Antiquated Policy? Rethinking Cultural Property Agreements with Foreign Governments under US Law

Abstract

Cultural Property Agreements (CPAs) between the United States and foreign governments help to stop criminal activity at US borders by keeping looted and stolen art and artifacts out of American markets. Under US and international law, the United States can join CPAs to prevent looted and stolen antiquities and artifacts from entering the US art market, thereby fighting the illicit trade while allowing the legal trade to continue and even thrive. Moreover, bilateral agreements aim to lessen global demand for illicitly obtained or looted objects—especially because the United States makes up 42% of the legal global art market—while increasing responsible cultural exchange. The United States has signed CPAs with a growing number of countries around the world—generating mutual respect, strengthening global law enforcement, and protecting archaeological heritage in situ. From its inception, a key priority for the Antiquities Coalition (AC) has been shutting down markets to illicit antiquities, while increasing responsible cultural exchange. This article discusses the importance of barring antiquities traffickers from the multibillion US art market through legislation, international agreements, and executive orders—protecting both American consumers and our world heritage.

Resumen

Los Acuerdos de Propiedad Cultural (APC) entre Estados Unidos y gobiernos extranjeros ayudan a detener la actividad criminal en las fronteras estadounidenses impidiendo que las obras de arte y los artefactos saqueados y robados entren en los mercados estadounidenses. Según las leyes estadounidenses e internacionales, los Estados Unidos puede adherirse a los APC para impedir que las antigüedades y objetos robados y saqueados entren al mercado de arte estadounidense, combatiendo el comercio ilícito y permitiendo, al mismo tiempo, que el comercio legal continúe e incluso prospere. Además, los acuerdos bilaterales pretenden reducir la demanda mundial de objetos obtenidos ilícitamente o saqueados -especialmente teniendo en cuenta que los EE.UU. representa alrededor del 42% del mercado legal de arte mundial, a la vez aumentando el intercambio cultural responsable. Los Estados Unidos ha firmado los APC con un número creciente de países en el mundo que generan respeto mutuo, refuerzan la aplicación de la ley a escala mundial y protegen el patrimonio arqueológico in situ. Desde el principio, una de las principales prioridades de la Coalición de Antigüedades (CA) ha sido cerrar los mercados a antigüedades ilícitas, aumentando a su vez el intercambio cultural responsable. En este artículo se discute la importancia de impedir el acceso de los traficantes de antigüedades al mercado multimillonario del arte estadounidense mediante legislación, acuerdos internacionales y decretos, ejecutivos para proteger tanto a los consumidores estadounidenses como a nuestro patrimonio mundial.

International Borders and the Antiquities Trade

Border security is a first line of defense against any illicit trade, including that in cultural property, a fact well recognized by policymakers, law enforcement, and leaders in the art world. Stopping the import of stolen or illegally exported cultural objects fights trafficking while allowing legitimate trade to continue and even thrive. Indeed, such measures protect good-faith purchasers, whether individual collectors, market actors, or museums, from unknowingly buying stolen property by keeping it off the market at the outset.

As with all global problems, all nations have a role to play in stopping the illicit trade in cultural property. However, because the United States remains the largest art market in the world, it has a particular opportunity to make a difference (Arts Economics 2024:17).¹ A key tool in the US arsenal is the 1983 Convention on Cultural Property Implementation Act (CPIA; 19 USC. §§ 2601–2613). As its name suggests, the CPIA domestically implements the main international treaty in this area, the UNESCO (1970) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (the UNESCO Convention).

Among other things, the CPIA grants the US government the authority to require additional documentary evidence for high-risk objects coming from other treaty signatories, which importers must present at the time of entry. If this evidence is required but not provided, the pieces may be detained, seized, or forfeited: in effect, their import is restricted. The mechanisms for achieving this are an emergency action or what is called a Cultural Property Agreement (CPA; CPIA: 19 USC. § 2602 (c)(2); US Congress 2004: H.R.1047 §§ 3001-03).

As a US-based nonprofit dedicated to fighting cultural racketeering—the illicit trade in art and antiquities—the Antiquities Coalition (AC) prioritizes supporting and raising awareness of the benefits of CPAs in the wider fight to protect cultural heritage.² The border controls created by CPAs are a much-needed tool for law enforcement to identify and intercept looted and stolen cultural property. At the same time, they impose little added burden on legitimate importers—indeed, the required proof must simply show that the item left its country of origin legally or that the item was exported before the agreement went into place. CPAs also promote responsible cultural exchange by encouraging museum loans, professional exchanges, scientific investigations, educational opportunities, and more. With rare exceptions, the CPIA and particularly its CPAs have been the main option available to countries seeking to achieve these goals, as well as to partner with the United States on cultural preservation more broadly.

