Tag: CPIA

Footnotes

The Bost Arch in 1970

Questions or Comments? Email me at derek.fincham@gmail.com

Urice and Adler on the "Executive Branch’s Extralegal Cultural Property Policy"

Stephen K. Urice (Associate Professor at the University of Miami School of Law) and Andrew Adler (Law Clerk for the 11th Circuit Court of Appeals and adjunct Professor at the University of Miami School of Law) have posted a recent paper on the Executive Branch’s Cultural Property Policy on SSRN, Unveiling the Executive Branch’s Extralegal Cultural Property Policy.  Here is the abstract:

In this Article we reveal that the executive branch of the United States has consistently – and astonishingly – exceeded constraining legal authority with respect to the movement of cultural property into the United States. To illustrate this assertion, we identify three distinct categories of extralegal cultural property practices. First, we describe how the Department of Justice, misapplying the National Stolen Property Act, has obtained the return of cultural objects to their countries of origin by filing legally-deficient civil forfeiture complaints. Second, we describe how the Justice Department has pursued this same objective by proceeding under a legally-erroneous interpretation of the Archaeological Resources Protection Act. Third, we describe how the Department of State has repeatedly undermined the statutory structure and mandatory criteria of the Convention on Cultural Property Implementation Act, resulting in significant import restrictions on cultural property. All of these practices exceed constraining legal authority and lead to a similar result. Accordingly, we describe this pattern of practices as forming an extralegal cultural property policy. We express no opinion about the wisdom of this policy. Rather, our purposes in unveiling this policy are to promote a rigorous and transparent review of the executive’s practices and to restore the rule of law. In our conclusion we speculate as to why the executive has undertaken these practices and, among other observations, suggest with some sympathy that the current legal framework is outdated.

Many readers will likely find the arguments these authors make troubling.  I’d encourage you to give the piece a read on its own merits.  Though these authors are critical of the policies of the Executive branch, this does not mean that they endorse the looting of sites or the black market—rather they are pointing out flaws in how the Executive branch and the Cultural Property Advisory Committee has attempted to restrict the trade in illicit antiquities.  Very interesting and worthy of serious attention.

Questions or Comments? Email me at derek.fincham@gmail.com

Public Comment on the U.S.-Italy Memorandum of Understanding

The State Department Cultural Heritage Center has announced it wants public comments on the potential renewal of the Memorandum of Understanding (MOU) between the United States and Italy.  

There will be a meeting of the Cultural Property Advisory Committee on Thursday, May 6, 2010, from 9 a.m. to approximately 5 p.m., and on Friday, May 7, 2010, from 9:00 a.m. to approximately 3 p.m., at the Department of State, Annex 5, 2200 C Street, NW., Washington, DC. During its meeting the Committee will review a proposal to extend the“Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy” signed in Washington, DC on January19, 2001 and amended and extended in 2006 through an exchange of diplomatic notes.

 There is also an opportunity to write a letter and express your opinion on the MOU, the deadline is April 22, 2010.  The Archaeological Institute of America has information on the letter-writing process here.  Note that you should either fax (202-632-6300) or email (culprop@state.gov) your letter due to security delays with traditional mail. 

This is one of the ways in which the United States has chosen to implement the 1970 UNESCO Convention.  The MOU does a number of things.  It restricts the import of certain classes of undocumented objects from Italy.  But if those objects carry the appropriate documentation, importation is allowed.  It also calls for long-term loans of Italian objects, and collaboration between the United States and Italy. 

Those interested in the MOU and the practical impact it has or has not had should look to the recent edited volume, Criminology and Archaeology (Simon Mackenzie and Penny Green, 2009). I review the volume in the Spring issue of the Journal of Art Crime. Of particular interest is Gordon Lobay’s contribution, which looks empirically at how the U.S.-Italy MOU has made an impact on the antiquities market—at least the observable licit market.  I encourage interested readers to check out the volume, as his conclusion has been that the volume of objects sold, and their prices have increased over time.  The most profound impact has been that auction houses have begun to “pay more attention to provenance.”  Though typically this is not the findspot or complete history but rather reference to an earlier sale of an object. 

