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Forrest, Craig --- "The illicit trade in Iraqi heritage: Considerations for the Australian art and antiquities market" [2004] AltLawJl 33; (2004) 29(3) Alternative Law Journal 121

Considerations for the Australian art and antiquities market


The interpretation and implementation of the Convention designed by UNESCO to deal with the issue of the illicit trade in cultural heritage (the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,[1] hereafter referred to as 'the Convention'), is coloured by two competing perspectives. These are, whether international law should recognise the source state as having the absolute right to control cultural heritage found in its territory, or whether cultural heritage that could be considered important to all humankind should limit this right, and vest at least some rights in other states to acquire such cultural heritage. When considered in light of cultural heritage from the 'cradle of civilisation' that lies between the banks of the Tigns and Euphrates, these competing perspectives become quite distinct. A critical evaluation of the illicit trade in Iraqi cultural heritage exemplifies the shortcomings in 'source' states' abilities to protect their own cultural heritage, and evinces a desperate need for 'market' states to restrain their rampant demand for this heritage and take a more active role in the protection regime for our shared heritage. [2]

Australia's ratification of the 1970 Convention and its implementing legislation, the Protection of Movable Cultural Heritage Act 1986 (Cth) (PMCHA), has secured Australia's commitment to assist foreign states in the protection of their heritage. Traditionally not a prominent market state for foreign cultural heritage, Australia has had limited involvement in the fight to prevent the illicit trade. However, Australian engagement 1n the conflicts in Afghanistan[3] and Iraq has brought 1t into direct contact with the illicit trade in Middle Eastern cultural heritage and events, around which important aspects of international cultural heritage law are being considered. In particular, the destruction of the National Museum and Library in Baghdad; the disintegration of the regulatory structure applicable to cultural heritage and the failure of the Coalition forces (those forces primarily from US, UK and Australia) to protect cultural heritage sites have contributed to the illicit trade. Developments in the major art market states of the US and UK in response to these recent events, including the attitudes of a number of prominent museums and increasing private collector lobbying, suggest that a gulf between market states' and source states' attitudes to the illicit trade still exists notwithstanding the apparent attitudes of market states such as Switzerland and UK in ratifying the 1970 Convention.[4] How these tensions are to be dealt with and resolved will affect museums, galleries, auctioneers, dealers and collectors in all market states, including Australia. This is particularly so, not only with regard to Middle Eastern cultural heritage, but also that of Asian and Pacific states, which has a market in Australia, and with which Australians are having a greater degree of direct contact.

The illicit antiquities trade

The trade in illicit antiquities is not new. The art and antiquities markets of the developed world continue to demand vast quantities of cultural heritage, most of which originates in developing states of South America, Africa, the Middle East and Asia. While many of these source states have legislation that either vests ownership of all cultural heritage in the state, or at the very least prohibits export without a licence, it is extremely difficult for these states to enforce the legislation. Corruption, maladministration, poorly funded cultural organisations and police, and most importantly, few altemat1ve lucrative assets available to poor locals, fuel illicit excavations and trade.

The illicit trade in Iraqi cultural heritage has existed since the end of the 1990 Gulf War.[5] Pnor to th1s, Iraq had one of the strictest and most effective protection policies in the world, and little Iraqi heritage left the country, legally or illegally.[6] However, in the wake of US victories in 1991, the museums in Kirkuk, Mosul and Basra were looted.[7] Following the imposition of sanctions, and the subsequent collapse of the economy, cultural heritage was perceived to be the only hard currency remaining and illicit excavations of archaeological sites soon began. This destruction of Iraqi cultural heritage was given dramatic impetus by the 2003 invasion. On entering Baghdad, Coalition forces failed to provide any protection to the city's cultural heritage institutions, a surprising omission given the looting of the museums that occurred in 1991. As a result, the National Museum and Library in Baghdad and the Mosul Museum and library were extensively looted.[8] Since this initial catastrophe, archaeological sites throughout Iraq have been targeted and subject to extensive destruction and ill1cit excavation.[9] The first looted antiquities from the National Museum have now appeared on the art markets in New York and Rome.[10]

An initial response to the looting was the adoption in May 2003 by the United Nations Security Council of Resolution 1483, which replaced the sanctions imposed on Iraq after the 1990 Gulf War. The resolution requires member states to

take appropriate steps to facilitate the safe return to lraqi Institutions of lraqi cultural property ... including by establishing a prohibition on trade in or transfer of such items and items in respect to which reasonable suspicion exosts that they have been illegally removed ...[11]

Coalition states' responses to this resolution have differed, and have been largely dependant on each state's existing policies in regard to foreign cultural heritage and implementation of the 1970 Convention.

