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Cite as: Molly A. Torsen, Fine Art in Dark Corners: Goals and Realities of International Cultural Property Protection as Switzerland Implements the 1970 UNESCO Convention, 8 Gonz. J. Int’l L. (2004-05), available at http://www.gonzagajil.org.
Fine Art in Dark Corners: Goals and Realities of International Cultural Property Protection as Switzerland Implements the 1970 UNESCO Convention
Molly A. Torsen*
*J.D. Candidate, 2005, The University of Washington School of Law. I would like to thank Brennan Cain, Patricia Failing, Bonnie Gardiner, Heather Gottry, Daniel Laster, Tressa Rappold, Bryan Stech and Nancy Weiss. Any and all errors are entirely my own.
Switzerland, despite its historic preference for neutrality, is taking a definitive stand on the issue of cultural property as the Swiss Federal Council submitted its instrument of accession to the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property on October 3, 2003. Like some other wealthy nations, Switzerland is implementing the Convention as tensions mount regarding disagreements over the current situation of cultural property dispersion. Within the past few decades, international trade in art and cultural property has grown exponentially. Both national and international laws have arguably been slow to adapt to the contentious issues involved in the movement of art from one nation to another. A wide array of issues provides possible reasons for this sluggish progress. These reasons range from disparate museum policies to different national practices regarding how to handle art confiscated by the Nazis, to the fact that many cultural property problems are settled out of court and thus do not provide precedent for subsequent cases.
This article will examine international cultural property policies, chiefly in the United States and Europe, and will showcase some laudable goals. I suggest that, while it is important to have policies in place, the more important and useful course to take to protect cultural property is to educate collectors, dealers, museum professionals and government workers about cultural property dispersion and the current flaws in the system. It is also imperative that each of these parties communicate amongst themselves with more candor. In Part I, I will provide some background on the 1970 UNESCO Convention, the subsequent UNIDROIT Convention, and the United States' implementation of the 1970 UNESCO Convention. I will continue with a description of some challenges faced by international police teams as well as private organizations that are limited by imperfect information and unclear guidelines. With this backdrop, in Part II, I will continue with a brief outline of Switzerland's recent history of international relations, and will discuss Switzerland's implementation of the 1970 UNESCO Convention that entered into force in January 2004. Finally, in Part III, I will discuss the health and viability of the legitimate international market for cultural property. I recommend that, despite the optimism that Switzerland's new legislation elicits, there are practical, proactive strategies that art dealers, art purchasers and art institutions in all countries could implement to more effectively translate legislative goals into real improvement.
I. Background
(A) The 1970 UNESCO Convention
The United Nations Educational, Scientific and Cultural Organization formulated a convention in 1970 to outlaw and counteract the illicit import, export and transfer of cultural property [hereinafter the UNESCO Convention].[1] The UNESCO Convention established principles to regulate cultural property protection on an international scale, considering that "it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations."[2] There are currently 190 Member States of UNESCO,[3] and 102 States party to the 1970 UNESCO Convention either by ratification, acceptance, accession or succession,[4] but illicit dealing in cultural property remains a very real problem. Hopefully, as more nations implement the 1970 UNESCO Convention, the possibility for legal loopholes and hidden stashes of cultural property will diminish significantly.
In Switzerland, stricter diligence rules for art dealers and the government's compliance with requests by other countries to research possible failures in customs have already changed the landscape of Switzerland's cultural property practices.[5] Regarding the impact that Switzerland's implementation of the 1970 UNESCO Convention has made, Andrea Rascher, who heads international and legal affairs at the Swiss Federal Office of Culture in Bern, said, the country has made "enormous progress."[6]
The UNESCO Convention is not self-executing. States must embody these provisions in their own legislation and are given fairly broad leeway in doing so.[7] Furthermore, not every article of the UNESCO Convention needs to be legislated into a given State's laws. The UNESCO Convention focuses on retaining cultural property at its geographic source, an ideology that has come to be known as "cultural nationalism."[8] As such, the UNESCO Convention has been criticized for favoring the motivations of countries that are sources of art and ignoring the preferences of the wealthier, market countries that would import and purchase the art.[9] For example, there is a ready and willing pool of buyers in the United States for Greek antiquities.[10] The objective of the UNESCO Convention, however, is to prevent antiquities from leaving Greece. As a result, at least economically, there has been little motivation for wealthy nations to implement the UNESCO legislation: The United States' interest in cultural property is largely an interest in art and antiquities that are not its own. The sale categories at major auction houses and the great halls of large U.S. museums are filled with a larger percentage of art from other countries with longer histories of existence than that of the United States.[11] The United States implemented the UNESCO Convention in 1983, thirteen years after the Convention's inception.[12] Great Britain, another art-importing nation, likewise implemented the Convention, but not until August 2002, and Switzerland, the focal topic of this writing, is just in the process of doing so now as its instrument of accession entered into force on January 3, 2004.[13]
UNESCO compiled its Code of Ethics for Dealers in Cultural Property, and other organizations, such as The International Council of Museums (ICOM), have created similar documents in an effort to communicate the importance of cultural property protection to the groups of people who work with it most directly.[14] Government regulation can provide legislative discussion and eventually statutory acknowledgement of an issue, but it is the people who handle cultural property and understand its significance and worth who must be cognizant of the laws and who must proactively carry them out.
[T]he Code gives conscientious dealers a set of ethical standards to abide by. Whether or not a country is party to the UNESCO Convention of 1970 or the UNIDROIT Convention of 1995, adoption of the Code will protect purchasers and collectors of cultural property from fraudulent dealers, and assist reputable dealers to distance themselves from those people who do not adhere to ethical standards."[15]
The language and concepts in the Code are relatively straightforward and based in common sense; it more or less calls upon professionals to use good faith discretion at all times.[16] In spite of these good faith efforts to delineate ethical and unethical practices, a debate has grown around the world over the legitimacy of a legal market for antiquities in any format.[17] This debate is rooted in philosophical differences regarding several aspects of how cultural property should be handled, including its geographic location and availability to other cultures.[18] "Cultural nationalism" designates the view of those who would prefer to retain culture at its source and "cultural internationalism" describes those who would prefer its circulation and availability.[19] While valid points are made on both sides, the objective should be to find a strategy whereby the goals of both are reasonably met. Art professionals and lawmakers alike should recognize that international conventions are not retroactive and that cultural property is already dispersed around the world. Implementing the UNESCO Convention calls upon parties to communicate with each other and sets out principles whereby compromises can be reached. This platform for openness is a most important part of international agreements regarding cultural property.