Questions or Comments? Email me at derek.fincham@gmail.com

Student Comment on American Cultural Heritage Law

Katherine D. Vitale has posted on SSRN her Student Comment, The War on Antiquities: United States Law and Foreign Cultural Property, 84 Notre Dame L. R. 101 (2009). 

She criticizes the general trend of American cultural heritage policy, and is far too kind I think to museums and antiquities dealers generally.  She has some very interesting things to say about the AAMD Guidelines, and does a very good job putting the recent California searches in context, perhaps helping to explain why a year has elapsed with little apparent progress.  

From the Abstract:

The use of the National Stolen Property Act and Archaeological Resources Protection Act as mechanisms to protect cultural property taken from a foreign state through prosecution of individuals who buy, sell, and otherwise deal in such property is in direct tension with the Convention on Cultural Property Implementation Act (“CPIA”), a statute enacted in accordance with an international treaty to which the United States is a party. This Note explores how criminal liability under United States law for museum officials and others who acquire art, archaeological materials, and especially antiquities, originating in foreign nations conflicts with CPIA’s treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 UNESCO Convention”). Part II examines the 1970 UNESCO Convention’s influence on United States civil law and policy regarding foreign cultural property, and on the acquisitions policies of international and domestic museums. Part III discusses criminal penalties under both the National Stolen Property Act and the Archaeological Resources Protection Act for those who knowingly acquire stolen foreign cultural property. Part IV analyzes the conflict between policies on foreign cultural property followed by the United States and domestic museums and the application of criminal penalties in art-trafficking cases. In addition, this Part explores the consequences of the conflict for both the United States and individuals, and suggests resolutions to the conflict through law. Finally, Part V concludes that in order for the United States to fulfill its obligation under the 1970 UNESCO Convention, it must stop conducting a war on antiquities-and those who acquire them.

Questions or Comments? Email me at derek.fincham@gmail.com

China’s CPAC Request Granted

 China’s request for import restrictions of certain classes of China’s antiquities has finally been granted.  The Memorandum of Understanding is here, while the State Department Press Release is here.   Now prohibited, unless accompanied by a Chinese export license will be “archaeological material originating in China and representing China’s cultural heritage from the Paleolithic Period through the end of the Tang Dynasty (A.D. 907), and of monumental sculpture and wall art at least 250 years old; including categories of metal, ceramic, stone, textiles, other organic material, glass, and painting”.

Randy Kennedy has an overview for the New York Times.  Professor Patty Gerstenblith thinks the decision “is a very appropriate way for the State Department to have applied the statute and the statutory requirements to China’s request”. 

James Lally, a New York dealer in Asian art was not quite as impressed, “It’s going to have a terrible effect on efforts to encourage new students to study Asian art and on collectors and patrons to become involved in the field …  They’ll say, ‘Well, I’ll just go to contemporary art or I’ll support the symphony.’ It sends the wrong signal.”
 
Peter Tompa has a thoughtful criticism on his blog as well,

I would, however, echo [other’s] concerns about fair enforcement, particularly when it comes to coins. Indeed, many Chinese coins of the types covered under the agreement have so little monetary value that it makes little sense for importers to go through the time and effort to secure the necessary certifications for licit import. For example, at the CPAC hearing in February 2005, I passed around a Han Dynasty cash coin from the 1st c. BC (bought for $2.25) and a Tang Dynasty cash coin c. 618-907 AD (bought for $8.00).

Such a problem presents some very difficult regulatory challenges, and goes I think to the heart of how we define cultural heritage or property.  I don’t envy the task of ICE agents, who are now charged with making sure these very small objects are not imported into the US. 

China has created a large heritage bureaucracy which does allow the purchase and sale of antiquities, but the government has  right of first refusal for all of these objects.  There is also a complicated ratings system, overseen by a government official in relics shops, which determines what is too important to sell, and what is not.  The system has been criticized for its potential for abuse, though what heritage policy in any nation isn’t. 

