Prevention of Illicit Trafficking of Cultural Property – Learning Materials

Table of Contents

1. What Are Antiquities and Cultural Property?

Usually, objects included under the term “cultural property” are such things as antiquities, historical items or buildings, archaeological sites, rare floral and faunal specimens, and artworks, but they can include items from many other categories. However, the definition differs from country to country. The term “cultural property” is used consistently in international conventions, but in Arab countries, the term “antiquities” tends to replace “cultural property.” The definition of “antiquities” also varies from one country to another. In Jordan, antiquities are:

a. Any movable or immovable object which was made, written, inscribed, built, discovered or modified by a human being before the year AD 1750 including caves, sculpture, coins, pottery, manuscripts and other kinds of manufactured products which indicate the beginning and development of science, arts, handicrafts, religions, traditions of previous civilizations, or any part added to that thing or rebuilt after that date.

b. Any movable or immovable object as provided for in Clause “a” of this definition which dates back after AD 1750 and which the Minister requests to be considered an antiquity by a decision published in the Official Gazette.

c. Human, animal and plant remains which date back before AD 600.

(Jordanian Antiquities Law of 1988, Article 2.7.)

Most Arab countries have the same definition, but the age or date limit may be different. In Syrian law, for example, antiquities are any movable or immovable object, just as in the Jordanian, but an object must be older than 200 years (Syrian Antiquities Law of 1963, Article 1). Under Saudi law, antiquities are defined as being 100 or more years old (Saudi Antiquities Law of 2014, Article 1).

Be aware of what is considered antiquities or cultural property in each country. See the UNESCO List of National Cultural Heritage Laws for the laws of different countries

2. What Is an Archaeological Site and What Is an Archaeological Reserve?

Archaeological sites are part of cultural property. In Jordan, archaeological sites are either any area in the Kingdom that was considered a historic site under former laws or any other area that the Minister of Tourism and Antiquities decides contains antiquities or is related to important historical events; this decision must be announced in the Official Gazette (Jordanian Antiquities Law 1988, Article 2.8). An Antiquities Protectorate (archaeological reserve) is an area of land that contains archaeological remains or human or natural remains that have been designated and announced by a decision of the Cabinet. This decision is based on the recommendation of the Minister of Tourism and Antiquities, supported by a recommendation by the Director General of the Department of Antiquities (DoA). These decisions include the terms and conditions necessary for the preservation of things present at the site or area (Jordanian Antiquities Law 1988, Article 2.14).

3. What Is Illicit Trafficking of Cultural Property?

Illicit trafficking is any buying, selling, or smuggling of illegally obtained artifacts. Illegal sources of artifacts include illegal excavations, theft, and production of fakes, among others. Illicit trafficking and smuggling of cultural property can involve a chain of different players and countries with different legislative frameworks, which helps in the laundering of antiquities to be sold. This chain starts with the illegal source of artifacts (usually in countries rich with archaeological sites), proceeds through stages of transit and laundering (in countries where trading or exporting antiquities may be legal), and ends in art markets (typically in wealthy countries that have legal art auction houses, big museums, and collectors).

3.1. Illegal Excavations

Illegal excavations are excavations that aim to find and obtain antiquities without the permission of the responsible authorities.

Reasons that people engage in illicit excavations vary from one individual to another and from one region to another. In some places, people resort to these illegal practices mainly due to the impact of extreme poverty. For them, finding and selling antiquities is seen as a means of survival.

In some countries, illegal excavations are related to organized crime or terrorist groups. In such cases, persons may be forced to dig up artifacts for these criminal groups.

Another reason behind illegal excavation is a desire to find ancient and “exotic” artifacts. Some people are motivated by legends and local stories about hidden treasures.

In Jordanian law, an illegal excavation is any search for antiquities undertaken without the permission of the antiquities authorities, represented by the Department of Antiquities. Searching for antiquities is defined as carrying out the activities of excavation, probing, and inquiry with the intention of finding movable or immovable antiquities. However, the discovery or finding of antiquities by chance is not considered to be searching for antiquities (Jordanian Antiquities Law 1988, Article 2.11).

Jordanian Antiquities Law 1988, Article 14: Despite the provisions of any other law, no person or entity will be allowed to carry out any excavations in archaeological sites in search of gold or other hidden treasures.

Video: Lecture by Chad Hill. Topic: Cultural Site Monitoring, Documentation, and Survey with Drones and Satellites.

3.2. Theft

Museums and storage areas used for antiquities can be victims of theft. Those without efficient security systems are more at risk of being plundered, and theft increases during times of social or political turbulence or natural disasters. The stealing of artifacts might be achieved by silencing security alarms or personnel, and the thieves can be armed and might threaten to kill.

The Jordanian Antiquities Law criminalizes stealing antiquities and imposes a punishment that ranges from one to three years of imprisonment and a fine of not less than 3,000 Jordanian dinars (equivalent to around U.S. $4,200), in proportion to the value of the stolen artifact (Jordanian Antiquities Law 1988, Article 26.8).

3.3. Producing Fakes and Forgeries

There is often confusion about fakes, forgeries, and replicas. Often, the terms “fake” and “forgery” are used interchangeably, but there are differences. Fakes are objects that have been created or modified with the intent to deceive and mislead people into believing that the items are genuine when they are not. Forgery is the production of a copy of an authentic object that is then falsely presented as genuine. Replicas are copies of an authentic object that are acknowledged to be merely identical to the object.

Jordanian antiquities law punishes producing replicas or even molds for producing replicas without authorization from the DoA (Jordanian Antiquities Law 1988, Article 27.b.1 and b.2).

