AUSTRALIA’S PROTECTION OF FOREIGN STATES’ CULTURAL HERITAGE
The international market in art and antiquities includes a demand for archaeological and palaeontological material, such as dinosaur eggs, nests and skeletons. The Liaoning province in north-eastern China is rich in such material, which should be impossible to obtain on the market since China imposes a strict export prohibition on all archaeological and palaeontological material. However, a thriving illicit market for this material has grown, and has now extended to Australia. In June 2004, acting on a request from China, Australian authorities seized 20 tons of palaeontological material in Mandurah, Western Australia. This material had been illicitly excavated in the Liaoning province, illegally exported from China, and imported into Australia.1 This material was recently returned to China.2
The Australian government does not regard this as merely an example of an illegal export of a commodity from another state, but as ‘a serious issue which involves the theft of other people’s culture and heritage’.3 Given this, one might question how 20 tons of palaeontological material, consisting of over 1300 individual fossils, could enter Australia undetected; and why the Australian authorities only acted when requested to do so by the Chinese authorities.
This recent incident is a typical example of the illicit trade in cultural heritage, of which archaeological and palaeontological material forms a part.4 It raises a number of issues of importance regarding the way in which Australia perceives this illicit trade, and the approach taken to assist foreign states in the protection of their cultural heritage.
The 1970 United Nations Educational, Scientific and Cultural Organisation (‘UNESCO’) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property5 (‘UNESCO Convention’) attempted to address the problem of the illicit trade in cultural heritage. Australia is a party to this Convention, and has given effect to it by way of the Protection of Movable Cultural Heritage Act 1986 (Cth) (‘PMCHA’). In considering Australia’s approach to assisting foreign states in the protection of their cultural heritage, it is important to examine the UNESCO Convention and, in particular, what this article argues to be its underlying structural flaws and ambiguous provisions, which undermine its effectiveness. The Convention’s limitations, it is argued, consequently limit the effectiveness of state parties’ legislation.
The Australian legislation has been described as ‘liberal’ in the sense that it provides far greater protection than was necessary to implement the internationally agreed upon protective measures.6 This claim will be re-examined in light of the critique of the UNESCO Convention. Further, consideration will be given to whether more might be done by Australia in addressing this illicit trade.
II THE ILLICIT TRADE IN CULTURAL HERITAGE
The oldest threat to cultural heritage is its destruction and expropriation as a ‘spoil of war’.7 A rather different threat emerged in the 18th and 19th centuries with the development of an interest in collecting antiquities, and the dawning of the scientific disciplines of archaeology and ethnology. While collecting antiquities and archaeology may have had similar origins, their paths have diverged dramatically. Archaeology seeks to reconstruct the past through the examination of objects and their physical context. Primacy is given to the information gained from this scientific examination.8 The art and antiquities market value the objects themselves as works of art, though increasingly, provenance affects the market value of these material remains.9 The art and antiquities market of the developed world continues to demand vast quantities of cultural heritage, particularly archaeological material, most of which originates in the developing states of South America, Africa and Asia.10To satisfy demand, archaeological heritage is ripped from the ground, destroying the archaeological context and depriving all humankind of an interpretation that adds to our understanding of our past.
The demand driven market threatens the archaeological heritage of many economically poor but heritage rich states. It does so because these states do not have the resources to excavate the archaeological sites or, where thought appropriate, to protect these sites in situ. Moreover, the archaeological heritage and its context in these countries will continue to be at risk as long as there is a market for the heritage, whether licit or not. Given this, one measure to limit the trade is to prevent the movement of the heritage, particularly to those states in which the market for such heritage is legal and lucrative. Most developing states will therefore either limit or prohibit the export of archaeological heritage found within its borders.
The effect of these measures is that archaeological heritage of particular significance to the living culture of a state may be retained. This retention also allows the heritage to be economically utilised a number of times as exhibits in museums, or sent on international exhibitions, rather than being sold and having a single economic benefit in the sales price. Unfortunately, it is extremely difficult for these states to enforce retentionist legislation. Corruption, maladministration and poor funding in cultural organisations and police, and most importantly, few alternative lucrative assets available to poor locals, fuel the illicit excavations and trade.11
Thriving markets for art and antiquities exist in many developed states, the most important of which are in the United States, the United Kingdom, Sweden, Japan, France and Switzerland. A view expressed by supporters of a licit trade in archaeological heritage is that much of this heritage belongs to the common heritage of humankind, and that a licit trade allows for the free circulation of all cultural heritage. This circulation has scientific, cultural and educational value in that it inspires understanding and appreciation of other cultures and values, and enriches the culture of all states.12 However, at present, it is likely that such a free flow of cultural heritage would be a one-way flow, with developing states supplying the art and antiquities market, but unable to participate in the demand market.
Supporters of a licit trade also point to the ineffectiveness of retentionist legislation, and the consequential flourishing black market.13 However, simply removing the exporting limitations would not necessarily protect the archaeological information which can be derived from the archaeological heritage.
An alternative solution could be the imposition of import controls by developed states that accord with developing states’ export controls. This approach would acknowledge that, while ‘national’ archaeological heritage is part of the common heritage of humankind, the state of origin of the material is the most appropriate state to act as the steward of this material. It was such a protection regime that the UNESCO Convention sought to establish.14
Whilst the problem of the illicit trade in archaeological heritage has existed for a considerable time, it is the illicit trade in Iraqi heritage which has drawn the world’s attention to this ‘awful business’,15 and has been a central feature in the furore over the Coalition involvement in Iraq.16 Australia’s engagement in this conflict, and that in Afghanistan, has brought Australia into direct contact with the illicit trade in middle-eastern archaeological heritage, a trade that has existed and flourished despite international efforts to eradicate it.17
Iraq has long had one of the strictest and most effective protection laws in the world, and little Iraqi archaeological heritage left the country, legally or illegally.18 The 1990 Gulf War made it near impossible to enforce these laws, and the illicit trade began almost as soon as the war ended.19 Following the United States’ victory in 1991, the museums in Kirkuk, Mosul and Basra were looted and archaeological heritage entered the art and antiquities market.20 Following the imposition of sanctions, and the subsequent collapse of the economy, archaeological heritage was perceived to be the only hard currency remaining and illicit excavations of archaeological sites began in earnest.
The destruction of Iraqi archaeological heritage was given dramatic impetus by the 2003 invasion. On entering Baghdad, Coalition forces failed to provide any protection to the city’s cultural heritage institution, a surprising omission given the looting of museums in 1991. As a result, the National Museum and Library in Baghdad and the Mosul Museum and Library were extensively looted.21 Since this initial catastrophe, archaeological sites throughout Iraq have been targeted and subject to extensive destruction and illicit excavation.22 Within weeks, the first looted archaeological heritage appeared on the art and antiquities markets in New York, Rome23 and London.24 By April 2004, around 2000 objects had been seized in foreign states, including America, France, Italy and Jordan.25 While impoverished locals initiate the trade by illicitly excavating archaeological sites, it is the dealers and middlemen that supply the market.
These people are not necessarily unscrupulous, ‘shady’ figures, but rather may include diplomats, Coalition military personal, aid workers and the media.26
Since the world’s attention has been drawn to the illicit trade in Iraqi archaeological heritage, it is worth considering how the UNESCO Convention was intended to address the issue of illicit trade and how the Australian implementing legislation might be capable of responding.