The 1970 Convention

The Convention's underlying rationale, expressed in article 2, acknowledges that the illicit trade in cultural heritage 'is one of the main causes of the impoverishment of the cultural heritage of the countries of origin' and '[t]o this end, the states Parties undertake to oppose such practices ... particularly by removing their causes ... ' The major cause of the illicit trade is the very existence of the demand-driven market for the heritage; something that most developed market states would not wish to dramatically alter; and, it could be convincingly argued, have succeeded in not altering, notwithstanding their acceptance of the Convention. This has been achieved by ensuring that the primary obligation under the Convention is born by the source states.

The Convention essentially sets out to establish a system of export and import controls. The primary obligation is placed on the source states, as evinced in the preamble that 'it is incumbent upon every state to protect the cultural heritage existing in its territory against the dangers of theft, clandestine excavation and illicit export'. Source states are required to fulfil a number of onerous measures, including establishing national services with sufficient qualified staff to: draft protective laws and regulations; establish and maintain cultural heritage inventories; establish institutions such as conservation laboratories and archives; supervise archaeological excavations; ensure the observation of ethical standards of cultural heritage professionals; undertake educational measures designed to ensure the protection and respect of cultural heritage and ensure that stolen cultural heritage is given due publicity. Most importantly, states are required to establish a system of export certificates and impose penalties or administrative sanctions for exporting cultural heritage without an export licence. These are clearly onerous obligations for cash-strapped developing states.

When faced with obligations to address the illicit trade, market states have baulked at the perceived difficulties and expense that this entails. This was clearly the case when market states interpreted the Convention as requiring them to institute a comprehensive import regulation regime at their borders.[12] Markket states have too readily pointed to poverty, corruption and maladministration that exist in many source states as the causes of the illicit trade rather than addressing demand-side factors that could reduce the trade. This is reflected in the Convention and market states duties can be narrowly construed. The duties of market states are said to be contained primarily in article 3, which declares that 'the import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under the Convention by the states parties thereto shall be illicit'. This article has been the subject of much debate, with the US and Australia evincing polar interpretations. The debate turns on whether this article imposes on state parties a broad duty to regard all cultural property exported from a source state without an export certificate to be illicit Australia has implemented this broad interpretation. The US, however, has rejected the broad interpretation, arguing that this article is limited by the provision that requires states to ensure that museums and similar public institutions not acquire illegally exported cultural heritage.[13] This will only apply to cultural heritage exported after the Convention entered into force for both source and market state. Should the source state not be a party to the Convention, the article will not necessarily be operative, an unfortunate consequence for those developing states that simply have not been able to accept the Convention, which often happens due to lack of funds and expertise.

A further limiting provision imposes a duty to prohibit the import of only a subcategory of illicit cultural heritage: that which has been stolen from a source state's museum, or secular or religious monument, after the entry into force of the Convention for both source and market state, and which has been inventoried by the source state. As such, it simply will not apply to situations where the cultural heritage is illicitly excavated and then illegally exported. It is also the case that the market state need only take appropriate steps to recover and return the heritage if the source state complies with a number of onerous obligations, Including making a request for the return through diplomatic channels; bearing all expenses incident to the return of the heritage and providing all documentation and evidence necessary to establish its claim. Most onerous, however, is the requirement that the source state must pay 'just compensation to an innocent purchaser or to a person who has valid title to that property'. In many cases, once the cultural heritage has reached the market, most source states will not be able to afford to reimburse a purchaser for the price paid on the open market.[14] While the duties ofthe source state are clearly identified, those of the importing market state are less so, given that they are simply required to take 'appropriate steps' for the return of the heritage. As O'Keefe notes, this may simply amount to 'advising the requesting state to take legal proceedings'.[15]