The United States has signed CPAs with a growing number of countries worldwide, resulting in major benefits. However, the UNESCO Convention and CPIA are now more than five and four decades old, respectively, and risk becoming antiquities themselves. Laws are living documents that should change with the times: it is thus important to reassess the current framework to ensure it is meeting today’s challenges head-on. With that in mind, this article discusses the strengths and weaknesses of CPAs while prospectively examining how the United States and its citizens might better realize the CPIA’s goals through changes to legislation, policy, and practice.

The UNESCO Convention and the CPIA

The UNESCO Convention remains the foremost international agreement to combat the looting and trafficking of cultural heritage.³ Its states parties seek to limit cultural racketeering by removing its causes, putting a stop to its practices, and repatriating looted and stolen cultural objects to their country of origin. Moreover, Article 5 of the UNESCO (1970) Convention states, “The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit.” It marks what is known as a “brightline” date, meaning that cultural objects removed after this year, without the permission of a national government, should not be considered legitimate.

As of May 2024, the UNESCO Convention had 145 states parties, with Kenya the most recent as of February 2024 (to put this in perspective, there are 193 UN member states). Although most of its initial signatories were “countries of origin,” today it benefits from implementation by the world’s leading art markets. The United States was the first significant “demand” nation to join in 1983.⁴ In the words of a senior State Department adviser urging ratification of the convention in 1979, one reason for taking this major step was that the United States is “the principal art-importing country and we believe there is a US interest in the preservation of the record of ancient civilizations, and that we should not continue to provide an incentive for the despoliation of ceremonial centers or other archaeological sites in foreign countries”(US Committee on Ways and Means, US House of Representatives 1979: H.R.3403 § 6).

The United States signed the UNESCO Convention in 1970 and received the Senate’s “advice and consent” in 1972, but it took another decade to pass the implementing legislation, the CPIA, needed for ratification.⁵ This law “lives” in Title 19 of the Code of Federal Regulations, which outlines customs duties; it is thus trade legislation. It automatically prohibits the import of cultural objects that were inventoried and then stolen from another state party’s public institutions (e.g., museums). Although this provision is clearly important, it does little to combat the illicit excavation of archaeological sites, where looters are often the first to uncover artifacts and thus no official record of the artifact or its theft exists. To address this gap, the drafters of the CPIA also created CPAs.

Cultural Property Agreements

CPAs are like treaties in that they are legally binding agreements with foreign governments. However, unlike treaties in the US system, they do not require the Senate’s “advice and consent,” because they are concluded not through the president’s treaty-making power but through the CPIA. The CPIA enables the United States to create CPAs with other UNESCO Convention signatories, which then prohibit the import of that country’s illegally exported cultural objects into the United States, unless the importer can satisfy certain restrictions (CPIA: 19 USC. § 2602 (c)(2); US Congress 2004: H.R.1047 §§ 3001-03).

To understand how the CPIA and its CPAs have changed US law, it is important to understand how highly the United States prioritizes free trade, restricting it only in the interests of protecting our national security, markets, and citizens. Most objects can thus cross our borders freely, so long as they are properly declared (there are of course exceptions, such as certain agricultural products and drugs.). Indeed, cultural property can generally enter more easily than other categories because art is traditionally not subject to customs duties, regardless of its value. CPAs seek to preserve this free trade, while combating illicit trade, by requiring a single additional step at the border for at-risk antiquities and artifacts: the importer must provide either a valid export permit or proof that the object left the country before the agreement; this proof can be as simple as a receipt, shipping postmark, or even a dated family photograph. Absent such evidence, the import is restricted, thereby ensuring that consumers can purchase cultural objects on the US art market with confidence in their legality.

In addition to being a state party to the UNESCO Convention, there are four other “determinations” a foreign government must meet to secure a CPA: (1) the country’s “cultural patrimony” is in jeopardy from pillage; (2) it has taken measures “consistent with” the treaty to fight back; (3) import restrictions “would be of substantial benefit,” and “less drastic” remedies are not available; and (4) they are in the interests of the “international community.”⁶

Despite seeking to preserve cultural patrimony more broadly, import restrictions are in practice only available for two specific subcategories—archaeological and ethnological—as defined by the CPIA.⁷ In addition, their export must also be restricted by the requesting country’s own laws. CPAs are not retroactive, meaning they do not protect materials that were exported from the requesting country before the agreement went into effect, even if those objects were illegally exported (although their importation may be addressed by other US laws).

