U.S. Senate Report, 97-564

Implementing Legislation for the Convention on the Means of  Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property

                                               Calendar No. 829

     

     97th CONGRESS |                             |      REPORT

     2nd Session   |          SENATE             |  No. 97-564

     _________________________________________________________

          MISCELLANEOUS TARIFF, TRADE, AND CUSTOMS MATTERS

        SEPTEMBER 21 (legislative day, SEPTEMBER 8, 1982)--

        Ordered to be printed

 

             Mr. DOLE, from the Committee on Finance,                   

submitted the following  REPORT  together with ADDITIONAL VIEWS

                    [To accompany H.R. 4566]

 

  The Committee on Finance, to which was referred the bill (H.R.

4566) to reduce certain duties, to suspend temporarily certain

duties, to extend certain existing suspensions of duties, and for

other purposes, having considered the same, reports favorably

thereon with an amendment and recommends that the bill as amended

to pass.

 

I.  SUMMARY

 

  H.R. 4566, as referred to the committee was ordered favorably

reported with amendments which struck everything after the

enacting clause and substituted the provisions described herein. 

Title I.... Title II of the bill contains provisions implementing

the Convention on the Mans of Prohibiting and Preventing the

Illicit Import, Export,and Transfer of Ownership of Cultural

Property.  Title III....

 

[Continuing Report 97-564]

[PAGE 21]

...IMPLEMENTING LEGISLATION FOR THE CONVENTION ON THE MEANS OF  PROHIBITING AND PREVENTING THE ILLICIT IMPORT, EXPORT, AND

TRANSFER OF OWNERSHIP OF CULTURAL PROPERTY

 

  Purpose--This bill implements in domestic law the Convention on

the Means of Prohibiting and Preventing the Illicit Import,

Export, and Transfer of Ownership of Cultural Property (823

U.N.T.S. 231 (1972)).  The Cultural Property Convention is an

international agreement adopted ;by the United Nationals

Educational, Scientific and Cultural Organization on November 14,

1970.  It establishes principles for the control of trade in

archaeological and ethnological materials as well as certain other      

cultural material.  Although the Senate unanimously gave its

advice and consent to ratification in 1972, the Convention is not

self-executing and it has not been ratified for lack of the

domestic legal means necessary to carry out its obligations.  The

purpose of this bill is to provide that authority, thereby

promoting U.S. leadership in achieving greater international

cooperation towards preserving cultural treasures that not only

are of importance to the nations whence they originate, but also

to a greater international understanding of our common heritage.  

  The bill--S. 1723, as amended by the committee and included in

H.R. 4566, implements the essential obligations of the Cultural

Property Convention. These obligations generally are:  (1) to

prohibit the import of cultural material identified as stolen from

an institution in another State Party (i.e., a party to the

Convention), and to assist in its recovery if it is imported; and

(2) to apply specific import or other controls (upon the request

of a State Party) to archaeological or ethnological materials

specifically identified as comprising a part of a state's cultural

patrimony that is in danger of being pillaged.  Except in certain

emergency situations, the latter obligation normally will be met

through ad hoc international arrangements.  In form and substance,

the bill substantially emulates H.R. 5643, implementing

legislation passed by the House of Representatives in the 95th

Congress (See H.Reg. No. 95-615, 95th Cong., 1st Sess. (1977)).

  Following the short title provided in section 201, section 202

of the bill sets forth definitions for the important terms of art

in the legislation.

 

[PAGE 22]

  Sections 203-205 and 207 implement article 9 of the Convention. 

This sections authorize the President, subject to certain

conditions and limitations, to enter into bilateral or

multilateral agreements or to invoke emergency import regulations

to control the importation of archaeological or ethnological

materials that have been illegally exported from another State

Party or are in danger thereof.  The exercise of this authority is

contingent upon a request from a State Party, the cultural

patrimony of which is in jeopardy from pillage.  The agreements

are to serve as the basis for a concerted effort to thwart the

pillage.

  Section 208 implements article 7 of the Convention.  This

section imply declares illegal the importation into the United

States of cultural property identified as appertaining  to the

inventory of a museum, a religious or public monument, or a

similar institution in a state Party.  This provision creates a

juridical basis for actions, authorized in section 210 to recover

the property.

  Section 206 establishes a Cultural Property Advisory Committee

comprised of representatives of the general public, and experts

from the academic, museum, and art dealer communities.  It is

structures similarly to trade advisory committees established by

section 135 of the Trade Act of 1974, and will advise the

President concerning the requests of State parties for import

controls and the scope and operation of such controls.

