International Historic Preservation Law Clifford T. Brown, Ph.D. Real Archaeology

Main types of legal systems Civil Law-laws are passed by legislative bodies and are codified Most countries in the world use a system of civil law Originally from Roman law, Canon law, and Napoleonic code Usually contrasted with Common Law systems Statutes are detailed and specific Judges do not interpret the law; they follow predetermined legal rules Therefore, precedent is not binding Inquisitorial Common Law-grew out of customary law, mainly in England Laws state general principles, assign responsibilities, etc. Judges interpret the laws, creating Binding precedents, in which general principles are abstracted from specific cases. Stare decisis, respect for precedent is therefore an important principle Very different roles for judges and juries compared to civil law Adversarial Religious Law-Islamic law and Canon law Customary Law-what it sounds like

Blue = civil law, pink = common law, brown = mixed, gold = religious What’s the pattern? Blue = civil law, pink = common law, brown = mixed, gold = religious What do we have? Why?

Antiquities laws Civil law countries tend to have very strict preservation laws Often, all antiquities and archaeological sites are national patrimony Therefore, permits are required for all excavations Unauthorized excavation is prohibited Artifacts are usually state property Sometimes, the government does most or all archaeology itself Common law countries tend to defer to the inviolability of private property Therefore, less regulation of antiquities on private land Regulation of antiquities focuses on public lands and publicly funded projects UNESCO maintains a database of preservation laws from countries around the world: http://www.unesco.org/culture/natlaws/index.php?&lng=en

Common vs. Civil Law and Trafficking One issue created by the disconnect between common and civil law relates to trafficking In Civil Law countries, the innocent buyer of stolen property is held harmless and retains possession of the property In Common Law countries, stolen goods cannot be legally sold, and even the innocent buyer has to return them if discovered. Traditionally, traffickers would smuggle antiquities to a Civil Law country and sell them, sometimes to a straw purchaser, thus laundering them in preparation for sale in a Common Law country, which is where some of the largest markets are. The 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects is supposed to fix this problem

Illicit Trafficking The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property is the first international legal instrument to tackle these issues and is particularly helpful with respect to the smuggling of antiquities. A key issue has been that Civil Law countries hold harmless the good faith purchaser of stolen goods, while Common Law countries do not recognize that immunity: stolen good remain stolen So, traditionally, looters have sold their goods in Civil Law countries, which gives them a “clean” title and then re-sold them in Common Law countries—It’s a form of laundering The governments of the States Parties to the Convention (currently 92) are bound to take action at the request of a State Party to seize cultural property that has been stolen and to collaborate in preventing major crises in the protection of cultural heritage as in the case of Afghanistan. The UNESCO Convention has had considerable impact on the international market. A major input was the ICOM Code of Ethics which provides that museums should not acquire, evaluate, authenticate or exhibit cultural objects that do not have a satisfactory provenance. UNESCO has now issued an International Code of Ethics for Dealers which also embodies the principles of the Convention. USA is a signatory

1970 UNESCO Convention Thus far 103 countries have joined the Convention. Iraq ratified in 1973. The United States adhered in 1983—the first major art-market country to do so—and simultaneously passed specific implementing legislation: the Convention on Cultural Property Implementation Act (CCPIA, 19 U.S.C. 2601-2613). Unfortunately, the U.S. declined to implement Article 10a, on the alleged grounds that regulation of antiquities dealers is best left to state and local governments. 10a: “To restrict by education, information and vigilance, movement of cultural property illegally removed from any State Party to this Convention and, as appropriate for each country, oblige antique dealers, subject to penal or administrative sanctions, to maintain a register recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject;” Most recently, Britain and Japan joined the Convention in 2002, and Denmark, Sweden and Switzerland in 2003. The Swiss ratification is particularly heartening news, since Switzerland has long been a major center for the trade of art and antiquities illegally exported from other countries. Moreover, in June 2003 the Swiss parliament adopted strong and comprehensive implementing legislation; it includes, for instance, full enactment of Article 10a.

Repatriation UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT 1995) The UNIDROIT Convention aims to harmonize the laws of participating countries regarding claims for the return of stolen or illegally exported cultural property.   More specifically, it allows private individuals to bring claims for the return of stolen cultural property that has ended up in a foreign country; and it aims to clarify the extent to which importing countries are obliged to respect other countries' export-control laws. The UNDIROIT Convention should thus be regarded as complementary to the UNESCO Convention on cultural property.   Thus far, only a handful of countries have joined the UNIDROIT Convention, NOT including the USA. http://www.unidroit.org/english/conventions/1995culturalproperty/1995culturalproperty-e.htm