More on the Size of the Internal Chinese Market for Antiquities

James Fitzpatrick has written CPAC to provide the following additional information about the immense size of the internal Chinese market in cultural goods.  The key question for CPAC and those in the archaeological community supporting restrictions is why impose them on American interests when their net effect is merely to give Chinese collectors and dealers a leg up on their foreign competition?  Is it all about conservation or control?   Mr. Fitzpatrick's letter is quoted in full as follows:

May 31, 2013

 Ms. Patty Gerstenblith

Chair

Cultural Property Advisory Committee

State Department

Washington, D.C.

Dear Ms. Gerstenblith,

In my recent comments to CPAC on behalf of James J. Lally in connection with the reauthorization of the MOU with China, I emphasized the significance of the internal Chinese market for antiquities.  I noted the failure to meet the statutory standard of effective self-help measures by the Chinese given the great bulk of the sales of Chinese antiquities (which sales presumably prompt looting) taking place within China itself and abroad, involving Chinese buyers.  Notably, one of the key archaeologist witnesses at the hearing agreed that there was a significant internal market.

To support this proposition, in his statement to CPAC, Mr. Lally noted that:

Chinese buyers of Chinese art � dominate the market outside China.  Sales statistics for the three leading international auction houses show that over 70% of the dollar volume of Chinese art sold by Bonham�s, Christie�s and Sotheby�s in 2012 was sold to  Chinese buyers. 

The Committee asked how one could make the statement that more than 70% of the buyers were in fact Chinese buyers.  In response to my inquiry, Mr. Lally made clear that the estimates came directly from the auction houses themselves upon reviewing their internal documents:

Regarding the fact that more than 70% of all Chinese art sold at public auction around the world by Sotheby�s, Christie�s, and Bonham�s was bought by Chinese buyers, that is an understatement. I did not simply look at the buyers� lists�the names of buyers are no longer disclosed on public auction price lists�but I did gather the information directly from the auctioneers (as the State Dept.�s �researchers� easily could have done if they were at all serious about gathering facts). I asked the Chinese art department at each of the �big three� international auctioneers to review their private records and tell me what percentage of their worldwide Chinese art sales in the year 2012 were purchased by buyers resident in mainland China (including Hong Kong and Macao) and Taiwan. The auctioneers did not want to allow any comparison between one auction house and another, so I agreed not to publish separate statistics for each auctioneer, publishing only one aggregate figure for all three together. All of them reported total sales to Chinese buyers well over 70 percent and at two of the auctioneers the total was over 80 percent.

Clearly, these data are not limited to MOU-covered antiquities, but there is every reason to believe -- indeed Mr. Lally feels strongly on this point -- that the overall statistics apply across the board -- to MOU antiquities, non-MOU antiquities, and contemporary art.

As for the overall dominance of Chinese buyers for Chinese art -- and antiquities, Lally has replied:

It is true that the great majority of the published sales statistics on the internal Chinese domestic market are reporting sales of non-MOU antiquities and contemporary art. No private market statistics are available�only public auction sales statistics are published, [as noted above: more than 70% of sales made to Chinese buyers] and of course antiquities are a very small fraction of the sales volume at public auction. (The same is true in US and Europe public auction sales�antiquities of all kinds account for only a very small fraction of auction turnover). Nevertheless, the extraordinary, unprecedented growth of the art market inside China�where only Chinese art is traded, raising the turnover from zero in the mid-1980�s to a multi-billion dollar total  rivaling total sales for all art in New York and London today, does clearly indicate the strong demand for all Chinese art including ancient art in the internal, domestic market in China.

Lally has written that this fact can easily be confirmed by CPAC and its investigators and staff:

Although it is impossible to provide statistics, a strong market for ancient Chinese art does thrive inside mainland China, with active collectors and traders at all levels of the market. If you ask any informed dealer in China or Europe or America or Hong Kong everyone would say that the mainland Chinese buyers are dominant in all sectors of the Chinese art market, including ancient art, and we do have public record of strong Chinese buying of ancient Chinese art at auction in the US, London, Europe, Taiwan and Japan.

We do know that there is clearly a large public market in ancient Chinese art in Hong Kong and Macao, with public auctions and private trading of ancient Chinese art. The PRC�which has taken over those two very active trading ports more than 15 years ago�still has not taken any action to regulate the art market or even establish any cultural relics bureau office in either city. 

Why is there obvious failure of the PRC to regulate the market for ancient Chinese art in Hong Kong and Macao never discussed? If the PRC does nothing to enforce restrictions on the trade in ancient Chinese art in two of the wealthiest, most active art market cities in China, why should US customs enforce restrictions on US citizens while Chinese citizens and all other collectors and dealers and museums around the world carry on with no restrictions?

At the end of the day, CPAC should pause and consider the rationale for closing the U.S. market for antiquities while a thriving market exists for those very objects in China, Hong Kong and Macao.

A further public hearing should be convened to permit the Chinese delegation to explain why our markets should be closed, consistent with the statutory criteria, when the very same embargoed objects are freely available in the greater Chinese market.

The internal Chinese market is the key to the integrity of these proceedings.

                                                                                    Sincerely,

                                                                                    James Fitzpatrick

CPAC Public Session to Consider Renewal of MOU with PRC

On May 14, 2013, I attended a public session of the US Cultural Property Advisory Committee (CPAC).   CPAC was considering the possible renewal of the current MOU with China.  The meeting took place in the Main State Department Building.   In addition to CPAC members, speakers and some members of the public, there was also a 5 person delegation from the People�s Republic of China (PRC) present.  They were not introduced and did not speak at the public session, though they likely conferred with CPAC privately afterwards.

