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Thursday, December 26, 2013

The Crisis Facing Cultural Heritage in Egypt: Reports from Two Egyptologists

Lawmakers on Capitol Hill are once again urged to adopt an Emergency Protection of Egyptian Cultural Antiquities Act (EPECAA). A law implementing import restrictions on trafficked ancient Egyptian heritage is needed because the danger to archaeological, cultural, and religious sites in that country remains clear and present.

Recently calling attention to this threat are two Egyptologists. They are Dr. Salima Ikram, professor at the American University in Cairo, and Dr. Monica Hanna, the 2014 SAFE Beacon Award winner

Both Ikram and Hanna have published articles in the latest Journal of Eastern Mediterranean Archaeology & Heritage Studies (V.1, No. 4, 2013), which build on their initial descriptions of the heritage crisis in this summer's Bulletin of the American Research in Egypt (No. 202, Summer 2013).

Ikram and Hanna write that looting and land grabbing are ravaging Egypt. Hanna describes several incidents of destruction; she writes:
  • In the area of ancient Memphis, south of Cairo, the villagers are digging unexplored areas of the necropolis, especially in Abu Rawash. In the Memphite necropolis, storehouses containing antiquities have been attacked, despite the wall around the site protecting it from illegal occupation. 
  • Abusir was looted systematically and continuously by mafia groups and local looters. Right after the events of January 2011, the local sheikh incited people to destroy and loot the site of the ancient infidels. New tombs have been discovered, but archaeologists have not able to access them; thus, looters have destroyed most of the archaeological record.
  • At Abusir el-Malaq, a site notorious for repeated theft, looters have created impressive heaps of human bones, fragments of mummies, and broken sarcophagi.
  • Ansina, a Coptic site where villagers believe the rock-cut monastic settlement houses gold treasures, has been heavily looted using dynamite.
Because of these reports and many others, museums, auction houses, dealers, and collectors should remain vigilant against knowingly receiving illegal antiquities that freshly appear on the market from Egypt. Meaningful due diligence that carefully scrutinizes the chain of custody of Egyptian material offered for sale and that critically examines the source of provenance information should be utilized to curb the unwitting or unlawful receipt of stolen heritage.

The introduction and adoption of EPECAA, meanwhile, would focus necessary public attention on this urgent matter while supplying U.S. authorities with an additional, specifically-tailored enforcement tool to combat transnational trafficking rings that smuggle Egyptian artifacts across America's borders.

Photo credit: Mohamed Aly

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Friday, December 20, 2013

ABC Radio Australia and Other News Reports on Cambodian Statue's Repatriation

Credit: Ante Vecik
Last week's agreement between the U.S. government and Sotheby's auction house to repatriate a 10th century sandstone sculpture continues to be widely publicized.

Chasing Aphrodite has a recent informative report, which supplies commentary by cultural property experts Tess Davis and Simon MacKenzieThe Phnom Phen Post, meanwhile, provides an update on repatriation plans for the statue. And readers should take note of Tom Mashberg's and Ralph Blumenthal's original news breaking article in The New York Times.

CHL provided commentary on the federal district court case to ABC Radio Australia yesterday. Listen to the broadcast by ABC's Liam Cochrane by clicking here: Sotherby's agrees to return 10th century statue to Cambodia | Asia Pacific | ABC Radio Australia

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Monday, December 16, 2013

Oral Arguments Scheduled in Ka Nefer Nefer Mummy Mask Appeal

The Eight Circuit Court of Appeals has scheduled oral arguments for January 13, 2013 in the case of U.S. v. Mask of Ka Nefer Nefer.

The case involves federal prosecutors' efforts to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM). Government lawyers wrote in July 2011 that SLAM's “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum."

Prosecutors allege that the ancient burial mask, which archaeologists discovered during an authorized excavation in 1952, was stolen from Egypt. SLAM purchased the cultural object in 1998 for approximately half a million dollars.

A Missouri federal district court brought the government’s forfeiture case to an end in April 2012, concluding that the government's complaint failed to specifically explain how the mask was allegedly stolen or smuggled, or how it was brought into the U.S. illegally.

The U.S. Attorney's Office filed a motion to reconsider the court's decision, and in May 2012 the government revealed new information that it said would support a proposed amended complaint. Judge Henry Autrey denied the motion to reconsider, and federal prosecutors filed a proposed amended complaint anyway. The district court rejected the government's case a second time.

Source: Eight Circuit Court of Appeals
Attorneys for the government appealed to the Eight Circuit, arguing that the lower court abused its discretion by not allowing them to file an amended complaint. Lawyers for SLAM rebuffed their argument by contending that there is "no basis on which to find [that] the District Court abused its discretion in denying the Government’s fatally late and insufficient submission of its Proposed Amended Complaint." SLAM chided federal officials for "the liberties the Government takes ...."