The UNESCO Convention has its advocates and critics. The American Society of International Law (ASIL) stated succinctly in a 1996 newsletter that it considered the UNESCO Convention a failure because only three market nations joined it and, because of this failure, the ASIL took it upon itself to draw up the UNIDROIT Convention.[20] A new framework seemed necessary to tempt both art-importing and art-exporting countries to ratify cultural property protection legislation. Of paramount importance in drawing up a new convention was an attempt to harmonize the difference between property laws in civil law and common law countries.[21] In most European civil code countries, a bona fide purchaser will be favored over the true owner of property.[22] The UNIDROIT Convention supplants this with American property law, wherein a true owner's rights in property will generally trump those of a bona fide purchaser.[23] As the International Council of Museums (ICOM) states
The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects is a complement to the UNESCO Convention. Perhaps the most important clause in the Convention is the principle that anyone with a stolen item in his/her possession must in all cases restore it. This rule forces buyers to check that the goods have come onto the market legally; otherwise they will have to be returned.[24]
UNIDROIT also ensures that original owners have direct access to the courts of other countries where their property may be found.[25] It also allows States to sue in the courts of such a country for important cultural property belonging to certain categories that has been illegally exported.[26] The United States has not shown any interest in implementing UNIDROIT, nor has Britain.[27] Switzerland signed it in 1996, one year after the Convention's adoption; however, there is skepticism regarding Switzerland's reasons for doing so, and, not long after, they withdrew their pledge to implement it.[28] Because UNIDROIT has not been widely signed, ratified, or acceded to,[29] I will not pursue it further here.[30]
(B) The United States' Implementation of the 1970 UNESCO Convention: The Cultural Property Implementation Act
President Reagan signed the United States' enabling legislation for the 1970 UNESCO Convention in 1983.[31]The accompanying Senate Report offers guidance as to the United States' position at that time:
(B) The United States' Implementation of the 1970 UNESCO Convention: The Cultural Property Implementation Act
President Reagan signed the United States' enabling legislation for the 1970 UNESCO Convention in 1983.[31]The accompanying Senate Report offers guidance as to the United States' position at that time:
The expanding worldwide trade in objects of archaeological and ethnological interest has led to wholesale depredations in some countries, resulting in the mutilation of ceremonial centers and archaeological complexes of ancient civilizations and the removal of stone sculptures and reliefs.... The United States considers that on grounds of principal, good foreign relations, and concern for the preservation of the cultural heritage of mankind, it should render assistance in these situations.[32]
The U.S. legislation is called the Convention on Cultural Property Implementation Act [hereinafter CPIA].[33] The CPIA implements Articles 9 and 7(b) of the UNESCO Convention. Even in light of the fact that this legislation came about thirteen years after UNESCO drew up the original Convention, in the context of other art-importing nations, the United States, "although hardly blameless in the international illicit art market, is relatively sensitive to cultural property issues."[34] Co-counsel to the National Association of Dealers in Ancient, Oriental and Primitive Art emphasizes the point: "The United States now has the most heavily regulated antiquities market in the world."[35]
The CPIA and United States' general efforts to rectify cultural property misappropriation are not without critics, however.[36] The essence of the CPIA is to prohibit the import of cultural material identified as stolen from an institution in another state party to the UNESCO Convention, to assist in its recovery if it is imported, and to apply specific import regulations or other controls to archaeological or ethnological materials specifically identified as comprising a part of a state's cultural patrimony that is in danger of being pillaged.[37] Critics point out that limiting the United States' assistance to other countries that have similar legislation stemming from the UNESCO Convention truncates a long list of countries that could benefit from the CPIA - those that are not party to the Convention.[38] "The restrictions [on importing cultural property] apply only with respect to states with whom the United States has signed bilateral or multilateral agreements, and then, only if the requesting state can show...that its cultural patrimony is in jeopardy from pillage and that it has taken measures to protect its cultural patrimony."[39] This provision is the CPIA's adaptation of the UNESCO Convention's Article 9,[40] which grants a privilege to State parties whose "cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials"[41] to "call upon other States Parties who are affected."[42]
As a further criticism, one writer notes that the CPIA's treatment of the UNESCO Convention's Article 7 creates a loophole for any institution other than a state-run museum,[43] meaning that private institutions escape scrutiny. Essentially, Article 7 of the UNESCO Convention requires States to prevent museums within their territories from acquiring illicit cultural property originating in another State Party. "The real problems of illicit transfer and import of cultural property lie in the acquisition policies of private museums, institutions, and collectors, because they are much more difficult to monitor. Article 7 fails to control the illegal art trade, especially as it concerns non-state-run museums and institutions."[44] Article 10 of the UNESCO Convention addresses private institutions, but the United States opted not to adopt this Article in the CPIA, which illustrates the breadth of leeway nations are allowed in implementing the UNESCO Convention.[45] This means that the U.S. government cannot, for example, mandate that galleries and auction houses adhere to a national standard for importing art, which emphasizes a lack of consistency amongst institutions, let alone nations, and underlines the need for across-the-board adoption of one single policy.
Despite its purported deficiencies, the CPIA does contain another important element that is, arguably, its most effective insofar as it fosters continuing study, debate and vigilance over the legal landscape as it relates to cultural property: The creation of the Cultural Property Advisory Committee [hereinafter the CPAC].[46] The CPAC, which is comprised of museum professionals, archaeologists, anthropologists, gallery owners, and other people affiliated with cultural property professions, is a very powerful entity and its recommendations are usually determinative.[47] The CPAC convenes when a request is received from a country asking for U.S. assistance under the UNESCO Convention.[48] The CPAC "is responsible for reviewing requests and recommending a course of action to the U.S. State Department, where the president's decision-making responsibilities under the Convention on Cultural Property Implementation Act reside."[49] Essentially, the CPIA is "intended to allow licit, documented trade and to reduce the incentive for pillage thereby protecting valuable historical information that resides in situ with archaeological and ethnographic material. Such information is essential in understanding the development of mankind. It is irretrievably lost unless its associated material is scientifically removed from context."[50]
The United Nations Educational, Scientific and Cultural Organization formulated a convention in 1970 to outlaw and counteract the illicit import, export and transfer of cultural property [hereinafter the UNESCO Convention].[1] The UNESCO Convention established principles to regulate cultural property protection on an international scale, considering that "it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations."[2] There are currently 190 Member States of UNESCO,[3] and 102 States party to the 1970 UNESCO Convention either by ratification, acceptance, accession or succession,[4] but illicit dealing in cultural property remains a very real problem. Hopefully, as more nations implement the 1970 UNESCO Convention, the possibility for legal loopholes and hidden stashes of cultural property will diminish significantly.