The following CPAC members were present:  James Willis (JW) (Trade); Rosemary Joyce (RJ) (Archaeology); Barbara Kaul (BK) (Public); Marta de la Torre (MT) (Public); Patty Gerstenblith (PG) (Chair-Public);  Nancy Wilkie (NW) (Archaeology); Lothar von Falkenhausen  (LF) (Archaeology); Katherine Reid (KR) (Museum);  Nina Archibal (NA) (Museum).  Jane Levine (Trade) was not present.  One trade slot remains vacant.

Thirteen (13) individuals spoke.  These included:  (1) Josh Knerly (AAMD); (2) Thomas Lougham  (Clark Art Institute); (3) Dr. Matthew Welch (Minneapolis Institute of Art); (4) Dr. Liu Yang (Minneapolis Institute of Art; (5) Robin Nicholson (Virginia Museum of Fine Arts);  (6) Leila Amineddoleh (Executive Director, Lawyer�s Committee for Cultural Heritage Preservation); (7) James Fitzpatrick (representing J.J. Lally & Co., a dealership in fine Chinese antiquities); (8) Peter Tompa (representing International Association of Professional Numismatists and the Professional Numismatists Guild); (9) Francis Allard (Indiana University of Pennsylvania); (10) Loukas Barton (University of Pittsburgh); (11) Roderick Campbell (New York University); (12) Anne Underhill (Yale University); and (13 ) Brian Daniels (Penn Cultural Center).

Josh Knerly (JK) supported the MOU, but suggested that China should be required to provide five (5) to ten (10) year long term loans rather than the current one (1) year loan period.   He also noted that China�s ability to control its borders for evaluating its own self-help measures needs to take into account the strength of China as a world power.  Quantifiable goals should be set for review within two (2) not the usual five (5) years.  The designated list should be more limited.  MT asked if there was any data about the impact of restrictions.  She observed that the opacity of the antiquities market makes coming to conclusions difficult.  KR asked about export licenses.  JK indicates that CPAC should ask China for data.  NW observed that the lack of an immunity law did not stop loans.  JK indicated it did limit loans of certain materials. 

Thomas Loughan (TL) indicated that more work needs to be done with extending loan periods.  BK asked about the loan period.  TL indicated it could be as little as less than five (5) months.  JW wondered if a bilateral committee could be established to discuss the loan issue.   KR asked about the types of object s that were loaned.  It took two shows to get enough �Grade 1� objects to match the Clark�s loan of French paintings.

Matthew Welch (MW) and Liu Yang (LY) expressed concerns about last minute changes in objects to be loaned.  This makes it difficult to create a display and a catalogue.   Object lists are typically finalized up to two (2) years before with regard to loans from Europe.  It is virtually impossible to organize exhibits that draw objects from more than one site because of the bureaucracy involved.  JW wondered if tackling the underlying bureaucratic inertia was impossible. KR asked for a specific example.  MW  indicated his museum had hoped to get an exhibit from Sydney, but at the last moment important objects were removed for another exhibit in Hong Kong.  It would be helpful if a contract could be finalized a year in advance. LF asked about loan fees.  These are not too bad, but associated expenses can be very high. In response to questions from RJ and PG, MW reiterated that getting loans from single sites was much easier than from multiple sites and changes to an objects list creates chaos when trying to secure immunity from seizure from the US Department of State.   MW dismissed KR�s claim that any problems were the result of cultural misunderstandings.  MW noted that LY is Chinese and understands the system quite well, but problems have persisted. 

Robin Nicholson (RN) discussed a prospective loan with the Palace Museum engineered with the support of Virginia�s governor.   The goal of the Virginia Museum of Fine Arts is to have a contract in place with the Chinese a year in advance.   Political support has been helpful in getting things done.  BK asked what sort of artifacts were involved.   RN indicated that the display related to 17^th c. artifacts and more recent ones.  

   

Leila Amineddoleh  (LA) supported the renewal of the MOU.  She maintained the fact that 123 countries had signed the 1970 UNESCO Convention satisfied the Cultural Property Implementation Act�s (CPIA�s) concerted international response requirement.  She also noted that China had signed cooperative agreements with other countries to deter pillage. BK asked about the internal Chinese market.  LA indicated she was not familiar with details. LF asked how the PRC�s cooperation compared with that of other countries that have MOUs with the US.  LA maintained that the PRC�s cooperation was good and was comparable to that of Italy.   She also noted that the US has shown its cooperation most recently with Cambodia by seeking the forfeiture of a Khmer statute.  KR noted that repatriations were part of the mix with Italy.  JW noted that the forfeiture proceeding was not related to the MOU with Cambodia.

Jim Fitzpatrick (JF) indicated that it was important for CPAC to adhere to the CPIA�s statutory criteria.  He noted that unlike many third world countries, China was quite able to control its borders.  Furthermore, the domestic Chinese market is much larger than the US market so that import restrictions could have no impact on looting.  It makes no sense for an artifact to be freely available for sale in Beijing but not Boston.   There also needs to be self help, but artifacts leave the free ports of Hong Kong and Macao without restriction. 

PG asked about supporting data.  JF indicated that the statistic that 70% of artifacts in auctions go to Chinese buyers was based on an analysis of names of purchasers.  MT opined that the size of the market was not clear because the antiquities market lacks transparency.   She also noted that the figures included artifacts that are not currently restricted.  JF argued that the Chinese police state should be able to stop looting if it so desired.  JF noted that there was a certain resignation in the trade that it is difficult to undue restrictions.  JF indicated that the restrictions had deterred sales to museums.   JF also stated that as a consequence of the restrictions, much of the Chinese art business has gone abroad.   He stated there is a danger that the Chinese art business will go to France as has the trade in Pre-Columbian artifacts. 

JW indicated that he has now served on CPAC for 11 years and that he had noted a distinct decline in dealer and collector participation, especially compared to the last time the China MOU was discussed.   JW suggested that this decline in comment from dealers and collectors should be taken as a troubling sign for CPAC�s members.

