International Approaches to Archaeological Heritage
Management II: Plunder and Preservation
Description: The international community has endeavored to
prevent looting and theft of cultural property since the 1960s and has
developed several international instruments to do so. Yet the problem
continues. Can an effective solution be found before everything is gone?
And how do we preserve cultural sites of global importance?
Learning Objectives:
• Analyze the 1970 UNESCO and 1995 UNIDROIT Conventions and assess their effectiveness as international instruments designed to prevent theft and pillage of cultural objects.
• Evaluate the 1972 World Heritage Convention and international efforts to promote protection and management of natural and cultural sites of global importance.
• Formulate the essential elements of archaeological heritage management by comparing and contrasting management plans from two different World Heritage sites.
Readings:
Text of the UNESCO Convention of 1970, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970.
Text of the UNIDROIT Convention of 1995, UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.
Text of the World Heritage Convention of 1972, Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972.
Text of the ICOMOS Charter of 1990, Charter for the Protection and Management of the Archaeological Heritage.
1. Introduction: Two international conventions attempt to deal
with the problem of illicit trafficking of cultural objects. The first,
the 1970 UNESCO Convention, is a watershed agreement in the history
of archaeological heritage management, despite its flaws and overall
ineffectiveness. The second, the 1995 UNIDROIT Convention, is a recent
effort to address some of the problems in the 1970 agreement. The 1972
World Heritage Convention is concerned with the preservation and management
of natural and cultural sites of worldwide significance. Finally, the
1990 ICOMOS Charter is an important articulation of archaeological and
heritage values as an element of national policy. (Note: The ICOMOS
Charter is not a convention or treaty; it is a document produced by
an international non-governmental organization (NGO) dedicated to preservation
of the world's cultural heritage.) We explore each document in turn.
2. The 1970 Convention
a. History of Convention: Beginning with concerns expressed by Mexico and Peru concerning the loss of heritage through looting, UNESCO sponsored the international meetings that led to the convention of 1970. The last-minute participation of the United States with an alternate text leads to a compromise document with several flaw and inconsistencies. Some say the heart of the convention was gutted through this intervention.
b. Definition of Cultural Property: Unlike the Hague Convention, the 1970 UNESCO Convention focuses on national interests in cultural property, which is defined as "property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories. . ."; there follows a list of 11 categories (Article 1). Thus the Convention recognizes the right of individual nations to decide what is important.
c. What is Illicit: The Convention makes the "import, export or transfer of cultural property effected contrary to the provisions adopted under this Convention" illicit (Article 2).
d. National Efforts: Member nations should enact laws and regulations to protect cultural heritage; establish inventories of important cultural property; promote scientific institutions relating to culture; supervise archaeological excavations; and set up national services to oversee cultural issues, as appropriate (Article 5).
e. Export of Cultural Property: Nations should introduce an appropriate export certificate and prohibit the export of cultural property without the certificate (Article 6).
f. Import Prohibitions: States should prohibit the import of cultural property stolen from a museum or similar institution in a member nation provided documentation is available (Article 7, b, i) and take steps to recover and return such cultural property, allowing compensation to innocent purchasers (Article 7, b, ii). Also, parties to the convention "whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned" (Article 9).
[Note to Instructors: Articles 7 and 9 are the heart of the Convention and reflect the intervention of the United States and other art-importing nations. In an earlier scheme, Article 6, which calls on nations to introduce an export certificate, would have been matched by a corresponding article that said that member nations would prevent the import of cultural property without the appropriate export certificate from the country of origin. Instead, the final versions reflect the distinction between "stolen" and "illegally exported" cultural objects made by those in the art trade. Article 7 essentially outlaws the import of inventoried material removed from centers like museums, churches, or designated archaeological sites. For the bulk of the archaeological objects that are looted from sites and smuggled out of countries of origin, a special appeal must be made by the country of origin (the "jeopardy from pillage" case); member nations may then work in concert to limit the import of those specific objects. This dichotomy of treatment of cultural objects is preserved in the U.S. implementing legislation of 1983.]
g. Ratification: As of 1997 there are 87 states parties to the Convention, including the United States but not the United Kingdom. In the United States, implementing legislation was passed in 1983 (Convention on Cultural Property Implementation Act) after fierce lobbying by the art market. The U.S. Cultural Property Advisory Committee is responsible for hearing requests from member nations and has imposed import restrictions on archaeological material from Canada, Peru, Guatemala, Bolivia, Italy, Cyprus, Mali, and El Salvador.