Obviously, the law criminalizes faking antiquities or dealing with imitation antiquities and alleging that they are genuine (Jordanian Antiquities Law 1988, Article 26.a.5 and a.9).

Videos: Lecture by Noah Charney, part 1. Topic: Fakes and Forgery Cases.

Videos: Lecture by Noah Charney, part 2. Topic: Fakes and Forgeries Cases.

Videos: Lecture by Noah Charney. Topic: Forgeries Cases.

The art market consists of shops that sell antiquities or artworks, as well as auction houses that deal in cultural property. These auction houses are legal in many countries around the world. Sometimes illegal antiquities or cultural property end up in such art markets.

4. What Is the Art Market?

Today, the internet offers accessible websites and social media platforms where it is possible to easily sell illegally obtained artifacts. Some social media platforms have tried to limit the illegal offering of artifacts for sale on their sites, but still the problem persists. Thus, it remains necessary to always observe such websites and auction house catalogs for artifacts with suspicious provenances.

5. What Is Provenance?

Provenance is information about an artifact’s history, such as the place of its discovery and who has owned it. Provenance must be supported by documentation and is the main means of identifying artifacts in legal circulation (UNESCO Toolkit 2018, p. 77).

Production of fake documentation of provenance is a tool used by dealers to hide the actual illicit provenance of an artifact and sell it “legally”

Video: Lecture by Morag Kersel, part 1. Topic: From the Mound to the Mantelpiece Selling, Buying, and Repatriating Ancient Artifacts.

Video: Lecture by Morag Kerse, part 2. Topic: From the Mound to the Mantelpiece Selling, Buying, and Repatriating Ancient Artifacts.

6. What Is the Difference between the Signing, Ratification, Acceptance, Approval, and Accession of an International Convention?

Countries become parties to international conventions in different phases or ways. When a country signs a convention, that means it accepts the treaty but is still not legally bound to it. However, signing is the first step to a country then becoming legally bound to a convention through ratification, acceptance, approval, or accession. All of these four terms mean that the country is part of the international convention and legally bounded. The first three terms are used in different countries, depending on their own national law; in some countries, joining an international convention does not need ratification by the head of state. The fourth term, accession, is the act by which a state accepts the offer or the opportunity to become a party to a convention already negotiated and signed by other states.

Several practical procedures accompany these stages at national and international levels. The state undertakes a study of the treaty and assesses the feasibility of joining it. Subsequently, upon reaching a decision to join, the state must enact national legislation that aligns with the provisions of the convention. Then, at the international level, the state is required to deposit its document of ratification, acceptance, approval, or accession with the Director-General of UNESCO in the case of UNESCO agreements or with the government of the Italian Republic in the case of the UNIDROIT Convention of 1995. Typically, the treaty comes into effect after a period of three or six months from the date that the state’s accession document is deposited.

Usually, each convention includes in its provisions how and where to deposit the accession documents and the period needed for it to enter into force. It also includes the way to withdraw from the convention.

7. What Are International, Intergovernmental, and Non-Governmental Organizations (NGOs)?

International organizations operate in different countries in the world are usually divided into two categories: intergovernmental organizations and non-governmental organizations. The first are involved only with sovereign states. That means only states can be members of these organizations, such as various United Nations organizations and INTERPOL. On the other hand, non-governmental organizations (NGOs) are made up of private citizens. NGOs do not enter into treaties or other international agreements. An example of an NGO is ICOMOS, the International Council on Monuments and Sites. Usually, NGOs are nonprofit, and they can be organized on a local, national, or international level to address issues in support of the public good.

8. International and Local Laws

Sometimes conflicts between laws in different nations create difficulties for enforcement. Thus, states are aware of the necessity of collaborating and forming agreements. The most important international convention related to fighting illicit trafficking of cultural property is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

For the restitution of artifacts, countries usually invoke one or more of three particular articles of the 1970 UNESCO Convention: Article 3, Article 7, and Article 9. These declare the illegality of export, import, or transfer of ownership of cultural property that is effected contrary to the provisions adopted under the convention by the parties (UNESCO 1970, Article 3). In addition, Article 7 demands that parties take measures to protect cultural property and prohibit the import of inventoried cultural property, which means artifacts stolen from museums, galleries, or any collection recorded in a national register. Article 9 concentrates on any cultural property that is in danger of pillage, and countries should collaborate and restrict the export, import, and international commerce of such material.

Video: Lecture by Ahmad Farhan. Topic: Restitution Antiquities under the 1970 UNESCO Convention – Egypt

To learn more about the problem between national laws of different countries and the considered rules to restitution illicit smuggled artifacts and cases of smuggled artifacts, please visit the American Center Library, where a recorded lecture by Prof. Patty Gerstenblith, “Trafficking and Protection of Cultural Heritage,” is on file and available upon request.

Hague Convention 1954, The Convention,

Hague Convention 1954, First Protocol,

Hague Convention 1954, Second Protocol,

ICOM, Object ID,

ICPRCP, Committee

INTERPOL, Art mobile app,

INTERPOL, Jordanian Office,

Jordanian Antiquities Law 1988 (amended in 2004 and 2008), DoA Publication Archive,

Memorandum of Understanding, USA-Jordan,

Observatory Illicit Traffic website,

UNESCO 1970, Convention,

UNESCO List of National Cultural Heritage Laws,

UNIDROIT Convention of 1995,

World Customs Organization, ARCHEO Tool,

Last updated: 14 September 2023

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