JF agreed, indicating that CPAC�s debate has devolved from the larger issues of import restrictions to listening to complaints from archaeologists and museums about China�s non-compliance with Art. II of the MOU.  He stated, however, that numbers of comments received does not change CPAC�s obligation to apply the CPIA properly. 

LF stated that looting is illegal in China and asked if the US should be a safe haven for looted goods.  JF indicated that closing down the US legal market could not impact looting because of the size of the legal Chinese market.

Peter Tompa (PT) commended China for allowing and encouraging its people to collect common artifacts, but noted that import restrictions only give Chinese businesses�including insiders associated with the country�s rulers�a leg up on the foreign, especially US competition.  PT also indicated that China has not met its obligations under Article II.   In particular, the PRC has expanded its own export ban to any artifact pre-dating 1911 despite a promise to make legal export easier.  The PRC has also failed to crack down on looted artifacts being re-imported into China from Hong Kong and Macao and has also failed to ensure that its own museums do not purchase looted materials.  CPAC should recommend that the current MOU be suspended because it Is only hurting US interests.  At a minimum, however, CPAC should advocate that cash coins�which exist in the millions if not billions�be delisted.  The State Department cannot show these coins only circulated in China because they were widely exported.  If anything, these coins should be shared with students as a teaching tool about Chinese history and culture. 

PG asked about figures related to the size of the Chinese Art Market.  PT confirmed that these figures include both ancient and modern art.  NW asked where Chinese coins come from.  PT indicted some come from tombs, but others come from deposits or were saved after the coins were no longer used as legal tender.  As for coins coming from tombs, they would only be looted incidentally because looters would be primarily motivated to look for far more valuable items.  As for coins that were never buried,  he cited the attachment to his submission which described a Chinese collector who first learned about ancient Chinese cash coins from breaking open an old toy that made use of such coins as weights.  In response to a question about the value of such coins, PT indicated that the value was generally minimal�such coins retail for as little as $1 in the US.   NW maintained there was still an inventive to loot them because one of the hoards of 200,000 coins that was described would be worth $200,000.   PT indicated that the value was likely much less in China.

Francis Allard (FA) spoke of his experiences excavating in China.  He has been offered antiquities in the past but has always declined.  Although FA supports the MOU, the Chinese bureaucracy has not made it easy to collaborate with Chinese colleagues.   NW wondered whether the MOU could be used to promote the building of more laboratories to conduct research.

Loukas Barton (LB) has excavated in China, Mongolia and Alaska.   The Chinese do not allow grave robbing.  He also saw a group of looters being driven from town to town as examples.  He can�t say for sure, but he thinks the Chinese must be taking effective action against looters because he is no longer being offered antiquities.  The Chinese punitive system may be having an effect.   LB specializes in pre-history.  His request for a permit to collaborate with Chinese colleagues in his study of prehistoric China was denied without explanation in 2012.  LB refused to speculate as to the reason.  [CPO wonders whether the Chinese cultural bureaucracy does not want foreigners delving too far into China�s prehistory.   Is it possible they are concerned that the results might undercut China�s historic claim of Han dominion over the land?]  RJ asked about looting.   LB indicated he saw evidence of tomb robbing, but where tombs had already been eroded.  He has also seen shovel pits.  LF expressed frustration with the Chinese denial of FA�s permit.   LB indicated he was told by Chinese colleagues that it was due to a �political problem,� but they did not elaborate.   There are other annoyances as the Chinese ban on the use of GPS devices.  NW recounted how she was denied a permit as well in the 1980�s so the problem is not a new one.

Rod Campbell (RC) indicated that looting was still an issue in China.  Bronzes and oracle bones are particular targets.   RC indicated that the best Bronze Age sites have been looted.   The MOU has helped encourage student exchanges.  RC has been involved in salvage archaeology.  Connections are important to work in China. 

Anne Underhill (AU) suggested that the renewal of the MOU is an opportunity to make improvements.  Looting has declined but some is still taking place.   There should be an increase in cultural exchange.   AU acknowledges there is a large internal market for Chinese artifacts, but the US should keep its import restrictions in place to demonstrate its good will to the Chinese and act as a good role model.   There needs to be more of an effort made as to Hong Kong and Macao.  Museum loans should be made more transparent.   NW indicated there needs to be more Chinese language programs.  In response to a question from PG,  AH indicated that collaboration had improved.

Brian Daniels (BD) indicated that China had complied with Art. II of the MOU.  It has improved regulation of its own market.  In 2009, it created an antiquities police force.  In 2011, it created an interministerial group to examine looting.   There have been proposals to harmonize export controls with Hong Kong and Macao though work needs to be done.  There has been more scrutiny of artifacts leaving China for these free ports.   China has instituted a free museum policy.   NA asked if cultural exchange ebbed and flowed according to diplomatic relations.  BD indicated that he was not aware of any changes depending on diplomatic relations and in fact cultural relations are always beneficial.  MT asked about policing.  There were 764 cases in 2009 and 1210 cases in 2011.  BD did not want to speculate as to the increase.

JW asked about Tibet to all participants.  TL indicated there is some collaboration with Tibetan interests.  PT indicated that the Chinese government has recently been criticized in the press for bulldozing large swaths of Lhasa, Tibet�s capital, in the name of promoting tourism. 

The public meeting then closed.  

CPAC = Complaints Processing Advisory Committee?

As will become more apparent from my upcoming summary of its public session on Chinese import restrictions, the Cultural Property Advisory Committee appears to have devolved into little more than a complaints bureau for museums and archaeologists with gripes about a source country�s compliance with promises made to these groups in order to secure a MOU with the United States. Import restrictions associated with those MOUs, of course, �stick it� to collectors and the small businesses of the coin and antiquities trade all in the name of �protecting archaeological sites.� But what is really ridiculous this time around is that the EXACT SAME artifacts that Americans are no longer free to import are openly available for sale on Chinese markets, and in immense quantities that dwarf any market here.