Although the burden a CPA places on importers is meant to be light, to join one, a requesting state party must complete a long and sometimes arduous process; see St. Hilaire (2016) video on the US-Egypt Memorandum of Understanding, which faced two years of delays. Generally, the process begins with a request to the US Department of State submitted through diplomatic channels. It should be accompanied by what is termed a “Statement of Facts” and supporting documentation that together address the aforementioned four determinations (CPIA: 19 USC. § 2602 (a)(3)). The request is then reviewed by an independent body that is also created by the CPIA: the Cultural Property Advisory Committee (CPAC). CPAC has 11 members who are appointed by the president to represent different constituencies, including the general public, the archaeological and anthropological community, the trade (i.e., collectors and dealers), and museums. In reviewing requests, CPAC accepts public input in the form of written and oral testimony at public hearings, which are generally held throughout the year.

After its review, CPAC will make a recommendation to the decision-maker, which according to the CPIA is the president, but whose authority has been delegated to the State Department’s assistant secretary for educational and cultural affairs (ECA; Gerstenblith 2017). If the determinations have been satisfied, government-to-government negotiations then begin on the actual agreement. If and when this is finalized and signed, import restrictions will be published and go into effect.⁸ In case of an emergency (as defined by the CPIA), there is a slightly streamlined route through which the United States can proceed with import restrictions, but it still requires the preliminary request, Statement of Facts, and supporting documentation from another state party.⁹

A CPA lasts for five years but may be renewed an indefinite number of times. The renewal or extension of an agreement follows a similar process as an initial agreement; the same four determinations described earlier must again be met. Likewise, emergency restrictions are effective for no more than five years from the date of the state party’s request but may be extended for three years.

Between 1983 and May 2024, the United States entered into 31 CPAs, of which 29 are currently active.¹⁰ The agreements encompass a diverse array of countries spanning continents and cultures and representing a rich tapestry of cultures, traditions, and histories; thus, they reflect the global scope of cultural heritage at risk. Although there is significant coverage in Central America, North Africa, and the Mediterranean, there are still few agreements in Asia, sub-Saharan Africa, and across Europe. Moreover, despite gains in recent years, current agreements represent only one-fifth of the 145 UNESCO Convention states parties that are theoretically eligible.

The Benefits of Cultural Property Agreements

This low percentage of CPAs is unfortunate given that they have overarching benefits for fighting the illicit trade, preserving cultural heritage, promoting cross-border exchange, protecting consumers, and strengthening foreign diplomacy (Luke and Kersel 2013:68).¹¹

Most concretely, CPAs have resulted directly in significant seizures of looted artifacts at US borders, facilitating their return to their countries of origin while protecting consumers from unknowingly buying stolen property (Gerstenblith and Roussin 2007:730–733). For example, in March 2022, the US Embassy in Amman repatriated nine artifacts to Jordan in direct enforcement of the 2019 CPA between the United States and Jordan. At a ceremony showcasing these artifacts, which included stone figurines and a bronze pitcher, the general directors of Jordan’s Department of Antiquities Fadi Bala’awi stated, “We are proud to celebrate one of the most important achievements today as a part of the Cultural Property Protection Agreement” (Ghaith 2022).

Later that year, in August 2022, US Customs and Border Protection (CBP) intercepted and seized an Egyptian artifact en route to a private buyer under the Egypt CPA signed in 2016 (US Customs and Border Protection [US CBP] 2022b). In another example, in 2020, CBP repatriated seven ancient coins to the Republic of Cyprus that had been seized from an air cargo shipment in 2009 (US CBP 2020). The Cyprus CPA was signed in 1999, and the importer admitted to not having the necessary permission from the government of Cyprus to import the objects into the United States.

The framework of collaboration created by the CPAs can also lead to increased cooperation on seizures and investigations. For instance, in October 2023, US Homeland Security Investigations (HSI) repatriated 30 artifacts to the Republic of Italy, including books, manuscripts, coins, and sculptures covering 2,500 years of history. Assistant Secretary of State for ECA Lee Satterfield spoke to how the CPA affected the return: “For nearly a quarter of a century now, the United States and Italy have worked together to combat illicit trafficking and theft of cultural property through the framework . . . of the bilateral cultural property agreement. . . . The relationship we’ve built through this agreement is a model of cooperation, and today is yet more proof that it is a model of success” (US ICE 2023).

In 2021, HIS, together with the State Department, repatriated a cache of stolen heritage objects to the Republic of Mali, including funerary urns, pottery, and stone tools. The United States and Mali have had a CPA since 1993, which means that “any attempts to import designated cultural property originating from Mali into the US will result in their seizure” (US ICE 2021).

These are just a few examples, given that official statistics on seizures of cultural property under CPAs are not available. As Gerstenblith describes,

It is difficult to assess the number of restitutions of cultural objects seized and forfeited by the US government and returned to their country of origin as a result of bilateral agreements under the CPIA. The US government does not maintain comprehensive statistics and, while the Department of Homeland Security occasionally publishes press releases announcing restitutions, these often do not state the legal basis for the forfeiture [2017:78].