A further limited market state obligation is imposed in relation to the antiquities trade. In order to make it easier to trace illicit heritage, the Convention requires states to ensure that antiquity dealer,; maintain a register recording details of all traded items, including origins, descriptions, prices and the suppliers' details. Dealers are also required to inform the purchaser of the export prohibition to which the cultural heritage might be subject. It is unfortunate that the obligat1ons in this regard are limited to those that are 'appropriate for each country'. Certainly such a limitation does benefit poorer states that might simply not have the wherewithal to implement and enforce such measures.

Market states, however, should be able to implement these obligations, though many-including the three key Coalition states-have not. Provenance is of the utmost importance, and a complete and accurate provenance of an item for sale inevitably leads to a higher sale price; so fulfilment of such an obligation would be beneficial to both source and market states.

Coalition states' implementation of the Convention

While the two lead states of the Coalition (the US and UK) and Australia are now party to the Convention, their interpretations and implementation have differed quite dramatically.[16] Their reactions to recent events that have contributed to the trade in Middle Eastern cultural heritage and the dynamic; between museums, collectors, dealers, and governments and their heritage agencies have also d1ffered. The US is the world's largest and most lucrative art and antiquities market, and recent events within that state have highlighted a great divide between different institutions with an interest in foreign cultural heritage.

The US and the illicit trade

The US acceptance of the Convention, accompanied by a reservation and six 'understandings', and its implementation domestically, are often regarded as the bare minimum required· in order to comply with the spirit and core content of the Convention.[17] In its acceptance, the US declared that it 'reserves the right to determine whether or not to impose export controls over its own cult1,1ral property', but in fact it has not done so. Given that the Convention's primary obligation is on source states, this decision to allow US cultural heritage to be freely traded has clearly resulted 1n its market state obligations being narrowly construed. This is reflected in the 'understandings' of the terms of the Convention, which include limiting the import restrictions only to those items stolen from a foreign state's museums or similar institutions, and to only limit import by those public institutions whose acquisition policies are subject to government control, which are remarkably few in number.[18] Article 3 of the Convention, which has been regarded by many states, including Australia, as providing for a regime that regards all cultural heritage illegally exported as illicit and subject to forfeiture and repatriation, is regarded by the US as 'a mysterious provision that will not be operative in the United States'.[19]

US regulators have been loath to interfere with the art and antiquity market and have not implemented the provision that requires dealers and other handlers to keep registers of traded heritage at a federal level, but have left it to the state governments to address. Most have failed to do so, and those which have a thriving market, such as New York, are unlikely to do so.[20]

However, the US has not altogether opted out of a robust protection regime and has relied heavily on bilateral agreements provided for in the Convent1on in circumstances where the source state's cultural heritage is in 'jeopardy from pillage'. Such agreements exist with a number of states, allowing for a system of import controls prohibiting much of the cultural heritage from the source state entering the US.[21] Once again however, it is the source state that will bear the burden of having to prove to the US that the conditions required for such assistance are met. This would ordinarily have been extremely difficult, if not impossible, in cases such as Iraq where no effective government remains. Fortunately. given UN Resolution 1483, the US Senate adopted implement1ng legislation that prohibits the import of Iraqi cultural heritage since August 1990. This legislation now lies before the House of Representatives.[22]