  Sections 210-211 subject to seizure and forfeiture any articles

imported in violation of sections 207 or 208.  Pursuant to section

209, however, U.S. museums or similar institutions may retain the

articles, subject to certain protections, until their final

disposition is determined.  Under section 212, certain articles

are excluded from any controls authorized by this bill because

they are entering this country solely for purposes of exhibition

or because they have been held in this country for a significant

period without challenge to the legitimacy of their procurement.

  Sections 213-215 are administrative in nature.

  As in the case of the earlier-passed H.R. 5643, this bill

reflects the approach to illicit trade in art adopted by the

Congress in the Pre-Columbian Art Act of 1972 (Pub. L. No. 92-587)

with regard to a particular category of artifacts.  The bill takes

into account the reservation and understandings accompanying the

grant by the Senate in 1972 of its advice and consent to

ratification of the Convention.  Further, it neither pre-empts

State law in any way nor modifies any Federal or State remedies

that may pertain to articles to which the provisions of this bill

apply.

 

                      REASONS FOR THE BILL

 

  Background.--The increasing demand in recent years for

archaeological and ethnological materials and antiquities has

spurred, in most experts' opinions, a great increase in the

international exchange of such materials.  But unlike other

commodities, increased or new production of these articles cannot

rise to meet the demand.  Instead, the increased supply results

from the sales of known artifacts and those newly recovered from

archaeological sites. The unique origin and character of these

articles raises serious trade

 

[PAGE 23]

issues distinct from the normal concerns of the reciprocal trade

agreements program or U.S. trade law.

  No detailed data exist that provide reliable insights into

either the precise nature or magnitude of trade in cultural

property.  As one expert points out.  "It is easy to understand

why we have little information.  Much about the art trade simply

is not knowable." Bator. An Essay on the International Trade in

Art 34 Stan. L. Rev. 275, 291 (1982).  Professor Bator suggests

that this is because of the vast number of undiscovered or

unidentified objects; the lack of resources among many nations to

develop their cultural resources; and the secret nature of much of

the trade.  Nevertheless, the testimony to the committee on  S.

1723 confirmed the evidence given in various Congressional fora in 

recent years and in many learned articles:  the demand for

cultural artifacts has resulted in the irremedial destruction of

archaeological sites and articles, depriving the situs countries

of their cultural patrimony and the world of important knowledge

of its past.  Further, because the United States is a principal

market for articles of archaeological or ethnological interests

and of art objects, the discovery here of stolen or illegally

exported artifacts in some cases severely strains our relations

with the countries of origin, which often include close allies. 

As stated by the Department of State in commenting on S. 1723:

 

    The legislation is important to our foreign relations,         

  including our international cultural relations.  The expanding  

  worldwide trade in objects of archaeological and ethnological  

  interest has led to wholesale depredations in some countries,  

  resulting in the mutilation of ceremonial centers and            

  archaeological complexes of ancient civilizations and the        

  removal of stone sculptures and reliefs.  In addition, art       

  objects have been stolen in increasing quantities from museums,  

  churches, and collections.  The governments which have been      

  victimized have been disturbed at the outflow of these objects  

  to foreign lands, and the appearance in the United States of    

  objects has often given rise to outcries and urgent requests    

  for return by other counties.  The United States considers that  

  on grounds of principle, good foreign relations, and concern     

  for the preservation of the cultural heritage of mankind, it     

  should render assistance in these situations.

 

  Witnesses before the committee also pointed out that the

interest of the United States in this matter extends beyond our

import market and our interest in fostering the careful study of

foreign cultures.  In recent years, the increasing interest in

native American, Hawaiian, and Alaskan artifacts concomitantly has

spurred the pillaging of U.S. historic sites.  The destruction of

such sites and the disappearance of the historic records evidenced

by the articles found in them has given rise to a profound

national interest in joining other countries to control the

trafficking of such articles in international commerce.

  These concerns led the United States in the late 1960's to

participate in negotiations, sponsored by the United Nations

Educational, Scientific, and Cultural Organization (UNESCO), to

achieve international agreement on the nature and means to address

the problem.

 

[PAGE 24]

The Convention on the Means of Prohibiting and Preventing the

Illicit Import, Export and Transfer of Ownership of Cultural

Property resulted from these negotiations.  The sixteenth General

Conference of Unesco adopted the Convention on November 14, 1970,

by a vote of 77 to 1, with 8 abstentions.  It entered into force

(but not with respect to the United States) on April 24, 1972. 

Forty-five countries are now parties to the Convention.

