THE ILLICIT TRADE IN PRECOLUMBIAN ARTIFACTS
Kayce A. Horgan
April 16, 2008
CULTURAL PROPERTY
“Movable and immovable property that has cultural
significance, whether in the nature of antiquities and
monuments of a classical age or important modern
items of fine arts, decorative arts, and architecture.”
Black’s Law Dictionary, 4th Ed.
The World Divided
SOURCE NATIONS
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Art-Rich Nations
Nations where the supply
of cultural property
exceeds the internal
demands
Usually undeveloped or
developing nations
Example: Mexico
Associated with Cultural
Nationalism
MARKET NATIONS
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Art Poor Nations
Nations where the
demand for cultural
property exceeds the
internal supply
Usually developed nations
Example: United States &
Great Britain
Associated with Cultural
Internationalsim
2 Competing Mindsets
CULTURAL NATIONALSIM
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Cultural property is part
of the cultural heritage
within a specific nation
Restrictions on the flow
of cultural property
Restrict flow of property
because property is
important to the identity
of the people
CULTURAL INTERNATIONALSIM

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Cultural property is part
of the cultural heritage of
the world
Free-Flow of cultural
property
Important to export
cultural property because
source nations do not have
the means to care for the
cultural property
Pre-Columbian Artifacts
“Pre-Columbian is a term used to refer to cultures of the
New World in an era before Christopher Columbus. In
practice, the term usually includes indigenous cultures as
they continued to develop prior to being conquered or
significantly influenced by Europeans.”
CBP News Release, April 1, 2008, http://www.cbp.gov/xp/cgov/newsroom/news_releases/04012008_5.xml
United States Customs & Border Protection
Returns Pre-Columbian Artifacts to Mexico
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On March 31, 2008, U.S. Customs and Border
turned over pre-Columbian artifacts to the Mexican
Government. The returned artifacts are considered
priceless cultural treasures in Mexico and date back
between 1250 BC and 900 BC.
Archeologists believed the artifacts are PreColumbian from the northern regions of Mexico and
must have been part of funeral offerings.
The items had been in Customs’ custody since 2001.
All of the items returned were seized from would be
smugglers in a variety of enforcement actions
conducted by CBP officers and/or ICE agents at
various ports of entry in the states of Texas and New
Mexico.
CBP News Release, April 1, 2008,
http://www.cbp.gov/xp/cgov/newsroom/news_releases/04012008_5.xml
ILLICIT TRADING: WHY?
Profitability
 Revenues are in the billions
 Comparable to the Drug Trafficking
business in size and profitability
 High Demand
 Sign of wealth
 Investment
 Scarcity

PROBLEMS LATIN AMERICA FACES

REMOTENESS OF EXCAVATION SITES
 Inability
to Police
 Many sites are not known about

THE PEOPLE ARE ENGAGED IN THE LOOTING
 Their
ancestors = Right to Sell
 Quick money
 Protects property from confiscation
LATIN AMERICA’S RESPONSE
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NATIONAL LAWS
REGIONAL AGREEMENTS
INTERNATIONAL AGREEMENTS
NATIONAL LAWS
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PATRIMONY LAWS
 Export
restrictions
 Cultural
property cannot be removed from the country
without permission.
 National
ownership declarations
 All
cultural property found within the territorial borders of
the country are owned by the nation.