It was not supposed to be that way. Instead, CPAC was supposed to provide useful advice to the executive branch about protecting both foreign archaeological contexts and protecting US based business and cultural interests.

What happened? First, Senator Moynihan, who ensured that the Convention on Cultural Property Implementation Act reflected this balance, retired from the Senate. And then over time, the State Department chipped away at the considerable substantive and procedural constraints found in the Convention on Cultural Property Implementation Act, going so far as to ignore CPAC�s recommendations that there should be no import restrictions on artifacts as common as historical coins and then misleading Congress and the public about it. Most recently, CPAC has been packed with archaeological supporters, including in slots reserved for the public. No wonder CPAC has become little more than a complaints bureau and rubber stamp for the State Department�s prejudged decision-making favoring the interests of foreign cultural bureaucracies and their allies in the archaeological and museum communities.

THE CHINESE DREAM SHOULD NOT ALLOWED TO BECOME AMERICA�S NIGHTMARE

This more or less was my statement to CPAC on behalf of IAPN and PNG.  I hope to report on the public session of CPAC considering the renewal of the MOU with China in the near future.

A recent issue of Economist Magazine writes of Xi Jinping, China�s new Communist Party Leader and his slogan, the Chinese Dream, a call for China to reclaim its ancient glory. 

          Part of all this, of course, is to highlight the importance of ancient Chinese artifacts not just through diplomatic efforts like this MOU, but through the creation of a vibrant internal collector�s market, including world class bourses like the Beijing International Coin and Stamp Show and auction houses like China Guardian and Poly Auctions.

          On that score, let me be the first to say I�m all for the Chinese government encouraging China�s own people to collect, preserve, study and display ancient artifacts, particularly as common as ancient Chinese coins, which must still exist in the millions if not billions.  That certainly is much preferable to the ideologically motivated destruction of Chinese cultural heritage during the Cultural Revolution or, for that matter, the far more recent demolition of historic Buddhist Temples and large swaths of Lhasa in Tibet and Kashgar on the Silk Road all in the name of progress.   

          But given the reality of a huge, largely open internal Chinese market in common antiquities like pottery and coins, it�s a fair question to ask what is the real purpose of the import restrictions our State Department, presumably with the consent of CPAC, have imposed on American collectors, the small businesses of the antiquities and coin trade and museums?

          I�m well aware that archaeologists have argued that import restrictions help drive potentially looted artifacts off the market, but such a claim makes little sense whatsoever given this huge internal Chinese market.   Indeed, all that is really being accomplished is to give Chinese dealers, auction houses and collectors a leg upon their foreign, particularly American competition.   

          Does CPAC really support such a state of affairs, particularly where the most successful Chinese antiquities sales outlets are insiders associated with the Chinese Government, like Poly Group run by the People�s Liberation Army and China Guardian Auctions, run by the daughter of one of China�s former leaders?  Let�s hope not.

          There is also the issue of Chinese compliance with the current MOU.    Several issues come to mind.   First, China was supposed to make it easier to legally export artifacts, but it has not.  Instead, it now reportedly bans exports of any artifact (even apparently foreign ones like 19^th c. US Trade Dollars) pre-dating 1911. 

          Of course, these rules do not apply to the free ports of Hong Kong and Macao.  China was also supposed to clamp down on them, but it has not.  Instead, artifacts leaving these ports can still be re-imported into the PRC no questions asked.   

          China has also failed to crack down on its own museums purchasing recently looted materials.  Indeed, the business plan of the Poly Group appears to contemplate purchases of such material.   Will CPAC and the State Department hold the PRC accountable to its promises?   Let�s hope so.

          Finally, let�s talk more about Chinese coins currently on the designated list.   The State Department and U.S. Customs have misapplied the CPIA�s requirement limiting any restrictions to artifacts �first discovered within� and �subject to the export control� of China.  They have instead barred the import of any Tang Dynasty and earlier coins based on their place of production, which is entirely different. 

          One cannot safely assume any Chinese cash coins are only found where they were made.  Scholarly evidence demonstrates that early cash coins like those on the designated list were exported in quantity with later issues all around the Far East and even as far West as Africa and the Arabian coast.  

          Certainly the entire agreement with China should be suspended because it is doing nothing to actually protect Chinese archaeological sites, but at a minimum, Chinese cash coins, which exist in the millions if not billions, should be delisted. 

          Indeed, if anything, both China and the State Department Bureau of Educational and Cultural Affairs should seek to have such exceptionally common coins disseminated as widely as possible to US Schools to help teach American students about Chinese history and hence foster the cultural understanding that is supposed to be the brief of ECA, whose Assistant Secretary is the deciding official for this MOU.   Perhaps, that should be a recommendation of CPAC during this  Asian Pacific American Heritage Month --not more restrictions on common coins of the sort widely collected in China itself.

Thank you.

Houghton Questions CPAC on Renewal of China MOU

Arthur Houghton left this comment to my last post about the China MOU, but as he is a former CPAC member himself (who represented the interests of museums), CPO is publishing his query as a separate post:

Peter, the questions go deeper, given the fact that the PRC has asked the US to renew the current Memorandum of Understanding between the two countries. 

The PRC is required to give the US a full report on its compliance with the MOU. Has it done so?  If not, why not?  If it has, the State Department is required to provide the US public with the PRC's report.  Has it done so?  If not why not?  Is there a cover up here -- by the PRC or, worse (much worse!) by the Administration? 

Could someone comment on this?

Thank you,

Arthur 

By way of background, here is what was promised in Article II of the Current MOU:

ARTICLE II 

1. Representatives of the Government of the United States of America and representatives of the Government of the People�s Republic of China shall regularly publicize this Memorandum of Understanding and the reasons for it through available outlets of communication.

2. The Government of the People�s Republic of China shall expand efforts to educate its citizens about the long term importance of safeguarding its rich cultural heritage and that of other countries, a principle embodied in the 1970 UNESCO Convention.