  As described by the Committee on Foreign Relations, the

Convention generally encompasses the following obligations:

 

    The principle purpose of the convention is to combat the       

  increasing illegal international trade in national art           

  treasures, which in some countries has led to wholesale          

  pillaging.  To this end, the parties to the convention           

  undertake to protect their own cultural heritage and to          

  establish an export certificate for cultural property            

  designated by each country as being of importance.  They are     

  also required to prohibit the import of cultural property        

  stolen from museums, public monuments, or similar institutions   

  and to take appropriate steps, upon request to recover and       

  return such cultural property provided that the state of origin

  is prepared to pay just compensation to an innocent purchaser or

  a person who has valid title.  The parties further agree to take

  what measures they can, consistently with existing national      

  legislation, to prevent museums and similar institutions within

  their territory from acquiring cultural property originating in

  another country which has been illegally exported after entry    

  into force of the treaty.

 

Senate Committee on Foreign Relations, Exec. Rep. No 92-29, 92d

Cong., 2d Sess. 1 (August 8, 1972).  Where a State Party's

cultural patrimony is in jeopardy from pillage of identified types

of archaeological or ethnological materials, the parties agree to

apply import controls or other appropriate corrective measures.

  After consideration by the committee on Foreign Relations, which

found no opposition to the Convention, the Senate unanimously gave

its advice and consent to ratification on August 11, 1972.  The

senate's action included one reservation and six understandings. 

One understanding made clear that the Convention is not self-

executing and will have no domestic legal effect except as defined

by implementing legislation. 

  The Department of State first proposed implementing legislation

in 1973 to the 93rd Congress, and again in 1975 to the 94th

Congress.  The House of Representatives approved an amended

version of this legislation (H.R. 5643) in 1977, but the bill was

not reported by the Committee on Finance.  Legislation again was

introduced in the 96th Congress, but no action was taken after

hearing.

  S. 1723 is the successor in this Congress to those earlier

efforts.  The Subcommittee on International Trade held a hearing

on July 22, 1982, and took oral and written testimony from the

Administration and representatives from the academic and art

dealers' community.  This will reflect amendments subsequently

agreed to by all of these groups.  The Committee adopted the bill,

as amended, without objection as part of H.R. 4566 on September

15, 1982.

 

[PAGE 25]

                 SECTION-BY-SECTION ANALYSIS

 

  Section. 201.--This section provides that this title may be

cited as the "Convention on Cultural Property Implementation Act."

  Section 202.ÄThis section defines the essential terms of art

employed in title II.

  Only the term "archaeological or ethnological materials of the

State Party" requires fuller explication here.  The Convention

does not define this terms.  The definition is intended by the

committee to reflect the understanding of U.S. negotiators that

the application of import restrictions under agreements entered

into under section 203 or emergency actions taken under section

204 is limited to a narrow range of objects possessing certain

characteristics.  As defined under section 202(2i),

"archaeological material" includes any object which is of cultural

significance, which is at least 250 years old, and which normally

has been discovered through scientific excavation, clandestine or

accidental digging, or exploration on land or under water. 

Archaeological objects are usually found underground or under

water, or are discovered through excavation, digging, or

exploration.  However, the definition would also include objects

which are typically regarded as archaeological (for example,

frescoes from buildings), without regard to whether the particular

objects are discovered by excavation or exploration.

  The committee believes that the 250-year threshold age

requirement ensures that the controls authorized by this Act will

be applied to objects of significantly rare archaeological

stature, which encompassing a range of important artifacts that

are of a more recent vintage.  For example, archaeological sites

of importance in understanding the settlement of North America

contain objects not greatly exceeding 250 years in age. 

  "Ethnological material" includes any object that is the product

of a tribal or similar society, and is important to the cultural

heritage of a people because of its distinctive characteristics,

its comparative rarity, or its contribution to the knowledge of

their origins, development or history.  While these materials do

not lend themselves to arbitrary age thresholds, the committee

intends this definition, to encompass only what is sometimes

termed "primitive" or "tribal" art, such as masks, idols, or totem

poles, produced by tribal societies in Africa and South America. 

Such objects must be important to a cultural heritage by

possessing characteristics which distinguish them from other

objects in the same category providing particular insights into

the origins and history of a people. The committee does not intend

the definition of ethnological materials under this title to apply

to trinkets and other objects that are common or repetitive or

essentially alike in material design, color, or other outstanding

characteristics with other objects of the same type, or which have

relatively little value for understanding the origins or history

of a particular people or society.  An agreement or emergency

action would also not apply to ethnological material produced by

more technologically advanced societies.  The Cultural Property

Advisory Committee, as provided in section 206, will render the

expert advice necessary to understand these terms in the context

of particular cases.

