Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past

The recent restitution of antiquities from several major American museums and the trial in Italy of former Getty antiquities curator Marion True and art dealer Robert Hecht have focused pubkc attention on the Ulegal trade in looted antiquities to an extent rarely seen in the past.1 The looting of the Iraq Museum in Baghdad in April 2003 and the even more disastrous large-scale looting of archaeological sites in southern Iraq since the beginning of the current Gulf War have brought the devastating effects of the international market in looted antiquities into even starker rekef.2 The looting of archaeological sites and the dismemberment of ancient monuments are problems that afflict countries as wealthy as the United States and the United Kingdom and as poor as Mak and Bokvia. Recent revelations concerning the functioning of the art market and the acquisition of antiquities with unknown origins now demonstrate that the looting of archaeological sites is a weU-organized big business motivated primarUy by profit. The looting of archaeological sites creates negative externakties that harm society. Because the legal regime aims to eliminate societal harms, the law should force the actor to internakze the costs3 and thereby discourage the negative activity. In this Artide, the term "cost" indicates any harmful effect imposed on an individual or on society as a whole. The loss of cultural value is a cost paid by society. In the field of cultural heritage law, "value" usually indicates the intangible worth and significance of original contexts and rarely connotes monetary value. This Article addresses the unique aspects of the trade in antiquities, that is, archaeological objects that have, over time, been buried in the ground with an associated assemblage of other artifacts, architectural remains, and natural features. Because of its knk to the looting of sites, the trade in undocumented antiquities raises legal, ethical, and societal concerns distinguishing it from the trade in other forms of artwork. In this Article, I wiU discuss three components. First, I wiU examine the harms that the looting of archaeological sites imposes on society. Second, I wUl discuss the responses to the problem, particularly in terms of the law that attempts to regulate this conduct, and some of the characteristics of the current legal regime and of the market in antiquities that prevent the law from achieving its fuk potential for deterrence. Third, this Article wiU examine and propose solutions to discourage site looting and encourage preservation of the remains of the past for the benefit of the future. I. UNDERSTANDING THE PAST There are several detrimental consequences of looting. First, the looting of archaeological sites imposes negative externakties on society by destroying our abikty to fuky understand and reconstruct the past. Humans have long been interested in the material remains of past cultures, and they have often coUected artifacts as poktical symbols of domination5 or as a means of enjoying past artistic accompkshments. The manner in which artifacts are recovered from the ground only became important after the development of archaeology as a science, with examples of stratigraphie excavation and recording known as early as the seventeenth century. Borrowing in large measure from the emerging fields of Darwinian evolutionary biology and paleontology that rely on the stratigraphie placement of fossUs to reconstruct the chronological evolution of kfe forms, a modern understanding of the role of stratigraphie excavation as key to understanding human cultural evolution developed by the late eighteenth century.6 Archaeology became a truly interdiscipknary field in the middle and late twentieth century with the adoption of scientific techniques, such as radiocarbon and thermoluminescence dating7 and more sophisticated methods, in conjunction with the use of knguistic, phkological, art historical, and anthropological analyses to understand the past. …