Antiquities Coalition Policy Note: Taking the First Step Toward Ending Illegal Antiquities Trafficking

Antiquities Coalition Policy Note: Taking the First Step Toward Ending Illegal Antiquities Trafficking

A relatively easy-to-negotiate, yet underutilized, bilateral diplomatic memorandum of understanding can empower governments to stop cultural heritage trafficking and protect transparent, legal markets.

While many in the arts and education communities are passionate about the protection of antiquities from destruction and looting, most foreign ministries simply do not take the matter very seriously. Because cultural heritage preservation and protection is managed in many countries by poorly-funded and relatively low-priority ministries and police, foreign ministry officials often pay little attention to the issue, focusing instead on national security and economic policy priorities. Antiquities protection rarely makes it to the top of a foreign minister’s checklist of issues when meeting with the U.S. Secretary of State or counterparts in other major market countries. Yet, an established, but largely neglected, process exists for engaging the United States government in bilateral cooperation around the issue of cultural heritage protection.

This policy note restates the process for bilateral agreements for the protection of cultural property with the United States under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, and the subsequent U.S. Convention on Cultural Property Implementation Act. It argues that by engaging the U.S. in such an agreement, partner governments can establish a pathway for expanded cooperation, consistent with the U.S. administration’s preferences and expectations for bilateral and mutually-rewarding outcomes. Furthermore, governments, the arts community, and NGOs can and should work together toward protecting both antiquities and a transparent art market that strengthens international understanding of history and cultures.

The Problem

In most countries, cultural heritage serves as a symbol of a nation’s complex history, values, and achievements and is a source of national pride. At the same time, it is often poorly funded.

Individuals and institutions all over the world obtain cultural heritage objects for educational display or research purposes; other collectors are arts traders, buying and selling antiquities, much like other businesses. The age-old process of trading antiquities—or systematically exploiting ancient tombs and cities—has endowed not only the homes of individual collectors, but also some of the world’s great museums, universities, and cultural institutions. While in recent years the largest art dealers and institutions have made great efforts to assure the provenance of pieces they acquire, casual online browsing reveals that the trade in antiquities of questionable legality remains widespread.

Because the United States is the largest destination for archaeological and ethnological objects from around the world, the discovery of recently looted and trafficked artifacts in our country not only makes Americans and our institutions accessories to crimes, but also threatens our relations with other countries. The same is true of other major market countries.

1970 UNESCO Convention and U.S. Convention of Cultural Property Implementation Act

During the 1960s, developing countries reported a surge of thefts of cultural property from museums and archaeological sites, with an accelerating trend of stolen property passing through art markets in Europe and the United States on to museums or private collectors. With pressure from member states in the developing world, participating countries in the 16th Session of UNESCO’s General Conference in 1970 adopted the “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.”  The 1970 Convention signatories were unable to come to agreement on the return of previously taken antiquities, yet they established for the first time an international framework of cooperation aimed to reduce incentives for the future pillage of archaeological and ethnological material, based upon bilateral agreements.

The U.S. Senate unanimously consented to ratification of the UNESCO Convention in 1972, with the provision that for the Convention to take domestic legal effect, Congress would need to enact legislation to implement it into domestic law.  This process took over a decade, until in January 1983, the late Senators “Spark” Matsunaga (D-HI) and Max Baucus (D-MT), with bipartisan support, managed to quietly move the “U.S. Convention on Cultural Property Implementation Act” (PL 97-446) through to passage, incorporated as a tariff measure in an omnibus bill.

Subsequent to the Act, the State Department’s Bureau of Educational and Cultural Affairs (ECA) was delegated the authority to negotiate bilateral agreements on importation of cultural property and to authorize emergency restrictions, with advice from a presidentially-appointed Cultural Property Advisory Committee. The State Department then established procedures for the adoption of bilateral cultural property agreements, legally designated memoranda of understanding (MOUs) that, unlike treaties, do not require Senate ratification.