The appellate case is expected to be heard by Circuit Judges James Loken, Diana Murphy, and Lavenski Smith. Loken is former chief judge of the appellate court, nominated to the bench by President George H. W. Bush in 1990. Murphy is a 1994 Clinton appointee, and Smith is a 2002 appointee nominated by George W. Bush.

UPDATE January 14, 2014: A summary of the oral argument can now be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT: www.culturalheritagelawyer.com

Thursday, December 12, 2013

UPDATED: Cambodian Statue Forfeiture Agreement: Prosecutors Succeed, Sotheby's Gains Concessions. What's Next?

After a bitter court battle flared to new heights in September, the U.S. Attorney's Office for the Southern District of New York and Sotheby's today proposed an agreement to repatriate a 10th century Duryodhana statue to Cambodia.

If today's proposal is signed off by district court Judge George Daniels, it marks the end to a prolonged legal fight that began in 2012.

Prosecutors have consistently maintained that the sculpture was stolen from the Prasat Chen temple at Koh Ker. In fact, the statue's feet remain in Cambodia. They asserted in court papers that it had been looted from Prasat Chen during the 1960s and 1970s and that a private collector in Belgium purchased the Duryodhana from an auction house in the United Kingdom in 1975. They claimed that the statue was the property of Cambodia since at least 1900.  They also alleged that Sotheby’s imported the Duryodhana into the United States in April 2010 and made arrangements to sell the statue in 2011, despite knowing that it was stolen from Koh Ker.

By contrast, Sotheby's and Decia Ruspoli di Poggio Suas, the claimants, have disputed the government’s assertions. They have maintained in pleadings that Ms. Ruspoli di Poggio Suasa’s husband bought the Cambodian statue in 1975 in London in good faith and that they did not know the statue may have been stolen. They have also contended that colonial laws from 1900 and 1925 claiming to vest ownership of the statue in Cambodia remain ambiguous.

The proposed Stipulation and Order of Settlement of December 12 wipes away both sides’ arguments and awards the parties something each wants.

Under the proposed order, U.S. Attorney Preet Bharara and Asset Forfeiture Chief Sharon Cohen Levin will successfully seize and forfeit the statue in order to return it to the Cambodian people. Sotheby's and Decia Ruspoli di Poggio Suas, meanwhile, will end the protracted litigation and receive legal guarantees.

The agreement gives federal prosecutors their victory by declaring “that the Statue is forfeitable to the United States as … property brought into the United States contrary to law.” It also gives the claimants protective legal concessions, memorialized in the proposed Stipulation and Order this way:
… Sotheby's and Ms. Ruspoli maintain that at all relevant times Ms.. Ruspoli had clear legal title to the Statue and deny ever knowing or believing that the Statue belonged to the Kingdom of Cambodia, or providing anyone any provenance information about the Statue known or believed to be inaccurate;  
… Sotheby's and Ms. Ruspoli have a good faith disagreement with the United States regarding whether the Kingdom of Cambodia owned the Statue;  
… the United States does not contend that Sotheby's (or any of its lawyers, executives, officers, or employees) or Ms. Ruspoli knew or believed that the Statue was owned by .the Kingdom of Cambodia or knowingly provided false or misleading provenance information about the Statue;
Legal observers of the case, docketed as United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York, will no doubt take notice that the U.S. Attorney’s office in Manhattan is willing to aggressively tackle cultural property repatriation cases, even if its prosecutors must engage in litigation with one of the world’s largest auction houses.

Moreover, given today’s proposed resolution by the parties, lawyers may ponder whether similar results might be reached through negotiations, or perhaps even mediation, in future cultural property contests. And that question may be answered sooner than expected in the case of the Norton Simon Museum, which displays the companion statue of the Duryodhana.

UPDATE: Where earlier this year Hon. George Daniels denied Sotheby's motion to dismiss, the NY federal judge has now approved the parties' Stipulation and Order of Settlement. That order, dated December 12 and electronically filed on December 13, may be viewed here.

Photo credit: intuitives

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT INFORMATION: www.culturalheritagelawyer.com

Tuesday, December 10, 2013

Plea Deal Reached with Chinese Artifacts Dealer Charged with Obstruction

An antiquities gallery and its manager entered agreements with federal prosecutors last week to plead guilty to obstruction of justice under 18 U.S.C. § 1512(c)(2).
U.S. Attorney Wifredo Ferrer

The U.S. Attorney for the Southern District of Florida last month charged Lorin & Son, LLC, a Nevada-based company doing business in Florida as Asiantiques, as well as its manager, Francois Lorin, with illegally tampering with the customs process by supplying false information about imported Chinese artifacts.

