more

moving as, or which are part of, or which constitute interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted, or taken...". 18 U.S.C. 2315. The case turns on whether the pre-Columbian antiquities in question, exported from Mexico in contravention of that country's law, were knowingly "stolen" within the meaning of the National Stolen Property Act.

Nor can the issue in this case be resolved by suggesting that an affirmance condones unwarranted federal enforcement of foreign law. Congress chose to protect property owners living in states or countries hampered by their borders from effectively providing their own protection.

The question is whether this country's own statute, the NSPA, covers property of a very special kind-purportedly government owned, yet potentially capable of being privately possessed when acquired by purchase or discovery. Our examination of Mexican law leads us to reject the appellants' argument that the NSPA cannot apply to illegal exportation of artifacts declared by Mexican law to be the property of the Nation.

We do not base this conclusion on illegal exportation of the antiquities. Professor Bator correctly states the law applicable to violations of export laws:

The general rule today in the United States, and I think in almost all other art-importing countries, is that it is not a violation of law to import simply because an item has been illegally exported from another country. This is a fundamental general rule today with respect to art importation . . . . This means that a person who imports a work of art which has been illegally exported is not for that reason alone actionable, and the possession of that work cannot for that reason alone be disturbed in the United States.13 This general rule has been qualified by congressional statute and by treaties.14 But we cannot say that the intent of any statute, treaty, or general policy of encouraging the importation of art more than 100 years old was to narrow the National Stolen Property Act so as to make it inapplicable to art objects or artifacts declared to be the property of another country and illegally imported into this country.

The government's expert on Mexican law testified, and the trial. court instructed the jury, that Mexico has, since 1897, vested itself with ownership of pre-Columbian artifacts. This testimony and the subsequent instruction, as we pointed out, were in error. Mexican law has been concerned with the preservation and regulation of preColumbian artifacts since 1897, but ownership of all pre-Columbian objects by legislative fiat, did not come until much later. When it did come, it came, not at once, but in stages.

*

Finally, we come to the Federal Law on Archaeological, Artistic and Historic Monuments and Zones, May 6, 1972.24 Article 27 provides that "[a]rchaeological monuments, movables and immovables, are the inalienable and imprescriptible property of the Nation." Article 28 then establishes that

[M]ovable and immovable objects, product of the cultures prior to the establishment of the Spanish culture in the National Territory,... are archaeological monuments.

. Only after the effective date of the 1972 law would the Republic of Mexico necessarily have ownership of the objects such as the artifacts involved in this case. This legislation "extended national ownership of the cultural patrimony to private collections and forbade absolutely the export of pre-Columbian items". 25

We find as a matter of law that the district court erred by instructing the jury in accordance with [the Government's expert] testimony. See Fed.R.Crim.P. 26.1 (Determination of Foreign Law); cf. First National City Bank v. Compania de Aguaceras, S. A., 5 Cir. 1968, 398 F.2d 779, 781-82.

The court's instruction that the Mexican government had owned the artifacts for over seventy-five years was highly prejudicial to the defendants. It could have been the decisive factor in the jury's inferring that the defendants must have known that the artifacts in question were stolen.

This review of the relevant Mexican statutes demonstrates that the Mexican government has, since 1897, been staking out for itself greater and greater rights in pre-Columbian artifacts. Only in 1972, however, did the government declare that all pre-Columbian artifacts were owned by the Republic. We hold that a declaration of national ownership is necessary before illegal exportation of an article can be considered theft, and the exported article considered "stolen", within the meaning of the National Stolen Property Act. Such a declaration combined with a restriction on exportation without consent of the owner (Mexico) is sufficient to bring the NSPA into play.29

It is also true that the United States has resisted pressure to broaden restrictions on the importation of art from foreign countries. Thus, in 1969, the General Conference of UNESCO produced a draft Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Under that draft, signatory nations would have committed themselves to make it illegal under their own law to import all art works exported without an export certificate from the territory of another party to the Convention. This draft was "resisted vehemently" by the United States. The United States finally succeeded in deleting the provisions calling for compulsory import provisions and substituting a provision calling for concerted international action, including import controls, only when needed in "crisis” situations. As thus revised, the Senate approved the Convention subject to a number of reservations. Rogers & Cohen, Art Pillage-International Solutions, in DuBoff Art Law 315, 317-18 (1975): Note, The Legal Response to the Illicit Movement of Cultural Property, 5 Law & Pol. in Int'l Bus., 932, 958-63 (1973); 118 Cong.Rec. 2792426 (1972); see UNESCO Convention on the Means of Prohibiting

and Preventing the Illicit Import, Export and Transfer of Cultural Property, 10 Int'l Leg. Mat'ls 289 (1961). See also footnote 29.