At last, a process was in place that gave foreign governments and the State Department a tool to begin curbing the illegal export of antiquities to U.S. markets. Bilateral cultural property agreements, when signed as MOUs, put the burden of proof on importers of antiquities into the United States to show U.S. customs authorities that they have valid proof of legal export from the country of origin, or that the objects were outside of the country of origin before the date of the agreement. Importantly, an MOU does not affect the legal trade in art and antiquities. The United States only restricts the import of the cultural objects specified by the requesting country, and any antiquity with a valid export permit may still enter the U.S., regardless of whether it is covered by the import restrictions or not.

With agreements in place, the Department of Homeland Security Customs and Border Protection agency is authorized to enforce import restrictions. Given the massive international trade flows between the United States and much of the world, it is remarkable that U.S. customs officers have been able to identify and impound illegal antiquities passing through U.S. ports of entry. Yet, with cooperation between prosecutors, leading arts houses, institutions and academics, they have had some remarkable successes.

Bilateral cultural property agreements can also have substantial impact on the incentives to pillage overseas. For example, when the United States imposed import restrictions on Cambodian antiquities, sales of unprovenanced pieces at a major New York auction house plunged by 80%. Art loans between Cambodia and the United States, however, increased, exposing countless more Americans to Khmer culture, but in a way that benefited the Royal Government of Cambodia and its citizens. Cambodian officials believed this exposure also boosted tourism.  

Cultural property agreements increase responsible cultural exchange and strengthen relationships between the United States and other nations. They provide access to key financial and practical assistance from the United States to protect cultural heritage, and open doors to greater collaboration with the museum, heritage, law enforcement, trade, security, and legal communities. Countries have received capacity-building training, increased opportunities for academic and professional exchange, and funds for conservation, historic preservation, museum collection care and management, and site security.

The Fix: The U.S. Process

Governments and NGOs interested in engaging the United States can start by reading the public documents on the State Department’s Cultural Heritage Center website. Negotiations for restrictions on antiquities trade are outlined as instructions for foreign government requests.

The first step in getting the process moving takes nothing more than a diplomatic note, a brief letter from a foreign minister or a country’s ambassador in Washington to the U.S. Secretary of State. Typically, the State Department will respond with information on how negotiations proceed and a point of contact.

As described online, negotiations are narrowly confined to questions outlined in U.S. law. In addition, the presidentially-appointed Cultural Property Advisory Committee, which meets two to three times per year, provides advice to the State Department on the proposed agreements. The State Department will provide key information requirements, but negotiations typically center around establishing several critical facts:

  1. That a country’s cultural patrimony is jeopardized by the plunder of archaeological or ethnological materials;
  2. That a government has taken measures consistent with the 1970 UNESCO Convention to protect cultural patrimony;
  3. That the application of import restrictions is needed to deter serious pillage; and
  4. That the application of the import restrictions would be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

The process of assembling and providing relevant information to the State Department for review by the Cultural Property Advisory Committee is where this process often stalls, sometimes for years. However, Marie Royce, the current U.S. Assistant Secretary of State for Educational and Cultural Affairs, who oversees the Cultural Heritage Center, and her predecessors have expressed pride in the Center’s work and support for bilateral cooperation in cultural heritage protection. Governments encountering difficulties should engage organizations experienced with this process, who can help them move forward toward a ministerial signing ceremony.


An existing yet underutilized tool to restrict the trafficking of illegal antiquities to the United States and other major market countries is available under the 1970 UNESCO Convention and relevant implementing national legislation. Currently, the United States only maintains finalized agreements with eighteen countries; any of the world’s 119 other signatories to the Convention need only send a letter to the U.S. Secretary of State to get initial discussions underway.

The U.S. Department of State has oversight for the execution of these agreements, usually created as a bilateral memorandum of understanding. When in place, U.S. customs officials require that importers of archaeological and ethnological materials show evidence that their acquisition was legal, or face re-export to the country of origin. When confronted with such obstructions to international markets, the incentives for international antiquities traffickers are dramatically reduced and acceptance of legal trade and cultural exchange is strengthened.