In Switzerland, stricter diligence rules for art dealers and the government's compliance with requests by other countries to research possible failures in customs have already changed the landscape of Switzerland's cultural property practices.[5] Regarding the impact that Switzerland's implementation of the 1970 UNESCO Convention has made, Andrea Rascher, who heads international and legal affairs at the Swiss Federal Office of Culture in Bern, said, the country has made "enormous progress."[6]
The UNESCO Convention is not self-executing. States must embody these provisions in their own legislation and are given fairly broad leeway in doing so.[7] Furthermore, not every article of the UNESCO Convention needs to be legislated into a given State's laws. The UNESCO Convention focuses on retaining cultural property at its geographic source, an ideology that has come to be known as "cultural nationalism."[8] As such, the UNESCO Convention has been criticized for favoring the motivations of countries that are sources of art and ignoring the preferences of the wealthier, market countries that would import and purchase the art.[9] For example, there is a ready and willing pool of buyers in the United States for Greek antiquities.[10] The objective of the UNESCO Convention, however, is to prevent antiquities from leaving Greece. As a result, at least economically, there has been little motivation for wealthy nations to implement the UNESCO legislation: The United States' interest in cultural property is largely an interest in art and antiquities that are not its own. The sale categories at major auction houses and the great halls of large U.S. museums are filled with a larger percentage of art from other countries with longer histories of existence than that of the United States.[11] The United States implemented the UNESCO Convention in 1983, thirteen years after the Convention's inception.[12] Great Britain, another art-importing nation, likewise implemented the Convention, but not until August 2002, and Switzerland, the focal topic of this writing, is just in the process of doing so now as its instrument of accession entered into force on January 3, 2004.[13]
UNESCO compiled its Code of Ethics for Dealers in Cultural Property, and other organizations, such as The International Council of Museums (ICOM), have created similar documents in an effort to communicate the importance of cultural property protection to the groups of people who work with it most directly.[14] Government regulation can provide legislative discussion and eventually statutory acknowledgement of an issue, but it is the people who handle cultural property and understand its significance and worth who must be cognizant of the laws and who must proactively carry them out.
[T]he Code gives conscientious dealers a set of ethical standards to abide by. Whether or not a country is party to the UNESCO Convention of 1970 or the UNIDROIT Convention of 1995, adoption of the Code will protect purchasers and collectors of cultural property from fraudulent dealers, and assist reputable dealers to distance themselves from those people who do not adhere to ethical standards."[15]
The language and concepts in the Code are relatively straightforward and based in common sense; it more or less calls upon professionals to use good faith discretion at all times.[16] In spite of these good faith efforts to delineate ethical and unethical practices, a debate has grown around the world over the legitimacy of a legal market for antiquities in any format.[17] This debate is rooted in philosophical differences regarding several aspects of how cultural property should be handled, including its geographic location and availability to other cultures.[18] "Cultural nationalism" designates the view of those who would prefer to retain culture at its source and "cultural internationalism" describes those who would prefer its circulation and availability.[19] While valid points are made on both sides, the objective should be to find a strategy whereby the goals of both are reasonably met. Art professionals and lawmakers alike should recognize that international conventions are not retroactive and that cultural property is already dispersed around the world. Implementing the UNESCO Convention calls upon parties to communicate with each other and sets out principles whereby compromises can be reached. This platform for openness is a most important part of international agreements regarding cultural property.
The UNESCO Convention has its advocates and critics. The American Society of International Law (ASIL) stated succinctly in a 1996 newsletter that it considered the UNESCO Convention a failure because only three market nations joined it and, because of this failure, the ASIL took it upon itself to draw up the UNIDROIT Convention.[20] A new framework seemed necessary to tempt both art-importing and art-exporting countries to ratify cultural property protection legislation. Of paramount importance in drawing up a new convention was an attempt to harmonize the difference between property laws in civil law and common law countries.[21] In most European civil code countries, a bona fide purchaser will be favored over the true owner of property.[22] The UNIDROIT Convention supplants this with American property law, wherein a true owner's rights in property will generally trump those of a bona fide purchaser.[23] As the International Council of Museums (ICOM) states
The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects is a complement to the UNESCO Convention. Perhaps the most important clause in the Convention is the principle that anyone with a stolen item in his/her possession must in all cases restore it. This rule forces buyers to check that the goods have come onto the market legally; otherwise they will have to be returned.[24]
UNIDROIT also ensures that original owners have direct access to the courts of other countries where their property may be found.[25] It also allows States to sue in the courts of such a country for important cultural property belonging to certain categories that has been illegally exported.[26] The United States has not shown any interest in implementing UNIDROIT, nor has Britain.[27] Switzerland signed it in 1996, one year after the Convention's adoption; however, there is skepticism regarding Switzerland's reasons for doing so, and, not long after, they withdrew their pledge to implement it.[28] Because UNIDROIT has not been widely signed, ratified, or acceded to,[29] I will not pursue it further here.[30]
(B) The United States' Implementation of the 1970 UNESCO Convention: The Cultural Property Implementation Act
President Reagan signed the United States' enabling legislation for the 1970 UNESCO Convention in 1983.[31]
The accompanying Senate Report offers guidance as to the United States' position at that time:
The expanding worldwide trade in objects of archaeological and ethnological interest has led to wholesale depredations in some countries, resulting in the mutilation of ceremonial centers and archaeological complexes of ancient civilizations and the removal of stone sculptures and reliefs.... The United States considers that on grounds of principal, good foreign relations, and concern for the preservation of the cultural heritage of mankind, it should render assistance in these situations.[32]
The U.S. legislation is called the Convention on Cultural Property Implementation Act [hereinafter CPIA].[33] The CPIA implements Articles 9 and 7(b) of the UNESCO Convention. Even in light of the fact that this legislation came about thirteen years after UNESCO drew up the original Convention, in the context of other art-importing nations, the United States, "although hardly blameless in the international illicit art market, is relatively sensitive to cultural property issues."[34] Co-counsel to the National Association of Dealers in Ancient, Oriental and Primitive Art emphasizes the point: "The United States now has the most heavily regulated antiquities market in the world."[35]
