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.

Rewriting the Convention on Cultural Property Implementation Act

It's no surprise that Dr. Nathan Elkins-- one of the AIA's chief proponents of import restrictions on common historical coins of the sort collected worldwide-- claims that any coin type that circulated "predominantly" in a given country should be placed on the "designated list" for restrictions when it's easy for him to generalize that coins circulate "predominantly" where they are made.

But the governing statute, the Convention on Cultural Property Implementation Act, calls for much more.  Assuming other statutory criteria are also met, it only authorizes seizure and forfeiture of artifacts "first discovered within and...subject to export control by" a given country. 19 U.S.C. Section 2601(2)(c).

The ACCG has indicated that the Government could comply with the plain meaning of the CPIA in either one or two ways:  (1) establishing by undisputed scholarly evidence that the coins placed on the designated lists could only have been discovered in a given country for which import restrictions are granted and, hence, must be subject to their export controls; or (2) demonstrating by documentary evidence that any coins Customs seizes were in fact discovered in that country and, hence must be subject to that country's export controls.


The ACCG and others have offered scholarly evidence to suggest that ancient coins as a general rule circulated far from where they were minted.  The fact that some (local bronze coins) typically circulated closer to home than others (precious metal coins and Imperial bronze issues) does not excuse the State Department's and U.S. Customs' efforts to ban coin imports based on place of production rather than s find spot.

The overbroad import bans Elkins and the AIA support threaten to cut off collector access to the vast majority of ancient coins openly available on the international market.  In contrast, restrictions squarely linked to find spots are more narrowly tailored to deterring pillage of archaeological sites.  That, of course, is the primary goal of the CPIA; not the furthering of nationalistic impulses that lay claim to any unprovenanced coin as the presumptive state property of the AIA's allies in foreign cultural bureaucracies.

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.

Has State and CBP Exceeded Their Authority in Imposing Import Restrictions on Ecclesiastical Artifacts?

The CPIA only allows for restrictions on archaeological or ethnological artifacts.   The latter are defined as the products of tribal or nonindustrial societies.  19 U.S.C. Section 2601 (2) (C) (ii).  The Senate Report further makes clear that ethnological artifacts are only supposed to encompass "tribal" or "primitive art," such as masks, idols or totem poles.  (Senate Report at 5.)

The recently announced expansion of Guatamalen import restrictions thus once again raises the question whether State and CBP have exceeded their authority, this time by adding restrictions on ecclesiastical artifacts that date as late as 1821.  Here is a list of the newly restricted artifacts.  Can State and CBP fairly claim they encompass "tribal" or "primitive" art?

Ecclesiastical Ethnological Material (Dating From Approximately A.D. 1524 to 1821)


VI. Sculpture�Sculptural images of scenes or figures, carved in wood andusually painted, relating to ecclesiastical themes, such as the Virgin Mary, saints,angels, Christ, and others.

A. Relief Sculptures�circular-shaped, low-relief plaques, often polychrome wood, relating to ecclesiastical themes.

B. Sculpted Figures�wood carvings of figures relating to ecclesiastical themes, often with moveable limbs, usually with polychrome painting of skin and features; clothing might be sculpted and painted, or actual fabric clothing might be added.

C. Life-Sized Sculptures�full figure wood carvings of figures relating to ecclesiastical themes, often with polychrome painting using the estofado technique, and occasionally embellished with metal objects such as halos, aureoles, and staves.

VII. Painting�paintings illustrating figures, narratives, and events relating to ecclesiastical themes, usually done in oil on wood, metal, walls, or canvas (linen, jute, or cotton).

A. Easel Paintings�pictorial works relating to ecclesiastical themes on wood, metal, or cloth (framed or applied directly to structural walls).

B. Mural Paintings�pictorial works, executed directly on structural walls, relating to ecclesiastical themes.

VIII. Metal�ritual objects for ceremonial ecclesiastical use made of gold, silver, or other metal, including monstrances, lecterns, chalices, censers, candlesticks, crucifixes, crosses, and tabernacles; and objects used to dress sculptures, such as crowns, halos, and aureoles, among others.

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?

ACCG Oral Argument Scheduled

The ACCG's appeal of Judge Blake's dismissal of its test case will be heard before the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia, on September 19, 2012.   The Court will decide whether the ACCG is entitled to judicial review of the State Department's and Customs and Border Protection's controversial decisions to impose import restrictions on Cypriot and Chinese coins, and whether it is proper to restrict coins based on their place of production rather than their find spot under the provisions of the applicable law, the Convention on Cultural Property Implementation Act. 

MOUs Should Be About "Respect" for Governing Law

The State Department has announced that the MOU with Peru has been extended once again to "demonstrate [its] continued respect for the extraordinary cultural heritage of Peru."