In addition to its law enforcement actions, CPAs also facilitate mutually beneficial responsible cultural exchanges by encouraging parties to promote and engage in activities such as long-term museum loans and the interchange of art and artifacts for cultural, educational, or scientific purposes. One example of benefit comes from Yemen. In 2023, the United States and Yemen signed a CPA, renewing and extending previous emergency restrictions established in 2020 (also under the CPIA). Under the agreement, the two governments worked closely together to protect Yemen’s cultural heritage, resulting in the repatriation of more than 70 antiquities. The CPA also helped secure a partnership with the Smithsonian National Museum of Asian Art, which allows it to preserve and present Yemeni artifacts until they can be safely repatriated (Lehr and Al-Hadhrami 2023; Smithsonian Institution 2023). The Smithsonian agreement led to a similar alliance with the Metropolitan Museum of Art in New York, where two artifacts that were legally repatriated to Yemen will be displayed there for the immediate future as a long-term loan (Metropolitan Museum of Art 2024). At the ceremony, Dr. Rashad Mohammed Al-Alimi, chairman of the Presidential Leadership Council of Yemen, explicitly credited the CPA for this arrangement: “Today we are witnessing the fruits of the historic agreement between Yemen and the United States on the protection of Yemeni heritage, which was signed last month in Washington, DC, and established a true partnership on the protection of heritage between our two friendly countries and peoples” (Republic of Yemen Ministry of Foreign Affairs and Expatriates 2023).

Another example of the benefits of the framework comes from Egypt (Luke and Kersel 2013:24–25). As part of its public comment to CPAC during consideration of the renewal of the Egypt CPA in 2021, the Archaeological Institute of America listed a large number of loans from Egypt to American museums since the agreement was first signed in 2016, including the following:

“Treasures of Ancient Egypt: Sunken Cities” (with variations on the name) at the St. Louis Art Museum (2018), Minneapolis Institute of Art (2019), Ronald Reagan Presidential Library and Museum (2020), and Virginia Museum of Fine Arts (2021); and “Tutankhamun: Treasures of the Golden Pharaoh” at the California Science Center in Los Angeles (ended 2019), and finally, an upcoming loan, “Ramses and the Pharaohs’ Gold,” will travel to Houston, San Francisco, and Boston in the coming years [Brian I. Daniels, Laetitia La Follette, and Elizabeth S. Greene, Letter to the Cultural Heritage Center, ECA/P/C, US Department of State, March 3, 2021, pp. 3–4].

In addition to their impact on both illegal and responsible cultural exchange, CPAs also serve to strengthen diplomatic and law enforcement relations by facilitating dialogue and collaboration on cultural heritage (US Committee on Ways and Means 1979 Subcommittee Meeting on Trade of the Committee on Ways and Means, House of Representatives, Ninety-Sixth Congress, first session, on H.R. 3403). For instance, when Algeria entered into an CPA with the United States in 2019 (US CBP 2019), the framework of collaboration led to training, the exchange of expertise, and the development of new tools for combating the illicit trade.¹²

In another example, during a press briefing on the US-Egyptian CPA, a State Department official described explicitly the importance of the agreement to the two countries’ bilateral relationship: “I wanted to reiterate just how important the US Government sees cultural heritage preservation and cultural property protection in Egypt as a key component of our bilateral relationship, and we look forward to continuing our work with the Government of Egypt over the next five years to build on the gains that we’ve seen from the 2016 agreement and now starting with the 2021 MOU moving forward” (US Department of State 2021; see also US CBP 2021). As this comment shows, the benefits of the agreements extend far beyond the practicalities of law enforcement, fostering wide-ranging and high-impact cooperation on the protection of cultural heritage (Luke and Kersel 2013).

Opposition to Cultural Property Agreements

Despite the many benefits of the CPAs, they have not escaped criticism, which has come from all sides, albeit for very different reasons (see Persick [1985] for a discussion of different perspectives on US regulations).

The perspective of the museum community has changed over the years. While initially, some opposed CPAs, over the past decade, the trend has been to recommend that the US enter them with certain conditions, typically related to the obligations of the requesting state party in the agreement itself (St. Hilaire 2015a).¹³

Art dealers and market lobbyists have argued that CPAs harm the legal trade, particularly small businesses (St. Hilaire 2014). Some have even gone so far as to say, “This US legislation is now used to block importation of virtually all art.”¹⁴ (Yet, for 2023, the most recent data available, $10,398,248,534 worth of art was imported into the United States.¹⁵)

