By Michael Goodyear*
With the fall of Raqqa, the last major Islamic State (ISIS) stronghold, in mid-October, 2017, the security situation has transformed. Given the continued domestic instability in Syria, different factions such as the Assad government, rebels, and Kurds could try to illegally sell antiquities on the world market for their own benefit like ISIS did before them. The United States has made it illegal to import Syrian antiquities into the country, and even with ISIS’s Syrian territory almost all gone, the import restrictions carried out by the Department of Homeland Security will remain in place for the foreseeable future.
The regulations toward Syrian cultural property came about due to ISIS’s presence; the implementing regulation explicitly cites United Nations Security Council Resolution 2199, which condemned the destruction of Syrian cultural heritage by the ISIS and obliged member nations to assisting in protecting Syria’s cultural property. Now that the trigger of ISIS is almost gone, will the cultural property restrictions stay in place?
American Policy on Cultural Property
Cultural property refers to all property that is “of importance for archaeology, prehistory, history, literature, art or science.” Although the black market in cultural property is global, the United States is one of the largest consumers. This black market is a complex system of middlemen and obfuscation, so that many times the eventually purchaser of cultural property does not even know that the object was illegally taken out of a country. In the context of Syria, major pieces of cultural property that are at risk of being illicitly sold include historic writing, figural sculpture, “eye idols,” high and low relief sculpture, vessels, architectural elements, accessories and instruments, stamp and cylinder seals, and tessera and coins.
The United States has taken steps to make sure the heritage of another country is not plundered and then brought into the United States. In 1972 the United States consented to the United Nations Educational, Scientific and Cultural Organization 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“UNESCO Convention”). Approved by President Reagan in 1983, the Cultural Property Implementation Act (“CPIA”) implements protections that meet the United States’ obligation under the UNESCO Convention to prevent the trafficking of cultural property. CPIA restricts importing cultural property that is stolen from state parties to the UNESCO Convention, which CPIA implements in the United States. Under CPIA, no cultural property listed in bilateral agreements between the United States and another country can be imported into the United States.
The United States and Syrian Cultural Property
Syria has not entered into such a bilateral agreement on cultural property with the United States. However, Syria is a party to the 1970 UNESCO Convention. Under CPIA, any cultural property documented in the inventory of a 1970 UNESCO Convention’s party’s museums, religious or secular public monuments, or institutions is protected. Any such object that has been stolen after a state became a party to the UNESCO Convention cannot be imported into the United States. This means that all objects recorded in Syrian institutions’ inventories since 1983 are protected under CPIA.
But CPIA does not protect undiscovered or undocumented property, and these artifacts have also been at great risk. ISIS even sent workers out to archaeological sites to dig up antiquities. These artifacts would not be protected by CPIA.
But Congress has also made a point of explicitly protecting the antiquities that are at risk due to the unrest in Syria, in particular because of ISIS’s extensive and profitable trade in illicit antiquities. The Protect and Preserve International Cultural Property Act, enacted in 2016, mandates that the President restrict Syrian cultural imports under CPIA. The Act protects those undocumented artifacts by creating broader import restrictions on all Syrian cultural property.
The Department of Homeland Security’s Role
Although several federal entities are involved in cultural property protection, including the State Department, Department of Justice, and Department of the Treasury, the bulk of on the ground regulation is undertaken by the Department of Homeland Security. The Department’s U.S. Customs and Border Protection (CBP) and Homeland Security Investigations (HSI), an arm of the U.S. Immigration and Customs Enforcement (ICE), are responsible for stopping illicit cultural property trade at the border. CBP is effectively the front line, with the ability to search, detain, and seize suspect property. ICE handles investigations, including looking into if individuals or institutions are illegally importing cultural property into the United States. Once an object has been detained, its origins will be investigated and if it is found to violate cultural property importation laws, it will be seized, which could lead to a legal case.
CBP and ICE have worked together to prevent importation of cultural property. In 2015, ICE’s analysis of ISIS intelligence recovered from a raid on Abu Sayyaf helped establish patterns of ISIS cultural property markets. This summer there was a high profile case against Hobby Lobby for trying to import stolen Iraqi cultural property, which had been uncovered by CBP before being investigated by ICE and then litigated by the Justice Department. These same roles are in effect in relation to Syrian cultural property.
Following the passage of the Protect and Preserve International Cultural Property Act, CBP, as part of the Department of Homeland Security, and the Department of the Treasury issued a regulation that implemented import restrictions against Syrian cultural property and set forth a list of designated archaeological material that is restricted. Due to this implementation, all Syrian cultural property removed from Syria after March 15, 2011, that is not explicitly exempted under the Act is subject to Homeland Security’s regulatory regime.
The restriction is still effective for five years after President Obama signed the Protect and Preserve International Cultural Property Act. So the restriction will not naturally run out until 2021. In addition, the Protect and Preserve International Cultural Property Act has a sunset provision that the President will at least once a year determine whether Syria is too unstable to request a bilateral CPIA agreement for itself, meaning that the Act and its protections will stay in effect.