Perhaps the US reliance on article 13(c) will have a greater effect on illicit trafficking in foreign cultural heritage than any other aspect of the Convention. Since this article simply requires the state party to admit actions for recovery of stolen cultural heritage here was no actual implementation by the US since these actions were already admitted. Unfortunately this article is limited to lost or stolen cultural heritage, and does not necessarily apply to that which has merely been illegally exported. However, since 'lost' or 'stolen' is not defined, it is left for each state party to define what is stolen in their jurisdiction. Many source states vest all cultural heritage, including undiscovered heritage, in the state, and any illicit excavation and export would be regarded a stolen state property. The US has admitted such actions in the past, and again more recently in the case of Fredrick Schultz, to the consternation of many in the US antiquities industry. Schultz, a prominent antiquities dealer, and past President of the National Association of Dealers in Ancient, Oriental and Primitive Art, was charged with dealing in stolen property, where the property in question had been illegally excavated and exported from Egypt; the Egyptian legislation vesting all such heritage in the state.[23] Schultz's appeal on conviction evinced polar support bases. Amicus curiae briefs in support of Schultz were filed by a number of dealer associations, while briefs in support of the prosecution were filed by the leading archaeological associations. This clear split 1n opinion between private interests and public cultural heritage administrators, some museum professionals and academics is increas1ngly evident. The former obviously reacted negat1vely to the Appeal Court decision to uphold Schultz's conviction and the Court's perceived support for the 'retentionist' policies of source states. A notable group of collectors and museum professionals have recently formed the American Council for Cultural Policy to oppose source state policies and to lobby for US law amendments to 'minimise efforts by foreign nations to block import into the US of broadly defined categories of objects, particularly antiquities'.[24] Some members of the Council have voiced suggestions that the tough Iraqi laws preventing the export of cultural heritage be amended and the Director of the Metropolitan Museum of F1ne Arts has been reported as suggesting that US museums be allowed to participate in new archaeological digs and receive export permits for recoveries.[25] Museums in many developed states feel under threat not only with regard to policies associated with the existing illicit trade, but also with respect to cultural heritage acquired legally, but subject to source state rest1tution claims, the foremost of which is Greece's cla1m to the return of the Parthenon Marbles. The International Group of Organisers of Large-Scale Exhibitions, which consists of the directors of the world's leading museums and galleries, has been actively promoting the concept of the universal museum

as a buffer to source state restitution claims, arguing that museums containing cultural heritage from numerous states serve 'not just the citizens of one nation, but the people of every nation'.[26] While the latter assertion has some substance, it is of concern that museums and collectors in the US appear to have little sympathy with source state's claims and inabilities to control the trade in cultural heritage."

The UK and the illicit trade

The UK has long had one of the world's most important art and antiquities markets, through which much of the world's illicit cultural heritage has travelled. It is therefore not surprising that the first looted antiquities from Baghdad to be setzed had passed through the London market.[27] It had been hoped that UK acceptance of the Convention, which took effect from 1 November 2002, would lead to more stringent protective measures being introduced. However, on the advice of the UK government's Advisory Committee on Illicit Trade in Cultural Heritage, it was considered that existing UK law was sufficient to implement the terms of the Convention. Clearly a rather narrow interpretation of the Convention was taken by the Advisory Committee. The Committee did however, recommend that some new legislation to address additional criminal offences would be advantageous.[28] As such, the UK adopted the Dealing in Cultural Objects Offences Act. [29] Initiated as a private member's bill, the emerging illicit trade in Iraqi heritage prompted government support, though the legislation will not apply retrospectively and therefore will not cover the looting of the Baghdad institutions. The legislation also suffers from a difficulty inherent in such legislation: the setting of the burden of proof. The prosecution has to prove that the accused knew or believed that the cultural heritage was illicitly recovered or exported; being suspicious is insufficient.[30] It would also have to be proved that the cultural heritage was illicitly excavated after the legislation came into force, a most difficult prospect for poor source states. It is not surprising that the UK's administering department has therefore estimated that there will probably only be one prosecution every two or three years; a great relief to the market.[31]

While the Advisory Committee recommended the construction of a database of stolen and illicitly excavated and exported cultural heritage, those in the trade are not required to use this to check the provenance of the heritage. Given that the burden of proof under the new legislation is so high, failure to utilise the resource will probably not be detrimental to an accused. The Advisory Committee noted that much of the trade is self-regulated through codes of practice, and though it noted that these are often 'disparaged as lacking both legal and punitive force', it effectively supported such a regulatory scheme and regarded the existing regulation requiring dealers to register for VAT purposes and keep a limited record of transactions as sufficient to meet this International obligat1on.[32] It is therefore unlikely that dealers will keep more detailed records on provenance than they currently do and they will be under no greater obligation than before the UK became a party to the Convention.