The CPIA and United States' general efforts to rectify cultural property misappropriation are not without critics, however.[36] The essence of the CPIA is to prohibit the import of cultural material identified as stolen from an institution in another state party to the UNESCO Convention, to assist in its recovery if it is imported, and to apply specific import regulations or other controls to archaeological or ethnological materials specifically identified as comprising a part of a state's cultural patrimony that is in danger of being pillaged.[37] Critics point out that limiting the United States' assistance to other countries that have similar legislation stemming from the UNESCO Convention truncates a long list of countries that could benefit from the CPIA - those that are not party to the Convention.[38] "The restrictions [on importing cultural property] apply only with respect to states with whom the United States has signed bilateral or multilateral agreements, and then, only if the requesting state can show...that its cultural patrimony is in jeopardy from pillage and that it has taken measures to protect its cultural patrimony."[39] This provision is the CPIA's adaptation of the UNESCO Convention's Article 9,[40] which grants a privilege to State parties whose "cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials"[41] to "call upon other States Parties who are affected."[42]
As a further criticism, one writer notes that the CPIA's treatment of the UNESCO Convention's Article 7 creates a loophole for any institution other than a state-run museum,[43] meaning that private institutions escape scrutiny. Essentially, Article 7 of the UNESCO Convention requires States to prevent museums within their territories from acquiring illicit cultural property originating in another State Party. "The real problems of illicit transfer and import of cultural property lie in the acquisition policies of private museums, institutions, and collectors, because they are much more difficult to monitor. Article 7 fails to control the illegal art trade, especially as it concerns non-state-run museums and institutions."[44] Article 10 of the UNESCO Convention addresses private institutions, but the United States opted not to adopt this Article in the CPIA, which illustrates the breadth of leeway nations are allowed in implementing the UNESCO Convention.[45] This means that the U.S. government cannot, for example, mandate that galleries and auction houses adhere to a national standard for importing art, which emphasizes a lack of consistency amongst institutions, let alone nations, and underlines the need for across-the-board adoption of one single policy.
Despite its purported deficiencies, the CPIA does contain another important element that is, arguably, its most effective insofar as it fosters continuing study, debate and vigilance over the legal landscape as it relates to cultural property: The creation of the Cultural Property Advisory Committee [hereinafter the CPAC].[46] The CPAC, which is comprised of museum professionals, archaeologists, anthropologists, gallery owners, and other people affiliated with cultural property professions, is a very powerful entity and its recommendations are usually determinative.[47] The CPAC convenes when a request is received from a country asking for U.S. assistance under the UNESCO Convention.[48] The CPAC "is responsible for reviewing requests and recommending a course of action to the U.S. State Department, where the president's decision-making responsibilities under the Convention on Cultural Property Implementation Act reside."[49] Essentially, the CPIA is "intended to allow licit, documented trade and to reduce the incentive for pillage thereby protecting valuable historical information that resides in situ with archaeological and ethnographic material. Such information is essential in understanding the development of mankind. It is irretrievably lost unless its associated material is scientifically removed from context."[50]
The United Nations Educational, Scientific and Cultural Organization formulated a convention in 1970 to outlaw and counteract the illicit import, export and transfer of cultural property [hereinafter the UNESCO Convention].[1] The UNESCO Convention established principles to regulate cultural property protection on an international scale, considering that "it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations."[2] There are currently 190 Member States of UNESCO,[3] and 102 States party to the 1970 UNESCO Convention either by ratification, acceptance, accession or succession,[4] but illicit dealing in cultural property remains a very real problem. Hopefully, as more nations implement the 1970 UNESCO Convention, the possibility for legal loopholes and hidden stashes of cultural property will diminish significantly.
In Switzerland, stricter diligence rules for art dealers and the government's compliance with requests by other countries to research possible failures in customs have already changed the landscape of Switzerland's cultural property practices.[5] Regarding the impact that Switzerland's implementation of the 1970 UNESCO Convention has made, Andrea Rascher, who heads international and legal affairs at the Swiss Federal Office of Culture in Bern, said, the country has made "enormous progress."[6]
The UNESCO Convention is not self-executing. States must embody these provisions in their own legislation and are given fairly broad leeway in doing so.[7] Furthermore, not every article of the UNESCO Convention needs to be legislated into a given State's laws. The UNESCO Convention focuses on retaining cultural property at its geographic source, an ideology that has come to be known as "cultural nationalism."[8] As such, the UNESCO Convention has been criticized for favoring the motivations of countries that are sources of art and ignoring the preferences of the wealthier, market countries that would import and purchase the art.[9] For example, there is a ready and willing pool of buyers in the United States for Greek antiquities.[10] The objective of the UNESCO Convention, however, is to prevent antiquities from leaving Greece. As a result, at least economically, there has been little motivation for wealthy nations to implement the UNESCO legislation: The United States' interest in cultural property is largely an interest in art and antiquities that are not its own. The sale categories at major auction houses and the great halls of large U.S. museums are filled with a larger percentage of art from other countries with longer histories of existence than that of the United States.[11] The United States implemented the UNESCO Convention in 1983, thirteen years after the Convention's inception.[12] Great Britain, another art-importing nation, likewise implemented the Convention, but not until August 2002, and Switzerland, the focal topic of this writing, is just in the process of doing so now as its instrument of accession entered into force on January 3, 2004.[13]
UNESCO compiled its Code of Ethics for Dealers in Cultural Property, and other organizations, such as The International Council of Museums (ICOM), have created similar documents in an effort to communicate the importance of cultural property protection to the groups of people who work with it most directly.[14] Government regulation can provide legislative discussion and eventually statutory acknowledgement of an issue, but it is the people who handle cultural property and understand its significance and worth who must be cognizant of the laws and who must proactively carry them out.