Questions or Comments? Email me at derek.fincham@gmail.com

An Unkind Response to my PAS Article (LATE UPDATE)

I have just noticed that Paul Barford has produced a very long response to my article on the Portable Antiquities Scheme. Initially I was pleased that my article had gained some notice. Imagine my dismay then when Barford accuses me of producing, ‘glib spin’, bad writing, claims I’m ignorant, and even hints that I’ve committed plagiarism. And he didn’t even do me the courtesy of sending an email.

I hope there might be a serious scholarly response to the article at some point, and I look forward to reading it. At present I’m not aware of any thoughtful scholarly work (peer-reviewed for example) which criticizes the PAS. Perhaps Barford would be inclined to produce something like this? Given the tenor of his blog though, I wonder if he is capable of passing peer-review.

I don’t really have a lot to say about the points he raises, because there aren’t any intellectually honest arguments. Rather he’s displayed an unfortunate tendency to produce Rovian and Hannity-style discourse. He takes my arguments out of context, wilfully twisting them in a way which indicates an inability to conduct any kind of meaningful discourse.

To take one example, he writes:

[T]he PAS allegedly represents a policy that: “sharply contrasts with the context-focused narrative found in most culture heritage scholarship”. This gives a totally false impression of the PAS and its aims… It is all about context of the finds in its database.

Right, well here’s what the article states:

The PAS is the voluntary system created to record and document objects that are not encompassed by the Treasure Act and are unearthed legally. The PAS is a novel approach to undiscovered antiquities, which rests on a legal framework that essentially allows amateur and unprofessional digging. This policy cuts against the overriding policy choices of most nations of origin and sharply contrasts with the context-focused narrative found in most cultural heritage scholarship.

He also accuses me of stating the PAS pays finders and detectorists. No. I state very clearly “If the object is deemed treasure, the finder is entitled to a reward based on the market price of the object.” One of the main reasons I wrote the piece was to make clear that the PAS does not pay finders of non-treasure objects! Finders of treasure recieve a reward, and have since the 19th century; the PAS works in conjunction with this legal framework to encourage voluntary reporting of objects the Crown has no legal claim to.

I don’t expect everyone will agree with my perspective, but at the very least an individual who claims to be an academic would be able to respond in an honest and thoughtful way. I’d encourage Barford to adopt the perspective of Kimberley Alderman, who has recently started a very nice blog:

Here are the things I think would promote more meaningful discourse:

1. Less polarization between what have been characterized as competing “sides” of the argument.

2. Less emphasis on doctrinal positions (on both sides) and more emphasis on solving the mutual goal of cultural preservation.

3. More emphasis on what is working as opposed to what is not.

4. Less emphasis on what positions people have espoused in the past (too often used as a means to unproductively attack).

5. More precision in language used …

That’s very good advice I think. It’s a brief statement of a similar kind of argument made by Alexander Bauer recently. A. A. Bauer (2008). “New Ways of Thinking About Cultural Property,” Fordham International Law Journal 31:690-724.

I’m happy to accept legitimate criticism. Petty attacks aren’t doing anyone any favors though. Barford is not a fan of the PAS. He’s entitled to that opinion, but give me some clear reasons why the current system is harmful, and provide a better legal or policy framework. If you’ve got a better ‘mousetrap’, tell us about it — if you can do so respectfully.

LATE UPDATE:

I see Barford has responded here. Regrettably the newer post is only slightly less strident.

As he rightly points out, I neglected to include a link to his extended response to the article which is here. He claims to have pointed out “serious problems” with the article. I’m afraid we will have to agree to disagree on that point. I’m happy to have a spirited debate on the PAS, but mis-characterizing my position and taking statements out of context makes such a productive discussion impossible, and he has yet to correct these errors. When my first year law students make these kind of analytical mistakes its an indication of weak analysis and insufficient research.

At its core, I argue in the article that a national ownership declaration is an important legal strategy; but this declaration in isolation does not necessarily create the best cultural heritage policy. In fact there’s legal precedent which makes this very point (see US v. Johnson 720 F.Supp. 810, 811 (C.D.Cal.1989)) and the US accession to the UNESCO Convention via the CPIA takes the efforts of nations of origin into account when the CPAC considers export restriction requests.