3. The Government of the People�s Republic of China shall use its best efforts to make use of surface surveys in order to inventory sites, and to broaden archaeological research and enhance public awareness of its importance. 4. The Government of the People�s Republic of China shall use its best efforts to increase

funding and professional resources for the protection of cultural heritage throughout the country.

5. The Government of the People�s Republic of China shall take measures to improve the effectiveness of its customs officers, in order to: (1) stop the illicit exportation of cultural property at borders and ports; and (2) recognize Chinese archaeological material and its value to the heritage. The Government of the United States of America shall use its best efforts to improve the ability of its customs officers to recognize Chinese archaeological material and, as appropriate, facilitate assistance to China for the training of its customs

officers.

6. The Government of the People�s Republic of China shall make every effort to stop archaeological material looted or stolen from the Mainland from entering the Hong Kong Special Administrative Region and the Macao Special Administrative Region with the goal of eliminating the illicit trade in these regions.

7. The Government of the United States of America recognizes that the Government of the People�s Republic of China permits the international interchange of archaeological materials for cultural, educational and scientific purposes to enable widespread public appreciation of and legal access to China�s rich cultural heritage.

 The Government of the People�s Republic of China agrees to use its best efforts to further such interchange in the following ways:

(1) promote long-term loans of archaeological objects of significant interest to a broad cross-section of American museums for public exhibition, education, and research purposes;

(2) promote increased institution-to-institution collaboration in the field of art history and in other humanistic and academic disciplines relating to the archaeological heritage of China;

(3) promote the exchange of students and professionals in such fields as archaeology, art history, conservation, museum curatorial practices, and cultural heritage management between appropriate Chinese and U.S. institutions; and

(

4) facilitate the granting of permits to conduct archaeological research in China.

8. The Government of the United States of America shall use its best efforts to facilitate technical assistance to the Government of the People�s Republic of China in pursuit of preserving its cultural heritage by such means as creating a national preservation strategy, improving rescue archaeology, stabilizing and restoring sites/buildings, enhancing the capacity of museums to preserve and exhibit collections, and strengthening regulation of the �cultural relics� market.

9. The Government of the People�s Republic of China shall continue to license the sale and export of certain antiquities as provided by law and will explore ways to make more of these objects available licitly.

10. Recognizing that, pursuant to this Memorandum of Understanding, museums in the United States will be restricted from acquiring certain archaeological objects, the Government of the People�s Republic of China agrees that its museums will similarly refrain from acquiring such restricted archaeological objects that are looted and illegally exported from Mainland China to destinations abroad, unless the seller or donor

provides evidence of legal export from Mainland China or verifiable documentation that the item left Mainland China prior to the imposition of U.S. import restrictions. This will apply to purchases made outside Mainland China by any museum in Mainland China and only to the categories of objects representing China�s cultural heritage from the Paleolithic Period through the end of the Tang Dynasty (A.D. 907), and monumental sculpture and wall art at least 250 years old, as covered by this Memorandum of

Understanding.

11. The Government of the People�s Republic of China shall seek to improve regulation of its internal market for antiquities.

12. Both Governments agree that, in order for United States import restrictions to be most successful in thwarting pillage, the Government of the People�s Republic of China shall endeavor to strengthen regional cooperation within Asia for the protection of cultural patrimony; and, in the effort to deter further pillage in China, shall seek increased cooperation from other importing nations to restrict the import of looted archaeological material originating in China.

13. To strengthen the cooperation between the two countries, the Government of the People�s Republic of China shall regularly provide the Government of the United States with information concerning the implementation of this Memorandum of Understanding; and, as appropriate, the Government of the United States shall provide information to the Government of the People�s Republic of China that strengthens the ability of both countries to enforce applicable laws and regulations to reduce illicit trafficking in cultural property.

Worth A Read

My primary interest is coins so its no surprise I hope others will find the ACCG and IAPN/PNG comments  to CPAC worth reading.

The Asia Society walked a fine line; its submission both applauded and criticized the current MOU with the PRC.

Daniel Shapiro, a law professor and Chinese Art Collector, stated similar concerns as those expressed by others who collect or trade in ancient art.

James Lally was an important voice for the trade when the MOU was first considered and he remains so today.

The Penn Cultural Heritage Center has offered CPAC a detailed defense of the current MOU.

Of course, anyone who wrote, on any side of the issue, should be commended for taking the time to do so.

Note: Regulations.gov is currently experiencing a technical problem.  Some of the comments (including those of Daniel Shapiro and IAPN/PNG) are currently not available on the website.  Hopefully, the problem will be fixed soon.

Slim Public Support for Renewal of the PRC MOU

Only seventeen (17) individuals (virtually all of whom are archaeologists), groups (archaeological trade associations and advocacy groups) and museums wrote CPAC in support of extending the MOU with the PRC.  Two (2) museums and the Asia Society gave qualified support (though the Asia Society requests the MOU to be modified to end restrictions on any artifacts for open sale in China).  Finally, twenty (20) individuals, trade and advocacy groups representing the interests of dealers and collectors have opposed the extension.

These numbers yet again demonstrate the very limited public support for MOUs.  That's not surprising as MOUs only really benefit the interests of  the foreign cultural bureaucracies that parcel out excavation permits and the favored archaeologists and museums that profit.  

A real cost-benefit analysis should be performed as to the value of such restrictions compared to the harm they undeniably cause to collectors, dealers and museums and to the people to people contacts and cultural understanding collecting fosters.

Public comments can be viewed on the regulations.gov website.

CPAC Solicits Comments for China MOU

The US Cultural Property Advisory Committee is soliciting comments concerning the proposed renewal of import restrictions on cultural goods, including coins, down to the end of the Tang Dynasty.  

This renewal should be of particular interest to collectors who specialize in Chinese coins. 