The plea agreement filed by U.S. Attorney Wifredo Ferrer's office last Thursday in federal district court makes the following offer of proof:
Pursuant to a Memorandum of Understanding between the United States and the People's Republic of China entered into as of January 14, 2009 (the ''MOU'') archaeological materials representing China's cultural heritage from the Paleolithic Period (c. 75,000 B.C.) through the end of the Tang Period (A.D. 907) could not be imported into the United States absent specific prior government approvals, If, however, such items were already in the United States as of the MOU date, the items could be re-imported without prior authorization.  
On or about May 14, 2011, Asiantiques exported a shipment of Chinese artifacts to Hong Kong for an antiques trade show. The value upon export was declared as $1,592,695. On or about June 10, 2011, Asiantiques submitted a Formal Entry Form 3461 to U,S. Customs and Border Protection ("CBP"') in order to import what purported to be the same shipment of Chinese artifacts back to the United States through the Port of Miami, in Miami-Dade County, Florida. Upon return of the shipment to the United States, the shipment was described as "return exhibition of goods'' and was valued at $1,470,965.   
The shipment from Hong Kong was interdicted by CBP at the Port of Miami on or about June 4, 2011. CBP officials conducted an inventory of the shipment and observed anomalies between the contents of the shipment and the invoice and other paperwork that had been submitted. While the shipment consisted of approximately 488 items, the paperwork accompanying the shipment failed to list approximately 50 items. Upon further review, questions were raised about the provenance: of certain items contained within the shipment, including items of Chinese fine art that pertained to the time period prior to 907 A.D. (the "Pre-907 items'). It was later determined that the shipment had approximately 27 Pre-907 items.  
... 
Subsequent to the items being interdicted at the Port of Miami, CBP officers observed four Chinese artifacts contained within a FedEx box located in the shipment that were not listed on any invoice or manifest, two of which were Pre-907 items, Other items in the shipment were not listed on any invoice or manifest. ... An appraiser hired by CBP determined that the domestic value of the shipment was approximately $3,177,825. 
The government adds that the defendants' "'proof' that the Pre-907 items contained in the shipment were in fact inside the United States prior to January 14, 2009" consisted of paperwork falsely backdated to May 9, 2006. Prosecutors contend that the defendants supplied the fake paperwork in an effort to convince authorities that the artifacts arrived on American soil prior to the enactment of the MoU between the U.S. and China.

Sentencing of the defendants is expected to take place in February.

Photo credit: U.S. Department of Justice

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Friday, December 6, 2013

NY Heritage Trafficking Conviction Provides a Model for Prosecutions and Investigations

The importance of Wednesday's guilty plea by Aaron Freedman in the Kapoor heritage trafficking case must not be overlooked.  Freedman, the manager of Subhash Kapoor's Art of the Past gallery in New York City, pleaded guilty in New York criminal court to felony conspiracy and five counts of felony criminal possession of stolen property for his role in facilitating a transnational cultural heritage trafficking ring. Kapoor is currently awaiting trial in India.

The conviction of Freedman shows that state prosecutions can successfully target heritage criminals, and that state and federal cooperation makes a difference.

D.A. Cyrus Vance, Jr.
New York County District Attorney Cyrus Vance, Jr. and Assistant District Attorney Matthew Bogdanos have demonstrated the will to prosecute crimes that destroy humanity's culture and identity.  This desire to make a difference is notably in the hands of attorneys in art market-rich Manhattan.

Freedman's conviction in state court and under state criminal law --not federal law--sets an example for prosecutors in other state and county jurisdictions to take on these cases too. The message that transnational cultural heritage trafficking cases can be prosecuted in local courthouses like any other large-scale conspiracy or stolen property ring is an important one for prosecutors to hear. County attorneys and district attorneys are already accustomed to handling receiving stolen property cases in their jurisdictions, so it makes sense for cultural property cases to be handled in county and district courthouses as well.

The Freedman prosecution also demonstrates the value of state and federal cooperation. To uncover transnational networks most often requires cooperation by federal investigators, and may also require evidence collection through the use of Mutual Legal Assistance Treaties. To then have these investigations bear fruit requires state and county prosecutors willing to bring receivers of stolen property to justice. That is why the cooperation exhibited between Homeland Security Investigations of Immigration and Custom's Enforcement and the Manhattan District Attorney's Office in the Freedman case serves as a model.

