The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970 Convention) is one of the key worldwide treaties. Its main objective is to regulate a market that is based on a binary: source countries, from where cultural objects are taken; and market countries, who buy these objects. However, in Latin America, this binary no longer operates neatly, with important consequences for the region and how we imagine this treaty (and international law more broadly).

Latin America needs to reimagine its own self-perception within the treaty, and in international law more broadly. Latin American countries are not just passive source countries, there is an active market in the region that we ought to consider a lot more deeply. Taken to international law more broadly, it is about time that Latin America rediscovers itself not as a victim seeking the protection of international legal norms, but also an agent that, partly for being capable of violating international law, is an active agent in its creation and evolution.

In the specific context of cultural objects, a more self-aware engagement with the 1970 Convention opens the possibilities for bilateral cooperation on an equal footing within the region. It also presents more pathways to deal with illicit trafficking that account for cultural value, unlike transnational crime frameworks. Finally, it allows us to engage with the creators and holders of culture taking into account their actual roles.

We tend to think of Latin American countries as just being on one side of the binary (as sources and victims). Doing so is not only inaccurate; it also has two important consequences. First, we devalue Latin American culture in our own eyes, by treating it as somewhat lesser than the cultures of East Asia and Europe. But we are more than second fiddle to ancient great civilizations – we have our own ancient great civilizations here.

Second, this victim posture allows countries individually to focus on only one set of measures to implement the 1970 Convention (export controls), and to downplay their obligations when it comes to imports. We give ourselves a pass on how we make international law part of our own domestic orders, while expecting everyone to do the opposite. Figures vary, as with all black or grey markets, but the bottom line is that we are a lot closer to parity between source and market in the region than we tend to acknowledge. Therefore, this source-only, passive position is not justifiable.

A consequence of understanding this parity, especially in relation to legal action, is that it puts all countries in a more equal footing vis-à-vis each other. This type of equality is useful morally and legally. It particularly gives more impetus to regional and sub-regional frameworks of cooperation in which we are not just thinking that we are all victims, and “how could this happen to us?”. We have a shared problem over which we have agency, and can at least attempt to tackle it.

If we are open to more pathways for enforcement, they make us more mindful of the golden rule: do unto others what we wish is done unto us. It means that, if we would like other countries to take cultural links into account when deciding disputes as a matter of law from our positions as victims, we also need to do the same from our positions as perpetrators. Therefore, cultural norms end up becoming more pervasive on the side of states actually taking action (against perpetrators, as opposed to just in posturing as victims). We move beyond just expecting frameworks like anti-money laundering and customs law to somehow imbue cultural values and expectations, and instead have a chance at seeing culture more centrally a part of enforcement.

These cultural values extend beyond the urgency of enforcement and the valuation of cultural objects. They also make room to account for other ways of thinking about our relationship to cultural objects, and particularly how communities of origin engage with these objects.

Many Indigenous peoples in Central America (particularly Mayan, but also other peoples) engage in what criminologists would describe as “subsistence looting”, treating their cultural artefacts as semillas (seeds) that are meant to germinate into broader goals for the community, and not just heritage for its own sake. But a bilateral, victimhood-focused version of cultural objects norms tends to bluntly criminalize these practices, in an attempt to protect these communities but effectively further excluding and marginalizing them. Centring our roles as also market nations, and the consequent foregrounding of cultural values, allows us to see semillas for what they mean to people, rather than our own anxiety-driven imagination of permanent loss.

If we are open to a relationship with these objects as living things, like semillas, then we are also in a better position to overcome one of the biggest limitations of the 1970 Convention: its non-retroactivity. The non-retroactivity feature was an essential compromise to get the Convention adopted in the first place, as we all know. It also meant, in the Latin American context, excluding a lot of objects taken during Spanish or Portuguese colonization, or even thereafter.

But look at the Quimbaya Cultural Treasure case in the Colombian Constitutional Court, for instance. While they were very mindful there of the temporal exclusion of the 1970 Convention, by focusing on the living and ongoing relationships between objects and their peoples of origin, the Court could identify a human rights element to the dispute, which then triggered the continuing violation doctrine as interpreted by the Inter-American Court of Human Rights: for every day a human rights violation is not redressed, it happens again, and therefore non-retroactivity needs to be read under a new light. In other words, reimagining our relationship to these objects as living gives us more remedies.

There is a clear domino effect here:

• First, we reimagine Latin American countries as market nations, not just source nations;
• Because of that reimagining, there are more symmetrical cooperative relationships among countries in the region;
• That parity leads to better design of legal solutions;
• Those better solutions account for cultural value in more productive ways, instead of depending on non-cultural legal frameworks for enforcement;
• Those living connections then reconfigure how we behave vis-à-vis communities of origin and their control over their own heritage, and allows us to see heritage in a broader, living context;
• This recasting then allows us to invoke other norms to overcome one of the most significant limitations of the 1970 Convention, its non-retroactivity.

There is a tension here, of course: on the one hand I am suspicious of what non-cultural norms can do to heritage, but then on the other I welcome human rights law as another non-cultural norm. The biggest difference here is that human rights law centers communities and their control over their own culture, and is a legal framework that approaches the subject with at least some curiosity of understanding of culture and its role, whereas transnational crime norms are punitive and bureaucratic.

Nevertheless, the bigger point is that there can be significant changes to our relationship to cultural objects, and our pathways to enforce the goals of the 1970 Convention, if we only allow ourselves to step away from our usual places of victimhood, and towards a vision in which we have agency over our own cultural destinies (even if it is a destiny that at first might cast us in a negative light).

Taken to broader international law, this example of the 1970 Convention tells us that Latin American countries would do well to rediscover themselves as agents of international law. The knock-on effects can bring us closer to the aspirations of (Inter-American) international law by offering us solidarity and a grounded commitment to emancipation.

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As opiniões presentes nos posts do Blog representam a visão de seus autores e não necessariamente as opiniões da ILA-Brasil e seus membros.