 

[PAGE 26]

  Sections 203-205 and 207.ÄThese sections implement Article 9 of

the Cultural Property Convention, which states:

 

    Any State Party to this Convention whose cultural patrimony    

  is in jeopardy from pillage of archaeological or ethnological    

  materials may call upon other State Parties who are affected.    

  The States Parties to this Convention undertake, in these        

  circumstances, to participate in a concerted international       

  effort to determine and to carry out the necessary concrete      

  measures, including the control of exports and imports and       

  international commence in the specific materials concerned.      

  Pending agreement each sate concerned shall take provisional     

  measures to the extent   feasible to prevent irremediable injury 

  to the cultural heritage of the requesting State.

 

  In describing what is contemplated by this provision, the

Committee on Foreign Relations stated that--

 

  at the UNESCO 16th General Conference, the U.S. delegate said    

  before voting that in his view the procedures in article 9 for   

  determination of concrete measures to deal with pillage of       

  archaeological or ethnological materials will permit the states

  affected to determine by mutual agreement the measures that can

  be effective in each particular case to deal with the situation

  and to accept responsibility for carrying out those measures on

  a multilateral basis.  Two examples of such situations are (1)   

  the case in which the remains of a particular civilization are   

  threatened with destruction or wholesale removal as may be true

  of certain pre-Columbian monuments, and (2) the case in which    

  the international market for certain items has stimulated        

  widespread illegal excavations destructive of important          

  archaeological resources.

 

  Exec. Rep. No. 92-29, 92d Cong., 2d Sess. 5(1972).  The latter

two situations are addressed in sections 204 and 203,

respectively.

  Sections 203(a) and (c) together comprise the substantive grant

of authority for the President to enter into bilateral or

multilateral agreements intended to provide U.S. cooperation

towards protecting form the danger of pillage the archaeological

or technological materials comprising the cultural patrimony of

another State Party.  The President, with the advice of the

Advisory Committee established in section 206, must make several

determinations prior to concluding such as agreement.  In general,

these are intended to ensure that the requesting nation is engaged

in self-help measures and that U.S. cooperation, in the context of

a concerted international effort, will significantly enhance the

chances of their success in preventing the pillage.

  Specifically, after a request by the victimized nation, the

President may enter into agreements to apply the import controls

authorized by section 207 if he determines the following:

    (1) The cultural patrimony of the State Party is in jeopardy  

  from pillage of its archaeological or ethnological materials;    

    (2) the State {arty has taken measures consistent with the     

  Convention to protect its cultural patrimony;

 

[PAGE 27]

    (3) application of import restrictions in the context of a     

  concerted international effort, to archaeological or             

  ethnological material of the State Party would be of substantial 

  benefit in deterring a serious situation of pillage, and less    

  drastic remedies are not available; and

    (4) application of 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 and educational purposes.

  The Committee intends these limitations to ensure that the

United States will reach an independent judgment regarding the

need and scope of import controls. That is, U.S. actions need not

be coextensive with the broadest declarations of ownership and

historical or scientific value made by other nations.  U.S.

actions in these complex matters should not be bound by the

characterization of other countries, and these other countries

should have the benefit of knowing what minimum showing is

required to obtain the full range of U.S. cooperation authorized

by this bill.

  The concept that U.S. import controls should be part of a

concerted international effort is embodied in article 9 of the

Convention and carried forward in section 203.  In previous years'

consideration f various proposals for implementing legislation, a

particularly nettlesome issue was how to formulate standards

establishing that U.S.  controls would not be administered

unilaterally.  The committee believes that the language now

adopted, which amends that contained in S. 1723 and which is

agreeable to all private sector parties that have contributed

actively to the Committee's consideration of the bill, satisfies

the twin interests of obtaining international cooperation while

achieving the goal of substantially contributing to the protection

of cultural property from further destruction.

  The bill reflects the principle of participation in a concerted

international effort in the following manner.  Under section

203(a)(1)(C)(i), as a precondition to entering into an agreement

the President must determine that import restrictions, "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...." Section 203(c)(1)

then specifically denies the President the authority to enter into

an agreement unless these conditions are satisfied.  The

determination of what countries have a significant import trade in

the material that is in jeopardy of being pillaged, and whether

the effort will help to ameliorate the problem is within the

discretion of the President.  These decisions inherently preclude

precise determination, given the goals of the Convention and the

uncertain factual basis of them.  For example, whether a country

has a "significant import trade" may be a function of not only

value of imports, but type and historic trading patterns. 

therefore, a measure of Presidential judgment is required. 