Governments interested in helping bring an end to the pillage of cultural heritage around the world and launching a new era of transparent, legal markets should start by using this relatively easy tool.

Larry Schwartz recently retired from the State Department as Deputy Assistant Secretary for Public Diplomacy, Bureau of Near Eastern Affairs, after serving over 34 years in public diplomacy assignments.

The Response of the U.S. and International Community to the Crisis: A Roundtable Discussion About Cultural Heritage Destruction in Yemen

February 23, 2019

2:00pm – 3:30pm

Freer Gallery of Art, Meyer Auditorium

Admission is Free

To call attention to the destruction of Yemen’s heritage, the Freer Gallery of Art is hosting an event entitled Culture at Risk: Yemen’s Heritage Under Threat on February 23, 2019. Organized into three panels, the event will convene a plethora of experts to examine the consequences for cultural heritage and collective memory, highlight the Yemeni response, and consider the international community’s responsibility in this crisis.

At 2:00 pm, the Antiquities Coalition Chairman Deborah Lehr will moderate a panel discussion about threats posed to Yemen’s rich cultural heritage from armed conflict, violent extremism, and cultural racketeering. She will be joined by: Marwan Dammaj, Minister of Culture from the Republic of Yemen; Ambassador Wafa Bughaighis from the Embassy of Libya; Luigi Marini from the Permanent Mission of Italy to the United Nations; and Gerald Feierstein, former U.S. Ambassador to Yemen and Senior Vice President of the Middle East Institute. Together, they will explore how the international community can—and should—respond to this crisis. They will also consider why policymakers should care about these crimes against culture, what legal and policy tools are available to combat them, and what is the role of governments and the United Nations. This session will be chaired by Antiquities Coalition Executive Director Tess Davis.

Threats to Yemen’s Cultural Heritage

As Saturday’s program at the Smithsonian will demonstrate, Yemen’s rich cultural history continues to fall victim to the ongoing conflict, including destruction due to airstrikes, and cultural racketeering at the hands of terrorists and militants.

Since the emergence of Al-Qaeda in the Arabian Peninsula in 2009, experts have warned that cultural racketeering in Yemen could be funding violent extremism. With the start of the Yemeni Civil War in 2015, this looting has increased to an industrial scale. Reports by experts on the ground describe a Houthi ‘Antiquities Mafia’ based out of the historical spice market, Bab al-Yaman, in Houthi controlled Sana’a. The November 15, 2018, report from the Mwatanta Organization for Human Rights: The Degradation of History Violations Committed by the Warring Parties against Yemen’s Cultural Property highlights not only the cultural destruction through airstrikes but also looting perpetrated by the Houthis, al-Qaeda, and the Abu Abbas Brigade. One particular entry of interest is documented on Wednesday, September 16th, 2015, when a group of masked men believed to be al-Qaeda entered the church of St. Joseph after the withdrawal of the Houthis. The remaining items in the church, such as wood and icons, were stolen.

As the largest art market in the world, estimated to be worth $26.2 billion in 2017, the United States is an attractive final destination for smuggled items. In fact, between 2008- 2018 declared imports of “Art, Collectors’ Pieces and Antiques” (as categorized under HTS Code Chapter 97) from Yemen have amounted to $8,009,963. Experts believe that undeclared imports are much higher.

International and National Seizures

Even before the civil war, there have been several high-profile cases of illicit Yemeni antiquities making their way to Western art markets.

In 2003, a U.S. Immigration and Customs Enforcement (ICE) investigation of the Phoenix Ancient Art Gallery and it’s owners, Hicham and Ali Aboutaam, found that they “were allegedly trafficking in illegally obtained art and antiquities” from Yemen. The Aboutaam brothers attempted to sell, via Sotheby’s auction house, a piece known as the South Arabian Alabaster Stele valued at approximately $20,000 to $30,000. Sotheby’s authenticated the stele but declined to auction this artifact. ICE’s attaché in Rome assisted and obtained proof from Yemeni authorities that the stele was stolen. It was forfeited to the U.S. government in December 2003 and subsequently returned to Yemen.