Photo credit: NY County District Attorney's Office

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Monday, November 25, 2013

Korean Artifacts Seizure Prompts Question of Legal Authority

Last week in San Diego, California, Homeland Security Investigations (HSI) of Immigration and Customs Enforcement (ICE) seized nine national and royal seals originating from the Korean Empire and the Joseon Dynasty. They are described in an ICE press statement as "invaluable to South Korea." But the legal authority justifying the seals' seizure remains unclear, requiring further explanation by ICE.

ICE reports, "The cultural artifacts were turned over to HSI special agents by the family of a deceased Marine lieutenant, who had served in the Korean War. The lieutenant had found the seals in 1950 in a ditch near the Deoksugung Palace, which had just been ransacked by Chinese and North Korean soldiers."

ICE says that the seals were exported illegally to the United States. But an illegal export, by itself, would not be grounds to seize the seals. ICE mildly hints that this export may have triggered a violation of American law, but it is conceded that the agency does not explicitly cite the illegal export as a basis to seize the seals.

Korean seals seized by ICE in San Diego.
ICE states more directly that the "seals were seized pursuant to [an] abandonment of property form ...." 

Abandonment, which is the relinquishing of legal rights to property, is justification for a seizure because it is a renunciation of property interests. Abandonment permits another party like the federal government to assume those property interests (i.e. possession or title) provided there is lawful authority.

Abandonment is a persuasive legal justification for seizing the seals. So what remains unclear is ICE's additional explanation justifying the seizure, what the agency claims is a "violation of the Cultural Property Implementation Act." That is because the CPIA would not seem to have any legal authority in this case.

ICE states, "On Feb. 14, 1983, South Korea became a signature country to the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property."

South Korea may be a signatory to the 1970 UNESCO Convention, but that nation has no memorandum of understanding (also known as a bilateral agreement) with the U.S. The CPIA is the law that implements the 1970 UNESCO Convention in the U.S., and an MoU authorized by the CPIA is necessary before America can institute import restrictions to seize jeopardized cultural artifacts crossing into the U.S. There are no import restrictions to date. As a result, there appears to be no authority for ICE to seize the Korean seals under the 1970 UNESCO Convention or the CPIA.

Unless the seals were inventoried in and stolen from a museum during or after 1983 (and they were not according to the information supplied), South Korea's adoption of the 1970 UNESCO Convention would bear no relevance on whether federal agents could seize the seals under authority of the CPIA.

In its press statement, ICE goes on to recite that "South Korea’s applicable cultural patrimony laws are the Korean National Property Act, enacted April 8, 1950 and the Korean National Property Act-Enforcement Decree, enacted June 10, 1950. According to the Korean National Property Act, the aforementioned seals fall under the category of Korean national property, which is illegal to transfer or export."

While an assessment of these statutes would be relevant to whether U.S. law recognizes South Korea's rightful ownership of the objects, the foreign statutes' export regulations would be of no interest to American law since U.S. law only enforces American import restrictions, not foreign export controls.

In fact, ICE does not appear to base its seizure on the rationale that the seals were owned by South Korea and stolen from that country in violation of its patrimony laws. If the seals were characterized as stolen, they would likely have been taken by ICE under 19 USC § 1595a's "contrary to law" provision that allows federal authorities to seize stolen property brought into the U.S. and to return the property to the legal owner. 

Perhaps ICE is using Korea's patrimony law to support a claim that the now "abandoned" seals belong to South Korea. We do not know for sure.

There have been legal questions surrounding seizures by ICE before, such as last year when customs agents seized Egyptian coffins in Texas or in 2011 when agents seized a Mexican figurine in Chicago.

A clearer legal explanation of what happened in the current South Korean case would help attorneys, collectors, auction houses, museums, preservationists, and other stakeholders better understand the federal government's cultural property enforcement actions.

Photo credit: ICE

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT INFORMATION: www.culturalheritagelawyer.com

Monday, November 18, 2013

New York's Highest Court Rejects The Right to Pillage

It is no surprise that New York's Court of Appeals decided last week that a "spoils of war" legal theory could not be upheld. That state's highest court ruled that pillaging during World War II does not invest a possessor of stolen cultural heritage with title.

In the case of In the Matter of Riven Flamenbaum, Flamenbaum's attorney offered astonishing oral arguments to the Court of Appeals affirming the right of pillage, justifying the legal right of Soviet soldiers to steal Nazi looted art, and conceding that the client may have been a thief.

