The study of ancient art in museum collections has long been a stimulus to the human spirit and an important means of promoting knowledge of foreign cultures. Sadly, these collections have too often been built on war, colonial exploitation, and looting of archaeological sites that cause irreparable damage to the record of human civilization. These abuses are still serious problems, but it is no longer acceptable to trade in looted cultural property.
In 1970, the United States became the first art market state to support international controls on trade in looted archaeological objects—negotiating a bilateral treaty with Mexico, barring importation of pre-Columbian murals and sculpture, and leading the effort to reframe the draft UNESCO Convention on Cultural Property to make it possible for developed countries to participate. In 1970, a number of market states declined to participate in the Paris meetings that drafted the 1970 Convention. Today, 141 nations are party to the Convention, and no responsible Western institution or auction house would accept an important object of dubious provenance.
As assistant legal adviser for Inter-American Affairs (1968–1974), Mark Feldman played a central role in molding the new U.S. policy, negotiating the agreements, and drafting the critical legislation adopted by Congress to implement the UNESCO Convention. His oral history offers a captivating telling of the diplomatic history and the lengthy consultations with American stakeholders and Congress culminating in the enactment in 1983 of the Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601 et seq.
For Feldman, this story began with a diplomatic note from Mexico asking the U.S. government to recover cultural property illegally exported to the United States and linking that request to continued Mexican recovery of stolen automobiles smuggled across the southern border. He soon learned that American archaeologists were deeply concerned about widespread despoliation of archaeological sites in Mexico and Latin America, and that American museum associations were considering new acquisition guidelines requiring proof of provenance. At the same time, there was strong opposition in the art markets and the museum community to the basic framework proposed in UNESCO, which would have obligated all states party to the treaty to require export permission for all cultural property and to prohibit import of any cultural property lacking an export certificate from the country of origin. At that time, it was extremely unlikely any art-importing state would agree to this scheme, and there was serious concern that U.S. import controls would merely divert trade in looted objects to other countries. There was also fear that the Convention might be applied retroactively to existing collections.
The State Department was eager to help Mexico and was prepared to support an appropriate treaty in UNESCO, but nothing could be done without support from stakeholders in the community. To that end, Feldman worked with William D. Rogers, who later became a senior State Department official, and Professor Paul Bator to organize a panel of stakeholders under the auspices of the American Society of International Law. Archaeologists, antiquities dealers, and museum officials participated. Happily, the panel reached a consensus that enabled the State Department to respond positively to Mexico, bar imports of pre-Columbian murals and sculpture, and prepare a revised UNESCO Convention based on two principles: (1) The treaty would not be applied retroactively; (2) there would be no obligation to enforce foreign export controls per se. The U.S. was prepared to support new measures to dampen market incentives for looting, not to keep cultural property at home. To that end, the U.S. would support a treaty obligation to recover and return objects stolen from museums and would participate in collective measures, including import controls, in situations where archaeological sites were threatened by pillage.
Understandably, there was considerable resistance in Paris to the narrow U.S. approach, but Mexico chaired the conference and helped build a coalition recognizing that a Convention without art-importing nations could not work. Numerous votes were required on U.S. amendments to the Secretariat draft, and the Convention that resulted was a hard-fought compromise. It includes broad principles, considerable national discretion, and special commitments focused on protecting archaeological and ethnographic materials. Paradoxically, however, the U.S. implementing legislation, achieved only in 1983, gave the executive branch broader authority to bar imports of designated archaeological or ethnological materials in emergency situations or pursuant to bilateral agreements with foreign states. The oral history explains Feldman’s reasons for proposing these authorities to Congress and the concerns that delayed Congressional action for years.
Since 1983, the State Department has approved import controls on long lists of materials from thirty different countries, including Bolivia, China, Cyprus, Egypt, Greece, Italy, Nigeria, and Turkey. In addition, U.S. customs and federal prosecutors have developed separate enforcement programs using other authorities, e.g., the National Stolen Property Act, 18 U.S.C. §§ 2311-2318, to prosecute dealers, seize imports, and force repatriation of looted antiquities. It has taken decades for other industrial countries to adopt comparable policies, but major market authorities (including Germany, Switzerland, and the European Union) have adopted strong new regulations in recent years.
Finally, after years of delay and numerous scandals, major museums and auction houses have widely adopted acquisition guidelines requiring donors and sellers to document provenance of ancient art demonstrating that the object was “out of its country of modern discovery prior to, or legally exported therefrom, after November 17, 1970”—the date the UN approved the Convention. Today, scarcely, a month passes without news of a significant seizure or repatriation of foreign antiquities.
Mark Feldman’s oral history is a must-read for persons interested in these issues, and it demonstrates the wide range of foreign relations issues that lawyers work on in the Department of State. It describes his engagement with POWs in Vietnam; the Iran Hostage Crisis; the U.S. hijacking agreement with Cuba; the Panama Canal treaties; investment disputes in Peru and Chile; maritime boundary issues with Canada, Mexico, Cuba, and the Soviet Union; foreign bribery scandals and the Foreign Corrupt Practices Act; and the Foreign Sovereign Immunities Act of 1976.
Mark Feldman’s interview was conducted by Robin Matthewman beginning on April 28, 2021.
Read Mark Feldman’s full oral history HERE.
Read more about the connections between cultural property and diplomacy: The Pillaging of Iraqi Culture in 2003, How a Former Secretary of State Won an Ancient Temple for Cambodia, Financing the Aswan High Dam, and Archaeology meets Diplomacy.
Drafted by Evan Clark
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Excerpts from Feldman Oral History:
“Once I learned what was at stake, I wanted the United States to help Mexico and to support UNESCO working towards a balanced program that would limit market incentives for looting while recognizing the positive value of international movement of cultural property.”
Q: So, I wanted to ask about your work on cultural property, particularly vis-à-vis Mexico. Could you talk a little bit about what that work entailed?
FELDMAN: My pleasure. Protecting the cultural heritage of mankind from looting became a calling for me; my work with Mexico gave me the opportunity to change U.S. policy and to help shape a new international framework.
Q: You know, I always heard about this issue in terms of the Elgin marbles that were looted from the Parthenon in Athens and ended up in the British Museum. I know about Mexico’s rich pre-Columbian heritage, of course, but I didn’t realize that theft in Mexico was an instigator for the UNESCO Convention.
FELDMAN: Let me begin by mentioning a book that documents a good part of my story: Governing Guns, Preventing Plunder: International Cooperation Against Illicit Trade by Asif Efra. He writes about international norm-building in three or four areas—one of them being illicit trade in archeological objects and ancient art. He interviewed me at length for his doctoral thesis, and the book provides a good account of the evolution of U.S. policy.
When I became assistant legal adviser for ARA, one of the papers I found in my inbox was a diplomatic note from Mexico, drafted by Oscar Rabasa, requesting U.S. cooperation in recovering pre-Columbian artifacts and other cultural property that had been looted in Mexico and exported illicitly to the United States. The Mexican ask was demanding and comprehensive: the United States should take legal action to recover and return a wide range of cultural property stolen from Mexico and trafficked to the United States. The note explained Mexico’s problem and linked U.S. cooperation to continued Mexican help in recovering stolen automobiles trafficked across the southern border.
This was a new issue for me. I soon found that American archeologists were deeply concerned about the severe damage being done to archeological sites in Mexico, Guatemala, and other countries south of the border. Not only were looters excavating unknown tombs and buildings, preempting any scientific study, they were also cutting up well-documented sculptures, facades, and other irreplaceable artistic treasures. Clemency Coggins was a strong advocate for reform, as was Ian Graham, a photographer who demonstrated the despoliation of known Mayan sites including the precious glyphs that held the key to the mysterious Mayan language. And I remember a major story in the New York Times about a gorgeous, multi-colored wall of a Mayan temple that had been carved into pieces and brought into New York City for sale on the art market.
Q: And this issue transcended Mexico, right?
FELDMAN: Right. I also learned that looting was a global problem that was on the UNESCO agenda in Paris. A number of countries, including Mexico, Egypt, and Italy were working on a treaty to control illicit trade in cultural property, broadly defined. When I started, the U.S. did not support this effort on grounds that it was not U.S. policy to enforce the criminal laws of other nations. There was a deep divide among American stakeholders: archeologists generally favored strict controls on trade in ancient art whereas museums, collectors, and dealers argued that free movement of cultural material was important for artistic and educational purposes and to preserve the objects themselves from war, indifference, and pervasive corruption in many places. There was also great anxiety that UNESCO action would lead to demands for the repatriation of the great collections of ancient art in the United States and Europe. One positive sign, though, was that the International Council of Museums [ICOM] and the American Association of Museums [AAM] were moving towards new guidelines concerning acquisition of objects of questionable provenance.
Q: How did you respond to the diplomatic note?
FELDMAN: Once I learned what was at stake, I wanted the United States to help Mexico and to support UNESCO working towards a balanced program that would limit market incentives for looting while recognizing the positive value of international movement of cultural property. It was not hard to persuade the State Department and other agencies, but no progress was possible without support from stakeholders in the American art world. Fortunately, the American Society of International Law [ASIL] agreed in 1969 to host a panel of stakeholders to advise the State Department, represented by me. The panel included archeologists, art museums, antiquities dealers, and attorneys with William D. Rogers as chairman and Professor Paul Bator as secretary.
They were both outstanding men and became good friends. William D. Rogers was a partner in Arnold & Porter who had an important career in government service, including in the Kennedy Alliance for Progress and, later, as assistant secretary of state for Western Hemisphere Affairs and under secretary under Henry Kissinger. Ironically, in 1970 a political hack planted in L by the Nixon White House blocked Rogers from serving on my delegation to the UNESCO drafting committee.
Paul Bator was a distinguished law professor at Harvard and Stanford and principal deputy solicitor general. He was a member of my UNESCO delegation and wrote a marvelous article describing the eccentric proceedings that produced the convention. Must read: Paul Bator, Essay on the International Trade in Art, 34 Stanford Law Review, 275 [1982].
Thanks to Rogers and Bator, the ASIL panel was able to bridge the gap between sharply conflicting interests. It produced a report which allowed me to pursue three interrelated objectives: one, a bilateral treaty with Mexico; two, an Act of Congress prohibiting importation of pre-Columbian sculptures from Latin America without permission of the country of origin; and three, a multilateral UNESCO Convention based on the principle of non-retroactivity with import controls on archeological materials threatened by pillage. I’ll describe each measure in turn. Unfortunately, I have no records of the ASIL proceedings. I am relying on memory and State Department documents.
Q: Let’s start with the treaty.
“Oscar Rabasa appointed Jesus Angel Arroyo, secretary-general, Instituto Nacional de Antropología e Historia, to negotiate the treaty with me. We got along well, enjoyed a dinner together, and had no major substantive problems, but language and legal culture were a challenge. Jesus did not speak English, and I did not speak Spanish.”
U.S.-Mexico Treaty for Recovery and Return of Stolen, Archeological, Historical and Cultural Properties, July 17, 1970, TIAS 7088.
FELDMAN: This was an exciting experience from start to finish. First, the Mexicans and the embassy were wonderful hosts. This project gave me an opportunity to visit a number of important archeological sites, e.g., Teotihuacan, Oaxaca, and Monte Alban, as well as the spectacular new Museum of Archeology and Ethnology, and to explore Mexico City on foot in an era before pollution and drug gangs changed the landscape from charming to dangerous. I enjoyed the Saturday crafts market and returned there many times over the years. My primary guide was Ignacio Bernal, a distinguished archeologist and the founding director of the new museum who taught me a lot about Mexico’s pre-Columbian heritage. Sadly, the museum collection was looted a few years later and many priceless objects were lost; I still remember some of them.
Q: Who negotiated for Mexico?
FELDMAN: Oscar Rabasa appointed Jesus Angel Arroyo, secretary-general, Instituto Nacional de Antropología e Historia, to negotiate the treaty with me. We got along well, enjoyed a dinner together, and had no major substantive problems, but language and legal culture were a challenge. Jesus did not speak English, and I did not speak Spanish. Fortunately, both of us spoke decent French; we negotiated the treaty in French and had it translated into Spanish and English. [I majored in French at Wesleyan, studied in Paris and was more fluent in 1969–70 than I am today.]
Q: (laughs) You didn’t have anybody from the embassy helping you?
FELDMAN: They did help––I remember a reception in Ambassador McBride’s home––but this was a legal document and negotiations were one-on-one.
The best part was the signing ceremony. I was able to bring my wife, Marcia Feldman, to Mexico for a lovely diplomatic event and holiday in July 1970. The Foreign Ministry hosted a wonderful dinner featuring pigeon mole that made an impression on me. We left an eight-month old infant behind with her dear nanny for a few days only to learn on our return that the hot water system had failed. Fortunately, we had friends looking in on them. That daughter became interim dean of the Elliott School at GWU.
Q: Thank you, that’s a lovely story. What did the treaty provide for?
FELDMAN: The treaty was an important symbolic commitment at the time. It was the first step by any art importing country to address illicit trade in stolen cultural property, but the reciprocal obligations “to recover and return” were limited to pre-Columbian and colonial objects “of outstanding importance” [and official archives] that had become government property in the other country. The key feature was that the Justice Department would represent Mexico in court, if need be. In practice, the treaty was one-off and has been superseded by more aggressive actions by U.S. agencies.
Q: So, did the Mexicans continue to help us with stolen cars?
FELDMAN: Yes.
Q: And did the Senate ratify the treaty?
FELDMAN: The Senate gave “advice and consent” to ratification by the president.
Q: Right. I knew that.
FELDMAN: Senator Joe Biden used to make that mistake.
Q: So, this was the beginning. What was the next step?
“Working with Sam Gibbons, chairman of the House Ways and Means Committee, they tacked the State Department bill onto a private tax break Senator Herman Talmadge [Georgia] wanted for a constituent. That measure passed both houses by unanimous consent. That was the way Congress worked in the old days.”
Statutory Restriction of Imports of Pre-Columbian Sculpture or Murals, 19 U.S.C. 2091–95 [1972]
FELDMAN: This measure prohibits importation of pre-Columbian monumental or architectural sculpture or murals, to be designated by regulation, absent export approval by the country of origin or proof of export before the date of the statute. This unilateral action by the United States, which effectively closed the U.S. market to large pre-Columbian stone carvings or fragments, was endorsed by all members of the ASIL panel––a major step not replicated, to my knowledge, by any other art market. I developed this approach for the State Department and was proud of it, but it didn’t satisfy some archeologists because it did not apply to tomb furnishings. As far as I know, there was no opposition in Congress, but it took some doing to get action on the Hill.
Fortunately, my friend Michael Stern, then legislative assistant to Russel Long, chairman of the Senate Finance Committee, was willing to pitch-in. Working with Sam Gibbons, chairman of the House Ways and Means Committee, they tacked the State Department bill onto a private tax break Senator Herman Talmadge [Georgia] wanted for a constituent. That measure passed both houses by unanimous consent. That was the way Congress worked in the old days.
Q: Going back to the panel of stakeholders, were there any particular museums that were very helpful?
FELDMAN: Good question. I remember that the Metropolitan, the Smithsonian, and the University of Pennsylvania were engaged, and I recall speaking at a conference of the Association of Art Museum Directors in Cleveland and at the Walters Gallery in Baltimore.
Q: I think that Harvard is the owner of the Dumbarton estate in DC, and its museum includes a collection of Byzantine and Pre-Columbian art.
FELDMAN: Well, Clemency Coggins was at Harvard’s Peabody Museum. She played a major role in publicizing this problem and was not satisfied with our response. On the other side, Dumbarton Oaks has a fascinating collection of Pre-Columbian art, including masks, axes, and jade. Many students visit there to study these objects and draw them. Seeing them at work reminded me how important museums are for American life and for appreciation of foreign cultures.
“The United States was the first market state to support international controls on illicit trade in cultural property, and our participation was decisive for this project. It took a long time, but today one hundred forty-one countries are party to the 1970 Convention, and most Western institutions require proof of provenance.”
Q: I’d like to ask you now about the UNESCO Convention.
FELDMAN: To set the stage, UNESCO convened a Special Committee of Governmental Experts at Paris in April 1970 to consider a draft convention prepared by the Secretariat based on the suggestions of interested Member States, e.g., Egypt, Pakistan, Mexico, and some African countries. Responsive to their demands, the Secretariat proposed a comprehensive scheme, brutal but coherent, that would have required all parties to refuse import of any cultural property, broadly defined, not accompanied by an export certificate from the country of origin. As few art-rich countries authorize export of cultural property, particularly developing countries, this concept aimed to terminate international trade in cultural property. In consequence, no art importing state supported the UNESCO project and important market states, e.g., the United Kingdom and Switzerland, did not attend the meeting.
The United States was the first market state to support international controls on illicit trade in cultural property, and our participation was decisive for this project. It took a long time, but today one hundred forty-one countries are party to the 1970 Convention, and most Western institutions require proof of provenance. The first step was to persuade the Paris conference to change course. The U.S. delegation prepared an alternative draft convention that we hoped would be broadly acceptable to art-importing and exporting countries. The most fundamental points were one, the convention would not be retroactive; acquisition guidelines would be forward looking, and two, import controls would be limited to cultural property stolen from museums and to specific categories of archeological interest threatened by pillage to be determined by agreement among the countries concerned. Our aim was to dampen market incentives for looting that threatened the cultural heritage of mankind, not to enforce other countries’ export controls.
Q: How did that go?
FELDMAN: We expected to present the draft to the committee for consideration along with the Secretariat draft, but were not permitted to do so. In consequence, we had to present amendments to address each problem in this lengthy, complex text. There were dozens of votes. With help from the Mexican, German, and French delegations, we won some votes and lost others, sometimes by one vote. The convention that resulted from this madhouse [45-0] is a jumble with broad definitions, high principles and a few tight obligations with considerable national discretion. This process has been well documented in Paul Bator’s excellent article, 34 Stanford Law Review 275 [1982]; my Statement to the Special Committee, April 13, 1970 [which lays out the new U.S. policy and rationale], State Department Bulletin, July 6, 1970, pp. 22-24; and the U.S. Delegation Report, Feldman and Bettauer, Report of the United States Delegation to the Special Committee of Governmental Experts to Examine the Draft Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, done at UNESCO House, Paris [April 13-24, 1970], dated July 27, 1970. The report includes a detailed summary of the preparatory work, including votes on key provisions.
Q: And how did U.S. stakeholders react?
FELDMAN: We had no difficulty obtaining Senate advice and consent [1972], because the department proposed a reservation relating to export controls and a number of understandings [interpretations] clarifying treaty language, and agreed that the convention was not self-executing. Implementing legislation would be required before U.S. accession. I testified twice on bills prepared by State: Convention on Cultural Property Implementation Act [CCPIA], Subcomm. Int. Trade, Senate Finance Committee, 95 Cong., 2d, Sess., February 8, 1978; CCPIA, Subcomm. Int. Trade, House Ways and Means Committee, 96 Cong., 1st Sess., September 27, 1979. But it took thirteen years to obtain that legislation. Convention on Cultural Property Implementing Act [CCPIA], P.L. 97-446, 19 U.S.C. 2601 et seq. [1983]. By then, I had left the department for private practice.
Q: What were the problems?
FELDMAN: There were two problems: one, the antiquities dealers, always doubtful about the convention, opposed import controls because they feared the State Department would use that authority as a bargaining chip for diplomatic purposes unrelated to protecting the cultural heritage. They found an ally in Senator Patrick Moynihan. Two, UNESCO policy towards Israel infuriated many policy makers, leading Senator Ribicoff to block action on the legislation for years. For my exchanges with Moynihan and Ribicoff, see Hearings on H.R. 5643 and S. 2261 Before the Subcom. On Int’l Trade, Sen. Finance Comm. 95th Cong. 2d Sess 23 [1978].
Q: What import controls were at issue?
FELDMAN: Convention Article 9 calls on States Party, upon request by a State Party whose “cultural patrimony is in jeopardy from pillage of archeological or ethnological materials,” “to participate in a concerted international effort to…carry out the necessary concrete measures…[including import controls, and provisional measures] to prevent irremediable injury to the cultural heritage of the requesting State.” [emphasis added] The art community was understandably concerned that other market states would be slow to adhere to the convention and that trade lost to the U.S. would be diverted elsewhere. I believed that the U.S. should lead these reforms, but worried that we might find ourselves in a difficult position in collective negotiations pursuant to Article 9 as the sole art market state facing demands by groups of states with a common goal to limit art exports to the U.S. market.
Q: What did you propose?
FELDMAN: My solution was to ask Congress to authorize the State Department to make bilateral agreements for import controls with countries damaged by pillage of their cultural heritage. I added that provision to the revised bill State sent to the Hill in 1977. The bill also gave the executive emergency authority to establish import controls unilaterally in crisis situations. Malcolm Weiner, then general counsel of the Archaeological Institute of America [AIA], helped me draft the latter. Critics of the program pointed out correctly that the convention did not specify bilateral agreements. That was my innovation.
Q: What did Congress do?
FELDMAN: Having moved to private practice, I was not involved in the end game. In 1983, Assistant Legal Adviser Ely Maurer [L/ECP] succeeded in resurrecting the legislative process, and the antiquities dealers, well represented by James Fitzpatrick of Arnold & Porter, persuaded Congress to add a number of safeguards, including a Cultural Property Advisory Committee [CPAC], to protect art interests.
Over the years, the State Department has negotiated dozens of bilateral agreements and there have been numerous complaints that State has abused the process for diplomatic reasons as the dealers originally feared. Moreover, a great deal has changed since 1970. It took decades, but the norms established at Paris are widely recognized. In the West, at least, collecting institutions and auction houses generally will not accept objects with uncertain provenance absent proof they were exported before 1970. Moreover, federal agencies, including the Justice Department, have invoked other authorities, e.g., the National Stolen Property Act, 18 USC 2311-2318, to prosecute dealers, seize imports, and force repatriation of looted antiquities. See William Pearlstein.
Ironically, I’m now seen as a friend of the collector community. Someone opposing current U.S. practice may say: “This is not the deal we negotiated with Mark Feldman” or, more precisely, “This policy is contrary to the U.S. position negotiated with UNESCO in 1970 and adopted by Congress in 1983.”
For researchers interested in my perspective on these developments, see presentations I made to:
1. The ABA International Law Section: Mark B. Feldman, The UNESCO Convention on Cultural Property: A Drafter’s Perspective, Art & Culture Heritage Law Committee Newsletter, Vol. 11, Issue No. 1, Summer 2010, (scroll to page 2 for article)
2. A Symposium organized by Cardozo Law School and the Committee on Cultural Property: Mark B. Feldman, Reform of Cultural Property Policy, April 10, 2014.
Q: Did you practice in this area after you left government?
FELDMAN: The matters that came my way were extremely interesting. In the 1980s, when Arnold & Porter had a conflict regarding a proposed bilateral with Canada, Jim Fitzpatrick asked me to represent the dealers to the State Department. Later, I represented an American family seeking restitution from the Netherlands of Dutch masters seized by the Nazis. I also represented Sigrid Biow, the daughter of August Sander, the great German photographer, in a transnational family dispute over his cultural estate. We were able to recover some vintage photographs by negotiation in America and compensation by litigation in Germany. Beginning with the fortieth anniversary of the 1970 Convention, I have written a number of articles and briefs addressing, mainly, cultural property cases arising under the Foreign Sovereign Immunities Act [FSIA]. The FSIA was one of my major projects in government. See, e.g., Brief of Amicus Curiae Mark B. Feldman, Cassirer v. TBC Foundation, U.S. [2021]
CURRICULUM VITAE HIGHLIGHTS
Education
AB in French with Distinction in Government [Vichy: The War Within a War], Wesleyan University-High Honors, Phi Beta Kappa, 1953–57
Diplôme, École Supérieure Pour la Préparation et Perfectionnement des Professeurs de Français à l’Étranger – Sweet Briar Junior Year Abroad; French government scholar; auditor L’École Supérieure de Science Politique, 1955–1956
LLB, Harvard Law School-magna cum laude, Law Review, 1957–1960
Joined the U.S. Department of State 1965
Attorney-Adviser, L/Far East Affairs, 1965–1967
Assistant Legal Adviser, Security and Consular Affairs, 1967–1968
Assistant Legal Adviser, Inter-American Affairs, 1968–1974
Deputy Legal Adviser and Acting Legal Adviser, 1974–May 1981