Mark B. Feldman international law

Combating Illicit Trade in Ancient Art to Protect the Cultural Heritage of Mankind

The study of ancient art in museum collections has long been a stimulus to the human spirit and an important means of promoting knowledge of foreign cultures. Sadly, these collections have too often been built on war, colonial exploitation, and looting of archaeological sites that cause irreparable damage to the record of human civilization. These abuses are still serious problems, but it is no longer acceptable to trade in looted cultural property.

In 1970, the United States became the first art market state to support international controls on trade in looted archaeological objects—negotiating a bilateral treaty with Mexico, barring importation of pre-Columbian murals and sculpture, and leading the effort to reframe the draft UNESCO Convention on Cultural Property to make it possible for developed countries to participate. In 1970, a number of market states declined to participate in the Paris meetings that drafted the 1970 Convention. Today, 141 nations are party to the Convention, and no responsible Western institution or auction house would accept an important object of dubious provenance.

As assistant legal adviser for Inter-American Affairs (1968–1974), Mark Feldman played a central role in molding the new U.S. policy, negotiating the agreements, and drafting the critical legislation adopted by Congress to implement the UNESCO Convention. His oral history offers a captivating telling of the diplomatic history and the lengthy consultations with American stakeholders and Congress culminating in the enactment in 1983 of the Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601 et seq.

For Feldman, this story began with a diplomatic note from Mexico asking the U.S. government to recover cultural property illegally exported to the United States and linking that request to continued Mexican recovery of stolen automobiles smuggled across the southern border. He soon learned that American archaeologists were deeply concerned about widespread despoliation of archaeological sites in Mexico and Latin America, and that American museum associations were considering new acquisition guidelines requiring proof of provenance. At the same time, there was strong opposition in the art markets and the museum community to the basic framework proposed in UNESCO, which would have obligated all states party to the treaty to require export permission for all cultural property and to prohibit import of any cultural property lacking an export certificate from the country of origin. At that time, it was extremely unlikely any art-importing state would agree to this scheme, and there was serious concern that U.S. import controls would merely divert trade in looted objects to other countries. There was also fear that the Convention might be applied retroactively to existing collections.

The State Department was eager to help Mexico and was prepared to support an appropriate treaty in UNESCO, but nothing could be done without support from stakeholders in the community. To that end, Feldman worked with William D. Rogers, who later became a senior State Department official, and Professor Paul Bator to organize a panel of stakeholders under the auspices of the American Society of International Law. Archaeologists, antiquities dealers, and museum officials participated. Happily, the panel reached a consensus that enabled the State Department to respond positively to Mexico, bar imports of pre-Columbian murals and sculpture, and prepare a revised UNESCO Convention based on two principles: (1) The treaty would not be applied retroactively; (2) there would be no obligation to enforce foreign export controls per se. The U.S. was prepared to support new measures to dampen market incentives for looting, not to keep cultural property at home. To that end, the U.S. would support a treaty obligation to recover and return objects stolen from museums and would participate in collective measures, including import controls, in situations where archaeological sites were threatened by pillage.

Understandably, there was considerable resistance in Paris to the narrow U.S. approach, but Mexico chaired the conference and helped build a coalition recognizing that a Convention without art-importing nations could not work. Numerous votes were required on U.S. amendments to the Secretariat draft, and the Convention that resulted was a hard-fought compromise. It includes broad principles, considerable national discretion, and special commitments focused on protecting archaeological and ethnographic materials. Paradoxically, however, the U.S. implementing legislation, achieved only in 1983, gave the executive branch broader authority to bar imports of designated archaeological or ethnological materials in emergency situations or pursuant to bilateral agreements with foreign states. The oral history explains Feldman’s reasons for proposing these authorities to Congress and the concerns that delayed Congressional action for years.

Since 1983, the State Department has approved import controls on long lists of materials from thirty different countries, including Bolivia, China, Cyprus, Egypt, Greece, Italy, Nigeria, and Turkey. In addition, U.S. customs and federal prosecutors have developed separate enforcement programs using other authorities, e.g., the National Stolen Property Act, 18 U.S.C. §§ 2311-2318, to prosecute dealers, seize imports, and force repatriation of looted antiquities. It has taken decades for other industrial countries to adopt comparable policies, but major market authorities (including Germany, Switzerland, and the European Union) have adopted strong new regulations in recent years.

Finally, after years of delay and numerous scandals, major museums and auction houses have widely adopted acquisition guidelines requiring donors and sellers to document provenance of ancient art demonstrating that the object was “out of its country of modern discovery prior to, or legally exported therefrom, after November 17, 1970”—the date the UN approved the Convention. Today, scarcely, a month passes without news of a significant seizure or repatriation of foreign antiquities.

Mark Feldman’s oral history is a must-read for persons interested in these issues, and it demonstrates the wide range of foreign relations issues that lawyers work on in the Department of State. It describes his engagement with POWs in Vietnam; the Iran Hostage Crisis; the U.S. hijacking agreement with Cuba; the Panama Canal treaties; investment disputes in Peru and Chile; maritime boundary issues with Canada, Mexico, Cuba, and the Soviet Union; foreign bribery scandals and the Foreign Corrupt Practices Act; and the Foreign Sovereign Immunities Act of 1976.

Mark Feldman’s interview was conducted by Robin Matthewman beginning on April 28, 2021.