In 2013, the Customs Authority in Switzerland started an investigation on five Yemeni cultural artifacts. According to Swiss authorities, the items traveled from Qatar to Switzerland and were then deposited in the Geneva Freeport between 2009-2010. It was years later, in 2013, that suspicions as to the origin of the objects were first raised during a customs inspection. The customs office contacted the cultural authorities in Bern whose expert confirmed the artifacts were genuine, prompting the start of criminal proceedings in February 2016.

More recently, on August 15, 2018, Aden port officials foiled an attempt to smuggle Yemeni antiques, on its way to an address in Djibouti, a known transit point for antiquities coming out of the Arabian Peninsula. Col. Shallal Al Shoubagi of Yemen’s harbor security force, stated that the artifacts were brought to Aden from rebel-controlled Sana’a and were a part of Houthi plans to fund their insurgency.  The artifacts from early Islamic history: jars, jugs, jambiyas, necklaces, rings – some made of silver mixed with gold, housewares made of silver and gems, in addition to boxes made of decorative wood. Yemen’s Culture Minister, Marwan Dammaj who will be speaking on the panel, has accused the Houthis of looting museums and ancient sites and selling artifacts abroad. He said the rebels had smuggled out thousands of artifacts and manuscripts since they seized the capital in 2014.

For more information about the event, please click here.

ARTH Culture Fest: India’s First Multiregional Culture Festival to Raise Awareness of Cultural Racketeering

From the Taj Mahal to the Koh-i-Noor Diamond, India has been blessed with rich cultural heritage. Unfortunately, like many regions across the globe, its priceless antiquities are under attack from cultural racketeering.

The ARTH Culture Fest, India’s first multiregional culture festival, will be held from February 8 to 10 in New Delhi, India. This festival will not only celebrate India’s vibrant cultural heritage, but will also bring attention to threats posed to this heritage, from colonial looting to terrorist financing.

Tess Davis, Executive Director of the Antiquities Coalition, will present at the panel “Bringing Our Gods Home” on February 9. Together with representatives from the U.S. Department of Homeland Security, the Washington Post, and local regional organizations, Davis will discuss the illicit trade of Indian antiquities, the use of stolen Indian artifacts as a means of terrorist financing, and tools to counter looting, such as advocacy and legal procedures. Anuraag Saxena, co-founder of the India Pride Project, will moderate the discussion.

The panel will also include the debut of the documentary “Blood Buddhas,” a film dedicated to India’s quest to repatriate looted religious objects. Davis and other panelists will comment on this profound film and tie its important message into their broader conversation about India’s efforts to “bring their gods home.”

To learn more about how looted Indian artifacts fund violent extremism, click here.

Register for the festival here.

“Blood Buddhas” and the Quest to Repatriate Indian Antiquities

“Blood Buddhas,” a film by Nikhil Singh Rajput, will premier in New Delhi, India, on February 9. The documentary addresses India’s quest to return and repatriate artifacts that were “purloined during colonial times,” including multiple ancient Buddha statues. The film features extensive research and interviews that seek to answer: How do looted religious objects from temples across India come back home? Who are the people and the agencies that are making this happen?

Antiquities Coalition Chairman Deborah Lehr, who is featured in the documentary, helps answer these central questions. Lehr confirms that the trade in Indian antiquities, both licit and illicit, has been steadily increasing, and that the illicit trade includes artifacts trafficked as a means to finance violent extremism both in India and around the globe.

Tess Davis, Antiquities Coalition Executive Director, will be in India for the premier of “Blood Buddhas” to discuss the film, speak about the role of the illicit antiquities trade in terrorist financing, as well as engage in a broader conversation about “Bringing Our Gods Home.”