[Notes for Instructors: Questions and topics for discussion.
• In the Hague Convention cultural property is described as being universally important. What are the implications of the emphasis in the 1970 Convention on national patrimony?
• What would be the practical and financial implications of a convention that simply enforced the export decisions of source countries? (In other words, how could an art-importing country like the United States enforce such a provision? Could every passenger on every plane from abroad be checked?)
• Why do you think the international delegates agreed to some very substantial changes to the Convention in its latter phases? (To ensure the participation of at least one large art-importing country, the United States).]
3. The 1995 UNIDROIT Convention
a. History of the Convention: The 1970 UNESCO Convention has been widely recognized as containing several flaws and ambiguities that have reduced its effectiveness as an international instrument. Some problem areas include scope of application, protection of the bona fide purchaser, and impact on national laws. A new convention was developed under the auspices of UNIDROIT, an international law association. It attempts to deal with two major issues:
• Legal constraints that make it difficult to identify the current location and possessor of stolen cultural property (e.g., through the non-disclosure practices of the art trade)
• Legal obstacles that prevent stolen cultural objects from being recovered once they have entered the art market (in most countries, it is virtually impossible for rightful owners to recover their stolen art once it has been sold to a third party)
The UNIDROIT Convention places the burden of proof on the holder of the cultural property that is alleged to be stolen. If indeed stolen, the possessor must return it and is not entitled to compensation unless he or she can show that due diligence was exercised in its acquisition
b. Scope of Application: The Convention applies to international cases involving the restitution of stolen cultural objects and the return of illegally exported cultural objects (Article 1).
c. Definition of Cultural Property: The UNIDROIT Convention uses the same definition as the 1970 Convention (Article 2).
d. Restitution of Stolen Cultural Objects: Possessors of stolen cultural objects must return them. Stolen cultural objects include illegally excavated objects and legally excavated objects that are unlawfully retained, in accordance with the laws of the source country. Claims for restitution must be made within 3 years of the time the claimant knew the location of the object, and in any case within 50 years from the theft. The 50-year limit does not apply to objects forming an integral part of an identified monument or archaeological site or belonging to public collections. Possessors of stolen cultural objects are entitled to reasonable compensation if they can prove due diligence (Articles 3, 4).
e. Return of Illegally Exported Cultural Objects: States may request other states to order the return of illegally exported cultural objects, provided the claimant state establishes that the removal significantly impairs the physical preservation of the object or its context, the integrity of a complex object, the preservation of information, or the traditional or ritual use of the object by a tribal or indigenous community; or establishes that the object is of significant cultural importance for the requesting state. The same time limits as for stolen cultural objects apply (3, 50 years) (Articles 5, 6, 7).
[Notes for Instructors: Questions and points for discussion.
• The inclusion of looted objects in the definition of "stolen" is an important distinction for countries that are seeking to prevent the loss of cultural heritage from looting. "Stolen" now includes objects, not just objects illegally removed from museums etc.
• What is the effect of the 50-year time limit for objects stolen during World War II?
• Note the treatment of illegally exported cultural objects. (States must demonstrate their significance; they are not automatically to be returned. This is to prevent claims being made for every sherd or Roman lamp.)
• What do you think is the position of the United States concerning the UNIDROIT Convention? (The United States took part in the negotiations, but did not sign the final instrument and has to date taken no steps toward possible ratification. The history of U.S. involvement in the deliberations is interesting. Originally a delegation including the general counsel of the Getty Museum attended the meetings for the United States; only after the urging of archaeological organizations did subsequent U.S. delegations include representatives from the National Park Service.)
• Note the inclusion of the interests of tribal and indigenous organizations. Are their interests represented in the 1970 Convention?]
4. The 1972 World Heritage Convention
a. The Convention is concerned with the active preservation and management of natural and cultural heritage that is of "outstanding universal value." It creates a system whereby member nations may nominate sites for inclusion into a register known as the World Heritage List.
b. Cultural Heritage Under the Convention: Defined in three categories (Article 1):
• Monuments: Architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art, or science;
• Groups of Buildings: Groups of separate or connected buildings which, because of their architecture, their homogeneity, or their place in the landscape, are of outstanding universal value from the point of view of history, art, or science;
• Sites: Works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological, or anthropological points of view.
c. Natural Heritage Under the Convention: Defined in three categories (Article 2), including natural features, geological and physiographical formations, and natural sites.
d. Class Exercise: Try to identify sites in the United States that might qualify for the World Heritage List.