Nevertheless, the committee believes the standards set forth in

this section, together with active contributions by the Advisory

Committee to the Administration's decisionmaking process, 

 

[PAGE 28]

will ensure that the President will enter into agreements only in

accord with the purposes and standards of the bill.   It is the

committee's further intent that the formula measuring the presence

and worth of a "concerted international effort" not be so

mechanical as to preclude the consultation of agreements under

section 203(a) where the purposes of the legislation nevertheless

would be served by doing so.  Therefore, the Committee adopted in

section 203(c)(2) a limited exception to the general requirement

laid down by section 203(c)(1).  This exception allows the

President, once he has identified the significant importing

nations the participation ow which ordinarily would be expected to

comprise a concerted international effort, to enter into

agreements without the participation of all such nations.  To do

so, he must determine with regard to particular such nationals

that they are not implementing similar import controls but--       

    (A) such restrictions are not essential to deter a serious     

  situation of pillage, and

    (B) the application of the import restrictions set forth in  

  section 207 in concert with similar restrictions implemented, or 

  to be implemented by other national (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.

The essential nature of a concerted international effort is thus

preserved, while the president is allowed to move forward without

the full participation of national the contributions of which are

not essential to amelioration of the problem.

  Section 203 contains other limitations on the President's

agreement-making authority.  Subsections (b) and (e) limit the

term of the agreements to five years, with the possibility of

extension for additional five-year periods if, after an

opportunity for public comment and Advisory Committee review, the

President determines that the circumstances warrant an extension. 

Further, under subsection (d) the President must suspend an

agreement if he determines that the circumstances originally

constituting the basis for its entry into force no longer obtain.

  Section 204 authorizes the President to impose the import

restrictions set forth in section 207 on archaeological or

ethnological materials of any state Party if he determines that an

emergency condition exists with respect to such material.  The

emergency restrictions may not apply for more than 5 years,

although they may be extended for one additional period of not

more than 3 years if the emergency persists.  Subsection (a)

defines "emergency condition" as a situation in which the

archaeological or ethnological materials of a State Party is one

of the following:

    (1) newly discovered material important for understanding the  

  history of mankind and in jeopardy from pillage, dismantling,  

  dispersal, or fragmentation;

    (2) identifiable as coming from a site of high cultural        

  significance in jeopardy from pillage, dispersal, or             

  fragmentation which is or threatens to be of crisis proportions; 

  or

    (3) part of the remains of a particular civilization, the      

  record of which is in jeopardy from pillage, dismantling,        

  dispersal or fragmentation which is or threatens to be of crisis 

  proportions.

  

  [PAGE 29]

In addition, the President must determine that application of

temporary import restrictions would reduce the incentive for such

pillage, dismantling, dispersal, or fragmentation in whole or in

part.

  Beside time limitations, subsection (c) imposes two limitations

on the emergency authority.  First it prohibits the President from

implementing section 204 unless the State Party made a request to

the United States as in section 203(a) for assistance under

Article 9 of the Convention.  However, the State Party need not

indicate in its request that an emergency condition exists as a

necessary precondition to the use of the emergency authority,

although the information provided in its request must support such

a finding.  Second, before making his decision on emergency

action, the President must consider the views and recommendations

of the Advisory Committee on the use of the emergency authority if

the committee has submitted its report to him within 90 days after

the President provides it information on the request of the State

Party.  The information provided by the President should include

any indication by the State Party of an emergency situation.  

  Section 204(c)(4) provides the President with additional means

to continue the emergency import restrictions after an agreement

is concluded.  This subsection provides that when an agreement is

concluded under section 203 or the Senate has given its advice and

consent to a treaty, the President may continue to apply the

emergency import restrictions to the covered articles, as

originally promulgated or as modified, for a period lasting until

their expiration under the agreement or treaty.

  In order to carry out the import restrictions contemplated by

agreements entered into pursuant to section 203 or by the

emergency authority granted by section 204, the specific types of

archaeological or ethnological materials that will be restricted

must be identified.  Section 205 authorizes the Secretary of the

Treasury to do so by regulation.  The Secretary will consult with

the Director of the United States Information Agency before

promulgating such a lists, as the latter is responsible for

servicing the work of the Advisory Committee that is expected to

contribute heavily to the composition of the list.  The Secretary

may list such material by type or other classification but each

such listing must be sufficiently specific and precise to serve

the two purposes of ensuring that (1) the import restrictions are

applied only to material covered by the agreement or emergency

action (that is, pillage is creating the jeopardy to the cultural

patrimony of the State Party found to exist under section 203 or

section 204); and (2) importers and other interested persons are

provided fair notice of what archaeological or ethnological

material is subject to import restrictions.

