Patty Gerstenblith

Patty Gerstenblith

Professor, DePaul University

College of Law

President, Lawyers’ Committee

For Cultural Heritage Preservation

25 East Jackson Boulevard

Chicago, IL 60604-2287

312/362-6175

Fax: 312/362-5190

February 25, 2008

Cultural Property Advisory Committee

U.S. Department of State

301 4th Street, S.W.

Washington, D.C. 20547

Dear Committee Members,

I am submitting this letter on behalf of the Lawyers’ Committee for Cultural Heritage Preservation[1] in support of the proposed extension of the United States-Cambodia Memorandum of Understanding. The only criterion for extension of an agreement under the Convention on Cultural Property Implementation Act (CPIA) is that the conditions that justified the original bilateral agreement still exist. Section 303(e), 19 U.S.C. § 2602(e). There are four statutory criteria for the United States to enter into a bilateral agreement and the Committee makes recommendations concerning these four criteria. Section 303(a)(1)(A)-(D), 19 U.S.C. § 2602(a)(1)(A)-(D).

The first determination focuses on the jeopardy posed to the cultural patrimony of a nation through, in this case, the looting of archaeological sites. Following an extended period of political chaos, stability and relative peace was finally achieved in Cambodia during the 1990s. This opened up parts of the country that had not been accessible for several decades to tourists and Western visitors and also opened up smuggling routes for looted antiquities. This newly-opened territory included some of the country’s greatest temple complexes, including Koh Ker, Banteay Chmmar, and Preah Vihear—all of which have been severely looted in recent years. While looting at Angkor, once endemic, is subsiding, looters have begun to target archaeological sites throughout the rest of the country, which are remote and rarely guarded. Heritage Watch has documented looting within the last five years at all the major temple sites outside of the Angkor park boundaries.[2] Heritage Watch has also documented recent looting at numerous minor temple sites. An archaeological survey recently undertaken by Heritage Watch recorded looting at ten ancient temple sites that had been targeted within the survey area. These temples are undated but are likely to date to the pre-Angkorian and Angkorian periods (pre- and post-802 A.D., respectively).[3]

O’Reilly further reports that the destruction of Angkorian period temples appears to be undertaken by organized smugglers and looters. Large-scale looting has occurred at Banteay Chmar in Banteay Meanchey Province and temples including Prasat Preah Khan in Preah Vihear Province, where nearly every decorated piece of the temple has been removed. “Local sources have indicated that looting at the site began in 1996 and continues to the present day with looters employing metal detectors to search for underground treasure.”[4] Additional reports indicate the continued looting of sculptural figures from Angkorian temples.[5] In one, Apsara was described as “acknowledg[ing] that it was fighting an uphill battle against armed gangs using chain saws and motorcycle brake wire, one of the latest tools for quietly slicing through artifacts.”[6]

The second determination looks to efforts taken by Cambodia to protect its cultural heritage. The primary legislation of Cambodia pertaining to cultural heritage is its 1996 Law on the Protection of Cultural Heritage, which includes among its provisions for national ownership. Both the looting and the export of antiquities without a permit are criminalized. However, effective enforcement of such laws is very difficult.

Cambodia established the Cultural Heritage Police (CHP) in 1995 as a unit “specialized in the protection of heritage and carrying out its duties in the region of Angkor, in cooperation with the provincial authorities of Siem Reap”.[7] CHP acts under Apsara and has received training and support from both France and UNESCO. Apsara describes CHP as “an elite police brigade composed of more than five hundred agents.” CHP has received additional support from INTERPOL, which established an office in Phnom Penh, in part to monitor and fight the illegal traffic in antiquities. The Cambodian government is in the process of expanding the cultural heritage police nationwide and has contacted Heritage Watch to provide training.

Cambodia also engages in public education efforts aimed at local communities, including school programs and illustrated comic books that explain to villagers why they should help to protect the temples and sites in their midst.[8] Apsara has made efforts to employ local people as site guards to involve them with the sites and to provide an income.[9] While the site of Angkor is now largely secure, the hundreds of temples located outside its borders are often remote and it is not possible to guard all of them. Despite the efforts of Cambodia to train and expand its special unit of cultural heritage police, these are subject to continued looting.