The case involved the Vorderasiatisches Museum in Berlin, which sought recovery of a 3,000 year old Assyrian gold tablet found by German archaeologists from the Ishtar temple in Ashur, Iraq and excavated before World War I. The tablet had been in the museum's collection since 1926 but went missing in 1945. The museum remained closed during World War II, placing the Ashur objects in storage. The tablet later appeared in the collection of Riven Flamenbaum in New York in 2003 when it was discovered in his estate following his death.

The museum argued that Flamenbaum never could have acquired title to the tablet. Flamenbaum's estate, meanwhile, contended that the museum was time-barred from petitioning the court for return of the object because the museum took no action to find the tablet until decades later.

In its opinion issued November 14, the state appeals court held, "The 'spoils of war' theory proffered by the Estate—that the Russian government, when it invaded Germany, gained title to the Museum's property as a spoil of war, and then transferred that title to the decedent—is rejected."

The court noted that there was no proof the Russian government ever had possession of the tablet. But the justices pointedly added, "Even if there were such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force."

In reaching its decision, the justices noted that  it was the official policy of the United States during World War II to forbid pillaging of cultural artifacts."

The Court of Appeals expressed some concern during oral argument about the museum's action, or lack thereof, to locate the tablet. But the court concluded in its decision:
While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent's death, that he was in possession of the tablet.
...
While the Estate argued that it had suffered prejudice due to the Museum's inaction, there is evidence that at least one family member (decedent's son) was aware that the tablet belonged to the Museum. And, although the decedent's testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity.
The Archaeological Institute of America, Lawyers' Committee for Cultural Heritage Preservation, U.S. Committee of the Blue Shield, and others joined together to file an amicus brief. They argued that "looting and illegal removal of cultural objects during wartime by a conquering or occupying military force or by individuals is anything other than outright theft [which] is contrary to United States' domestic law and to international law—international principles which the United States has played a leading role in developing."

Photo credit: plex

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, November 13, 2013

No Money, No Vote: A Closer Look at the Strained Relationship Between the U.S. and UNESCO

UNESCO confronts a budgetary and political crisis following America’s automatic defunding of the U.N. agency in 2011 and UNESCO's decision last Friday stripping the United States of its voting rights.

The General Conference of the United Nations Educational Scientific and Cultural Organization is meeting in Paris from November 5 through 20. The General Conference is UNESCO’s legislature, which assembles every two years to set policies, approve programs, and adopt a budget. It elects the Executive Board and appoints a Director-General every four years.

While tensions have existed between the U.S. and UNESCO, particularly over the last four decades, the current crisis can be traced to October 5, 2011 when UNESCO's Executive Board granted the Palestinians full membership in the organization, a measure opposed by the U.S.

Forty members of the Executive Board voted in favor, four against, and fourteen abstained.

Photo credit: Mattox
Forty-three nations then submitted Draft Resolution 9.1 to the General Conference on October 29, 2011. The body passed the resolution to admit the Palestinians to UNESCO, a result that had not been achieved since such the campaign for admission first started in 1989. The final vote tally was:

·       107 aye, including Afghanistan, Argentina,  Brazil, China, Egypt, France, India, Iran, Jordan, Russian Federation, Saudi Arabia, Spain, and Turkey;

·       14 nay, including Australia, Canada, Germany, and the U.S.;

·       52 abstentions, including Italy, Japan, Mexico, South Korea, and the United Kingdom; and

·       21 absent including Ethiopia

Palestinians previously maintained observer status at UNESCO, dating back to 1974. President and Palestinian Liberation Organization chairman Mahmoud Abbas applied to the Security Council in September 2011 for full membership in the U.N., but that action failed while the UNESCO effort succeeded.

Membership by the Palestinians in UNESCO has been viewed by many as a way to compel legal recognition of Palestinian statehood without the benefit of bilateral talks with Israel. That is why the U.S., which tried to restart Israeli-Palestinian peace talks after their suspension in October 2010, protested the admissions process.

Ambassador David Killion, U.S. Permanent Representative to UNESCO, told the General Conference:
The United States has been very clear about the need for a two-state solution to the Israeli-Palestinian conflict. But the only path to the Palestinian state that we all seek is through direct negotiations. There are no shortcuts, and we believe efforts such as the one we have witnessed today are counterproductive....[W]e recognize that this action today will complicate our ability to support UNESCO’s programs. There are other ways of promoting the cause of the Palestinian people that would not have involved seeking premature membership at UNESCO.  We sincerely regret that the strenuous and well-intentioned efforts of many delegations to avoid this result fell short.
The U.S. automatically cut off its support for UNESCO programming by the terms of the Foreign Relations and Intercourse Authorizations, codified at 22 U.S.C. § 287e. In 1990 the U.S. Congress ordered that "[n]o funds ... shall be available for the United Nations ... which accords the Palestine Liberation Organization the same standing as member states." (Public Law 101-246). And in 1994 Congress proclaimed that the U.S. "shall not make any voluntary or assessed contribution: (1) to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood, or (2) to the United Nations, if the United Nations grants full membership as a state in the United Nations to any organization or group that does not have the internationally recognized attributes of statehood, during any period in which such membership is effective." (Public Law 103-236).