Comments are to touch on the following four determinations: (1)    that the cultural patrimony of the requesting nation is in jeopardy from the pillage of archaeological materials; (2) that the requesting nation has taken measures to protect its cultural patrimony; (3) that U.S. import restrictions, either alone or in concert with actions taken by other market nations, would be of substantial benefit in deterring the serious situation of pillage, and (4) import restrictions would promote the interchange of cultural property among nations for scientific, cultural, and educational purposes.

For Chinese coins, the key points relates to determinations 2-4:  Why should the US Government place restrictions on American collectors given the huge internal market in ancient Chinese coins within China itself, particularly when China and other countries have not imposed similar restrictions on the ability of their own citizens to deal and trade in such coins?   Under the circumstances, continued restrictions will only diminish the ability of Americans to learn about and appreciate Chinese culture from "hands-on" experience with Chinese coins without any impact on the huge trade in Chinese coins abroad. Another issue is that Chinese cash coins circulated widely outside China, including E. Africa, Japan, Indonesia, etc.

To comment on the renewal, use the regulations.gov portal here:  http://www.regulations.gov/#!documentDetail;D=DOS_FRDOC_0001-2354and click on the �comment now� button.

The Department of State requests that any party soliciting or aggregating comments received from other persons for submission to the Department of State inform those persons that the Department of State will

not edit their comments to remove any identifying or contact information, and that they therefore should not include any information in their comments that they do not want publicly disclosed.

KINDLY NOTE COMMENTS ARE DUE ON OR BEFORE 11:59 PM on APRIL 23, 2013.  

Proposed Renewal of Chinese MOU

The Cultural Heritage Center website carries news about a proposed renewal of import restrictions on Chinese cultural goods.  CPAC's public session will take place on May 14th.

The Federal Register notice formally announcing the renewal is to be released on April 1st.

Somehow that is fitting. I'm all for the Chinese populace collecting rather than destroying (remember the Cultural Revolution) artifacts like the bazillions of cash coins that are found all the time in China, but hope CPAC recognizes that current restrictions have done little but to provide Chinese auction houses and dealers with a leg up on their foreign (especially US) competition.

Is it about protecting the archaeological record or encouraging the continued movement of the trade in Chinese artifacts to China and other major market countries?

CPAC Meeting on Renewal of Cambodian MOU

On February 27, 2013, I attended a public meeting of the Cultural Property Advisory Committee (�CPAC�) to discuss the renewal of the Cambodian import restrictions.  The following CPAC members representing the interests of the public, museums, archaeology and the trade were in attendance:  Nina M. Archabal (Museum);  Barbara Bluhm Kaul (Public); Lothar von Falkenhausen (Archaeology); Patty Gerstenblith, Chair (Public)  Rosemary A. Joyce (Archaeology); Katharine L. Reid (Museum);  Marta A. de la Torre (Public); Nancy C. Wilkie (Archaeology) and James W. Willis (Trade).  Jane Levine (Trade) was not present.  In addition, another trade slot remains vacant.  Cultural Heritage Center staff, including Executive Director Maria Kouroupas and staff archaeologists, were also in attendance for the U.S. Department of State.

There were seven (7) speakers, all of whom supported the renewal.  They were:  Dr. Brian Daniels (U. Penn Cultural Heritage Center/AIA); Tess Davis (Researcher/University of Glasgow); Diane Edelman (President, Lawyer�s Committee for Cultural Heritage Preservation); Josh Knerly (lawyer/AAMD); Paul Jett (Freer Gallery/Smithsonian); Karen Mudar (National Park Service, but speaking privately); Helen Jessup (Friend of Khmer Culture).

Brian Daniels spoke first.  Cambodian temple sculptures are still being looted.  Recently, the U. Penn received an email solicitation for the sale of such temple sculptures from Cambodia.  The U. Penn turned the matter over to the authorities.  The seller also sent the solicitation to the Brooklyn Museum of Art.  Cambodia has been very generous with loans to U.S. Museums and has made a real effort to inventory its national museum.  That work is being expanded to include inventories of regional museums and archaeological sites.   In response to questions, Dr. Daniels indicated: (1) there has been some cooperation between Thailand and Cambodia with regard to repatriation of looted Cambodian antiquities; (2) Cambodia has entered into an MOU with Australia that calls for the return of looted material; (3) Cambodia is truly interested in completing an inventory of its cultural treasures.

Tess Davis spoke next.   There are 4,000 known prehistoric sites in Cambodia.  Most have been looted. Cambodia is a much poorer country than its neighbors, Vietnam and Thailand.  It is ranked below the Congo and Iraq in terms of its economic development.  Yet, Cambodia has committed serious resources to protecting its cultural patrimony.  It is hosting an international conference on the subject.  It is going forward with an inventory.  Its law enforcement recently arrested a high ranking general and governor on charges of antiquity smuggling (along with weapons and drugs).  In response to questions, Ms. Davis indicated:  (1) a surprising number of inventory records have survived since the 1960�s given all the warfare that has beset the country; (2) tourism is a positive development, but requires educating tourists not to purchase looted materials; (3) because artifacts are easy to smuggle, U.S. import restrictions are a good second layer of protection; (4) there also is looting of Khmer materials in Laos and Burma, but statistics are hard to come by; (5) there is currently enough funding for the inventory project; (6) the agreement with Australia focuses on law enforcement; (7) the ultimate markets for Khmer artifacts are the U.S., Japan, France, Belgium and Switzerland; and (8) the Cambodian government is doing a better job of posting warnings to tourists.

Ms. Edelman spoke next.  The Lawyer�s Committee is an advocacy organization that is happy to add its agreement to the unanimous view that the MOU should be renewed. 

Josh Knerly then spoke in favor of the MOU.   Loans have been made to major U.S. Museums like the Freer Gallery, but more could be done to encourage loans to regional museums in the U.S.  The AAMD would like to see more direct loans as well.  Currently, all loans need to be negotiated under the authority of the U.S. Embassy.  The Embassy has been cooperative, but it makes sense that some private organization take over.  What the Korea Foundation had done provides a model.