I assume that effectively guarding every archaeological site is impossible given limited resources. Even in the US, a wealthy nation, there is widespread looting of Native American sites. A nation like Peru has even more difficulty given its developing economy and the remote location of many sites. The looting of these sites in North and South America is a travesty. This is a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. But that’s not to say that these states should encourage metal-detecting or the like.

Rather I think outreach and education is badly needed. Barford argues this exists in many nations of origin already. Perhaps he is right, but we are merely talking speculatively. Where is the evidence? I’d be delighted to read some thoughts on this. The PAS works in conjunction with the law, which was of course a compromise postion between heritage advocates and landowners. A very strong legal regime may in a perfect world be the best policy. But what good are they if they aren’t meaningfully enforced? These laws can be compared with abstinence only sex education or America’s ill-advised “War on Drugs”. When it comes to practice, they aren’t producing the desired results — less teen pregnancy or drug abuse for example. In the heritage context, the PAS and metal detectorists are producing contextual information. It’s a different kind of information, which we can characterize as shallow but extremely broad; rather than a thorough documentation of sites which might be narrow but very deep.

This more permissive legal regime has actually produced important contextual information, which historians, researchers and archaeologists are using to write scholarship. Research is being produced with the PAS and its database, and it is including the broader public in heritage and archaeology, which will ideally bring more attention to heritage issues generally. Did Hiram Bingham include locals in his efforts to excavate Macchu Picchu? Modern-day Peruvians think not, which has led to a host of very public disagreements between Yale and Peru.

The PAS policy unquestionably sacrifices some archaeological context, but is there any nation of origin which is able to ensure all of its sites are professionally excavated or remain untouched? Is some contextual information better than none?

Questions or Comments? Email me at derek.fincham@gmail.com

China and the CPIA

Kevin Bogardus has an interesting article in The Hill on the State Department and its Cultural Property Advisory Committee taking its sweet time in deciding on whether to impose import restrictions on Chinese antiquities.

China made the request in 2004, and both proponents and critics of the restrictions are eager for a decision. Members of the Ancient Coin Collector’s Guild and others have even brought suit to elicit more information from the State Department about the deliberations with respect to the requests of China and Cyprus. It seems they have started to receive “heavily redacted” documents. Given the administration’s adamant refusal to disclose what it deems privileged information, even on the most mundane matters, it should be a long and difficult task. This is regrettable. Though I don’t share their criticism of the restriction, I do think we would all be better served in knowing how these decisions are made.

Questions or Comments? Email me at derek.fincham@gmail.com

Can the West do More to Protect Iraqi Antiquities?


Dr. Bahaa Mayah, a special adviser to Iraq’a Minister of Tourism and Antiquities, has strongly criticized the response of the West to the trade in looted or stolen antiquities originating from Iraq. Dr. Mayah held a press conference yesterday at the British Museum, and argued it was the occupying forces’ responsibility to retrieve the valuable objects taken since 2003. He also urged a global ban on Iraqi antiquities via a UN Security Council resolution. He said “Our antiquities are scattered everywhere from America to Europe. This problem is not new but it has intensified since 2oo3 and is now becoming a bigger problem.”

Speaking of America specifically, he argued “America is co-operating and not co-operating at the same time. We were grateful when they returned the Statue of Entemena (from 2,430BC) but at the same time, you see auctioneers all over the country trading in our antiquities. No action is being taken”. This statement, curiously, comes on the same day the Department of State published a notice of an import Restriction to Protect the Cultural Heritage of Iraq.

You can also hear his comments on BBC Radio 4’s Front Row program here, his interview starts at about 18 minutes in, which David Gill has noted this morning as well.

There at three separate issues here, first is what can be done to prevent looting in Iraq and how to regulate the illicit trade in Iraqi antiquities. Second, is the damage done by occupying forces to important sites at Babylon and elsewhere. Finally, there is the claim for restitution for objects which have long in the British Museum collection. The first two, it seems to me are related. The final question, which speaks to the notion of Universal Museums, must be separated. Every time this kind of discussion spins off into a discussion of the Parthenon Marbles and other restitutions, I think we lose site of the present ongoing issue: the looting of sites, and the illicit trade.