[Notes for Instructors: Suggest they identify either natural or cultural sites or those combining the two. Some of the obvious sites (often national parks) will be identified, of natural significance more often than cultural. For example, the great parks at Yellowstone, Grand Canyon, and Yosemite are likely to be identified by students, but cultural sites such as Cahokia Mounds, Independence Hall, the Statue of Liberty, Monticello and University of Virginia at Charlottesville are not.
The same exercise can be tried for foreign countries with usually similar results.]
e. National and International Protection Efforts: A duty of member nations, to be carried out through policy measures, the development of services, conduct of research and technical studies, etc. (Articles 4, 5).
f. Intergovernmental Committee: For the protection of the world cultural and national heritage. To be set up to decide on nominations for the World Heritage List (Articles 10-14).
g. World Heritage Fund: Established to assist countries in preparing nominations and protecting sites (Article 13).
5. The 1990 ICOMOS Charter
a. History of the Charter: ICOMOS is the International Council on Monuments and Sites, a non-governmental organization dedicated to the preservation of cultural heritage. The NGO is organized into national chapters (e.g., U.S./ICOMOS) that carries out its work through numerous scientific committees. The International Committee on Archaeological Heritage Management drafted the Charter for the Protection and Management of the Archaeological Heritage, which was adopted by the ICOMOS general assembly in Lausanne, Switzerland, in 1990. The Charter is sometimes called the Lausanne Charter. While not an international treaty, the Charter is an important articulation of heritage management values and a consensus document.
b. Scope of the Charter: The Charter is concerned with the protection and management of archaeological heritage and deals with several topics:
• Integrated Protection Policies: Aimed at ensuring that archaeological resource protection is incorporated into the land-use and development policies of states.
• Legislation and Economy: Calls for laws and regulations to protect archaeological sites from destruction and degradation, especially through uncontrolled development.
• Archaeological Practice: Urges archaeological surveys, the creation of inventories and databases, and non-destructive data gathering. Unthreatened sites should only be excavated for compelling reasons.
• Maintenance and Conservation: Stresses the need for long-term preservation and conservation of the archaeological heritage, involving local participation.
• Presentation, Information, and Reconstruction: Underscores the importance of accurate presentation of archaeological knowledge.
• Professional Qualifications and International Cooperation: Highlights the need for high professional standards, for training in heritage-related activities, and for global cooperation.
6. Class Exercise: Compare Two Management Plans for World Heritage Sites.
a. Hand out copies of relevant portions of two management plans, one for Hadrian's Wall in England (English Heritage, 1996) and the other for Petra National Park in Jordan (UNESCO, 1999).
b. Compare and contrast the two sites. [Notes for Instructors: Hadrian's Wall is a linear corridor running for many miles, containing the remains of a Roman fortification and associated military and transportation sites. Petra is a Roman-era Nabatean city encompassing scores of rock-cut tombs and monuments as well as temples, public buildings, and residential areas. Hadrian's Wall is primarily privately owned through numerous landowners: the site is coordinated through cooperation with English Heritage. Petra is a national park, owned and controlled by the Jordanian archaeological authorities.]
c. Compare and contrast the two approaches to management. [The Hadrian's Wall management plan stresses general principles of preservation and management, including specific 5- and 30-year plans. The management is keyed to general principles, including long-term protection of the site; development of partnership with all interested parties, public and private; retaining the vitality of the wall's landscape; maximizing public and private resources to enhance landscape preservation and management; developing understanding of archaeological sites; promoting public understanding; and improving public access.
The Petra management plan also stresses fundamental management objectives, including preserving the remains and their environment, restoring monuments, enhancing the park and its facilities, and informing visitors about the site. The Petra plan includes discussion of the environmental, socio-economic, and touristic contexts. It also incorporates a detailed inventory of archaeological monuments, their condition, and threats to them, and focuses on improving park facilities. Local Bedouin and other community interests are also discussed in the Petra plan.]