The Ancient Coin Collectors Guild (ACCG), an NGO dedicated to promoting the collecting of coins from antiquity, sought to challenge import restrictions for coins specifically, first through an unsuccessful lobbying campaign and then through the courts. In 2009, the ACCG created a test case by knowingly importing 23 Cypriot and Chinese coins in violation of the import restrictions under the CPIA, with the intent of bringing legal action against the United States after the coins were seized. The ACCG argued that import restrictions created under CPAs unfairly limited coin collectors and that the government could not prove that any specific coins were first discovered in the country with which the United States had a bilateral agreement. However, court decision after decision ruled in favor of the US government, affirming that it is importers, not US Customs, who must provide evidence that cultural materials were legally exported from their country of origin or were exported before the import restrictions went into effect, and that the rationale behind import restrictions is sound (Spence et al. 2019). In 2019, the US Supreme Court denied the ACCG’s petition for review, thus exhausting the group’s legal options (US v. Ancient Coin Collectors Guild, No. 17-1625 [4th Cir. 2018]). Despite the courts’ rulings throughout this case, the ACCG has continued to argue against inclusion of ancient coins in CPAs during opportunities for public comment.¹⁶ In response, academic numismatists, such as the deputy director of the American Numismatic Society Nathan T. Elkins (2008, 2015), have also provided public comment on the connection between the trade in ancient coins and archaeological looting.

Such critiques from collectors may reflect either a sincere misunderstanding of the law or an intentional effort to misrepresent it. CPAs add only a additional step for importers (St. Hilaire 2013). Moreover, they only block the importation of objects without the necessary documentation, not legally exported material or that exported (even illegally) before an agreement went into effect. This protects collectors, dealers, auction houses, and museums from unknowingly dealing in stolen property. As many of the previous examples demonstrate, CPAs provide additional platforms for cooperation for those working in the arts and culture, thereby strengthening positive cultural exchange.

Although of course the US government has an interest in protecting a multibillion industry and small businesses, a more serious charge is that CPAs harm human rights by giving foreign governments ownership of personal or community-owned cultural property, particularly that of minority groups.¹⁷ For example, critics claimed that a CPA with Turkey “would grant the Turkish government rights not only over ancient Greek sites and artifacts, but also over the heritage of Armenian, Christian, and Jewish communities, hundreds of thousands of whom were driven into exile by the Turkish government in the nineteenth and early twentieth centuries” (CCP Staff 2019; Fitz Gibbon 2021). Yet, the CPIA is only Title 19 trade legislation, for better or worse: Although it may increase paperwork for importers, it does not nor was meant to address property rights, let alone vest them in another government. Ownership of cultural property is an admittedly serious and complicated matter that can have major human rights implications, but it is wholly determined by other US and foreign laws. Likewise, a black-market trade in the cultural heritage of any group, minority or otherwise, only benefits criminals—not human rights.

This is not to say that CPAs do not intersect with this issue. The importance of human rights, and specifically protections for minorities, has been a cornerstone of US foreign policy for more than two generations. CPAs can and should be a powerful tool for the United States to engage with partner countries about these issues, especially the preservation of minority cultural heritage (Luke and Kersel 2013). These agreements provide a framework through which the United States can encourage other countries to accept, adopt, and enforce international rules and norms with regard to cultural heritage and its intersection with human rights. CPAs also offer US advocates for minority communities abroad a mechanism to make their voices heard and advocate for needed change; for example, through the public comment and hearing process described earlier.

Challenges to CPAs have also come from archaeologists and others calling on the US government to crack down further on antiquities looting and trafficking, especially given their linkages to organized crime, armed conflict, terrorism, genocide, and other human rights violations (Lehr and Al Hadhrami 2023; Lehr and Bin Mubarak 2019; O’Regan 2021; US Government Accountability Office 2016; US Government Publishing Office 2018). Yet despite a growing body of evidence documenting these real threats, only 31 CPAs have been created. The United States does not yet have them with countries that are global looting and trafficking hotspots, such as Vietnam or Ethiopia, or countries in crisis such as Niger. The Antiquities Coalition has long warned this is because the agreements are bureaucratic, slow, and burdensome on all involved (Lehr and Al-Hadhrami 2023). Even in times of peace, and with the necessary political will, the process to achieve one requires a major investment from both the requesting and US governments. Foreign countries must often navigate through years and years of red tape. And for those in crisis, let alone conflict, facing immediate threats for which a CPA would be extremely beneficial, taking on this obligation is almost impossible. Finally, by their very nature, CPAs typically have been responsive rather than proactive, requiring a frantic scramble each time a new catastrophe erupts (Lehr and Al-Hadhrami 2023).