Paul Jett discussed the Freer�s long-term collaboration with Cambodia.  This began in 1997 with the establishment of a metal conservation lab.  Next, was an investigation into the stone that was used for temple building.   Finally, there was the Gods of Angkor Wat exhibit of last year.  In response to questions, Jett indicated there are public education programs in Cambodia.  The inventories vary in quality.

Karen Mudar works for the National Park service but appeared in a personal capacity.  She previously worked in Thailand.  There needs to be public education about looting. The border with Thailand is porous and there are markets for Khmer objects in Thailand.

Helen Jessup spoke last.  There have been 4,000 archaeological sites identified in Cambodia.  There is a porous border with both Vietnam and Thailand.   Artifacts transit through each country.  For a poor country, Cambodia has made a big effort to protect its patrimony.  There are 511 Heritage police in the country.  Eighty-four were trained by the FBI.  Looting has taken place with road construction.  Friends of Khmer Culture have helped fund inventories which have been useful in recovering material from monasteries.  Cambodia has 26 regional museums.  Some are so small that they are housed in police stations or governor�s residences.  There have been zoning efforts to preclude digging near temples.  Outreach is important.  The bilateral agreement has been helpful to control the illicit trade.   In response to a question about corruption, Jessup stated that the situation is uneven.  There are some corrupt officials, but others are good.  There is a need to focus on education.  Tourism is important for Cambodia and in some instances the tourism ministry and the cultural ministry have not been on the same page.  The Cambodians have been extraordinarily generous with loans.  There have been some new museums put up.  A museum run by Thais was unpopular for political reasons.   Another built with Japanese funds but run by Cambodians has been successful. Thefts from monasteries are a continuing problem. One of the ministers in the Cambodian Government has a large collection and runs  his own museum. Other wealthy Cambodians also own Khmer antiquities.  The Ambassador�s Fund has been helpful.  The State Department funded the Red List of Cambodian antiquities at risk which has been useful for Customs officials.  There should be a better effort to post warnings for tourists at the airport.

Tail Wags Dog

Nathan Elkins has publicized a workshop he helped organize.   While I�m all for numismatic research, a perusal of the workshop topics just underscores what a former CPAC member told me: that he thought the State Department has allowed the archaeological tail to wag the numismatic dog.

     

The archaeological establishment has preached at CPAC meetings and elsewhere that coins�like other artifacts--lose their meaning without context, and that import restrictions are necessary to encourage academic research.  But all the workshop topics about coin iconography (including one Elkins himself chaired) simply belie this claim.   

Are import restrictions on coins and the considerable damage they have already done to thousands of American collectors and hundreds of American small businesses of the numismatic trade really justified by such academic endeavors?   Or does Elkins' workshop just provide more evidence that the archaeological tail has been allowed to wag the numismatic dog with little reflection on the veracity of the archaeological establishment�s claims?

Addendum (3/1/13):  On his blog, Elkins now confirms (rightly in my view) that despite the AIA's position to the contrary on unprovenanced objects, coins do indeed retain meaning without context.  He further states on Barford's blog (again rightly in my view) that the AIA's 1970 date should not apply to coins.  [I'm not posting either statement here, however, because frankly they are written in a rather insulting manner.]

But if so, how does Elkins square all this with his association with the AIA's position on cultural heritage issues, particularly if memory serves (it's not available on the AIA webstite) that Elkins is or has been a member of the AIA's Cultural Heritage Policy Committee?  Are the positions the AIA stakes out serious ones that its own members are expected to accept or are they to be conveniently discarded when their application might interfere with an AIA member's research interests?  It would seem the AIA is happy to try to hold museums, collectors and dealers to its views, but how about those associated with the organization itself? 

More Double Standards at CPAC?

The New York Times has reported that the Cambodian Government asked for CPAC member Jane Levine, who is also employed by Sotheby's, to be recused from deliberating on the upcoming CPAC meeting relating to the renewal of the Cambodian MOU.   Presumably, the Cambodians are claiming that Levine cannot fairly discharge her duties given the ongoing dispute involving a Khmer statue.  The article indicates Levine was not going to attend the meeting anyway due to a conflict with a Sotheby's board meeting, but also suggests that the "scheduling conflict" may have provided Levine and Sotheby's with a graceful exit from the dispute.

But, if so, it's worth recalling that State failed to recuse an archaeologist who received an excavation permit from Cyprus despite the clear conflict of interest issues her participation in deliberations related to the renewal of the Cypriot MOU raised.

So, once again, is there one standard applied to collectors and the trade and another for archaeologists aligned with the State Department and source country bureaucracies?

Jay Kislak at 90

It's nice to see former CPAC Chairman Kislak remains active and engaged at age 90.   The article discusses his incredible generosity to the Library of Congress.  It also touches on his  frustrations dealing with the State Department while chairman of CPAC.  In particular, the article references Mr. Kislak's statements at the CPRI's seminar on Capitol Hill.  As the article notes,

With Kislak's knowledge of collecting, President George W. Bush appointed him to the State Department's Cultural Property Advisory Committee. But while chairing the committee from 2003 to 2008, Kislak grew frustrated and didn't seek to stay on with the group, which deals with controversial issues of regulating the importation of cultural and historical artifacts.

Later, at a Washington, D.C., seminar in March 2011, Kislak called the advisory committee "useless." According to a transcript, he criticized the group for holding closed meetings and fumed that its recommendations were ignored by State Department staff.

Thanksgiving: Khouli Sentenced to Home Detention

The U.S. District Court for the Eastern District of New York has sentenced Mousa ("Morris") Khouli to six months of home detention and one year probation for smuggling Egyptian antiquities by way of false declarations on customs forms.  The prosecutor had asked for 46-57 months of incarceration, but the Court evidently was swayed by a sentencing memorandum prepared by Khouli's lawyer that outlined the relatively modest sentences given for other "cultural property" crimes.