The third determination looks to the import trade of the designated cultural materials in the United States and other market nations. The Senate Report that accompanied enactment of the CPIA noted that determining which countries have a significant import trade may be a function of “type and historic trading patterns” as well as of monetary value (Senate Report No. 97-564, 27). The use of the word “similar” (rather than the word “same”) in the statutory language to describe the actions of other nations to be considered indicates that the CPIA only requires that other nations need to take similar actions that serve the underlying purpose of restricting the trade in looted artifacts. The CPIA’s explicit inclusion of the actions of nations that are not party to the 1970 UNESCO Convention further indicates that the precise form of restriction used by other countries is not relevant. The Senate Report urged that “the formula measuring the presence and worth of a ‘concerted international effort’ not be so mechanical as to preclude the conclusion of agreements under Section 203(a) where the purposes of the legislation nevertheless would be served by doing so” (Senate Report No. 97-564, 28). The Senate intended this requirement to be interpreted with a significant degree of flexibility on a case-by-case basis. Thus, if a nation restricts the import of such artifacts without the use of bilateral agreements or even if the nation restricts the trade in such artifacts through a means not including import restrictions, these actions should still be considered as part of the third determination analysis.

Recent developments indicate that the evidence for an international response to the problem of the looting of archaeological sites throughout the world, including Cambodia, has increased considerably over the past five years. There are now 115 States Parties to the UNESCO Convention, seventeen of whom joined the Convention since the time of Cambodia’s initial bilateral agreement. This number includes some of the largest market nations, such as Switzerland, Denmark, Sweden, and, most recently, Germany. Two other large market nations, the United Kingdom and France joined in 2002 and 1998, respectively.

Unlike the United States, many nations view the Convention as self-executing and they have no need to enact implementing legislation.[10] In addition, other nations, such as Australia and Canada, have enacted domestic implementing legislation that automatically prevents the import of illegally exported cultural materials from other States Parties. These nations have therefore already implemented restrictions that are similar to, albeit much broader than, any import restrictions that would be imposed by the United States pursuant to the CPIA.[11] Switzerland has just entered into its first three bilateral agreements (with Italy, Greece and Peru) under its implementation of the UNESCO Convention.[12]

The United Kingdom has implemented its ratification of the UNESCO Convention through creation of a new criminal offense. This legislation criminalizes the knowing dealing in “tainted cultural objects,” which are defined as an object whose “removal or excavation constitutes an offence.”[13] The offense of dealing in tainted cultural objects includes the import or export of such objects.[14] Under its newly enacted implementing legislation, Germany will not allow the import of any illegally exported cultural objects that have been individually classified in an accessible inventory by the country of origin one year prior to removal. In addition, the import of archaeological objects that have been placed on the inventory within one year of the time when the country of origin gains knowledge of the excavation is also prohibited.[15]

In 2002, Cambodia joined the 1995 Unidroit Convention to which there are now twenty-nine States Parties. Unlike the UNESCO Convention, the Unidroit Convention focuses on requiring nations to create private rights of action for recovery of stolen and illegally exported cultural objects. Of greatest significance is Article 3(2), which recognizes that all illegally excavated archaeological objects are stolen property, when this is consistent with local law where the illegal excavation took place. This offers a potentially powerful disincentive to trading in archaeological materials in other States Parties. New Zealand, which joined the Unidroit Convention in late 2006 and the UNESCO Convention in 2007, enacted comprehensive new legislation that incorporates implementation of both conventions into its domestic law.[16] This legislation prohibits the import into New Zealand of unlawfully exported protected foreign objects. As more nations continue to ratify and implement both of these conventions, these developments indicate that the evidence of an international response to the problem of the looting of archaeological sites has strengthened and will continue to do so.