While dealers and other handlers might have been reassured by these easily evaded offences, a rather more onerous burden was imposed in relation to the issue of the looting of Baghdad Institutions. To give effect to UN Resolution 1483, an Order in Council[33] was introduced that bans the trade in illicit Iraqi heritage and,

1mportantly, reverses the burden of proof 1n relation to the mental element of the offence so that defendants will bear the burden of proving that they did not know that the Iraqi heritage was looted. Unfortunately it may be difficult to reconcile these measures with the Human Rights Act 1998, and therefore may be impossible to enforce.[34]

Clearly the UK Government is experiencing some difficulties in finding the delicate balance between ensuring that the lucrative art and antiquities markets are not harmed, whilst trying to respect source state rights to their cultural heritage.

Australia and the illicit trade

The risk of Australians, whether military personnel, government officials, journalists or NGO members, bringing looted Iraqi antiquities into Australia does exist. Such cases have emerged in the US, the first of which was the arrest of prominent writer Joseph Braude by New York Customs for importing three cylinder seals with the Iraqi Museum inventory number still attached. [35] It is unfortunate that should a similar importation be attempted into Australia, it is unlikely that such an arrest would be made by customs since Australia, unlike states such as Canada and the US, has not Implemented the protection regime at the customs barrier, but rather relied on source state Information to detect the illegal export from the source state and subsequent importation into Australia.

The Australian implementing legislation, the PMCHA, provides that where a protected object of a foreign country has been exported from that country; the export was prohibited by a law of that country;and the object is imported; the object is liable for forfeiture. This provision has been regarded by some commentators as 'liberal'[36] in the sense that it provides far greater protection than might have been necessary in implementing the terms of the Convention. This is primarily because the section lacks a cut-off date for the illegal export from the source state.[37] A number of important source states have protective legislation dating back many years.[38] While the legislation applies to any object imported into Australia after the Act came into force, there is no time requirement for the illegal exportation from the source state. There is also no requirement that the exporting state also be a party to the Convention. Australia will therefore regard any such export as illicit and the source state may act to have the heritage returned to it.[39] Th1s implementation of the Convention would most certainly apply to any Iraqi heritage imported into Australia that had been illegally exported from the time the Iraqi laws were adopted. However, as Tolhurst notes, 'the most distinguishing aspect of the enforcement provisions is that customs officers form no part of the enforcement mechanism'.[40] While federal; state and territory police officers are inspectors under the Act, customs officers are not, and cannot seize objects unless a seizure warrant for forfeited goods under the Customs Act is issued. Before this will occur, the Commonwealth must have received from the source state a request for the return of the object. Thus, while the Australian regime is liberal to the extent it assists a source state, it is left to that state to discover that its cultural heritage is being illicitly excavated and exported, identify the objects, identify Australia as the state of import, and identify the persons holding those objects before there is a possibility that the object might be seized and returned. This is clearly an extremely high hurdle for developing states, particularly those such as Iraq and Afghanistan that will simply not have the resources to meet these requirements.

Australia, like 1ts Coalition partners, has implemented legislation to address UN Resolution 1483. The Iraq (Reconstruction and Repeal of Sanctions) Regulations make it an offence to trade in items of Iraq's cultural heritage that were illegally removed from Iraq after 2 August 1990.[41] The offence may be committed if a person 'ought reasonably to suspect was illegally removed from' Iraq; a less controversial burden of proof than that of the UK implementing legislation. The regulations also require anyone in possession of such Iraqi heritage to hand it over to the appropriate authorities, which includes UN personnel, Australian Defence Force members and federal and state police, but again does not include customs officers. This is not surprising given the PMCHA structure, but does create additional risks in that it would be much easier for this heritage to enter Australia than would be the case if customs were involved. Given the ease of import, and the inability of Iraqi officials to trace this illicit heritage, those in the Australian art and antiquities market who might come into contact with such heritage need to be especially cautious and exercise restraint in acquiring items of dubious provenance.