America defunded 22% of UNESCO's operating budget, roughly $240 million, and withheld $60 million immediately after the UNESCO vote in 2011.

Facing an immediate financial crisis, UNESCO's Director-General Irina Bokova paid a visit to Capitol Hill in December 2012, supporting President Barak Obama's efforts to lift the funding ban.

But lawmakers on Capitol Hill remained steadfast. Senator Danial Coats (R-IN) proposed a Senate bill affirming the defunding law and presented a warning, "The Palestinian Authority may use this vote [of membership in UNESCO] as a precedent to pursue membership in other United Nations affiliated organizations, contrary to the best interests of those organizations and the Palestinians themselves."

Sen. Robert Menendez (D-NJ) voiced similar views, urging "the State Department to enforce U.S. law and immediately cut off all funding to UNESCO and any other international organization that recognizes a Palestinian state. The Palestinian leadership is aware of U.S. law on this issue and it is very unfortunate that it is forcing the U.S. to take such drastic steps."

Rep. Kay Granger (R-TX), Chairwoman of the influential House State and Foreign Operations Appropriations Subcommittee actively garnered support from lawmakers to uphold the payment suspension.

Rep. Nita Lowey (D-NY), the ranking Democrat on Granger’s committee, took the position that the "mission of every agency affiliated with the United Nations is to foster—not thwart—conditions for peace and stability," concluding that UNESCO "fails that test" by "interfering with the prospects for direct negotiations between Israel and the Palestinians..."

Joining their efforts was Chairwoman of the House Foreign Affairs Committee, Rep. Ileana Ros-Lehtinen (R-FL), a critical voice in the discussion.

Ambassador Susan Rice, U.S. Permanent Representative to the United Nations at that time, appeared before the House State and Foreign Operations Appropriations Subcommittee in March 2012 to support refunding UNESCO. She told committee members:
Current U.S. law runs counter to U.S. national security interests by enabling the Palestinians to determine whether the U.S. can continue to fund and lead effectively in key U.N. specialized agencies that help protect Americans.
...
In the case of UNESCO, due to irresponsible Palestinian actions, we have withheld our funding for valuable work that supports key U.S. interests.
...
We believe our membership and participation in UNESCO is valuable and worth supporting.
While President Obama and other White House officials continue to press lawmakers to restore funding for UNESCO, the administration remains hampered in its efforts by UNESCO’s adoption of resolutions focused on Israel.

The Executive Board last month, over America's objection, supported six resolutions criticizing Israel and calling on that nation to cease actions reportedly affecting the "authenticity, integrity and cultural heritage" of sacred and archaeological sites. Arab nations, Russia, and France endorsed the resolutions, and The Jordan Times reported that the Jordanian king's actions to move the resolutions forward were "decisive."

In April of this year, the U.S. prevented these resolutions—which numbered five at that time—from being offered to the Executive Board when Israel agreed to terms that would have allowed UNESCO inspectors to assess the Old City of Jerusalem as well as an ascent to the Temple Mount, or Haram al-Sharif.

The New York Times learned that the deal "was brokered in an unusual partnership between the United States and Russia, with the help of Jordan, Brazil and the director general of UNESCO, Irina Bokova" and that "[t]he willingness of the Palestinians to table the resolutions was a direct result of recent visits to the Middle East by President Obama and Secretary of State John Kerry, who secured a Palestinian agreement not to 'initiate negative moves in international organizations.'"

Israel, however, canceled the inspection team's scheduled May 2013 trip, citing concerns over "politicization," according to The Times of Israel.

Soon thereafter, UNESCO's World Heritage Committee (WHC), meeting in Cambodia in June, adopted language proposed by the Jordanian delegation to censure Israel. Decision 37 COM 7A.26 declared, in part, that the WHC "[d]eplores the continued Israeli failure to cooperate and facilitate the implementation of the ...  reactive monitoring mission to the Old City of Jerusalem and its Walls" and "[d|eeply deplores the persistence of Israeli archaeological excavations and works in the Old City of Jerusalem and on both sides of its Walls and the failure of Israel to cease such works."

