The 1970 UNESCO Convention, as Implemented by Canada and the U.S.: Articulating Policy Norms

Elizabeth A. Beitler Vol. 37 Articles Editor Vol. 36 Associate Editor

The law of cultural property and its repatriation is becoming a more and more salient topic in the realm of international law for several reasons.  First, cultural property encompasses a vast array of objects, including, but not limited to, art, archaeological artifacts, antiquities, and rare manuscripts.[1]  Thus, the law of this field has a broad scope that transcends international boundaries.  Second, people are becoming increasingly aware of the value of objects subject to this area of law.  As a result, many more claims for repatriation have been made in recent years.  Furthermore, these claims have a significant impact on relations between interested parties, which are often countries. The principle vehicle of such repatriation claims is the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on November 14, 1970.[2]  However, a great deal of debate exists surrounding the success, or lack thereof, of that Convention.[3]  Because the 1970 UNESCO Convention is non-self-executing, implementation has become a crucial issue in this debate.[4]  By comparing the implementation of the Convention in two market nations – the United States and Canada – it becomes evident that the treaty is not a tool intended to standardize the treatment of cultural property internationally, but rather to signal a policy preference among the international community.  The implementation of the norm articulated by the treaty is intentionally left up to the ratifying countries. Although the United States ratified the 1970 UNESCO Convention in 1972, the implementing statute, the Convention on Cultural Property Implementation Act (“CPIA”), was not enacted until 1983.[5]  Of the non-self-executing provisions, the CPIA only implements Articles 7(b) and 9 of the 1970 UNESCO Convention.[6]  Article 7(b) of the 1970 UNESCO Convention prohibits the importation of stolen cultural property that has been inventoried by a museum or cultural or religious institution in another State party to the Convention and mandates that States take “appropriate steps to recover and return any such cultural property.”[7]  The analogous provision in the CPIA largely mirrors the ban on importing cultural property that has been stolen from another signatory country’s cultural institutions.[8]  However, the CPIA interprets a potential ambiguity from the treaty (whether the object must have been stolen after the 1970 UNESCO Convention entered into force, or if the import is only restricted after its entry into force)[9] in favor of the laxer standard: only objects stolen after the later of the effective date of the CPIA (1983) or the entry into force of the 1970 UNESCO Convention (1972) are covered.[10] Article 9 of the Convention creates an obligation whereby States that have cultural property that is “in jeopardy from pillage” can call upon other States parties to take “necessary concrete measures” to prevent irreparable harm from being done to the State requesting assistance.[11]  Section 2602 of the CPIA implements Article 9 by laying out a procedure through which other State parties to the 1970 UNESCO Convention may request the assistance of the United States.[12]  However, the CPIA includes a prerequisite before a country can expect any form of assistance from the United States: first, it must be established by the country requesting aid, and certified by the President of the United States that the requesting country has undertaken its own measures to protect its cultural heritage.[13]  Furthermore, the relief requested by another state may not impose import restrictions more burdensome than necessary.[14]  Only if these conditions are met will the United States sign an agreement with the requesting country to implement an import restriction.[15] By contrast, the Canadian implementation of the 1970 UNESCO Convention, the Cultural Property Export and Import Act (“CPEIA”),[16] focused primarily on Article 3.[17]  Article 3 states simply that, “The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by State Parties thereto, shall be illicit.”[18]  In this way, the article gives broad effect to the laws of all signatories to the 1970 UNESCO Convention. The CPEIA similarly gives broad effect to the laws of other countries.  For instance, section 37(2) of the CPEIA makes it illegal to import into Canada cultural property that was illegally exported from another State.[19]  Similarly, the CPEIA does not require the pre-existence of an agreement governing the illegal import of cultural property between Canada and a requesting State in order to act; as long as the 1970 UNESCO Convention has entered into force in the requesting country, the CPEIA considers it sufficient standing to submit a request.[20]  However, requesting countries cannot institute proceedings themselves; proceedings must be instituted by the Attorney General of Canada.[21] This broader interpretation of the 1970 UNESCO Convention under the CPEIA may have some correlation to the expansive export limitations also stipulated in the Act.[22]  Although they do not relate to the 1970 UNESCO Convention, they evince a strong commitment to maintaining the cultural property of Canada within the boundaries of the country.  For this reason, international principles of comity may be a strong incentivizing agent for the strength and breadth of the Canadian implementation of the 1970 UNESCO Convention, relative to the CPIA in the United States. The above comparison between the 1970 UNESCO Convention implementation mechanisms in the U.S. and Canada enables one to view the Convention as establishing an international norm with respect to cultural property. The multiplicity of implementation mechanisms suggests that implementation was purposefully left to the discretion of the States.

[1] See Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, art. 1, Nov. 14 1970, 823 U.N.T.S. 231. [2] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter, the 1970 UNESCO Convention or the Convention]. [3] Compare Janene Marie Podesta, Saving Culture, but Passing the Buck: How the 1970 UNESCO Convention Undermines Its Goals by Unduly Targeting Market Nations, 16 Cardozo J. Int’l & Comp. L. 457, 468 (2008) (arguing that the 1970 UNESCO Convention was doomed from the start because of its inherent biases), with Katherine D. Vitale, The War on Antiquities: United States Law and Foreign Cultural Property, 84 Notre Dame L. Rev. 1835, 1842 (2009) (arguing that the 1970 UNESCO Convention is “not a failure”). [4] Kurt G. Siehr, Globalization and National Culture: Recent Trends Toward A Liberal Exchange of Cultural Objects, 38 Vand. J. Transnat’l L. 1067, 1077 (2005). [5] 19 U.S.C. §§ 2601-2613. [6] Patty Gerstenblith, Expert Report, Second Meeting of States Parties to the 1970 Convention, Paris, UNESCO Headquarters, 20-21 June 2012, p. 2, http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Gerstenblith_en.pdf [hereinafter, Gerstenblith, Expert Report]. [7] 1970 UNESCO Convention, supra note 2, art. 7(b). [8] 19 U.S.C. § 2607. [9] 1970 UNESCO Convention, supra note 2, art. 7(b)(i). [10] 19 U.S.C. § 2607. [11] 1970 UNESCO Convention, supra note 2, art. 9. [12] 19 U.S.C. § 2602. [13] 19 U.S.C. § 2602(a)(1)(B). [14] 19 U.S.C. § 2602(a)(1)(C) and (D). [15] See Id. §2602(a)(1) and (2). [16] Cultural Property Export and Import Act, R.S.C. 1985, c. C-51, § 37: Foreign Cultural Property. [17] Gerstenblith, Expert Report, supra note 6, p. 6. [18] 1970 UNESCO Convention, supra note 2, art. 3 [19] CPEIA, R.S.C. 1985, c. C-51, § 37(2). [20] Id., § 37(1). [21] Id., § 37(3). [22] See CPEIA, R.S.C. 1985, c. C-51.