Stephen K. Urice (Associate Professor at the University of Miami School of Law) and Andrew Adler (Law Clerk for the 11th Circuit Court of Appeals and adjunct Professor at the University of Miami School of Law) have posted a recent paper on the Executive Branch’s Cultural Property Policy on SSRN, Unveiling the Executive Branch’s Extralegal Cultural Property Policy. Here is the abstract:
In this Article we reveal that the executive branch of the United States has consistently – and astonishingly – exceeded constraining legal authority with respect to the movement of cultural property into the United States. To illustrate this assertion, we identify three distinct categories of extralegal cultural property practices. First, we describe how the Department of Justice, misapplying the National Stolen Property Act, has obtained the return of cultural objects to their countries of origin by filing legally-deficient civil forfeiture complaints. Second, we describe how the Justice Department has pursued this same objective by proceeding under a legally-erroneous interpretation of the Archaeological Resources Protection Act. Third, we describe how the Department of State has repeatedly undermined the statutory structure and mandatory criteria of the Convention on Cultural Property Implementation Act, resulting in significant import restrictions on cultural property. All of these practices exceed constraining legal authority and lead to a similar result. Accordingly, we describe this pattern of practices as forming an extralegal cultural property policy. We express no opinion about the wisdom of this policy. Rather, our purposes in unveiling this policy are to promote a rigorous and transparent review of the executive’s practices and to restore the rule of law. In our conclusion we speculate as to why the executive has undertaken these practices and, among other observations, suggest with some sympathy that the current legal framework is outdated.
Many readers will likely find the arguments these authors make troubling. I’d encourage you to give the piece a read on its own merits. Though these authors are critical of the policies of the Executive branch, this does not mean that they endorse the looting of sites or the black market—rather they are pointing out flaws in how the Executive branch and the Cultural Property Advisory Committee has attempted to restrict the trade in illicit antiquities. Very interesting and worthy of serious attention.