Israel's Ministry of Foreign Affairs criticized the measure, calling it "a dark day for UNESCO" and saying that "the Palestinians are exploiting their admission to UNESCO ... in order to hijack and drag this important U.N. agency into the abyss of politicized manipulation." The ministry concluded that "Israel will uphold its commitments ... to ensure freedom of worship of all faiths in Jerusalem."

UNESCO then acceded to a Palestinian request to have Bethlehem's Church of the Nativity, revered as the birthplace of Jesus, placed on the World Heritage List and the List of World Heritage in Danger. Only 44 sites across the globe are on the endangered list. The church is located in the Palestinian-administered portion of the occupied West Bank. The U.S. objected to both listings.

That set the stage last month for UNESCO’s passage of the six resolutions. 

Explaining why the U.S. was the only nation to object to every one of the six Executive Board resolutions, Ambassador Killion issued a statement titled Explanation of Vote by Ambassador Killion on Middle East Resolutions Targeting Israel to say "We are very disappointed that this body, the UNESCO Executive Board, rather than live up to its lofty goals to build peace in the minds of men and women, once again chose to needlessly politicize these issues before us." Killion described how "such actions … strike a highly discordant note, and are disheartening to us." "This is supposed to be a place for peacebuilding," the ambassador noted. "Now we have this Board faced with six—I repeat six—decisions directed at a single Member State.  This is truly ridiculous, and obviously counter-productive." Ambassador Killion questioned, "We ask you, are your actions today helping to build two states, living side by side? Are we working in this body to build trust and confidence?"

Canada’s government too expressed frustration. Minister Christian Paradis observed that "UNESCO was dealt a severe blow following the decision to admit the Palestinian delegation into the organization, which resulted in an unprecedented cash-flow crisis. Canada rejects efforts to politicize UNESCO and believes that UNESCO is always stronger when there is consensus."

The six resolutions adopted find their roots in an October 2010 UNESCO Executive Board vote that "adopted five decisions concerning UNESCO’s work in the occupied Palestinian and Arab Territories." The U.S. often cast the sole vote in objection to these proposals.

The 2010 resolutions were UNESCO's response to a controversial decision in February 2010 by the Israeli government to place Rachel's Tomb in Bethlehem and the Tomb of the Patriarchs in Hebron on a national heritage list, a move criticized by the U.S. and one which prompted Palestinian protests. The sites' significance as well as the importance of the Old City of Jerusalem to the three major monotheistic religions of Judaism, Islam, and Christianity are subjects of continuing debate and contention.

The UNESCO resolutions report stated, in part:
  • Jerusalem’s cultural heritage: The Board voted 34 to 1 (19 abstentions) to "reaffirm the religious significance of the Old City of Jerusalem for Muslims, Christians and Jews." The decision expresses "deep concern over the ongoing Israeli excavations and archaeological works on Al-Aqsa Mosque compound in the Old City of Jerusalem, which contradicts UNESCO decisions and conventions and United Nations and Security Council resolutions." It invites the Director-General to appoint experts to be stationed in East Jerusalem to report on all aspects covering the architectural, educational, cultural and demographical situation there. It also invites the Israelis to facilitate the work of the experts in conformity with Israel’s adherence to UNESCO decisions and conventions. 
  • The Palestinian sites of al-Haram  al-Ibrahimi/Tomb of the Patriarchs in al-Khalil/Hebron and the Bilal bin Rabah Mosque/Rachel’s Tomb in Bethlehem: the Board voted 44 to one (12 abstentions) to reaffirm that the two sites are an integral part of the occupied Palestinian Territories and that any unilateral action by the Israeli authorities is to be considered a violation of international law, the UNESCO Conventions and the United Nations and Security Council resolutions.
The U.S Mission to UNESCO issued a statement of dissatisfaction, expressing that "the United States broke with UNESCO’s long-tradition of consensus and voted against five resolutions that unfairly singled out Israel, and which can only serve to politicize the organization’s work."  The statement went on to say:
In the past, those items related to the Mughrabi Ascent, Jerusalem, Gaza and educational and cultural institutions in the Palestinian territories have always noted UNESCO’s accomplishments, cited continuing challenges, and encouraged all parties to work together toward a common goal, consistent with UNESCO’s mission. 
During this Executive Board, the Arab states sponsoring the five resolutions made clear their unwillingness to negotiate, leaving one-sided, empty political condemnations that the United States felt were unhelpful to all involved parties. UNESCO’s expertise does not lie in accounting for the work of other United Nations bodies, nor should it take on a political role that it was neither conceived for, nor is within its competence. 
Ambassador David Killion voted NO on all five of the Middle East resolutions before the Executive Board .... In voting against the UNESCO draft decision that stated that Rachel's Tomb and the Tomb of the Patriarch's are "an integral part of the occupied Palestinian Territories", Ambassador Killion stated "...we cannot support this draft decision, which supposes authority that UNESCO does not and cannot possess".
The events occurring from 2010 through today recall the on and off again tensions that mark the U.S.-UNESCO relationship.