[T]he Code gives conscientious dealers a set of ethical standards to abide by. Whether or not a country is party to the UNESCO Convention of 1970 or the UNIDROIT Convention of 1995, adoption of the Code will protect purchasers and collectors of cultural property from fraudulent dealers, and assist reputable dealers to distance themselves from those people who do not adhere to ethical standards."[15]
The language and concepts in the Code are relatively straightforward and based in common sense; it more or less calls upon professionals to use good faith discretion at all times.[16] In spite of these good faith efforts to delineate ethical and unethical practices, a debate has grown around the world over the legitimacy of a legal market for antiquities in any format.[17] This debate is rooted in philosophical differences regarding several aspects of how cultural property should be handled, including its geographic location and availability to other cultures.[18] "Cultural nationalism" designates the view of those who would prefer to retain culture at its source and "cultural internationalism" describes those who would prefer its circulation and availability.[19] While valid points are made on both sides, the objective should be to find a strategy whereby the goals of both are reasonably met. Art professionals and lawmakers alike should recognize that international conventions are not retroactive and that cultural property is already dispersed around the world. Implementing the UNESCO Convention calls upon parties to communicate with each other and sets out principles whereby compromises can be reached. This platform for openness is a most important part of international agreements regarding cultural property.
The UNESCO Convention has its advocates and critics. The American Society of International Law (ASIL) stated succinctly in a 1996 newsletter that it considered the UNESCO Convention a failure because only three market nations joined it and, because of this failure, the ASIL took it upon itself to draw up the UNIDROIT Convention.[20] A new framework seemed necessary to tempt both art-importing and art-exporting countries to ratify cultural property protection legislation. Of paramount importance in drawing up a new convention was an attempt to harmonize the difference between property laws in civil law and common law countries.[21] In most European civil code countries, a bona fide purchaser will be favored over the true owner of property.[22] The UNIDROIT Convention supplants this with American property law, wherein a true owner's rights in property will generally trump those of a bona fide purchaser.[23] As the International Council of Museums (ICOM) states
The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects is a complement to the UNESCO Convention. Perhaps the most important clause in the Convention is the principle that anyone with a stolen item in his/her possession must in all cases restore it. This rule forces buyers to check that the goods have come onto the market legally; otherwise they will have to be returned.[24]
UNIDROIT also ensures that original owners have direct access to the courts of other countries where their property may be found.[25] It also allows States to sue in the courts of such a country for important cultural property belonging to certain categories that has been illegally exported.[26] The United States has not shown any interest in implementing UNIDROIT, nor has Britain.[27] Switzerland signed it in 1996, one year after the Convention's adoption; however, there is skepticism regarding Switzerland's reasons for doing so, and, not long after, they withdrew their pledge to implement it.[28] Because UNIDROIT has not been widely signed, ratified, or acceded to,[29] I will not pursue it further here.[30]
(B) The United States' Implementation of the 1970 UNESCO Convention: The Cultural Property Implementation Act
President Reagan signed the United States' enabling legislation for the 1970 UNESCO Convention in 1983.[31] The accompanying Senate Report offers guidance as to the United States' position at that time:
The expanding worldwide trade in objects of archaeological and ethnological interest has led to wholesale depredations in some countries, resulting in the mutilation of ceremonial centers and archaeological complexes of ancient civilizations and the removal of stone sculptures and reliefs.... The United States considers that on grounds of principal, good foreign relations, and concern for the preservation of the cultural heritage of mankind, it should render assistance in these situations.[32]
The U.S. legislation is called the Convention on Cultural Property Implementation Act [hereinafter CPIA].[33] The CPIA implements Articles 9 and 7(b) of the UNESCO Convention. Even in light of the fact that this legislation came about thirteen years after UNESCO drew up the original Convention, in the context of other art-importing nations, the United States, "although hardly blameless in the international illicit art market, is relatively sensitive to cultural property issues."[34] Co-counsel to the National Association of Dealers in Ancient, Oriental and Primitive Art emphasizes the point: "The United States now has the most heavily regulated antiquities market in the world."[35]
The CPIA and United States' general efforts to rectify cultural property misappropriation are not without critics, however.[36] The essence of the CPIA is to prohibit the import of cultural material identified as stolen from an institution in another state party to the UNESCO Convention, to assist in its recovery if it is imported, and to apply specific import regulations or other controls to archaeological or ethnological materials specifically identified as comprising a part of a state's cultural patrimony that is in danger of being pillaged.[37] Critics point out that limiting the United States' assistance to other countries that have similar legislation stemming from the UNESCO Convention truncates a long list of countries that could benefit from the CPIA - those that are not party to the Convention.[38] "The restrictions [on importing cultural property] apply only with respect to states with whom the United States has signed bilateral or multilateral agreements, and then, only if the requesting state can show...that its cultural patrimony is in jeopardy from pillage and that it has taken measures to protect its cultural patrimony."[39] This provision is the CPIA's adaptation of the UNESCO Convention's Article 9,[40] which grants a privilege to State parties whose "cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials"[41] to "call upon other States Parties who are affected."[42]
As a further criticism, one writer notes that the CPIA's treatment of the UNESCO Convention's Article 7 creates a loophole for any institution other than a state-run museum,[43] meaning that private institutions escape scrutiny. Essentially, Article 7 of the UNESCO Convention requires States to prevent museums within their territories from acquiring illicit cultural property originating in another State Party. "The real problems of illicit transfer and import of cultural property lie in the acquisition policies of private museums, institutions, and collectors, because they are much more difficult to monitor. Article 7 fails to control the illegal art trade, especially as it concerns non-state-run museums and institutions."[44] Article 10 of the UNESCO Convention addresses private institutions, but the United States opted not to adopt this Article in the CPIA, which illustrates the breadth of leeway nations are allowed in implementing the UNESCO Convention.[45] This means that the U.S. government cannot, for example, mandate that galleries and auction houses adhere to a national standard for importing art, which emphasizes a lack of consistency amongst institutions, let alone nations, and underlines the need for across-the-board adoption of one single policy.