While I agree that Peru has an extraordinary cultural heritage, import restrictions are only supposed to be extended if they meet the significant procedural and substantive constraints found in the Convention on Cultural Property Implementation Act.  What then about "respecting" governing law?

Certainly, restrictions were only meant to give countries like Peru time to get any looting under control-- they were never meant to be reinstated time and time and again.   Peru has already had the benefit of US import controls for 15 years.   Hopefully, by the time the next renewal comes along in another 5 years someone responsible at State will conclude enough is enough.

An Enforcement Perspective: Nothing to Fear?

It's worth reading what James McAndrew, a former CBP official said at the recent Asia Society and ACCP event in New York.

James McAndrew: My fans are here! This is great! We are out of order, which is fine for me. Thank you very much I find this very interesting.

Let me talk about my role and background. It is important while we're here, and to share with you my observation quickly about even what I hear what's happening to the panel. It resembles what the discussions are in the trade privately.

One of the terms that you hear come up over and over again is 'fear.' We're supposed to espouse the fear to you, whether you're a private collector or a public institution.

I hear the discussion about how the United States should help out other countries more. I spent many years with the Department of State Audit Task Force. I know the Cultural Heritage Center does go to other countries and try to work with them on issues of looting and protection of archeological sites and implementing certain processes to register and identify what's within their borders. The issue of modern day borders versus cultural borders is not a negative.

What I want to share with you is not to be fearful. US law is very specific on how it can go about, from a law enforcement perspective, taking enforcement action on an object. That specificity is driven by what information is given to them by the source requesting/claiming country. When I was the agent in charge and the requesting country comes to me and says, "I want an auction house to remove all forty lots of my Egyptian artifact," if the claim came from Egypt, I would ask them "What do you have to support that?" More times than not they had little to nothing. On top of that, the object they're asking for might not even have come out of that country.

From an investigative agent's point of view, I didn't care much about the AAMD's 1970 threshold. It's a line. It's nice, it works, it's scholarly, it's a step in the right direction, but from my point of view as an agent, I don't care. I'm focused on this object. Where'd you get it, where'd it come from, what's its history?

We seem to have adopted this mindset that an undocumented object is guilty or illegal, that undocumented means looted. This is not going in the right direction, and it's not the case, as was spoken about in the opening comments. A legitimate fair, commercial, wonderful exchange of culture and objects - the Silk Road for ex ample - has happened for thousands and thousands of years. Somewhere someone drew the line: 1970, the UNESCO convention, countries sign on, and forty years later, this hysteria.

For you the collector the important thing is this: when you import something, the weak point is going to be the point of entry. Whether you acquired an object domestically or at auction, the agent is going to evaluate, with whatever method they have - subpoenas, search warrants, developing sources, interviewing people in the trade - how that piece came into the country. We are a market country. We don't have that 10,000 year-old history. The source countries have the objects. By the time an object winds up here domestically in the United States it has probably passed through a hundred hands and as many countries over the last 10,000 years.

The burden of proof is on the source country to establish how and when that piece left their borders and if that information fits within the timeframe. Not 1970. The ball game has advanced. The government is looking now at when the country established a natural ownership law. 1932, 1934 for Italy. They may say 1906, some countries have 1897. Pick a date. It's not much past the twentieth century. It's up to them. The problem- what's happening with the trade- is this fear factor.

When you import something, it's in the Customs documentation that the Homeland Security agent would love to find that one discrepancy, that one anomaly, that one thing that doesn't exactly match the description of what an import is supposed to say or have. That's the basis of the seizure. If an agent can make that seizure based on a Customs technicality or violation of the regulations, that agent just did a monumental favor to the source country.

What the trade is doing is to try to undervalue. All of a sudden we start thinking too much. We think, "Well, I purchased it for a million dollars. If I value it at $100,000 maybe there will be less scrutiny." Or, "If I order it through an exporter from the source country, maybe that's too easy a line. So let's bring it to London, or Germany or Mexico." When you add those layers, you're asking for trouble.

Because somewhere in there there's going to be a technical Customs problem, and there can be a seizure. Now the burden is on you to explain why you made this technical problem, and you're fighting from the back going forward.

If you document your imports properly, exactly as it should be, you should have nothing to worry about. You leave the burden where it belongs. The CPIA [Cultural Property Implementation Act] is very clear: before a country can get a bilateral agreement to restrict your imports, before the US government sits down, they need to be working within their borders first.

US agencies receive requests from foreign governments. How big is that? Not requests from your competitor next door - you get a massive request on fancy letterhead from the Supreme Council of Antiquities from Iraq or Egypt or Thailand - you pick it - of course you have to react. You don't have much of a choice. I'm out of time. I have a lot to say. Look me up later.

Chiu: Thank you, Jim. Some practical comments and guidelines for collectors today.