Conclusion: a need for demand-side restraint

The imbalanced apportionment between source and market states' duties in the 1970 Convention has left source states unable to address the loss of their heritage. Occurring in the charged political climate of the Coalition deployment in Iraq, the looting of Iraq’s cultural heritage institutions and the growing illicit trade has required Coalition states to address this issue in a way not needed before. In the US and UK, the precipitous nature of the debate on Iraqi losses has clearly caused a slight, but uncomfortable, shift in policy with regard to the world's most lucrative art and antiquities markets. Unfortunately, the market itself, particularly in the US, has reacted negatively to perceived government and judicial support for source state 'retentionist' policies. While this response is not evident in Australia, given the manner in which the Australian legislation implements the Convention there may very well be the risk that Australian dealers, museums and other handlers are exposed to illicit heritage which the source state is simply not able to protect. The temptation to simply do nothing and rely on the source state to protect its own heritage may be great While Australian institutions have shown restraint, Australia's growing economic ties and trade liberalisation with the US, and its existing ties with the UK, exacerbate this temptation and there is the risk that the policy divide evident in US and UK might spill over into Australia. It is hoped that the Australian market will not only resist such pressures, but will lead by example and recognise that demand-side restraint is the only effective method of g1ving due respect to foreign state's cultural heritage.


[*] CRAIG FORREST teaches law at the University of Queensland.

© 2004 Craig Forrest

[1] Opened for signature 14 November 1970, 823 UNTS 231 (entered into force 24 April 1972) As at 18 December 2003, there were 103 states parties

[2] The terms 'source' and 'market' states have been used in a very general sense to distinguish between those states recognised as hav1ng a net loss of archaeological material (source states) and those in which a thriving market for this material exists (market states) It is, however, acknowledged that some states may exhibit both 'source' and 'market' trends

[3] As in Iraq, the National Museum in Kabul, was plundered, and museum material is now on the world ant1qU1t1es market See Atle Omland and Christopher Prescott 'Afghanistan's cultural heritage in Norwegian museums?' (2002) 11 Culture Without Context, 4 and 15

[4] Martin Bailey, 'Swiss pass law to restrict the illicit trade', The Art Newspaper (London), September 2003, 7

[5] 'Editorial’ (2002) 11 Culture Without Context 3

[6] Katherine Sykes, 'The Trade in Iraqi Antiquities: A Conference held by the Institute of Art and Law in association with Clyde and Co London , 16th June 2003' (2003) 7(3) Art Antiquity and Law 299, 304

[7] David D'Arcy, 'Iraq's history is our history too', The Art Newspaper (London), November 2002,1

[8] Martin Bailey, 'International outrage as great museum is sacked', The Art Newspaper (London), May 2003, 1

[9] Martin Bailey, 'Archaeological sites the worst casualties', The Art Newspaper (London), July-August 2003, 5

[10] Martin Bailey,' Seized: over 600 objects looted from Iraq', The Art Newspaper (London), September 2003, 1

[11] Resolution on the situation between Iraq and Kuwait, SC Res 1483. 4761st mtg UN Doc S/RES/1483(2003), <http//ods-dds­ ny.un.orgldoc/UNDOOGEN/N03/368/53/ PDF/N0336853.pdf70penElement> at 10 June 2004.

[12] R D Abramson and S B Huttler, 'The Legal Response to the Illicit Movement of Cultural Property' (1973) 5 Law and Policy in International Business 932, 956-7

[13] Patrick O'Keefe, Commentary on the UNESCO 1970 Convention on Illicit Traffic (2000), 14 and 57

[14] This is subject to the national laws of the market state, since it may be that the market state does not require such compensation to be paid . Most civil law states would, however, require compensation. While the market price may be one method of detemn1n1ng the quantum of compensation this is not required by the Convention, and other methods could be utilised See further O'Keefe, above note 13, 63-6

[15] lbid, 61

[16] The US accepted the Convention on 2 September 1983, Australia on the 30 October 1989 and UK on 1 August 2002

[17] O'Keefe. above note 13, 25

[18] O'Keefe suggests that there may be as little as four institutions in the US that would fall within this requirement. Ibid, 58

[19] P M Bator, 'An Essay on the lntemat1onal Trade in Art' (1982) 34 Stanford Low Review 275, 377