UNESCO removed Israel from membership in 1974 because of alleged archaeological harm to Islamic sites on the Temple Mount. But Israel earned reinstatement in 1977 after the U.S. pledged to withhold funds, which even then amounted to roughly a quarter of UNESCO's budget.

President Ronald Reagan later removed the U.S. from UNESCO at the end of 1984. The reasons for withdrawal were, according to the State Department, that "UNESCO has extraneously politicized virtually every subject it deals with; has exhibited a hostility toward the basic institutions of a free society, especially a free market and a free press; and has demonstrated unrestrained budgetary expansion.''

President George W. Bush returned America to UNESCO in October 2003, explaining a year earlier, "As a symbol of our commitment to human dignity, the United States will return to UNESCO. This organization has been reformed and America will participate fully in its mission to advance human rights and tolerance and learning.”

But sometime later, a 2010 UNESCO ethics office report may have raised eyebrows about the agency's reform. The report identified specific areas of agency abuse:
  • The Ethics office is concerned by the fact that we received many requests from UNESCO employees about alleged abuse of authority or harassment by their supervisors. 
  • There also appears to be a failure by employees at all levels to take responsibility for their work, and an unwillingness to delegate authority. Many people who contact the Ethics Office, are more preoccupied in letting us know what they are not responsible for....  
  • The Ethics Office has received more and more complaints about the non-respect of private legal and financial obligations by UNESCO employees, sometimes by inappropriately using their diplomatic immunity.
And just last month, UNESCO's praise for Che Guavare's writings sparked the ire of both supporters and critics of the U.N. agency. "The United States Government strongly objects to the inscription of the writings of Che Guevara in UNESCO's Memory of the World Register," protested Ambassador Killion, adding that "Che Guevara tortured and killed countless innocent people. His writings are antithetical to UNESCO's values and mission to promote peace in the minds of men.... Inscribing words such as these makes a mockery of UNESCO’s Memory of the World program...."

Cuban born Rep. Ros-Lehtinen, who holds influence over UNESCO's funding, voiced a strong rebuke of the decision and the agency:
UNESCO continued its longstanding tradition of making a mockery of its own institution…. This decision is more than an insult to the families of those Cubans who were lined up and summarily executed by Che and his merciless cronies but it also serves as a direct contradiction to the UNESCO ideals of encouraging peace and universal respect for human rights. This latest reprehensible action is a microcosm of the existing problems within UNESCO today. There isn’t any semblance of common sense left in that body.... The Obama Administration is wrong to continue to seek to restore funding to UNESCO..
UNESCO member nations are worried about the U.S. funding gap, and some at the November General Conference meeting have asked other wealthy governments to cover the budget shortfall.

China, meanwhile, may try to fill the political vacuum. In the same way that last month's federal government shutdown absented President Obama from the Asia-Pacific Economic Cooperation conference, leaving Chinese President Xi Jinping ready and willing to do business, the U.S.’s voting absence from the General Conference might allow newly elected UNESCO President Hao Ping, Vice Minister of Education of China, to gather greater influence.

It is also possible that the continued absence of American cash and influence could shrink UNESCO, forcing the organization to rethink its aims and to reflect on its culture of consensus, or lack thereof.

UNESCO is already under fire by the U.K. for inefficiency and lack of transparency. That nation seeks reform. "If we are honest, as Member States we are inherently incoherent, and it is that incoherence we should really focus on for our future strategy, the U.K. told the General Conference last week. "We need more action on transparency too. Its a simple enough question, can I find out what UNESCO does, with what resources, to what effect and with which partners in my country or any other? If not why not? ... Let us be clear, this organisation is funded by our taxpayers. Their right to know what goes on here is at least as strong and valid as their right to know what goes on in government at home."

The U.S. State Department continues to hope that the U.S. will have an impact on the organization. A statement issued by the agency announced, "We note a loss of vote in the General Conference is not a loss of U.S. membership. The United States intends to continue its engagement with UNESCO in every possible way–we can attend meetings and participate in debate, and we will maintain our seat and vote as an elected member of the Executive Board until 2015."

Congressional leaders on Capitol Hill, however, show few signs that they are willing to write UNESCO a multi-million dollar check in time for the General Conference’s final session next week or at any other time in the near future. So while Director-General Bokova advertises at the Paris meeting that "The world needs more UNESCO," she will need much more money and stronger political support to sell that idea.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com