Improving Cultural Property Agreements

Some of the challenges described earlier are a result of the CPIA, which as important as it is, was a product of a very different time. However, many of the problems with CPAs are not a result of the text of the law itself but how it has been implemented. Examining these challenges provides insight into potential improvements to both practice and process. Without amending the CPIA and within the confines of other existing laws, the United States can do much to strengthen protections for cultural heritage and the legitimate art market.¹⁸

Increase Awareness and Outreach

A major impediment to CPAs has been the lack of understanding about the (admittedly complicated) process of both US and foreign governments. As Gerstenblith (2017) notes, most countries that have ratified the UNESCO Convention automatically grant reciprocal recognition to the export restrictions of cultural property from other states parties, meaning an additional step like a CPA is not needed to benefit from the treaty’s protections. Indeed, only one country, Switzerland, has a process similar to that of the United States (Swiss Confederation 2003:7). Because of this unique aspect, unaware of a need for a CPA with the United States. Most other countries are not familiar with the process, which is defined by an incredibly complicated US bureaucracy and requires completion of lengthy legal documents in what is likely a foreign language.

To its credit, the US government has taken great strides in recent years to increase its outreach and raise awareness of this process. For example, in 2016, during a ceremony for the signing of the US-Egypt CPA, then-assistant secretary for ECA Evan Ryan issued a call for more agreements, noting, “The United States stands ready to enter into similar agreements with other countries, whose cultural heritage is at risk of being looted and illegally trafficked” (US Department of State 2016a).

Another champion of CPAs, former deputy assistant secretary of state for public diplomacy in the Bureau of Near Eastern Affairs (NEA) Larry Schwartz said in an interview,

It makes sense that as the largest market, we [the US] can also help prevent the flow of illegal antiquities . . . we ask that countries that are interested approach us for a bilateral cultural heritage agreement . . . and we believe that we can work together with these countries to assure that the burden of proof is shifted to importers to prove that they’re bringing things legally into the United States [US Department of State 2016b].¹⁹

The importance of CPAs has even been noted in the White House, with former president Biden and Prime Minister Modi mentioning their interest in working toward a CPA in a joint statement from the United States and India in 2023 (White House 2023).

But there is an opportunity to do more: ECA should not bear this burden alone. All channels of the State Department should raise this issue as a matter of course in all bilateral, multilateral, and strategic dialogues—even if that means only including CPAs as a single talking point. Additional platforms for diplomatic engagement include intergovernmental organizations like the G20, which has a working group dedicated to combating the illicit trade in cultural property. Because of the complicated nature of the process, the United States has a responsibility to include discussions of CPAs in ongoing conversations with foreign governments, raising awareness of the agreements and explaining the process for achieving them.

Moreover, in some cases, the State Department could be proactive. Although some looting crises may be less foreseeable, like that which happened after the 2015 Nepal earthquake, others are expected, such as the cultural plunder that erupted following Russia’s 2022 invasion of Ukraine, which the Kremlin had widely telegraphed in advance. Despite the countless obstacles facing its government, Ukraine was able to submit its request for a CPA in March 2024 (US Department of State 2024). However, given that agreements are not retroactive, much of the country’s material had already entered the US black market and likely will never be recovered. A quick internet search shows suspicious objects widely available for sale online, raising the very real possibility that Americans have unknowingly been buying war loot for years.

The CPIA also provides an opportunity for the State Department to increase the reach of its CPAs through an as-of-yet unused provision, which allows the United States to enter into multilateral as well as bilateral agreements: The United States may enter “a multilateral agreement with [another] State party and with one or more other nations (whether or not a State party) under which the United States will apply such restrictions, and the other nations will apply similar restrictions, with respect to such material” (CPIA: Section 303(2)[5](B), p. 3).

In other words, if Country A requests a CPA from the State Department, the United States could bring in Country B (regardless of whether it has joined the 1970 UNESCO Convention). If an agreement is realized, then both Country B and the United States would impose comparable import restrictions on cultural objects from Country A, thus immediately multiplying the effectiveness of the CPA. As mentioned, the only other 1970 UNESCO Convention state party that requires an additional step to benefit from the treaty’s protections is Switzerland, and thus it would be a natural choice for a multilateral agreement under the CPIA.²⁰ However, this provision of the law could also be used to bring in important art market jurisdictions that are not yet state parties, like Singapore. Although doing so would admittedly complicate the process, the benefits would be immense. Therefore, the State Department should consider making other state parties and market countries aware of this option.

Simplify the Process

Raising awareness and increasing cooperation will not be sufficient as long as the process for achieving a CPA remains challenging for all parties involved. With nearly 30 agreements in effect, new requests being considered regularly, and a mandatory renewal process, the State Department bears a significant burden in overseeing the implementation and maintenance of CPAs. As a result, it is not surprising that, after an initial request is made, it can take several years for even “emergency” restrictions to be put in place, which is little or no help to a nation in crisis (as the example of Ukraine shows). Although negotiating on a country-by-country basis may always be a long and complicated undertaking, it is critical that the US government streamline this process.