[20] Manne Papa Sokal, 'Stemming the illicit trade in antiquities' (2002) 11 Culture Without Context 26

[21] Current agreements exist with Bolivia, Cambodia, Canada, Cyprus, El Salvador, Guatemala, Italy, Mali, Nicaragua and Peru, see the 'Chart of Current and Expired Import Restnct1ons Under the Convent1on on Cultural Property Implementation Act’ at US Department of State website <http//> at

10 June 2004

[22] Originally s 671, the Senate Incorporated and passed this in HR1047, <http // 08 s00671 > at 10 June 2004

[23] Marth Lufkin, 'Criminal liability for receiving State-claimed antiquities in the United States The 'Schultz' case' 8(4) Art Antiquity and Low, 321

[24] David D'Arcy, 'Legal group to fight 'retentionist' policies', The Art Newspaper (London), November 2002, 3

[25] Martin Bailey, 'lnternational outrage as great museum is sacked', The Art Newspaper (London), May 2003, 6 The Council had provided an amica cuna brief on behalf of Schultz at the appeal

[26] Martin Bailey, 'We serve all cultures, say the big, global museums', The Art Newspaper (London), January 2003,1, Jenny Doole, 'In the News', (2003) 13 Culture Without Context 15

[27] Martin Bailey,' Seized over 600 objects looted from Iraq', The Art Newspaper (London), September 2003, 1

[28] See Ministerial Advisory Panel on Illicit Trade Report, Department of Culture, Media and Sport, UK December 2000.

[29] The Act came into force on 30 December 2003

[30] Martin Bailey, 'A new law to fight the illicit trade' The Art Newspaper (London), January 2004, 8 See also R1chard Harwood, 'Dealing in Cultural Objects (Offences) Act 2003', (2003) 8(4) Art Antiquity and Law 347

[31] Martin Bailey, 'A new law to fight the illicit trade' The Art Newspaper (London), January 2004, 8

[32] Ministerial Advisory on Illicit Trade Report, Department of Culture, Media and Sport UK December 2000, 26 and 36.

[33] The Iraq (United Nations Sanctions) Order 2003, Sl2003/1519

[34] See Katherine Sykes, 'The Trade in lraqi Antiquities A Conference held by the Institute of Art and law in association with Clyde and Co London , 16"' June 2003' (2003) 7(3) Art Antiquity and Law 299 See also Kevin Chamberlain, 'The Iraq (United Nations Sanctions) Order 2003 -Is It Human Rights Act Compatiblel' (2003) 8(4) Art Antiquity and Law 357.

[35] Braude, irobically, is the author of 'The New Iraq rebuilding the country for its people, the Middle East and the World' See Martin Bailey,' Seized over 600 objects looted from Iraq', The Art Newspaper (London), September 2003, 1

[36] John F Ley, Australia's Protection of Movable Cultural Heritage, Report on the Ministerial review of the Protection of Movable Cultural Heritage Act 1986 and Regulations (1991) 125.

[37] O'Keefe, above note 13, 15-6.

[38] States with protective leg1slat1on dat1ng back many years include Greece (1834), Italy (1872), France (1887) O'Keefe, note 14, lndia (1904), Peru (1929), Iran (1932), Iraq (1933) Ley, note 36, 124 and 127

[39] Ibid, 126 It is of interest to note that the Australian National Gallery, in a submission with respect to the 1991 review, called for section 14 to be amended to include a date applicable to the 1llegal export from the source' state, such as the date the 1970 UNESCO Convention came into force for Australia

[40] G J Tolhurst, 'An Outline of Movable Cultural Heritage Protection in Australia' (1997) 2(2) Art Anttiquity and Law 137

[41] Iraq (Reconstruction and Repeal of Sanctions) Regulat1ons 2003 (Cth), < http.//

=2003B001 OS&ViewTemplate=frl1v1ew hts&act1on=View> at 1 0 June 2004 See also The Hon Alexander Downer MP, 'Iraq (Reconstruction and Repeal of Sanctions) Regulations' (Press Release, 28 May 2003), <http //www html> at 10 June 2004

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