) This law essentially grants source nations the authority to designate which items are stolen. For example, if country X were to claim that all antiquities are the property of country X's government, and antiquities from country X were to be subject to a theft claim in the United States, the court applying the NSPA would recognize the items as stolen. This system, however, has been criticized for both giving too much authority to source nations and for being a generally unpredictable measure, as many ordinary dealers may be unaware of the cultural patrimony laws in different countries.

      The U.S. legal system allows for both civil and criminal liability for the trade of antiquities stolen from their source nations. However, these laws lack a significant deterrent effect on the trade of unprovenanced antiquities because of the high standard for establishing both criminal and civil liability. (14) With respect to criminal liability, the court in Schultz noted that "[t]he mens rea requirement of the NSPA will protect innocent art dealers who unwittingly receive stolen goods...." (15) Thus, because buyers and sellers in the antiquity market want to maintain a competitive advantage, they tend not to inquire whether the lack of provenance is the result of looting, making it difficult to establish that they were knowingly dealing with stolen goods. (16) Additionally, the mens rea requirement encourages such activity because it offers a potential defense to criminal liability. Civil actions do not offer much consolation. Though other countries may successfully bring civil forfeiture and private replevin claims, (17) the only threat is loss of the value of the antiquity, which provides little deterrent effect.

      Additionally, even in a civil claim, the burden is still on the claimant to establish that the artifact in question violates the CPIA, a difficult task given that antiquities rarely contain a paper trail providing information on their discovery and export. (18) Given the way that current country lines are drawn, it is difficult to prove that the item in question was even excavated in the country bringing the claim. (19) Thus, under the current legal system, the U.S. market is able to engage in the purchase and sale of unprovenanced antiquities, many of which could be the result of theft or illegal excavation, with little threat of legal ramifications.

   2. The History of the 1970 Rule on Acquisition

      Even before the 1970 rule became the industry standard, museums and museum institutions in the United States had policies geared at preventing stolen works from entering their collections. For example, the American Alliance of Museums ("AAM") policy dating to the 1920s required museums to "carefully scrutinize the titles to objects offered for sale and refuse to acquire those obtained through vandalism." (20) However, with the exception of a few independent institutions, there were no standards addressing antiquities and archeological materials specifically. (21)

      The 2000s marked a prominent shift in museum antiquity acquisition policies. As scandals such as the indictment of former Getty Museum curator Marion True and the conviction of Frederic Schultz became front page news, museums began to scrutinize their own acquisition policies. (22) As it became clear that the market was tainted with pieces of questionable origin, the Association of Art Museum Directors ("AAMD") instigated a major shift in policy by adopting regulations specifically geared toward the acquisition of international archeological materials. This 2004 rule allowed museums to acquire ancient archeological pieces, but only if they had evidence of legal export or had been outside of their country of modern discovery for at least ten years prior...