As defined by the law, the CPIA grants the United States authority to enter into an agreement “after request is made” by another state party. This must be accompanied by a “written statement of facts” relating to the four determinations mentioned previously (CPIA : 19 USC. § 2602 (a)(3)). However, for the most part, the law is otherwise silent on the process. For example, could the Statement of Facts be a one-page affidavit signed by a senior official like a minister of culture or ambassador, or is an in-depth study necessary? Completing the Statement of Facts is time consuming and burdensome for foreign partners that have to prepare documentation in English based on criteria defined in US law. This task is often delegated to ministries of culture, which like most arts agencies, are consistently underfunded and overworked. It is an especially heavy ask for countries in crisis or even outright war, such as Ukraine, where government officials are facing literal life-or-death decisions.

The current process also creates a substantial bureaucratic burden for CPAC and the State Department, which must review and negotiate each CPA—not just initially but also so long as renewal is pursued. In addition, the CPIA only spells out CPAC’s responsibilities, as well as rules on its membership, voting, and reporting requirements. The committee’s day-to-day operations have developed as a matter of practice. This includes the timing and frequency of meetings, whether they are open or closed, how they are held, and whether hearings require oral or written testimony from the public (see Kersel and Hill [2020] for a description of Jordan CPA’s process). To reduce the burden on the CPAC members (and State Department staff) and the costs associated with its meetings, ECA began to hold committee meetings via video conferencing. Although it may be difficult to make other changes to the public process, there may be ways to adjust the behind-the-scenes process, so that initial requests, extensions of existing requests, and ongoing review of existing requests can be handled more efficiently and in a shorter time.

As a first step, the State Department should conduct a formal review with a goal of streamlining the CPA process consistent with US law and our diplomatic goals. It should also reform its process to admit publicly available information and US expert documents to supplement foreign government submissions for the required Statement of Facts and documentary evidence. The department could also post a Statement of Facts template on its website for countries seeking a CPA (or those interested in the process).

Explore Tools beyond the CPIA

The CPIA has been the primary tool to restrict the illegal import of antiquities into the United States, but there are other steps that the United States has taken or should take. Existing US legislation gives the government wide leeway to respond on trade matters in a crisis. The International Emergency Economic Powers Act (50 USC §1701 et seq.) authorizes the president to regulate commerce “to deal with any unusual and extraordinary threat” to our security, foreign policy, or economy after an emergency has been declared under the National Emergencies Act (50 USC §1601 et seq.) The president can delegate this authority to an agency or department head (3 USC §301).

This means that when there is credible evidence that cultural racketeering is contributing to a declared emergency, the United States could restrict the import of cultural property through an executive order as part of a broader sanctions provision. Even though the executive power is broad, it is not absolute, and some cultural objects could not be included, absent extenuating circumstances; yet, a wider range of objects may be included than under CPIA agreements. For example, there is no legal bar to including antiquities, specifically items under Tariff Codes 9705 and 9706. Moreover, if there is adequate political will, an executive order would be the fastest response. And even though executive orders must be renewed annually, they are usually rubber stamped.

The United States has used this route to respond to cultural racketeering during earlier national emergencies. The Iraq Stabilization and Insurgency Sanctions Regulations (31 CFR 576) and their relevant executive orders prohibited “the trade in or transfer of ownership or possession of Iraqi cultural property or other items of archaeological, historical, cultural, rare scientific, and religious importance.” This could be used as one model.

Another method is action by Congress. It can—and has—passed legislation on this issue. Examples include the 1973 Pre-Columbian Monumental and Architectural Sculpture and Murals Statute (Public Law 92–587), the 2004 Emergency Protection for Iraqi Cultural Antiquities Act, and the 2016 Protect and Preserve International Cultural Property Act (which covers Syria) (Lalwani 2020). Congressional action has several benefits, including that protections can be put in place permanently, without the need for renewal, and can cover a wide range of material beyond the definition of the CPIA. However, as shown by the length of time it took to pass the CPIA after the United States signed the UNESCO Convention, this can be a lengthy process.

Trade agreements provide another option. Although these agreements are usually meant to remove, not add, barriers to trade, they are being used to fight other illicit trades like wildlife trafficking. It is worth exploring the opportunity to expand existing and future agreements to more effectively limit the illicit trade in cultural property or at least to provide a framework for legitimate trade. One potential model is the Trans Pacific Partnership (TPP) negotiations, which required a higher threshold for partners on combating wildlife crime through “enforceable obligations requiring all TPP partners to implement their CITES obligations, promote the long-term conservation of species at risk, protect natural habitats like wetlands, and implement strong anti-corruption protections as bribery and corruption are often at the root of illegal trafficking schemes” (US Trade Representative 2015). The TPP also provided a platform for regional, national, and international cooperation among partners on natural resource issues.

