In violation of a convention?

Cultural property nationalists have a habit of tossing up the UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property as some inviolable international law. I personally know of two instances in the past year where U.S. Customs agents used the UNESCO convention as an authority to detain cultural property being legally imported into the United States. In both cases, after a simple explanation of the nature of the resolution resulting from that convention, and the U.S. law that implements parts of that resolution, the citing of that convention as an authority was dropped. In a civil complaint (Case 1:08-cv-02109-HHK) filed in District Court at Washington, DC last week by the Republic of Peru against Yale University, this same charge was made: "Yale's conduct violates numerous multinational conventions and treaties concerning the protection of cultural property, such as the 1970 UNESCO Convention...."

The merit or lack of merit in this case aside, it ought to be clear to anyone (especially lawyers filing a cultural property suit) that no individual or institution can "violate" the UNESCO Convention. The convention, and its consequent resolution, have no authority and no basis for enforcement. The law that implements parts of that resolution in the United States (The Convention on Cultural Property Implementation Act) is far different than the implementing laws of other nations who have signed the resolution. Only the provisions outlined in CPIA have authority in the United States. Therefore, we must look to this law and related international agreements for guidance on how to deal with perceived transgressions.

So why do Cultural Property Nationalists insist on flaunting UNESCO 1970 as law? My own opinion would be that it is just wishful thinking. Since they were not able, over a period of nearly 15 years, to get the UNESCO resolution adopted verbatim into law within the U.S. they are wishful now that merely alluding to it will be enough to create a perception of authority. Indeed, that was enough in the cases of the customs agents mentioned above, who had obviously received some bad advice from somebody (perhaps somebody with a specific ideology to proselytize). CPIA deals with restrictions (not prohibitions) under very clearly defined and carefully crafted criteria. It is a law that serves all of the people when it is applied as intended and enforced without bias.

The likelihood of all parties with an interest in cultural property finding common ground is lessened by the indiscriminate charges that are levied against private collectors and museums these days. In the face of strong ideological differences, we must rely on law as a basis for our actions. So, I would suggest to the lawyers for the Republic of Peru that they stop trying to obscure the issue with references that, although sensational, are not germane.