Despite its purported deficiencies, the CPIA does contain another important element that is, arguably, its most effective insofar as it fosters continuing study, debate and vigilance over the legal landscape as it relates to cultural property: The creation of the Cultural Property Advisory Committee [hereinafter the CPAC].[46] The CPAC, which is comprised of museum professionals, archaeologists, anthropologists, gallery owners, and other people affiliated with cultural property professions, is a very powerful entity and its recommendations are usually determinative.[47] The CPAC convenes when a request is received from a country asking for U.S. assistance under the UNESCO Convention.[48] The CPAC "is responsible for reviewing requests and recommending a course of action to the U.S. State Department, where the president's decision-making responsibilities under the Convention on Cultural Property Implementation Act reside."[49] Essentially, the CPIA is "intended to allow licit, documented trade and to reduce the incentive for pillage thereby protecting valuable historical information that resides in situ with archaeological and ethnographic material. Such information is essential in understanding the development of mankind. It is irretrievably lost unless its associated material is scientifically removed from context."[50]
(C) International Policies and Practices Regarding Cultural Property Protection
With the above outline of some of the United States' policies regarding cultural property, a survey of when and how the 1970 UNESCO Convention is enforced will provide more context before examining the situation in Switzerland. International police efforts are fragmented, government customs are often ineffective, and databases of looted art are inadequate.[51] More public awareness and education would bolster communities to make improvements to these mechanisms. Jane C. Waldbaum, president of the Archaeological Institute of America, said "the crusade to save ancient heritage has been invigorated by the public outcry over the looting of Iraq's national museum after the fall of Baghdad, which served to galvanize the world's attention."[52] Public awareness is a key component in managing cultural property trade; the more aware prospective buyers are of the issues, the more they will expect dealers to provide them with detailed provenance reports and explanations of an object's ownership history.
Manus Brinkman, secretary general of the International Council of Museums (ICOM), headquartered in Paris, is engaged in efforts to recover looted and otherwise inappropriately acquired art.[53] Brinkman notes, "Sometimes we feel we are fighting a war we have already lost."[54] There are many difficulties in finding and confiscating missing art. Very few enforcement mechanisms or police groups aside from Interpol[55] are in place to monitor the comings and goings of cultural property and, despite legislation and a host of research and writings on the topic, cultural property looting is a crime and should be dealt with as such.
Another problem with international cultural property protection is the ineffectiveness of government customs. Illicitly obtained antiquities are often not detected entering the United States.[56] "We only examine 10 percent of the passengers and cargo coming into New York,"[57] said U.S. Customs Special Agent in Charge John Varrone in 1999; "[m]ost of the material we seize is recovered only after it's in this country, often when someone reports seeing something in a catalog or a display room."[58] Even though two-thirds of the art imported into the United States comes through New York, customs officials there have reported only two or three such seizures a year.[59]
Because of these shortcomings, other efforts to attempt to curb looting have been instituted. For example, the Art Loss Register, an arts theft database created in 1991 through a partnership between leading auction houses, art trade associations, the insurance industry and the International Foundation for Art Research, uses a computerized visual record of works of art, and produces an audit trail so it can tell which dealer is checking on a given work of art. This process provides a central clearinghouse for acquirers of art to determine good title thereby deterring theft and the trade in stolen art.[60] There are other databases of stolen and missing art available with different inventories. "But any database is only as good as the information in it. Experts documented more than 3,000 pieces as having been looted from regional museums in Iraq after the 1991 war,"[61] which makes one wonder how much undocumented looting takes place on a global level.
Interpol is also grappling with the problem of cultural property thievery.[62] Interpol, headquartered in Lyon, France, is an international police organization that "support and assists all organizations, authorities and services whose mission is to prevent or combat international crime."[63] Its mission is to "promote international police co-operation i.e. to help officers from different police forces, countries, languages and cultures to cooperate with one another and work together to solve crime."[64] Interpol states that "[i]t is difficult to gauge the extent of the [cultural property] trade for two reasons: the theft is very often not discovered until the stolen objects are found on the official arts market, and countries send very little information to Interpol and many do not keep statistics on this type of criminality."[65]
The pillaging in Iraq has reinvigorated current international attention to the problem of illicit trafficking in cultural property.[66] Interpol coordinated and established a task force for tracking Iraqi stolen cultural property in May 2003, which resulted in a set of recommendations in November 2003.[67] Many of the task force's suggestions could be relevant and applicable to many other countries that are experiencing widespread looting and which do not have the domestic capacity to remedy the situation on their own. For example, France, Italy, and Greece, all countries with rich cultural repositories, could benefit from sources of help such as this task force to implement and carry out similar protective measures for their respective cultural repositories.[68] If the task force's recommendations are adopted by Interpol's general administration, its General Secretariat will assign a single point of contact who has the responsibility to create a standardized form to track individual seizures and investigations to ensure consistency in reporting.[69] This point-person will also maintain and disseminate information concerning the theft and recovery of cultural property and the suspects in each case, analyze the information, and create a central database listing both expert and fact witnesses necessary to pursue criminal prosecution.[70] "In addition to these preliminary steps, the General Secretariat will initiate programs designed to train law enforcement agencies in those countries and regions identified by analysis as pertinent to curbing illicit trade, will establish Iraqi authorities to establish a permanent presence at the Iraq Museum to monitor the inventory, and will ensure that Interpol's task force website contains accurate and current information."[71]
Interpol has a working database similar to the above-described Art Loss Register. However, Ronald Noble, Interpol's secretary-general, reported that only one piece of art from Iraq made its way to the organization's database.[72] Another database, Trace, which belongs to a British company, the Invaluable Group Ltd., automatically checks its records of stolen property against lists of auction lots and dealer's inventory of approximately 1,000 international companies.[73] The Art Loss Register operation screens the catalogues of both international and regional auction houses and has an art historian who checks catalogues against its database of over 100,000 stolen items.[74] In 2000, the Art Loss Register searched over 250,000 lots for auction houses.[75] The Trace database operates on a round the clock system of continuous electronic matching and its versatile databases, searchable across multiple permutations, have proved particularly successful in tracing low value objects or objects for which only inadequate descriptions are available.[76] An Art Newspaper author remarked that "[i]t is probably true that were they [Trace and the Art Loss Register] to combine their resources, the tracing of stolen art and antiques would take a step forward, but that is not likely to happen, at least not in the foreseeable future."[77] While such databases report successful matches, it must also be noted that they are "useful to crooks, too. If they know a piece is absent from the records, they are emboldened to sell it more openly. Interpol's art database, released on compact disc, is popular with thieves."[78] In other words, by disseminating their databases to the general public, these various organizations give thieves the opportunity to double-check their own inventory against what is known to be missing. If their loot is located on any of the lists, it is unlikely they will try to sell it. If it's not on a list, it's likely they will. While a substantial amount of art and other cultural property has been found and returned to its rightful owner because of the information in these databases,[79] the amount that has been confiscated and taken out of circulation is unknown, but likely abundant. More needs to be done.