I am sympathetic to Dr. Mayar, as he must find it difficult dealing with a myriad of different agencies in Europe, and he feels the burden is on the source nation to give evidence of of an object’s illicit nature. Unfortunately this is the regime which the 1970 UNESCO Convention has produced, and efforts to create an effective multilateral agreement in this arena have been notoriously difficult. I think that must surely be tied to the disagreement and acrimonious nature the debates often engender.

Prof. Patty Gerstenblith has noted before that a lot of the reporting and discussion of the law as it pertains to the antiquities trade is wrong, and misses the point completely. I have to agree. Dr. Mayar talks about the incomplete response of the West to the trade in Iraqi antiquities, but I think the US and the UK have taken the necessary steps to attach criminal penalties to this trade. International law already bans the trade in Iraqi antiquities, under UN Security Council Resolution 1483:

Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph;

In the United Kingdom, the Theft Act 1968, the Proceeds of Crime Act 2002, and the Iraq (UN Sanctions) Order 2003 creates a criminal offence for merely being in possession of Iraqi Antiquities.

The United States has banned the import of Iraqi antiquities, and the National Stolen Property Act, as well as the powerful Civil Forfeiture mechanisms available to Federal Prosecutors strongly regulate the criminal aspects of the trade.

The difficulty of course, and its one that Dr. Mayar speaks to, is the difficulty in establishing evidence of the fact that an object originated in Iraq, when it could have originated from any one of a number of countries. Are there Iraqi antiquities currently being sold in the United States and United Kingdom? I’ll confess I don’t know. His comments strongly indicate they are, but I’m unaware of such sales, or any reports indicating this is the case.

Ultimately, I think the US and the UK in particular have taken nearly all the steps they can to regulate the criminal aspects of the trade. To shift burdens any further would, without being overly dramatic here, require Constitutional-level reworking, to allow fewer rights for criminal defendants. That is a step no thinking person can responsibly advocate. That’s at the core of my arguments about the utility of the criminal response to the illicit trade. The solution, as I see it, is to introduce a way for cultural property transactions to require title history, provenance and findspot information for antiquities. This would give real effect to the law. Without such information, the antiquities trade will continue to evade effective regulation. Think about the California searches from earlier this year, despite a dramatic raid, we have yet to see any charges filed. Though this is heresy to even suggest for many in the archaeological community, this will in my view require compromise and will almost certainly require a liberalization of the trade in some respects.

Questions or Comments? Email me at derek.fincham@gmail.com

Repatriation and Universal Museums

Drake Bennett has a good article in yesterday’s Boston Globe titled Finders, keepers. It’s a lengthy overview of the back and forth between museums and nations of origin regarding looted artifacts, and other objects taken during colonial times. It’s worth a read, as it features comments from James Cuno, the director of the Art Institute of Chicago, Ricardo Elia from the archeology department at Boston University, and others.

Cuno gets featured prominently, perhaps because of his strong arguments that many objects should remain in museums in market nations. He also extends the argument of the late Paul Bator, who in his seminal “An Essay on the International Trade in Art” 34 Stanford Law Review 275 (1982), argued that many restrictions on antiquities, including strong export restrictions serve to increase the black market.

Bennett’s piece is a good overview, and a good introduction to some of the core debates in the antiquities trade. By necessity he paints many of these restitution claims with too broad a brush though. He writes

Along with Italy, the governments of Greece, Guatemala, El Salvador, Peru, Turkey, China, and Cambodia, among others, have pushed to reclaim prized artifacts from collections around the world. They have tightened their laws governing the export of antiquities or intensified the enforcement of existing laws and international agreements; they have made impassioned public cases on the world stage.

I don’t think these nations of origin have in fact increased their domestic legal schemes; in nearly every case he mentions here these nations have had very strong legal regimes for many decades, some dating to the very beginning of the 20th century. Italy for example has a national patrimony law dating to 1939. In some cases they are working more closely with the US State Department under the Cultural Property Implementation Act. However, the main difference is the prominent Italian claims of late, which were the result of one fantastically successful criminal investigation which implicated an Italian dealer named Giacomo Medici, and by association his buyers Robert Hecht, Marion True, the Getty, MFA Boston, and the Met.