The blood-thirsty archaeological blogosphere will likely be aghast at the length of the sentence. But then again, as set forth in the declaration of Jay Kislak appended to ACCG's recently filed petition for rehearing there is credible evidence to suggest that certain individual(s) at the US Department of State misled Congress and the public in official reports about import restrictions on Cypriot coins and have yet to be called into account in any fashion whatsoever.   

Is it really more serious to mislead on a customs form than in an official government report sent to Congress?  And let's not forget that the very same State Department bureaucrats involved in the Cypriot coin controversy are also intimately involved in coordinating repatriations like that at issue in the Khouli case through the State Department's "Cultural Antiquities Task Force."  Why should they be above the law?

ACCG Files Petition for Rehearing

The ACCG has requested the entire Fourth Circuit Court of Appeals to rehear the dismissal of its case testing regulations imposing import restrictions on historical coins of the sort widely traded worldwide.  The ACCG has argued that the panel�s decision ignores Supreme Court precedent, case law in sister circuits, and the �plain meaning� rule.  Specifically, the ACCG states that the panel: (1) failed to consider the U.S. Supreme Court�s test for determining if �foreign policy� concerns trump the judiciary�s obligation �to say what the law is;� (2) adopted a version of judicial review far narrower than that afforded in sister federal appellate courts; and (3) wrongly assumed that CPAC approved of the Government�s decision imposing restrictions on coins based on their place of production rather than their find spot despite the sworn statement of Jay Kislak, CPAC former Chairman, that was previously brought to the trial court�s attention. 

The Obama Record for Collectors: Not a Good One

President Obama's reelection efforts will not rise or fall on his Administration's position on ancient coin collecting, but his record on cultural patrimony issues is worth recounting because of the stark contrast between the Administration's rhetoric and the dismal reality of its actions.

Transparency-  The rhetoric:  President Obama promised that his Administration would be the most transparent in history.   The reality:  The Obama State Department has refused to release the most basic information about its decision making on import restrictions on cultural goods.  Moreover, the Administration has started closing interim reviews of MOUs.  This contrasts with the practice of the Bush Administration, which allowed the public to comment at CPAC meetings whether Italy and Cyprus had met their own obligations under MOU's.  For now at least, the public can still comment before MOU's are renewed.

Overregulation of Small Business:  The rhetoric:  The President claims to be against overregulating small business.  The reality:   The Obama Administration has extended difficult to comply with import restrictions to Greek and Roman coins from Italy and Greece (the heart of the ancient coin market), and will likely add Bulgarian coins to the list soon as well.   In so doing, the Administration has ignored multiple requests for meetings to discuss compliance issues from different coin groups, has offered only condescending responses to bipartisan Congressional inquiries (including one coordinated from the office of Republican VP Candidate Congressman Ryan), and has packed CPAC with academics with little sympathy for such concerns.

China:  The rhetoric:  The President claims he will be tough on Chinese "cheating."  The reality:  The Obama State Department has closed a CPAC meeting to discuss the interim review of the Chinese MOU.  CPAC should be discussing how import restrictions have done little but empower Chinese auction houses linked to the country's ruling elite, but the State Department will instead likely take advantage of this secrecy to spoon feed CPAC a wildly different version of whether import restrictions have been successful.

Fourth Circuit Affirms Dismissal of Test Case

The Court of Appeals for the Fourth Circuit has affirmed Judge Blake�s decision dismissing ACCG�s test case on Cypriot and Chinese import restrictions on coins. Although the Court conceded that the Guild�s arguments, �are not without a point,� the Court concluded any changes to how the State Department and US Customs administers the Convention on Cultural Property Implementation Act must emanate from Congress and the Executive Branch and not the Courts. Nonetheless, the Court of Appeals indicated that ACCG could still pursue various forfeiture defenses related to the seizure of the specific coins it imported. The ACCG is considering further appellate options afforded under the Court�s rules.

Closed CPAC Meetings on Chinese and Cambodian MOU's

There was a time under the Bush Administration that CPAC conducted open meetings in conjunction with their interim reviews of controversial MOU's, like that of Italy.  Under the supposedly transparent Obama Administration that is no longer the case.  The Chinese MOU in particular has been very controversial.  So why not hold an open CPAC meeting where the public can comment on how China has responded to what is asked of it under the current MOU?

Revised MOU Confirms Restrictions Wrongly Placed on Coins?

The CPIA, 19 U.S.C. Section 2602 (a) (1) (C) (ii) limits restrictions only to circumstances where less drastic remedies are unavailable.

Testimony during CPAC�s public session to discuss a renewal of the MOU with Cyprus established that the use of metal detectors was responsible for any looting of historical coins from the Island.

Yet, after 5 years of restrictions on �coins of Cypriot type� the renewed MOU available under "What's New"  on the Cultural Heritage Center webstite states,

"The Government of the Republic of Cyprus will use its best efforts to enforce applicable laws and regulations regarding the use of metal detectors."

Isn�t this an admission that self-help measures on metal detectors were never really tried FIRST before import restrictions were placed on coins?

And if so, doesn�t this just help confirm that the State Department�s and CBP�s controversial decision to impose import restrictions on coins was based not on an application of the law to the facts but rather on cronyism and some behind the scenes lobbying of then Undersecretary Nicholas Burns?

AIA Posts Pics from Posh Party

The Archaeological Institute of America has posted pictures of �the beautiful people� attending its posh gala in New York. See http://www.archaeological.org/news/aianews/9084

Talk about �the One Percent!�

Certainly, the optics of such an event do not square very well with the rhetoric one sometimes hears at Cultural Property Advisory Committee meetings and elsewhere vilifying �wealthy collectors� and US business.  Or perhaps, it is just done for effect.