Monday, April 13, 2009

The US Can't Enforce Other Countries' Laws

One of the arguments I hear frequently from collectors and dealers is "I'm not breaking the laws of my country, and the US can't enforce the laws of other countries, so I'm in the clear". In researching for something else, I came across this article:

It says, in part:

"Starting in the mid-1970s, however, federal prosecutors applied a well-established criminal law, the National Stolen Property Act, to two cases involving illicit trafficking in cultural property. The NSPA, enacted in the 1930s, makes it a crime to transport any “goods, wares, merchandise, securities or money” valued in excess of $5,000 across state lines knowing such property was “stolen, converted or taken by fraud.” At the time it was passed, Congress was undoubtedly thinking about stolen cars, not antiquities from foreign lands. But the statute’s broad language lent itself to cases involving imported cultural patrimony, on the theory that such items had been “stolen” from their true owner, namely, another country.

In United States v. Hollinshead (1974), the defendants were charged with conspiring to transport stolen property in violation of the NSPA in connection with a scheme to procure valuable artifacts in Central America . The conspirators removed a pre-Columbian stele from a Mayan ruin in the jungle of Guatemala , cut it into pieces, and exported the pieces surreptitiously from a fish-packing plant in Belize to California . The defendants then attempted, without success, to sell the stele to various collectors and museums in the United States .

At trial, the government presented expert testimony that under the law of Guatemala , artifacts such as the stele were the property of the Republic of Guatemala and could not be removed from the country without the permission of the government. The judge instructed the jury that there was a presumption that every person knows what the law forbids—essentially, that “ignorance is no defense.” Predictably, the defendants were convicted.

On appeal, they argued that the jury should have been instructed that there was no such presumption as to knowledge of foreign law.The Ninth Circuit Court of Appeals in San Francisco rejected that argument. In upholding the convictions, the court noted that while the government was required to prove that the conspirators knew the stele was stolen, it was not required to prove that they knew where it was stolen. As the court concluded, the defendants’ “knowledge of Guatemalan law is relevant only to the extent that it bears upon the issue of their knowledge that the stele was stolen.”

While Hollinshead was the first case of its kind, it did not address the more fundamental question of whether the NSPA should be applied to trafficking in items protected under a foreign cultural patrimony law in the first place. That issue was confronted by the U.S. Court of Appeals in New Orleans in the seminal case of United States v. McClain (1979).

One of the defendants in McClain , Joseph Rodriguez, hired squads to raid archaeological sites in Mexico . He arranged to smuggle pre-Columbian artifacts into California and then traveled around the country selling the items out of a suitcase. One potential client, suspecting that he was being swindled, contacted the FBI, which initiated a covert investigation. An informant met with one of Rodriguez’s partners, Mrs. Ada Simpson, claiming he was interested in acquiring stolen merchandise, which would be resold by the Mafia. In the course of negotiating the deal, Mrs. Simpson explained how the artifacts were dug up, how papers were forged and how they were smuggled into the United States . Eventually the defendants agreed to meet the informant and his “appraiser,” an official from the Mexican Department of Archaeology, at a San Antonio hotel to negotiate a deal. After agreeing to sell their entire lot of artifacts, the defendants were arrested and charged with conspiring to violate the NSPA. The government’s legal theory was that the artifacts in question had been “stolen” within the meaning of the NSPA because Mexican cultural property laws had vested title to such pre-Columbian artifacts in the Mexican government. The defendants were convicted after trial.

On appeal, the defendants raised several issues. First, they argued that applying the NSPA to cases of “mere illegal exportation” constituted unwarranted federal enforcement of foreign law. Second, they claimed that the artifacts could not be considered “stolen” under the NSPA because there was no evidence that there had been a deprivation of private ownership rights under common law. Third, they argued that the NSPA was superseded (or pre-empted) by the more narrowly tailored 1972 law prohibiting importation of Pre-Columbian artifacts (which, for technical reasons, did not cover the items at issue in the case). Finally, they asserted that their convictions should be overturned on grounds of “vagueness” because the Mexican laws at issue were known only to “a handful of experts who work for the Mexican government” and therefore ran afoul of the U.S. Constitution’s requirement of fair notice.Relying on the NSPA’s expansive scope and purpose, the court held that the statute clearly applied to the illegal exportation of items declared by Mexican law to be the property of the nation. The court rejected the notion that other, more specific legislation would limit or preclude the use of the NSPA in this context. On the vagueness issue, however, the court threw out the defendants’ convictions because the Mexican statutes at issue, the court held, did not announce the proscribed conduct sufficiently to put the defendants on notice that their activities violated criminal law. McClain therefore established that American citizens could be convicted under the National Stolen Property Act for violating another country’s lawsregarding removal of cultural heritage, but only where that foreign law was unambiguous."

And finally:

"The law in this country has steadily evolved in the direction of enforcing foreign claims regarding antiquities and other objects protected by cultural patrimony laws. It is unlikely to reverse course anytime soon. "

This is a very interesting article, one that should put to rest the idea that the US can't/won't enforce another country's laws regarding cultural property.

It is also important to note that the US is also a party to the 1970 UNESCO Convention. Article 13 says:

The States Parties to this Convention also undertake, consistent with the laws of each State: (a) To prevent by all appropriate means transfers of ownership of cultural property likely to promote the illicit import or export of such property; (b) to ensure that their competent services co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner; (c) to admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners ; (d) to recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported.

It can no longer be reasonably argued that the laws of other countries can't be enforced and can therefore be ignored. It is a collector's responsibility to know and follow all laws regarding ownership, import, and export of the items they collect.