Foreign Government Requests for Cultural Property Protection
Much of the authority of the President under the CPIA has been conveyed via executive order (E.O. 12555 of March 10, 1986) and subsequent legislation to the Secretary of State, and now also rests with certain senior officials at the Department pursuant to delegations of authority. The government of any State Party to the 1970 UNESCO Convention may request a cultural property agreement by submitting a written request to the Department of State. The request must include a statement of facts that addresses the matters on which the Department makes the determinations specified in the CPIA, 19 U.S.C. § 2602(a)(1). These determinations are:
- that the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;
- that the State Party has taken measures consistent with the 1970 UNESCO Convention to protect its cultural patrimony;
- the application of the import restrictions set forth in 19 U.S.C. §§ 2606 with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage,
- remedies less drastic than the application of the restrictions set forth in such section are not available; and
- that the application of the import restrictions in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.
On receiving a request, the Department will refer the matter to the Cultural Property Advisory Committee (CPAC), established pursuant to the CPIA, for its recommendations and views. Then, considering the CPAC’s report, the Department will make determinations as the CPIA requires and respond to the government of the requesting country. The response to a request may include notification that: (1) emergency import restrictions will be imposed; (2) the United States intends to enter into a cultural property agreement with the requesting country, and/or (3) the situation does not warrant such measures.
Cultural property agreements and emergency actions may remain in force for five years, during which time the Department may propose an extension.
Guidelines for Foreign Government Requests
These guidelines describe the information that the Department will take into consideration when reviewing a request for an initial cultural property agreement or the extension of an existing agreement. This information relates to specific elements in the determinations cited above.
These guidelines may be revised in the future.
Cultural Property Agreements Pursuant to 19 U.S.C. § 2602
Jeopardy from the pillage of archaeological materials is assessed by the degree to which the cultural patrimony of the requesting country is exposed to loss by pillage of its archaeological materials through unauthorized excavations, clandestine digging, and other looting events at archaeological sites. Documentary evidence may be in the form of statistics, photographs, satellite imagery, case studies, and seizures by law enforcement of archaeological materials in unauthorized possession. Evidence intended to show loss of archaeological materials should, at a minimum, contain data for five years.
Jeopardy from the pillage of ethnological materials is assessed by the degree to which the cultural patrimony of the requesting country is exposed to loss by pillage of its ethnological materials through unauthorized removal and looting events at sites where ethnological material is used or stored. Documentary evidence may be in the form of theft reports from sites or museums housing ethnological material, and seizures by law enforcement of ethnological material in unauthorized possession. Evidence intended to show loss of ethnological materials should, at a minimum, contain data for five years.
Measures consistent with the 1970 UNESCO Convention to protect cultural property may include:
- Issuance of export certificates, by which the exporting country specifies that the export of the cultural property in question is authorized, documentary evidence of which should include relevant laws, regulations, and sample certificates;
- Imposition of penalties or administrative sanctions for violation of import or export controls on cultural property, documentary evidence of which should include copies of the relevant laws, regulations, or decrees;
- Establishment of national services (if they do not exist already) for the protection of the cultural heritage that are supported by an adequate budget;
- Credible enforcement efforts, including monitoring for compliance and appropriate sanctions, documentary evidence of which should include data of sufficient duration and scope to provide the information necessary for a reliable determination;
- Site protection to ensure the preservation in situ of cultural property and to protect areas reserved for future archaeological research;
- Creation and maintenance of inventories of immoveable and moveable cultural property; and
- Public education efforts both to stimulate and to develop respect for the cultural heritage of all countries, and to create and develop in the minds of the public a realization of the value of cultural property and the threat to the cultural heritage posed by theft, clandestine excavations, and illicit exports.
To assess whether U.S. import restrictions may be applied in concert with similar restrictions applied by other countries, the requesting country should identify the countries or territories having a significant import trade in its cultural property and describe any related agreements or other arrangements it may have with those countries or territories.
In light of the general Interest of the international community in the interchange of cultural property, the requesting country should demonstrate a credible commitment to permit access to archaeological and ethnological materials. Among the factors that go into this analysis are: 1) the establishment of museums and/or other scientific and technical institutions, which the Department will assess for availability and accessibility of materials for loan to similar institutions abroad; and 2) the establishment of regulations and national services to coordinate, permit, oversee, facilitate, and report on archaeological and ethnological research under national and foreign direction, which the Department will assess for the availability and accessibility of research opportunities for foreign scholars.
Extension of Agreements Pursuant to 19 U.S.C. § 2602(e)
The Department of State will engage in ongoing consultations with the governments of those partner countries with which bilateral agreements are currently in force. The same determinations (mentioned above) used to evaluate a foreign government’s initial request for a cultural property agreement must be made in order to extend an existing agreement. When reviewing a proposal to extend an agreement, the Department will take into account accumulated annual reporting, along with any additional information provided by the partner country or otherwise known to the Department. Past performance will be reviewed and will be taken into consideration in making determinations with regard to an extension.
Emergency Import Restrictions Pursuant to 19 U.S.C. § 2603
In the course of reviewing a foreign government’s request for cultural property protection, the Department may determine that an emergency condition exists and that import restrictions on an emergency basis on archaeological or ethnological material of the requesting country are warranted.
As defined in the CPIA, 19 U.S.C. § 2603(a), the term “emergency condition” refers to any archaeological or ethnological material of a country that is:
- a newly discovered type of material which is of importance for the understanding of the history of mankind and is in jeopardy from pillage, dismantling, dispersal, or fragmentation;
- identifiable as coming from any site recognized as having high cultural significance if such site is in jeopardy from pillage, dismantling, dispersal, or fragmentation which is, or threatens to be, of crisis proportions; or
- a part of the 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; and with respect to which the application of import restrictions on a temporary basis would, in whole or in part, reduce the incentive for such pillage, dismantling, dispersal or fragmentation.
Absent a request for cultural property protection, import restrictions on the cultural property of a country may be imposed pursuant to other legislation, such as the Protect and Preserve International Cultural Property Act, Pub. L. 114–151, May 9, 2016, 130 Stat. 369. Such restrictions may be subject to review requirements different from those outlined here.
The Department and the requesting state restrict access to information submitted in support of the request, due to the sensitivity of the information. Information received from the foreign government under a cultural property agreement is generally considered confidential information under 19 U.S.C. § 2605(i) and is also classified as Confidential Foreign Government Information. This information includes the request and its associated documents; supplemental information, documents and communications concerning the request; information pertaining to the negotiation of an agreement; information pertaining to implementation of an agreement entered into and/or the imposition of emergency import restrictions; information pertaining to periodic proposed extensions of import restrictions or an agreement; and any other information provided by a requesting government related to this process that has not been explicitly designated as unrestricted. Access to this information is restricted to certain personnel in the U.S. government, the government of the requesting state, and private sector advisors where such access is necessary.
All cultural property agreements in force and all emergency import restrictions are subject to continuing review of their effectiveness.