One of the problems Cambodia faces in protecting its cultural heritage is the failure of Thailand, in particular, to ratify the UNESCO Convention and give greater assistance to stopping the smuggling of Cambodian antiquities across their shared border. While Thailand’s inaction is an exacerbating factor in Cambodia’s difficulties, it is not directly relevant to the evaluation of the third determination. Thailand would be properly categorized as a transit, rather than a destination market, country because the Cambodian antiquities are sold from Thailand to ultimate destinations in other countries, such as the United States. Because the third determination is intended to address the incentive to loot that is provided from the ultimate sales of undocumented antiquities, Thailand’s role is not part of the analysis—and, unfortunately, is one over which Cambodia has little or no control.

The fourth determination looks to whether international exchange of the cultural objects that are subject to import restriction can be achieved. A positive development was the re-opening of the national museum in Phnom Penh. In 2006 Cambodia sent a traveling exhibition, “Angkor—Sacred Heritage of Cambodia,” with 140 Khmer treasures to Bonn.[17]

For these reasons, we feel that the four statutory criteria have been satisfied and that the CPAC should recommend the extension of the bilateral agreement between the United States and Cambodia.

Sincerely,

Patty Gerstenblith

Professor of Law and Director,

Center for Art and Cultural Heritage Law

President, Lawyers’ Committee for

Cultural Heritage Preservation

[1] The Lawyers’ Committee for Cultural Heritage Preservation is an association of lawyers who have joined together to promote the preservation and protection of cultural heritage resources in the United States and internationally through education and advocacy.

[2] Douglad O’Reilly, “Shifting Trends of Heritage Destruction in Cambodia: From Temples to Tombs” unpublished paper, copy on file with author.

[3] Id.

[4] Id. at 6.

[5] Frances Suselo, Cambodia’s heritage going cheap, Asia Times, Oct. 5, 2005, available at Jane Perlez, A Cruel Race to Loot the Splendor That Was Angkor, New York Times, Mar. 21, 2005.

[6] Id.

[7] Sub-Decree establishing the Special Police Corps for the Protection of Cultural Heritage.

[8] Suselo, supra note .

[9] Id.

[10] For a recent summary of different methods of implementation of the 1970 UNESCO Convention, see Patrick J. O’Keefe, Commentary on the 1970 UNESCO Convention 98-146 (2d ed. 2007).

[11] These restrictions are much broader because they apply to all illegally exported cultural materials and are not restricted to archaeological materials that are older than 250 years or to specifically designated categories of archaeological and ethnological materials. See, e.g., Canada Cultural Property Export and Import Act, R.S.C. 1985, c. C-51, § 37; Australia Protection of Movable Cultural Heritage Act 1986.

[12] See The Swiss bilateral agreements differ from those of the United States because they continue indefinitely without need for renewal. Federal Act on the International Transfer of Cultural Property, Article 7. The Swiss statute, unlike the CPIA, provides criminal penalties for illicitly importing cultural property. Article 24(c).

[13]Dealing in Cultural Objects (Offences) Act 2003,2003 Ch. 27, Sections 1 and 2(2), available at The statute refers to objects removed from “a building or structure of historical, architectural or archaeological interest” or from an excavation either in the United Kingdom or in a foreign country. Section 2(4).

[14] Section 4 of the Act gives British Customs the “necessary powers of enforcement where an offence involves the importation or exportation of a tainted cultural object.”

[15] Implementation Act of 18 April 2007, section 6(2), sentences 1-3. See also Matthias Weller,

“Portable Antiquities: The German Legal System”, paper presented at conference, “Portable Antiquities in the Modern European Context: Law, Ethics, Policy and Practice” University of Pecs, Pecs, Hungary, July12-13, 2007 (presentation on file with author).

[16]Protected Objects Act 1975, as revised 2007, available at “Protected foreign object” includes all cultural objects as defined by Article 1 of the 1970 UNESCO Convention.

[17] Jane Perlez, “After Weathering Turmoil and Isolation, Cambodian Museum Rejoins the World,” New York Times, Sept. 26, 2006, at E3.