  Section 207 bars the importation of any article designated for

restriction under section 205 unless it is accompanied by proper

export documentation from the originating State Party, or unless

satisfactory evidence is adduced that the export occurred either

before the designation of more than 10 years prior to the entry

and the importer involved or a "related person" did not acquire an

interest in the article prior to one year before entry.  Section

207(d) defines "related persons" for this purpose.  The committee

believes these requirements strike a fair balance between the

authority necessary to avoid circumvention of and to enforce

"related persons"

 

[PAGE 30]

to this end.  The committee believes these requirements strike a

fair balance between the authority necessary to avoid

circumvention of and to enforce controls this Government

undertakes to implement, and the desire to lessen the burden of

such restrictions on normal art trade and on innocent purchasers

of art.

  Entries failing to meet the requirements of this section are

subject to seizure and forfeiture pursuant to section 210. 

Indeed, even if an item is permitted to enter the country, it may

be seized under section 210 if it was subject to seizure had the

facts been known. In order to obtain entry in t he first instance,

a consignee must present "satisfactory evidence" that these

requirements are satisfied.  Under section 207(c), such evidence

in general consists of a declaration under oath by the consignee

attesting to the necessary facts and statements by the consignor

to the same effect together with the reasons upon which he bases

these statements.  The committee understands the latter

requirement of providing reasons to mean that the consignor must

present to the Customs officer a substantial basis for his

assertions in the statement.  Although this section thus

recognizes the difficulties in obtaining sworn declarations by

foreign consignors, it requires more than a superficial meeting of

the requirements of "satisfactory evidence."

  Section 206.--The exercise by the President of the authorities

provided in sections 203-205 will require substantial input from

knowledgeable representatives of the private sector.  Section 206

establishes a Cultural Property Advisory Committee for this

purpose.

  The eleven members of the Advisory Committee will include two

members representing the interests of museum, three

archaeologists, anthropologists, or experts in related fields;

three persons representing the interests of art dealers; and three

representatives of the general public.  While following the same

division of interests, the committee rejected the formulation of

S. 1723 of enumerating specific associations, each of which would

nominate a few names from which the President would be required to

select his appointment.  This approach raises a serious question

of unconstitutional infringement of the President's appointment

power.  Of equal concern would be the deviation from the

established practice of creating trade advisory committees adopted

in section 135 of the Trade Act of 1974 (19 U.S.C. 2155). While

the associates listed in S.1723 doubtless will provide a rich

source of qualified persons for consideration by the President,

the committee concluded that to avoid any appearance of unfairness

in the appointments process, the pool of qualified nominees should

not be arbitrarily restricted to certain private groups.

  In other respects also, the committee chose to follow the

established structure of trade advisory committees under section

206(b)(3), appointments will be on a renewable 2-year basis. 

Subsection (h) ensures that in operation the Advisory Committee

will conform to the strictures of the Federal Advisory Committee

Act (5 U.S.C. app. I, sec. 1 et seq). Subsection (c) would

establish a limited statutory exception to the Freedom of

Information Act, in addition to the exemptions already contained

therein.  The committee believes this exception is warranted

because of the limited nature, the restricted scope of Advisory

Committee functions, and the nature of the information involved

which, if released could adversely affect

 

[PAGE 31]

the President's ability to negotiate agreements authorized by this

Act.  As the Advisory Committee's role is limited to pre-

negotiation determinations, it is expected that this provision

will apply to only a small volume of information.  Subsection (j)

confirms that private sector Advisory Committee members are not

expected on the basis of this legislation alone, to have a role in

negotiating agreements to which this bill pertains.

  Section 206(d) provides that a majority of the eleven Advisory

Committee members shall constitute a quorum, and that it may act

by majority vote of those present and voting.  As the Advisory

Committee is required to adhere to certain time limits if its

advice is to be considered by the President, this provision will

assist it in proceeding with business in the absence of several

members.

  Section 206(e) establishes the United States Information Agency

as the secretariat of the Advisory Committee.  Other agencies,

particularly the Departments of State, Justice, the Treasury, and

the General Services Administration are expected to facilitate the

Advisory Committee's operations in every reasonable way.

  Section 206(f) and (g) set forth the substantive

responsibilities of the Advisory Committee.  Under subsection (f),

it will report on requests for assistance by other state Parties

and whether agreements or emergency measures would be the proper

response.  The reports are to contain substantive analyses and

recommendations, and any dissents.  The Advisory Committee will

also review existing agreements and emergency controls and report

on the need for extending or suspending such agreements or

emergency controls.  Through this mandate, the committee believes

the Advisory Committee will play a prominent role in achieving the

effective implementation of this bill.