A number of leading museums have adopted a voluntary policy of purchasing no art or archaeological objects unless they are accompanied by a pedigree. . . .

13

Bator, International Trade in National Art Treasures: Regulation and Deregulation, in DuBoff, Art Law, Domestic and International 295, 300 (1975).

14 In 1972 Congress adopted a statute prohibiting the importation into the United States of "stone carvings and wall art which are preColumbian monumental or architectural sculpture or murals" from Mexico, Central America, and South America, unless the country of origin certifies the exportation. 19 U.S.C. 2091-2095. The limitation of the statute to "an immovable monument or architectural structure" or a part thereof suggests to the amicus that the national policy is to protect from pillage and mutilation pre-Columbian ceremonial centers and architectural complexes-a narrow class of archaeological objects that would not include the artifacts the defendants here are accused of stealing. Importation of Pre-Columbian Sculpture and Murals; Customs Port Security; Judicial Review in Countervailing Duty Cases, S.Rep.No.92–1221, 92d Cong., 2d Sess. 3 (1972). See also Importation of Pre-Columbia Sculpture and Murals, H.R. Rep.No.92-824, 92d Cong., 2d Sess. 3 (1972).

24 312 Diario Oficial 16, 16 de mayo de 1972.

25 Rogers, The Legal Response to the Illicit Movement of Cultural Property, 5 Law Policy in Int'l Bus. 932, 945 (1973); Nafziger, Controlling the Northward Flow of Mexican Antiquities, 7 Lawyer of the Americas, 68, 71 (1975).

29 Our conclusions with respect to the applicability of the NSPA to illegally exported artifacts are supported by the comments of the United States Department of State to the United Nations Educaional, Scientific, and Cultural Organization's (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 10 Int'l Legal Materals 289 (1971). See generally Comment, The UNESCO Convention on the Illicit Movement of Art Treasures, 2 Harv. Int'l J. 537 (1971). Countries were to provide importation restrictions for property "stolen from a museum or a religious or secular public monument or similar institution," UNESCO Convention, art. 7(b) (i), and penal or administrative sanctions were to be provided against violators of such restrictions, id. art. 8. The State Department responded that

[t]he laws of the United States, and presumably the laws of most states, prohibit the theft and the receipt and transportation of stolen property.... See title 18, U.S. Code, secs. 2314-15.

257-179 079 58

S.Exec.Rep. No. 29, 92d Cong., 2d Sess. 17, at 21 (1972). The Senate adopted the Convention on August 11, 1972, by a vote of 79 to 0. 118 Cong. Rec. 13, 378–79 (daily ed.).

545 F.2d 991-992, 996, 997, 1000-1001.

Chapter 13

PEACEFUL SETTLEMENT OF DISPUTES

Negotiation; Inquiry; Conciliation; Mediation;

On December 28, 1977, during a television interview, President Carter discussed the U.S. role as a mediator in the Middle East subsequent to the trip of Egyptian President Anwar el Sadat to Israel on November 19-21, 1977. During these three days, President Sadat met with President Ephraim Katzir, Prime Minister Menachem Begin, and others, and addressed the Knesset in a special session. Portions of President Carter's televised remarks follow:

Both President Sadat and Prime Minister Begin have been bold and courageous. We've been dealing with the Mideast question as a nation for decades-in a leadership role at least within the last two Administrations. And we see the complexity of the questions and the obstacles to progress. When I first became President, we spelled out the basic issues-withdrawal from occupied territories, secure borders, the establishment of real peace, the recognition of Israel's right to be there, and dealing with the Palestinian question. We are now in a role of supporter. We encourage them to continue with their fruitful negotiations. We try to resolve difficulties, to give advice and counsel when we are requested to do it. This is a better role for us. In the past, we've been in the unenviable position and sometimes unpleasant position, sometimes nonproductive position as mediator among parties who wouldn't even speak to each other. So I think that the progress that has been made in the last month and a half has been remarkable and has been much greater than I had anticipated. And I know Sadat and Begin well and personally and favorably.

If any two leaders on Earth have the strength and the determination and the courage to make progress toward peace in the most difficult region that I've ever known, it is Prime Minister Begin and President Sadat. There is no reason for us to be discouraged about it. We will help in every way we can to let their progress be fruitful. I think that President Sadat and Prime Minister Begin could have reached a fairly quick solution of just the EgyptianIsraeli problem in the Sinai region. But this is not what they want. They both want to try to resolve the other questions-what is