II. Switzerland
(A) A Tainted International Reputation
This outline of both domestic and international treatment of cultural property provides a backdrop against which Switzerland's situation can be better understood. In essence, Switzerland's historical lack of action in protecting cultural property is being reversed, although the degree to which it will be helpful is uncertain. Switzerland is the world's fourth largest art market;[80] in fact, "[t]he art market brings the country an estimated US$6m-8m of revenue each year."[81] Until very recently, Swiss law has treated cultural goods no differently than ordinary merchandise.[82]
The country became a vital center for antiquities trade when Italian dealers moved their business there after Mussolini "clamped down on the trade in 1928 and Jewish gallery owners fled across the German border to avoid Nazi persecution a few years later."[83] Switzerland has received negative press and ample criticism in recent years, perhaps stemming from what some see as an excessive level of neutrality regarding assets pillaged during the Holocaust that passed through and remain in the country today. As one writer notes:
Over the past...years, questions regarding Switzerland have mounted, the initial issue of ‘dormant accounts' soon being joined by others: gold purchases, Nazi money deposited in Swiss banks, looted property of all kinds (from paintings to shares), insurance policies, Nazi transports along Swiss railway lines, real estate, Aryanised businesses...all aspects of foreign trade - and again and again, whatever the subject, the question of how much people could have known at the time.[84]
The extent to which Switzerland was culpable for any number of bad choices during the Holocaust continues to be a hotly debated subject, the breadth of which lies outside the purview of this writing. In 1991, a reporter for Time Magazine wrote:
Unless...thieves are caught in the act, stealing art and then selling it is remarkably easy. Ill-gotten Greco-Roman sculptures, Renaissance Bibles or friezes from an Egyptian Pharaoh's tomb can be iced away for a time and realize a generous return. In Switzerland, which treats goods in storage with the same discretion as bank accounts, a work can come out of a bonded free-port[85] warehouse in Zurich or Geneva with clear legal title to the possessor after five years.[86]
Thievery of cultural property was easy prior to the implementation of the Convention due to the law that stipulated a five-year waiting period, after which whoever possessed the art was considered its true owner. Furthermore, the waiting period could benefit thieves insofar as a stolen object that has received any publicity will probably be forgotten about, making a resale easier. In other words, an object that arrived in Switzerland illegally could be stowed away for the requisite five-year period and then legally belong to whoever possesses it.[87] The new Swiss Law, discussed below, changes that waiting period from five years to 30.[88] Even the Swiss Commission for UNESCO has admitted to the country's repute, stating that "Switzerland is one of the world's principal commercial locations for objects of art. Unfortunately, it also has the reputation for being a revolving door for the illegal transfer of cultural property."[89] In September 2003, U.S. Customs seized a South Arabian alabaster plaque consigned by Phoenix Ancient Art of Switzerland to Sotheby's and expected to sell for $20,000.[90] "A researcher for the auction house discovered it already belonged to the Aden Museum in Yemen."[91] Sotheby's withdrew the item from auction until its rightful owner could be identified, and Yemeni officials have asked the U.S. government to help them retrieve the plaque.[92]
Negative media attention aimed at Switzerland has historically been ubiquitous. The facts that have tended to make news headlines have only bolstered criticism. In 1995, police officers raided four warehouses in the free port of Geneva based on a tip, and discovered approximately ten thousand unprovenanced antiquities that have been valued at $40 million.[93] Furthermore, recent American case law has illustrated Swiss laxness. One such case is Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc.[94] This case demonstrates Switzerland's prior lack of legal implications for art thieves. An American art dealer arranged to purchase Cypriot mosaics from a Turkish archaeologist, and the transaction took place in Switzerland.[95] The mosaics were stored in a free port outside of Swiss customs, and they arrived in the United States from Geneva without problem.[96] Switzerland was also the venue where illegal activity in two high-profile U.S. cases took place. Frederick Schultz of his eponymous New York gallery dealt with middlemen in Switzerland in smuggling antiquities from Egypt to the United States,[97] and Michael Ward of his New York gallery obtained some Greek antiquities of questionable provenance in Switzerland; a group of goods which were later to become known as the Aidonian treasure.[98] In all three above-mentioned cases, United States law was employed to return the cultural property to its rightful place of origin, and in all three cases, the cultural property was returned.
In defense of the Swiss government and its policies, however, it should be noted that Swiss acknowledgement of the shortcomings in its cultural property protection laws dates further back than it may first appear. The Swiss legal system has been an encumbrance in taking action to ameliorate their laws because the Confederation is not empowered to legislate on cultural matters.[99] A working party had to be set up by the Office Fédérale de la Culture in 1990.[100] In 1982, a parliamentary motion suggested the Federal Council introduce legislation regarding cultural property and to ratify the 1970 UNESCO Convention. The Federal Council accepted the motion in 1993, and the implementation of the UNESCO Convention is the outcome of this process that began more than 20 years ago.[101] Finally, the Swiss government is willing and able to take action to prevent further cultural loss.