  Section 208.--Section 208 implements article 7(b)(i) of the

Convention, which requires State Parties to undertake to prohibit

the import of cultural property stolen from a museum or a

religious or secular public monument or similar institution in

another State Party to this Convention after the entry into force

of this convention for the States concerned, provided that such

property is documented as appertaining to the inventory of that

institution.

  Section 208 prohibits the importation of any article of cultural

property stolen from t he inventory of a museum or religious or

secular monument or similar institution.  "Cultural property" is

defined to include the categories of articles listed in article 1

of the Convention, whether or not the article is specifically

designated by the State Party for this purpose.  The term thus is

broader than  but inclusive of "archaeological or ethnological

material."  This provision will apply to items of cultural

property stolen from a broad range of institutions and public

monuments in State Parties.  In addition to public museum, the

language is intended to cover cathedrals, temples, shrines, and

other such edifices or sties open for public visitation or

scientific study.  Examples include the Wailing Wall in Jerusalem;

Pompeii, Italy; Teotihuacan, Mexico; Angkor Wat, Cambodia; the

Colosseum, Rome; Arc de Triomphe, Paris, etc.  Covered are

facades, murals, internal and external ornamentation, statuary,

paintings, objects of artistic or religious significance, etc.

affixed to, or located in or on such edifices or sites.

 

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  An article of cultural property would be covered by section 208

if it were listed in the inventory of a particular institution or

if it were affixed to or located in or on an edifice or site which

itself is included in an inventory.  The committee intends the

language "documents as appertaining to the inventory" to be read

broadly in the context of the actual practices by which nations

identify and maintain their cultural treasures, not only in museum

but also those associated with monuments. "Documented," for

example, is intended to cover photographic and other types of

evidence in addition to formal museum records.  Further,

"inventory" should be broadly construed where public and religious

monuments and similar institutions are concerned.

  Section 208 takes effect with respect to any article stolen

after the effective date of this act or after the date the

convention enters into force for the State Party, whichever is

later.  This is without regard to whether or not the United States

has an agreement under section 203 or has taken emergency action

under section 204 to restrict importation of archaeological or

ethnological material from that State Party.

  Section 209.--Section 209 provides for temporary retention of

any archaeological or ethnological material or article of cultural

property in a public museum or other cultural or scientific

institution in the United States pending a final determination of

whether the material or article was imported in violation of

sections 207 or 208.  The Secretary of the Treasury will permit

retention upon application by an institution if he finds that the

institution will take sufficient safeguards to protect the

material or article and will post sufficient bond to insure its

return to the Secretary.

  Sections 210-211.--Sections 210 and 211 contain the provisions

for seizure, forfeiture, and disposition of archaeological or

ethnological materials or of stolen articles of cultural property

imported in violation of sections 207 or 208.

  Section 210 contains the seizure and forfeiture provisions and

the conditions for return to the State Part of protected material

or articles which are forfeited to the United States.  Subsection

(a) provides that any designated archaeological or ethnological

material or article of cultural property imported in violation of

section 207 or 208 will be subject to seizure and forfeiture.  All

provisions of law relating to seizure, forfeiture, and

condemnation for violation of the customs law apply insofar as

they are applicable to and not inconsistent with provisions of

this Act.

  The Committee agreed to amend S. 1723 to allow both summary and

judicial forfeiture proceedings.  It accepted the argument of the

Administration and others that many articles potentially subject

to forfeiture are likely to be small in value, and neither the

consignee nor the Government will wish to bear the cots of a

judicial proceeding concerning them.  Further, the limited

resources of the courts should not be diverted to these minor

cases if the parties do not wish to undergo such proceedings. 

Finally, anyone seeking judicial forfeiture may do so by posting a

small bond; therefore, eliminating the requirement of judicial

forfeiture proceedings does not abridge any rights of

opportunities of the defendant [sic].

  Subsection (b) specifies that any archaeological or ethnological

material imported in violation of section 207 and forfeited to the

 

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United States must first be offered for return to the State Party. 

The object will be returned if the State Party bears the expenses

of return and delivery and complies with any other requirements

related to the return prescribed by the Secretary of the Treasury. 

Otherwise, the object will be disposed of as prescribed for

articles forfeited for violation of the customs law, unless the

claimant establishes valid title the material and that he is a

bona fide purchaser for value of it.