This allowed for the return of these implicated objects; of course the claims for return were bolstered by photographic evidence of many of the Nostoi objects, which clearly indicated they were illegally excavated on a massive scale. This is a far different argument than the one for say the return of the Parthenon Marbles, or other objects acquired during colonial times, or for the return of other objects which may have been acquired legitimately. I think we need to be particularly careful not to lump too many of these restitution arguments together, and indeed to be honest about how and why objects are returned. The salient issues remain: how are nations of origin protecting sites domestically, how do market nations respond to illegal activity, how are museums acquiring new objects, and is the market conducting the needed provenance checks? That is the only way to prevent future illegal activity.

Questions or Comments? Email me at derek.fincham@gmail.com

The Getty Bronze and "Culture Property Wars"


The “Arts, Briefly” section in today’s New York Times has a couple of interesting points today. First, Marion True went on trial in Greece for conspiring to acquire a gold funerary wreath, alleged to have been removed from Greece. Also, a judge in Pesaro, Italy dismissed a local prosecutor’s claim to the “Bronze Statue of a Victorious Youth” found by fisherman in the Adriatic and currently on display at the Getty. When a repatriation agreement was reached in August for 40 other objects, Italian authorities said they would consider their case after the case in Pesaro was resolved.

Along those lines Lee Rosenbaum has an interesting series of posts on how to create a “ceasefire in the cultural property wars”. She makes a number of excellent suggestions, including a need for full disclosure of acquisition policies, and to create a “consistent handling” of repatriation proposals. I agree with both those suggestions.

I have to raise some issues with her discussion of a consensus for future acquisitions. She gives the three dates normally given as cutoffs for new acquisitions:

  1. 1970, the date of the UNESCO Convention;
  2. 1983, the date the US implemented the Convention with the CPIA; or
  3. A 10-year “rolling rule” advocated by the Association of Art Museum Directors.

Those are all plausible dates, but I think Rosenbaum misses the point in discussing the Getty’s new acquisition policy, and how it relates to the Getty Bronze. First, here’s the Getty’s revised acquisition policy:

For the acquisition of any ancient work of art or archaeological material, the revised policy requires:

* Documentation or substantial evidence that an item was in the United States by November 17, 1970 and that there is no reason to suspect it was illegally exported from its country of origin OR

* Documentation or substantial evidence that the item was out of its country of origin before November 17, 1970 and that it has been or will be legally imported into the United States, OR

* Documentation or substantial evidence that the item was legally exported from its country of origin after November 17, 1970 and that it has been or will be legally imported into the United States.

Rosenbaum then argues, “good faith counts. And it seems to me that this is the best argument for returning the Getty Bronze: There was plenty of ‘reason to suspect it was illegally exported from its country of origin,’ and plenty of people DID suspect it, at the time of the acquisition.”

I think Rosenbaum misses the point of the new acquisition policy, because if the Getty were deciding whether to acquire the Bronze today, based on its new acquisition policy it could certainly do so. To be fair, you have to think like a lawyer. The “or” is critical. The Getty could hypothetically acquire the statue if any one of the three clauses are satisfied; it doesn’t have to satisfy all three. The statue was found in international waters in 1964. Even assuming Italy was its “country of origin” the statue had left Italy by 1970, and it certainly was legally imported into the United States; as at that time the US did not enforce Italy’s export restrictions. It’s also worth remembering that absent a treaty agreement the US does not enforce the export restrictions of another nations. The reasons for that policy are complicated, and often don’t seem to have a solid policy foundation, but that’s the general rule followed in both the US and the UK.

These are difficult issues to be sure, but as I’ve argued I don’t think Italy has a strong ethical or legal claim to the statue. Greece perhaps has an ethical claim, but not Italy. The most likely reason for the statue ending up in the Adriatic is it was taken from Greece, probably by Romans.


Questions or Comments? Email me at derek.fincham@gmail.com