Even with ISIS effectively vanquished on the ground in Syria, there is no immediate danger that the import restrictions will run out. With the continuation of the Syrian Civil War and the risk of further illicit trading of Syria’s cultural property on the black market, the continuance of American import restriction on Syrian cultural property is essential to helping preserve Syria’s cultural heritage.
* Michael Goodyear is a Junior Editor on MJEAL. He can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 A different times during its tenure the Islamic State has been known as the Islamic State of Iraq (ISI), the Islamic State of Iraq and Sham (ISIS), and the Islamic State (IS). While the name Islamic State is the most proper, given that the entity refers to itself as “the Islamic State” (al-Dawla al-Islamiyya) or “the State” (al-Dawla), I have used ISIS throughout this blog due to its familiarity to the American public. Cole Bunzel, From Paper State to Caliphate: The Ideology of the Islamic State, Brookings Inst. 3 (2015), https://www.brookings.edu/wp-content/uploads/2016/06/The-ideology-of-the-Islamic-State.pdf.
 Anne Barnard and Hwaida Saad, Raqqa, ISIS ‘Capital,’ Is Captured, U.S.-Backed Forces Say,” N.Y. Times (Oct. 17, 2017), https://www.nytimes.com/2017/10/17/world/middleeast/isis-syria-raqqa.html.
 Anne Barnard and Hwaida Saad, As ISIS’ Role in Syria Wanes, Other Conflicts Take the Stage, N.Y. Times (Oct. 19, 2017), https://www.nytimes.com/2017/10/19/world/middleeast/isis-syria-war.html.
 Steven Lee Myers and Nicholas Kulish, ‘Broken System’ Allows ISIS to Profit From Looted Antiquities, N.Y. Times (Jan. 9, 2016), https://www.nytimes.com/2016/01/10/world/europe/iraq-syria-antiquities-islamic-state.html.
 Protect and Preserve International Cultural Property Act, Pub. L. No. 114-151, 130 Stat. 369 (2016). The Protect and Preserve International Cultural Property Act requires the President to restrict the importation of Syrian antiquities into the United States pursuant to his authority under the Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. § 2603 (current through P.L. 115-72).
 CBP Dec. 16–10.
 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231.
 Ashleigh Tilley, ISIS, Blood Antiquities, and the International Black Market, Human Sec. Ctr. 1, (Feb. 1, 2016), http://www.hscentre.org/wp-content/uploads/2016/01/ISIS-antiquities-v1.pdf.
 Mara Wantuch-Thole, Cultural Property in Cross-Border Litigation: Turning Rights into Claims 22 (2015).
 Benoit Faucon, Georgi Kantchev, and Alistair MacDonald, The Men Who Trade ISIS Loot, Wall St. J. (Aug. 8, 2017), https://www.wsj.com/articles/the-men-who-trade-isis-loot-1502017200.
 Emergency Red List of Syrian Cultural Objects at Risk, Int’l Council of Museums (2013), http://icom.museum/fileadmin/user_upload/images/Redlists/Syria/ERL_SYRIE_EN.pdf.
 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, UNESCO, Nov. 14, 1970, 823 U.N.T.S. 231.
 Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601-2613 (current through P.L. 115-72).
 § 2604.
 1970 Convention States Parties, UNESCO, http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/states-parties/ (last visited Nov. 17, 2017).
 § 2607.
 ISIS Digs Up Dollars: Extremists Loot Antiquities, Al Arabiya (July 13, 2014), http://english.alarabiya.net/en/life-style/art-and-culture/2014/07/13/ISIS-digs-up-dollars-extremists-are-pawning-looted-antiquities.html.
 Protect and Preserve International Cultural Property Act, Pub. L. No. 114-151, 130 Stat. 369 (2016).
 U.S. Customs and Border Prot., What Every Member of the Trade Community Should Know About: Works of Art, Collector’s Pieces, Antiquities, and Other Cultural Property (Revised May 2006), https://www.cbp.gov/sites/default/files/documents/icp061_3.pdf.
 Written Testimony of ICE Homeland Security Investigations International Operations Assistant Director Raymond Villanueva for a House Committee on Financial Services, Subcommittee on Terrorism and Illicit Finance Hearing Titled “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade,” Dep’t of Homeland Sec. (June 23, 2017), https://www.dhs.gov/news/2017/06/23/written-testimony-ice-house-financial-services-subcommittee-terrorism-and-illicit.
 Complaint, United States v. Four Hundred Fifty Ancient Cuneiform Tablets, CV 17-3980
E.D.N.Y. Jul. 5, 2017). Available at: https://www.justice.gov/usao-edny/press-release/file/978096/download. See also Michael Goodyear, Hobby Lobby Goes From Arts and Crafts to Illegal Antiquities, Cultural Heritage Crisis (July 8, 2017), https://culturalpropertylawblog.wordpress.com/2017/07/08/hobby-lobby-goes-from-arts-and-crafts-to-illegal-antiquities/.
 CBP Dec. 16–10; 19 C.F.R. § 12.104k (2016).
 Exemptions are those items that meet the conditions of 19 U.S.C. § 2606 and 19 C.F.R. § 12.104c.
 Protect and Preserve International Cultural Property Act, Pub. L. No. 114-151, 130 Stat. 369 (2016).