Strengthening the international regime for the prevention of the illicit trade in cultural heritage

Whilst the illicit movement and trade of movable cultural heritage has long been of international concern, it has re-emerged in recent times as a contemporary problem for international law - states in conflict, such as Afghanistan, Iraq and Palestine, have opened up new sources of terrestrial cultural heritage in need of protection, and improved diving technologies have exposed the riches of underwater cultural heritage to unscrupulous operators.
The UNESCO Convention was adopted in 1970 to address such issues, with only limited success due to the reluctance of 'market' states to become state parties. This commentary considers a number of recent moves that have contributed to a strengthening of the current regime to prevent the illicit recovery, movement and trade in cultural heritage, including the adoption by UNESCO of a convention specifically aimed at protecting the underwater cultural heritage. Given the difficulty of enforcing foreign cultural heritage laws in 'market' states, 'source' states have had to rely on claims of ownership, rather than illicit recovery and exportation claims, as the basis for repatriation. This commentary also considers the landmark Schultz case in the US, the world's major market state for cultural heritage, which has taken a more stringent approach to enforcing foreign state ownership laws.