Strengthening the International Regime for the Prevention of the Illicit Trade in Cultural Heritage

Abstract

While the illicit movement and trade of movable cultural heritage has long been of international concern, it has re-emerged in recent times as a contemporary problem for international law - states in conflict, such as Iraq, Afghanistan and Palestine, have opened up new sources of terrestrial cultural heritage in need of protection, and improved diving technologies have opened up the riches of underwater cultural heritage to unscrupulous operators. The UNESCO Convention was adopted in 1970 to address such issues, with only limited success due to the reluctance of market states to become state parties. This commentary considers a number of recent moves that have contributed to a strengthening of the current regime to prevent the illicit recovery, movement and trade in cultural heritage, including the adoption by UNESCO of a convention specifically aimed at protecting the underwater cultural heritage. Given the difficulty in enforcing foreign cultural heritage laws in ‘market’ states, ‘source’ states have had to rely on claims of ownership rather than illicit recovery and exportation claims as the basis for repatriation. The commentary also considers a landmark Schultz case in the US, the world’s major market state for cultural heritage, which has taken a more stringent approach to enforcing foreign state ownership laws.

Keywords: Underwater cultural heritage, maritime archaeology, UNESCO