SOUTH-SOUTH COOPERATION ON THE RETURN OF CULTURAL PROPERTY: THE CASE OF SOUTH AMERICA.

Author:Fabris, Alice Lopes
Position::The Art of International Law
 
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CONTENTS I. INTRODUCTION II. LEGAL INSTRUMENTS ON THE FIGHT AGAINST ILLICIT TRAFFICKING of Cultural Property A. 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property B. 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. C. 1972 San Salvador Convention D. Regional Organizations 1. MERCOSUR 2. UNASUR E. Bilateral Agreements 1. Chile and Peru 2. Colombia and Ecuador III. CASES A. Cases of Restitution of Cultural Property 1. Chile 2. Argentina 3. Ecuador 4. Peru B. Cases of Return of Cultural Property 1. Argentina and Paraguay 2. Chile and Peru 3. Brazil and Paraguay IV. CONCLUSION I. INTRODUCTION

The return of cultural property occurs for various reasons: (1) to fulfill a legal obligation; (1) (2) to demonstrate a spirit of cooperation; (2) and (3) to facilitate negotiations. (3) Some argue that, among those reasons, demands for restitution of cultural property to origin countries have been made as acts of reprisal or revenge. (4)

Most of the demands for restitution of cultural property are made from the so-called "south" countries to the "north" countries. (5) According to some art dealers: "South American States, [like] Mexico (sic) (6) or Peru, search systematically to eradicate the market of archeological objects." (7) Some have perceived this fact as an act of reprisal or revenge for historical injustices or even to gain political advantage, and this reasoning has been used to justify the refusal to return cultural property. (8) Members of the art market, mostly located in north countries, also complain about the lack of policies, enforcement, and surveillance by the south countries in the fight against illicit trafficking of cultural property, trying to shift the protection responsibility to the countries of origin. (9)

As one of the world's main criminal financial activities, the illicit trade of cultural property ranks behind only the illicit trafficking of weapons and drugs. (10) In South America, these types of trafficking are often linked to each other, and therefore to the countries' security policy. (11)

Often defined as the removal of cultural objects in violation of the law, acts of illicit cultural property trafficking depend largely on the applicable national and international law. Although a case-by-case analysis is usually required, several practices are universally considered to be illicit trafficking of cultural property: thefts from places of conservation; illegal archeological excavations; illicit export and import of cultural assets; illegal ownership transfer of cultural property; and producing, using, or trading forged documents related to cultural property. (12)

The theft of cultural objects is recurrent among South American countries due to their rich archeological sites, (13) since it is estimated that many of them have not yet been identified. (14)

In South America, countries can be classified as countries of origin and transit countries. The former, also called source countries, are States where most of the cultural objects came from. (15) The latter are countries where ancient cultural materials pass through as "laundered" objects until they arrive in market States, where they will be sold. (16)

When a cultural object is removed from its place of origin without proper archeological study, the source country loses important pieces of its local history and identity, while the world at large loses valuable knowledge about this culture. (17) The fight against illicit trafficking of cultural property is therefore a priority for several South American countries and regional organizations, notably MERCOSUR (18) and UNASUR. (19) Members of both organizations have undertaken several actions to combat illegal trafficking, such as updating legislation, forming committees and specialized police forces, and creating capacity-building programs. These actions have brought results, as demonstrated by the restitution of thousands of stolen cultural.

This article challenges the notion that "south" countries fail to protect cultural property. Instead, it demonstrates that south countries have strong policies for the return of cultural property and against trafficking. This article will first analyze the international and regional policy frameworks, as well as bilateral agreements regarding the protection of cultural property against illicit trafficking. The second part of this article examines actions taken by the South American States for the return of cultural property. Finally, this article presents case studies of cultural property restituted among South American countries.

  1. LEGAL INSTRUMENTS ON THE FIGHT AGAINST ILLICIT TRAFFICKING OF CULTURAL PROPERTY

    Concerns about pillage and the removal of cultural objects from their country of origin are not recent. The first legal document to prohibit the practice of pillage is the 1899 Hague Regulation on Laws and Customs of War on Land. (20) The first legal instrument to deal exclusively with the illicit traffic of cultural property, however, is more recent and has been debated since this aftermath of World War I.

    This section analyzes the treaties applicable to the South American States regarding the cultural-property traffic, namely the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereinafter "1970 Convention") and 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (hereinafter "1995 UNIDROIT Convention"). This section also examines the relevant regional and bilateral treaties.

    1. 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

      The concern for stopping the illicit trafficking of cultural property emerged in the League of Nations, immediately after World War I. (21) The first treaty on the matter was drafted by the Office international des Musees and submitted to the League, which made attempts to solve the issue of distinguishing between private and public property - a main concern of States. (22) This attempt to adopt a Convention to fight against illicit traffic came to an end with the beginning of World War II. (23)

      In 1964, UNESCO established a committee of experts to draft a Convention outlawing the illicit trafficking of cultural property. (24) It was only in 1970, however, that the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1970 Convention, was adopted.

      This Convention has three major axes: preventive measures, (25) restitution provisions, (26) and international cooperation. (27) However, it establishes several general principles to be adopted by States, (28) which need to be implemented by their national laws. In this sense, the 1970 Convention emphasizes cooperation. (29) Moreover, this Convention has a limited application, since it only applies to relations between States and does not have a retroactive clause. (30) Today, the Convention has been ratified by 132 States, (31) yet even broader acceptance is needed.

      The Convention also created the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation. This Committee acts when international conventions cannot be applied to promote the restitution of cultural property and it applies to:

      any cultural property which has a fundamental significance from the point of view of the spiritual values and cultural heritage of the people of a Member State or Associate Member of UNESCO and which has been lost as a result of colonial or foreign occupation or as a result of illicit appropriation. (32) The only case concerning South American countries was resolved in 1983, when, with the support of the Committee, Ecuador received over 12,000 pre-Columbian objects from Italy after seven years of litigation. (33)

    2. 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

      In 1983, a possible review of the 1970 Convention was considered by UNESCO to close loopholes identified in several national laws. A need to harmonize national laws concerning the prevention of illicit trafficking was particularly evident. (34) Due to the growing number of parties to the Convention, however, a decision was taken to draft a new Convention to complement the latter.

      The main points to be addressed in the new text, which became the Convention on Stolen or Illegally Exported Cultural Objects, or UNIDROIT Convention, centered on the principle of good faith of the acquirer and prescription, which fall within subjects of private law. In this sense, the UNIDROIT Convention, drafted and adopted to complement the 1970 Convention, establishes a minimum body of private rules. (35)

      The UNIDROIT Convention defines the obligation of due diligence of acquirers, (36) permits compensation for good-faith acquirers, and establishes a statute of limitations to the right to demand restitution of cultural property. Moreover, it seeks harmonization between national laws and defines mechanisms for the restitution of cultural property.

      But, the scope of this Convention's application is different than that of the 1970 Convention. For example, its provisions have "been interpreted as restricting the obligation of return only to objects inventoried in institutions." (37) Moreover, it covers only objects that have been withdrawn contrary to the source country's "law regulating the export of cultural objects for the purpose of protecting cultural heritage," (38) and only objects that were stolen. (39) Only 40 States have ratified the UNIDROIT Convention and most of the market states did not. (40)

    3. 1972 San Salvador Convention

      The Organization of American States (hereinafter "OAS") also adopted a treaty to prevent illicit trafficking of...

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