  Subsection (c) specifies that any action for forfeiture of an

articles of cultural property imported in violation of section 208

is subject to the following alternative resolutions.

  1. If the claimant establishes valid title as against the

institutions from which the article was stolen, forfeiture will

not be decreed unless the State Party requesting its return agrees

to pay the claimants holding valid title just compensation.

  2.  If the claimant does not establish valid title but

establishes his purchase for value without knowledge or reason to

believe the article was stolen, then forfeiture will not be

decreed unless (a) State Party to which the article is to be

returned pays that innocent purchaser and amount equal to what he

paid for the article, or (b) the United States establishes that

the State Party as a matter of law or reciprocity would in similar

circumstances recover and return an article stolen from a United

States institution without requiring payment of compensation.

  Implementation of article 7(b) of the Convention affects neither

existing remedies available in State or Federal courts nor laws

prohibiting the theft and the knowing receipt and transportation

of stolen property in interstate and foreign commerce (e.g.,

National Stolen Property Act, Title 18, U.S.C. Sections 2314-15),

including the possible recovery of stolen property for the

rightful owner in the courts without payment of compensation. 

Article 7(b)(ii 0 of the convention specifically requires that an

offer of just compensation be made to a person holding valid title

to, or to an innocent purchaser of, an article of cultural

property by the state Party requesting its return.  However,

innocent purchasers who do not acquire valid title as against the

true owner may not be entitled to compensation under applicable

municipal laws in the United States.  Consequently, the fourth

understanding adopted by the Senate in its advice and consent to

ratification of the Convention, as reflected in section 210(c),

provides that the United States is prepared to return recovered

stolen cultural property without payment of compensation if it

establishes before the court as a matter of law or reciprocity

that the claiming State Party would in similar circumstances

recover and return an article stolen from an institution in the

United States without requiring payment of compensation. It is

considered that reciprocity would have to be shows by a Government

decree, proclamation, written commitment, written opinion, or

other such evidence.

  Section 211 establishes the evidentiary requirements for any

forfeiture proceeding under this Act in which archaeological or

ethnological material or an article of cultural property is

claimed by any person.  Notwithstanding section 615 of the Tariff

Act of 11930, the burden of proof will be on the United States in

such proceedings to establish that material subject to section 207 

has been designated

 

[PAGE 34]

by the Secretary of the Treasury under section 205 as covered by

an agreement with a State Party or by an emergency action.  In the

case of an article of cultural property, the United States must

establish that the article appertains to the inventory of a museum

or similar institution in a State Party and was stolen from that

institution after the effective date of this Act or after the date

the Convention entered into force for the State Party concerned,

whichever is alter.

  Section 212.--Section 212 exempts archaeological or ethnological

material or article of cultural property from the provisions of

the Act under any of the following circumstances:

  1. Material or articles imported into the United States for

temporary exhibition of display are exempt if they are immune from

seizure under judicial process pursuant to 22 U/S/C/ 2459.  To

achieve such immunity, the President or his designee must have

determined prior to importation of the object that it is of

cultural significance and that its temporary exhibition or display

within the United States is in the national interest, and he must

have published notice to this effect in the Federal Register.

  2. Material or articles held at least three years in the United

States by a public institution that openly procured, displayed, or

publicized its possession of the objects.

  3. Material or articles held in the United States for at least

10 consecutive years from the date of the importation and (a)

exhibited for at least 5 years during that period in a recognized

museum, religious, or secular monument, or similar institution, or

(b), if (a) does not apply, the State Party received or should

have received fair notice through publication or other means to be

prescribed by regulation, of its location within the United States

during this period.

  4. If none of the above apply then the material or articles have

been in this country for at least 20 years and the claimant

purchased them without awareness of their illegal origin.   The

purpose of these exceptions is to provide a time certain when an

adequate opportunity to identify and to recover illicitly traded

art will have been afforded, and rights to objects can be settled.

  Section 213.--Section 213 authorizes the Secretary of the

Treasury to prescribe rules and regulations as necessary and

appropriate to carry out the act.

  Section 214.--Section 214 provides for custom officers to

enforce the Act in the United States customs territory and in the

Virgin Islands.  The President will designate persons to enforce

the act in other United States territories or areas outside the

customs territory or Virgin Islands.

  Section 215.--Section 215 provides for the act to take effect on

the 90th day after enactment, or on a prior date after enactment

that the President prescribes and publishes in the Federal

Register if he has appointed the initial members of the Advisory

Committee.  The President may appoint the Advisory Committee

members any time after the date of enactment of this act.

U.S. and International Laws: