Culture has been defined by Edward Tylor as “that complex whole which includes knowledge, belief, art, morals, law, custom and any other capabilities and habits acquired by man as a member of society.” Culture is a total way of life of a social group. If a culture outlives generations, it is inherited by one generation from the one preceding it; hence the term “cultural heritage”. Cultural Property is the tangible demonstration and manifestation of the artistic, ethnic and cultural legacy and heritage. It constitutes the physical items which are the constituents of the cultural heritage of a particular group or society. They are inclusive of creations like historical monuments, buildings, artistic works, archaeological sites, libraries, museums, manuscripts, books, etc.
Trafficking in Cultural Property
The estimated value of the cultural property, regardless of whether archeological or ethnological in nature, is incalculable. Such properties frequently comprise the very substance of society and pass on significant data concerning the people’s origins, history, and customary setting. The significance and popularity of such invaluable things, unfortunately, makes them the focuses of robbery, supports undercover plundering of archeological sites, and results in their unlawful import and export.
Genuine Cultural Property is considered worthy of protection because – it is intrinsically unique and can’t be reproduced in its original form; it is vulnerable to various factors like human misunderstanding, environmental degradation, change of tastes, neglect, occasional incidents of destruction etc.; it involves both the “known” (places that we can visit and experience) and the “unknown” (our undiscovered past) which is irreplaceable.
Organized criminal groups are progressively being involved in the trafficking of cultural property both through legitimate markets like auctions and illegitimate underground markets. It is also a vital source of laundering the crime proceeds and a plausible source of terror financing. Trafficking of Cultural property includes thefts of artwork, books, furniture, weapons etc., illicit excavation of archaeological and paleontological items, sale of fake artwork polluting the legitimate market etc.
Measures taken to Prevent Trafficking in Cultural Property
Various measures have been taken from time to time to prevent the trafficking in cultural property. Various international conventions, intergovernmental treaties and domestic legislation have been passed from time to time in attempts to preserve the cultural property and prevent it from being trafficked. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was the first-ever international treaty which focused exclusively on protection of cultural property in armed conflicts.
The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import Export and Transfer of Ownership of Cultural Property was enforced on 24th April, 1972 where the state parties are required to elaborate draft national legislations, set up national services for the preservation of cultural property, promote museums, libraries, archives etc., set up national inventories, promote adoption of code of conduct for dealers in cultural property, develop educational programs for developing respect for cultural property, prohibit import and export of stolen cultural property accompanied by penal sanctions, return the stolen cultural property at the desire of the state of its origin with all the proofs to support such claims etc. Later, the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects were also brought into force.
Long before the vitality of cultural property was recognized on an international level, India granted the cultural property its due importance. The Indian constitution (1950) grants to the citizens the right to preserve their culture under article 29 and imposes upon them a duty to preserve the rich cultural heritage of our nation under article 51A(f) of the constitution. The Indian Government from time to time has been putting in enormous efforts in order to preserve the cultural property and prevent their illicit trafficking through various laws like The Ancient Monuments Preservation Act, 1904, The Treasure Trove Act, 1878, The Ancient Monuments and Archaeological Sites Remains Act, 1958, The Ancient Monuments and Archaeological Sites Remains Rules, 1959, The Antiquities and Art Treasures Act, 1972, The Antiquities and Art Treasures Rules, 1973, The Delivery of Books’ and Newspapers’ (Public Libraries) Act, 1954, The Delivery of Books (Public Libraries) Rules, 1955.
Various organizations have been created for keeping a check on the trafficking of cultural property. On the International level, organizations like United Nations Office on Drugs and Crime (UNODC), International Criminal Police Organization (INTERPOL), World Customs Organization (WCO), International Institute for the Unification of Private Law (UNIDROIT), UNESCO and the International Council of Museums (ICOM) strive to prevent trafficking in cultural property. UNESCO has been undertaking numerous ways to spread awareness through films, video clips, publications etc., developing mediation and conciliation rules and regulations on cultural property conflicts, encouraging adoption of code of ethics for dealers, presenting model export certificate, maintaining a database of all national cultural heritage laws and property etc.
INTERPOL has been insisting upon the maintenance of a database for stolen cultural art, putting up of posters for the same “purple notice” to seek and provide information regarding the modus operandi, objects, devices and concealment methods used by criminals in trafficking. The WCO on the other hand, uses its real-time communication platform ARCHEO which enables the provision of training materials, manuals, guidelines for identification and other seizure-related information.
Despite the existence of multiple laws to prevent smuggling of cultural property, the illegal trade market of genuine artwork is estimated to be more than $6 billion annually by Global Financial Integrity, a Washington-based advocacy group. India, with its redoubtable cultural heritage and legacy, bureaucratic apathy and tardy implementation of antiquity-protection laws, offers the pilferers golden opportunity to plunder the past spirit away for its sale in the international bazaar. Though the Antiquities Act mandates the owners of cultural antiques to register the items with the Archaeological Survey of India (ASI), very few of the multifarious antiquities are registered with the ASI.
An unfair clause in the aforementioned act is the one which empowers the State to mandatorily obtain artwork from its owner even without any just and reliable assessment of a fair price. The Comptroller and Auditor General had stated in 2013 that the ASI had never participated or collected any information about the Indian antiquities sold at the Sotheby’s or Christie’s as there isn’t any clear provision to do so in the Antiquities act 1972. A senior official explained how Museums and ASI are highly understaffed with excessive paperwork requirement in addition to the flaws in the legislations which make this process cumbersome.
Future Prospects and Suggestions for Improvement
As laid down in Prosecutor v. Strugar, the International Criminal Tribunal for the former Yugoslavia asserted that the perpetrators of purposive harm to historical sites during armed conflict should be held liable in international tribunals. Smuggling of the antiques has to be addressed urgently and with more agility through law enforcement mechanisms, pro-active market regulations and collaboration.
Cooperation and partnership among the collectors, archaeologists, transport companies, insurance companies, governments, museums, dealers, free-ports, customs authorities and other related parties to create a public-private platform to fight the lucrative smuggling market. Furthermore, increased public awareness campaigns, stakeholder cooperation in addition to stronger international and domestic regulations concerning this issue may ensure the development of a positive thrust and help make a difference, thereby helping save our collective cultural heritage and legacy.
In addition to the aforementioned measures, Indian government should prioritize the preservation and protection of our cultural heritage which defines the essence of what India is. There should be an increase in the number of employees of the ASI and other related organizations so to maximize efficiency and minimize thefts, burglary and ruination of cultural property. The processes involved in registration of antiquities should be simplified such that more and more invaluable items of cultural importance can be registered for protection and preservation. The Legislature should take immediate steps to overcome the flaws in the legislations.
As is evident, there’s a dire need for more pro-active measures in order to secure the future of World heritage. There should be an increase in the number of parties to international and bilateral treaties on acceptable ways and methods of handling and exchanging looted cultural property. These agreements should deter the unscrupulous buyers and sellers in the ratifying nations from commission of the said offences. Indeed, it is true that quite fruitful investigations have been conducted with the help of pro-active law enforcement strategies in order to counter the organized crimes like insider tips, undercover and sting operations etc.
To improve the ownership documentation and reporting of stolen items, all-inclusive and comprehensive inventories of public collections should be established where they do not exist yet. Furthermore, there should be an attempt to raise the public awareness to understand the vitality and relevance of cultural heritage to the history of a nation and its natives and the need to preserve and conserve it.
 Supra note 3.
 Supra note 3.
 Prosecutor v. Pavle Strugar (Trial Judgment), IT-01-42-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 31 January 2005, available at: https://www.refworld.org/cases,ICTY,48ad42092.html [accessed 21 September 2020].
About Author – This article has been written by Garvit Daga, the author is a Second-year BALLB student at NALSAR University of Law, Hyderabad. Areas capturing his interest are Contract, Criminal, Family and Tort Law. He has an emerging interest in Tax law. With profound interest in research, he has a deep insight on various aspects of the abovementioned laws.
Also Read – Issues in Commercialization of Intellectual Property