A Responsible Art Market in Practice

On February 1, experts from throughout Europe, the United Kingdom, and the United States came together in Geneva, Switzerland, to address growing legal and ethical challenges in the art trade. On the grounds of artgenève, the famed cultural fair, the Responsible Art Market (RAM) Initiative held its third annual conference, centered upon “A Responsible Art Market in Practice.” The Antiquities Coalition participated in the event, alongside leading art collectors, dealers, lawyers, historians, journalists, underwriters, and other professionals.

“Created by the art market, for the art market” in 2015, the RAM Initiative addresses the evolving operational and reputational threats faced by the multi-billion-dollar art market. RAM strives to both raise awareness of these risks, and to provide a “practical and ethical compass to art businesses” encountering them. As part of this mission, in 2017, it published Guidelines on Combating Money Laundering and Terrorist Financing, followed in 2018 by an Art Due Diligence Toolkit, a series of best practices to assist businesses navigating increasingly complicated waters. The Toolkit includes detailed checklists for due diligence on clients, artwork, and transactions. While geared toward market actors operating in the U.K. and Europe, both the toolkit and the guidelines would also be of great use to those in the U.S.

The February 1 event built on this progress to date. Chaired by Georgina Adam, of the Art Newspaper and Financial Times, it focused on how the guidelines and toolkit can work in practice. Leading professionals walked participants through three case studies, one for each of RAM’s due diligence checklists, to see how these best practices can be applied to different fact patterns. Attorneys also presented updates and overviews on new legal developments, including the proposed U.S. Illicit Art and Antiquities Trafficking Protection Act (introduced in May 2018), Swiss legislation, and the 5th European Union Anti-Money Laundering Directive.

Key takeaways included:

  • Responsible Was the Word of the Day: Responsible players in the art market recognize their vulnerability to financial crimes, including money laundering, forgery, fraud, and terrorist financing, as well their risk of unknowingly dealing in stolen or looted cultural property. Moreover, they are taking active steps to mitigate these risks, although continuing scandals show there is still more to be done.
  • There Is Wide Support for This Work: RAM’s founding members include Christie’s Auction House, the Geneva Free Ports and Warehouses, top legal firms, and the Art Law Centre at the University of Geneva. It was encouraging to see such leaders take up this cause. Participants emphasized that it is in the interest of larger market actors, such as auction houses and trade associations, to assist smaller players who do not have access to the same legal expertise and financial resources.
  • The U.S. Is at Risk: The day’s presentations made clear that the U.K. and Europe are making significant progress with their anti-money laundering efforts. Unless the U.S. takes similar action, its art market risks becoming a haven for financial criminals.
  • The Risks Are Varied and Growing: Those working in the arts have already been exposed to issues surrounding provenance, including Nazi-looted art and antiquities trafficking, both of which remain major problems in the field. However, while remaining vigilant about these risks, art market actors must also learn a new vocabulary: PEPs, offshore structures, KYC, sanctions, AML, etc. Understandably, this seems daunting, especially to those without a legal background. However, as speaker Irina Tarsis pointed out, dealers in gemstones and jewelry are already subject to the regulations that may soon be imposed on the art market, and these industries have nevertheless continued to thrive and grow. The more the art market can do now to address its own vulnerabilities, the easier it will be for it in the long run.
  • Transparency Helps the Market: Several speakers stressed that improved transparency is in everyone’s interest, but the market’s most of all. Clients themselves are increasingly calling for it. After all, scandals and resulting prosecutions rightfully erode trust in the art industry, and that in turn affects the bottom line. Building trust, following best practices, and staying within both the letter and the spirit of the law will help the market grow.

We look forward to seeing more developments from the RAM Initiative in the future.

To learn more about this issue, see our blog on Looting and Laundering Art, Antiquities, and Financial Crimes and recent op-ed in ACAMS Today, Art and Antiquities: Conduits for Money Laundering and Terrorist Financing.