Applies to objects that are excavated & unexcavated, located on
private & public land. May reach to objects in private
collections.
 Relies
on the theory of constructive possession.
REGIONAL AGREEMENTS
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1935 CONVENTION
ROERICH PACT
CONVENTION OF SAN SALVADOR
1935 Convention
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Members: Chile, El Salvador, Guatemala, Mexico &
Nicaragua
Serves to limit the exportation of certain movable
cultural property.
Cannot import movable cultural property without an
export permit.
Roerich Pact
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Signed same year as the 1935 Convention
Members: Brazil, Chile, Columbia, Cuba, Dominican
Republic, El Salvador, Guatemala, Mexico, Venezuala
& U.S.
Provides for the respect and protection of “cultural
treasures”
Provides system of designating and recognizing
“cultural treasures”
 Red
flags
Convention of San Salvador
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Member nations may seek the
aid of other member nations in
the return of stolen property
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Must use appropriate diplomatic
channels
Requesting nation bears all costs
Serves to limit the exportation
of cultural property
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May only export for purpose of
promoting knowledge of culture
INTERNATIONAL RESPONSE
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UNESCO CONVENTION
UNITED STATES
United Nations Educational, Scientific
and Cultural Organization (UNESCO)
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The main objective of UNESCO is to contribute to peace and
security in the world by promoting collaboration among nations
through education, science, culture and communication in order to
foster universal respect for justice, the rule of law, and the human
rights and fundamental freedoms that are affirmed for the peoples
of the world, without distinction of race, sex, language or
religion, by the Charter of the United Nations.
To fullfil its mandate, UNESCO performs five principal functions:
1) prospective studies on education, science, culture and
communication for tomorrow's world; 2) the advancement,
transfer and sharing of knowledge through research, training and
teaching activities; 3) standard-setting actions for the preparation
and adoption of internal instruments and statutory
recommendations; 4) expertise through technical co-operation to
Member States for their development policies and projects; and 5)
the exchange of specialized information.
UNESCO Convention of 1970

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International response to the increase in peace-time looting of
archeological & sacred sties following WWII.
“The States Parties to this Convention recognize that the illicit
import, export and transfer of ownership of cultural property is
one of the main causes of the impoverishment of the cultural
heritage of the countries of origin of such property and that
international co-operation constitutes one of the most efficient
means of protecting each country's cultural property against all
the dangers resulting therefrom. To this end, the States Parties
undertake to oppose such practices with the means at their
disposal, and particularly by removing their causes, putting a stop
to current practices, and by helping to make the necessary
reparations.” (Article 2)
UNITED STATES
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CULTURAL PROTECTION IMPLEMENTATION ACT
PRE-COLUMBIAN ACT
NATIONAL STOLEN PROPERTY ACT
CULTURAL PROPERTY
IMPLEMENTATION ACT (CPIA)
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Implements the 1970 UNESCO Convention
Imposes import restrictions on archeological &
ethological artifacts. Artifacts can only be
imported with an export permit.
Provides for bilateral agreements & emergency
import decrees
Bilateral Agreements
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Custom-tailored to address the needs and issues of
the two nations.
Certain conditions must be met in order for the United
States to enter into a bilateral agreement. 19 U.S.C.A.
§2602
A nation’s cultural property is in jeopardy of pillage;
 The nation has taken measures to protect its cultural
patrimony that are consistent with UNESCO;
 The application of an import restriction “would be of
substantial benefit in deterring a serious situation of
pillage,” and less drastic remedies are not available; and
 The implementation of the import restrictions is
consistent with the international community’s general
interest

Emergency Import Restrictions
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
If a nation does not have a bilateral agreement with the US they
can petition the US to implement an emergency import restriction
on their behalf
Must show that 1 of 3 conditions exist:
19 U.S.C.A. §2603(a)
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1) “a newly discovered type of [object] which is of importance for
the understanding of mankind and is in jeopardy from pillage,
dismantling, dispersal, or fragmentation;”
2) is from a site identified and recognized to be of ‘high cultural
significance” and the site is in peril of “pillage, dismantling,
dispersal, or fragmentation which is, or threatens to be, of crisis
proportions;” or
3) is the cultural remains of a “particular culture or civilization, the
record of which is in jeopardy from pillage, dismantling, dispersal,
or fragmentation which is, or threatens to be, of crisis proportions.”
Pre-Columbian Act
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Purpose of is halt the flow of Pre-Columbian
goods before they enter the United States.
Allows customs to seize illegally imported PreColumbian artifacts.
All seized artifacts are offered back to the
country of origin.
National Stolen Property Act
(NSPA)
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NSPA makes it a crime subject to criminal sanctions for
any person to “transport, transmit, or transfer in
interstate or foreign commerce any good…of the value
of $5000 or more, knowing the same to have been
stolen.” 18 U.S.C.A. §2314
Also, NSPA imposes criminal sanctions on “whoever
receives, possess, conceals, stores, barters, sells, or
disposes of any good…of the value of $5000 or
more…which have crossed a State or United States
boundary after being stolen…knowing the same to
have been stolen. 18 U.S.C.A. §2315
What does the future hold?
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How effective have these measures been?
Is the support of the United States enough to halt
the illicit flow of cultural property?