Enact Legal Reform

As previously mentioned, the CPIA and the UNESCO Convention it implements were created to combat the illicit trade as it existed a generation and, arguably, even two generations ago. Yet, cultural heritage today faces many new threats and on a much larger scale. Their drafters could not have envisioned the internet, instantaneous money transfers, or global direct shipping. In the last half-century, art and antiquities have been stolen and trafficked by bad actors as varied as the Khmer Rouge, the Irish Republican Army, Al-Qaeda, the Taliban, the Houthis, Daesh, and the Russians in Ukraine. With such stories frequently making international headlines, the US and other governments are much more informed today about the serious risks that cultural racketeering poses to national security, legitimate markets, and local communities.²¹

Although the United States is to be commended for being the first major market to join the UNESCO Convention, if the CPIA were written today it would likely look very different. Certainly, legal scholars, art market leaders, and preservation experts should revisit the act and make recommendations for its improvement. Although that topic is beyond the scope of this article, the United States could learn from other major markets how they have tackled this problem in recent years.²²

For example, in August 2016, Germany significantly updated its cultural property protection law, requiring a valid export permit for cultural property removed from states parties to the UNESCO Convention after 2007 (the year Germany joined the treaty; Grütters 2016). If the importer cannot establish when an artifact left the country of modern discovery, German law presumes that the export occurred after 2007 (Cultural Property Protection Act of 31 July 2016 [Federal Law Gazette (BGBl.) Part I p. 1914]: Section 32; https://www.gesetze-im-internet.de/englisch_kgsg/englisch_kgsg.html, accessed October 27, 2024).

The United Kingdom also enacted new and stronger criminal legislation in 2003, following its 2002 ratification of the UNESCO Convention. The UK law criminalizes importing and dealing in “tainted” cultural objects, defined to include those whose excavation is illegal under local law—the law of the country of discovery (2003 United Kingdom Department of Culture, Media and Sport Cultural Property Unit, Dealing in Tainted Cultural Objects—Guidance on the Dealing in Cultural Objects (Offences) Act: section 1[1]; https://webarchive.nationalarchives.gov.uk/ukgwa/20121204113822/, http://www.culture.gov.uk/images/publications/Dealincultural.pdf; Gerstenblith 2017:23–24). Other UK laws allow for the seizure of such objects, including those imported illegally. Thus, UK law goes much further than the CPIA and has remained the same even after Brexit.

Progress is also being made in the EU. In 2019, the European Parliament, the EU’s legislative branch, passed Regulation 2019/880 on “the introduction and the import of cultural goods” (European Union Regulation 2019/880 of the European Parliament and of the Council of 17 April 2019 on the Introduction and the Import of Cultural Goods, 2019 O.J. [L 151] 1; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.151.01.0001.01.ENG). Like the CPIA, Regulation 880 complements the UNESCO Convention. It does so by subjecting cultural objects to uniform import controls throughout the EU and prohibiting “the introduction of [those] removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country.” It is important to note that Regulation 880 only applies to cultural property from non-EU states (other rules already cover the internal market). As a regulation—in contrast to a directive—880 is binding and self-executing for all member states.

As is clear, other market countries have already put into effect far stronger and broader restrictions than those resulting from the CPIA. This is wonderful news for the world’s cultural heritage. However, it means that if the United States fails to reassess its current framework, it risks not only falling behind in the global fight against cultural racketeering but also becoming a safe haven for criminals forced out of operation elsewhere by more rigorous legislation.

Conclusion

Because of its legal framework, which mandates a complicated process that has resulted in less than one agreement per year, the United States is falling behind not just other market countries but also countries around the world in fighting antiquities trafficking. One thing is certain: the status quo is not a viable option.

At one end of the spectrum, the United States could embark on a full legislative reform of the CPIA, updating and adapting it to address the rapidly evolving landscape of modern-day trade, perhaps as the EU has done. This would keep the United States from falling too far behind other market nations, which all have much smaller art markets, and would be in line with the US commitment to border security, legal trade, and cultural preservation.

However, in the absence of political will for new legislation, at the other end of the spectrum, the United States could engage in efforts to raise more awareness of CPAs, with the goal of establishing additional agreements, thereby ensuring that stolen property from any state party is not welcome in the country.

Without amending the CPIA, and within the confines of it and other existing laws, the United States can do much to stop the trade in illicit antiquities. Perhaps the best and most efficient approach would be to reform the implementation of CPAs. By conducting proactive outreach, simplifying and streamlining the process, and supporting the CPAs with other existing tools, the United States can safeguard its borders from illegitimate use and protect American consumers by ensuring a legal and fair market, all while discouraging the looting of cultural property.