(B) The Swiss Law on the International Transfer of Cultural Property[102]
In the midst of mounting international awareness of gross mishandling of cultural property, Switzerland officially implemented the UNESCO Convention in January 2004 with the Loi sur le transfert des biens culturels [hereinafter LTBC].[103] Many of the LTBC provisions discourage trade in unprovenanced cultural property more strongly than do other nations' implementing legislation. The LTBC demands seamless provenance documentation, and focuses on the accountability of all the parties involved in a cultural goods transaction.[104] It also differentiates between "cultural goods" and "cultural heritage." The former is defined in the LTBC as goods "of importance to archaeology, prehistory, history, literature, art or science..."[105] and the latter is "cultural goods which belong to one of the categories covered by Art. 4 of the UNESCO Convention of 1970,"[106] which include, inter alia, cultural properties found inside the borders of a given State, or of importance to a State.[107] Other notable features of the Swiss law include a longer period for which a previous owner may reclaim property that has been misappropriated; it is now 30 years rather than five, with a one year window after an object is located.[108] Another stipulation of the LTBC is that good faith buyers are to be compensated for their purchases by the government that reclaims them, in the event that they are reclaimed.[109]
The Federal Council's recommendation for the LTBC was written on November 21, 2001, and addressed to the President.[110] The Federal Council stated that the ratification of the UNESCO Convention would solidify Switzerland's affirmation of international legal norms in the realm of cultural property issues.[111] Unlike its European neighbors, Switzerland had not ratified international instruments regulating cultural property movement. To protect its own cultural heritage and that of other nations, it was time to do so.[112] On June 20, 2003, the Swiss Parliament adopted LTBC in its final form. Micheline Calmy-Rey, Director of Switzerland's Federal Department of International Affairs, deposited the ratification instrument with UNESCO on October 1, 2003, [113] and the law entered into force in January of 2004.[114]
Recent commentary in the news as to how effective the LTBC will become is both optimistic and skeptical. In a July 2002 interview on the subject of illegal commerce in cultural property, Cornelia Isler-Kerényi, the President of the Swiss Commission for UNESCO's Division of Culture, addressed the subject.[115] She views the passage of the LTBC as crucial, but emphasizes that it is only a first step in the battle against illicit trade since international trade in cultural property will only grow and gain economic importance in the future.[116]
The LTBC's provision lengthening the period after which a thief takes legal priority over a true owner from five years to thirty years constitutes a clear improvement, but one that still only constitutes a bare minimum in the overhaul that needs to be done to effectively deter illicit trade.[117] Another commentator questions the potential effectiveness of the LTBC in light of the fact that customs officials are busy trying to control illicit dealing in arms and drugs.[118]
Despite the critiques of the law, the language of the LTBC is very promising. As mentioned above, an important stipulation in the new law is that good faith buyers, people who have bought stolen or illicitly excavated works of art unknowingly, will be compensated by the government if the works are reclaimed by their rightful owner.[119] This provision demonstrates the Swiss government's intention to share responsibility amongst all parties and States involved in a given transaction. It is the government of the country requesting the work be returned that must pay the good faith buyer in Switzerland, and the LTBC is clear that it delegates that responsibility.
In another effort to provide help to the rightful owner, the LTBC allows cantons to regulate their territorial implementation of the law insofar as they may specify that the missing art brought to their attention will not be shielded by the 30 year cap. "The cantons can declare that the cultural goods listed on their inventories cannot be acquired through the passing of time [or] acquired in good faith and that the right to claim restitution is not subject to time limitation,"[120] making the possibility of restitution perpetual. Finally, in the vein of good faith and due diligence, Article 16 of the LTBC imposes a duty of due diligence on professionals involved in the art trade, requiring that they can only effectuate the transfer of a cultural good after ensuring that a list of prerequisites has been met.[121] The prerequisites include the establishment of the supplier's identity, the conveyance of import and export rules enforced in the relevant States to clients with which the art trade professional is doing business, and the maintenance of a register of acquisitions of cultural goods.[122] Many U.S. and international museums and art institutions have contractual understandings or memberships to societies that self-regulate in a similar fashion, but the CPIA, for example, does not include this stipulation as a law.[123]
(C) The LTBC as it Compares to the CPIA
A comparison between the CPIA and LTBC is useful. Similar to the United States Cultural Property Advisory Committee, the LTBC creates a "central office charged with the implementation of [the] Act,"[124] to be known as the Swiss Committee for the Protection of Cultural Property.[125] Among its responsibilities, the office will advise and assist federal authorities with issues related to the LTBC, will collaborate with other States with the purpose of protecting their cultural heritage, and will ensure that art dealers and auctioneers respect their duties of due diligence.[126] Whether the Swiss Committee will act similarly to the United States Cultural Property Advisory Committee is not immediately apparent. The provisions for making international agreements in the Swiss law are comparable to those of the CPIA, except that the LTBC delegates those duties to the Federal Council, not to the Swiss Committee for the Protection of Cultural Property.[127] The CPIA is very explicit as to the number of members on the CPAC as well as their qualification prerequisites and specific duties.[128] The Swiss law is currently briefer and less specific in this regard,[129] as is true for most of the provisions in the LTBC as compared to the CPIA provisions. It is possible that the Swiss legislation is leaving room to adapt. Some of the LTBC provisions mirror those of the above-discussed Interpol recommendations, which endorse important stipulations about holding transgressors criminally responsible for their actions. For example, Article 19 of the LTBC grants Swiss customs officers the authority to inspect, withhold and report "suspicious cultural property."[130] Imprisonment or a fine of 100,000 Swiss francs (approximately $80,000 U.S. dollars) shall be imposed to "whoever intentionally imports, sells, distributes, procures, acquires or exports cultural property stolen or otherwise against the will of the owner."[131] If such an act derives from negligent behavior, a punishment of up to 20,000 Swiss francs (approximately $16,000 U.S. dollars) is possible. If the guilty party acts in his or her capacity as an art industry professional, he or she shall be "punished by imprisonment of up to two years or a maximum fine of 200,000 Swiss francs [approximately $160,000 U.S. dollars]."[132] Article 20 grants permission to "the competent criminal prosecution" to seize and report any such suspicious objects.[133]
It is notable that the LTBC's definitions of "cultural goods" and "cultural heritage" add a dimension to the law that will likely narrow the impact to a specialized area of the art market, namely archeological and ethnological art.[134] Notwithstanding the definitional narrowness, provisions such as these are unprecedented in Switzerland's law regarding cultural property. Whether they will be effective and operate efficiently has yet to be seen, but the implementation of these provisions is a milestone.
III. The Marketplace and Suggestions for Improvement by Way of Transparency
(A) Legal Purchases of Cultural Property by Example of the Auction House
Despite this writing's concentration on looting and illicit channels of commerce and the means with which the international community is addressing these problems, there exist legal avenues through which collectors, museums, and other interested purchasers can legitimately acquire cultural property. The fact that there is a legal market for cultural property emphasizes the need to have definitive guidelines and stronger educative efforts so that buyers and sellers know what to look for and how to handle gaps in information or lack of clarity. Refocusing on the international market generally, the profuse legislation with all the different, and sometimes opposing, stipulations appears unnecessarily confusing. William Pearlstein, an attorney at Golenbock Eisman, who represents dealers and collectors stated, "The pendulum has swung too far against antiquities dealers and collectors. It is harder and harder for collectors to know what is safe to collect."[135 |
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