Comment:  Former Agent McAndrew won an award from SAFE for his aggressive enforcement efforts.  In my opinion, sometimes these efforts went well beyond what the law allows.  For example, customs sources have indicated that under his watch, Customs typically demanded that imports of artifacts designated for restriction under the CPIA be accompanied not only by the certifications required by the CPIA, but also by a picture from an auction catalogue proving that the artifact was out of the country for which restrictions were granted before the date of the restrictions.  Obviously, this makes it impossible to import many minor objects like coins even with the statutory certifications, because only a small number of such artifacts are significant enough to be pictured in auction catalogues.  For example, perhaps only one of every 10,000 coins that appears on the Cypirot, Greek, and Italian designated lists is actually pictured in an auction catalogue.  For Chinese coins, I would estimate the number as perhaps literally one in a million.

Former Agent McAndrew's words also underscore the fact how faulty paperwork can lead to an item being seized.   Thus, sometimes even innocent mistakes can have serious consequences.  Finally, it is troubling that the US is enforcing foreign cultural patrimony laws under our own law, no matter the date and no matter the circumstances.  For example, such foreign laws typically apply to artifacts found on private land when the US Constitution would preclude the US Government from taking such artifacts in similar circumstances without fair compensation.

For more on the ACCP, see http://www.theaccp.us/

For a video and a copy of the transcript of this event, see http://www.theaccp.us/events.html

Archaeological Blather Obscures Rational Approaches to Metal Detectors

The archaeological blogosphere has been filled with rather colorful denunciations of metal detecting in response to popular TV shows about the practice in both the US and the UK.

Though metal detecting has been widely popular since the 1970's, apparently some archaeologists still can't accept that reality or perhaps the fact that the devices make it easier for amateurs to encroach on their turf.

There is even some real question whether metal detecting really harms archaeology at all. In the UK at least, most metal detecting takes place on ploughed land, i.e., land where the archaeological context has already been disturbed. Second, though metal detectors are becoming more accurate, most metal detectorists still only excavate items found quite near the surface, i.e., an area that archaeologists would in any event likely dig through on their way to far "juicer" strata below.

The issue of metal detectors is also relevant to the State Department's process for imposing import restrictions on coins. Coins can typically only be found with metal detectors. This begs the question why we are imposing import restrictions on all coins of a given type coming here to the United States when it would be far more effective (and fair) to regulate metal detectors at the source. The CPIA is quite clear that self help measures like effective regulation of metal detectors should be tried first before import restrictions, but the State Department regularly reads this requirement out of the CPIA (as it does with most every other requirement).

What does effective regulation look like?

Look no further than Ireland, Scotland, Britain and Wales.

Ireland has banned the use of the metal detector, and critically it did so before the use of the metal detector took off in that country.

In contrast, Scotland has a common law system of treasure trove and Britain and Wales have statutory requirements of the Treasure Act along with the voluntary Portable Antiquities Scheme.

I much prefer these systems to that of Ireland as they encourage the discovery of coins that would otherwise never be found by archaeologists (who are limited in number and who are only interested in relatively few sites) their recordation into a database accessible to all (in Britain and Wales), and depending on the circumstances, their display in museums or their return to finders who can then sell them to collectors who will cherish them.

Yet, I must acknowledge that the Irish system is at least a coherent one.

And what does ineffective regulation look like?

Look no further than Cyprus and Bulgaria.

Each country has laws on the books that in theory at least limit the use of metal detectors, but in practice they are widely used, often right under the nose of the authorities.

In Cyprus, they even turn a blind eye to British tourists bringing them to the Island on holiday.

And to exacerbate the problem, both countries have few, if any incentives for metal detectorists to report their finds, or any coherent system to record them even if they were reported.

Yet, some archaeologists still hold up such countries as some sort of model.

And what of the United States? Here, our Constitution protects our liberty to exploit our own land, but you would not know that from the AIA's indictment of a popular show on Spike TV. I do think that historical artifacts should at least be recorded, but American archaeologists should work with American detectorists to create a system of voluntary recording, rather than making wild claims about their supposed "rights" to control what people do on their own land based upon their self-appointed status as stewards of the past.

CPAC and CPIA Issues Recap

Archaeo-Blogger Paul Barford has this rather uncharitable advice for a small businessman looking for information about the the CPIA, CPAC and import restrictions. See http://paul-barford.blogspot.com/2011/12/looking-for-ccpia-duh.html

I've covered this area before, and here are some of the posts that hopefully will be of some help to those looking for some basic information:

For a short recap of the governing law, see: http://ordinarymag.blogspot.com/2008/07/short-recap-of-cultural-property.html


For a discussion of the impact of import restrictions, see http://ordinarymag.blogspot.com/2011/01/what-is-impact-of-import-restrictions.html

For discussion about how the governing law operates in practice, see

http://ordinarymag.blogspot.com/2011/03/cultural-property-implementation-act-is.html

http://ordinarymag.blogspot.com/2010/04/aba-panel-on-1970-unesco-convention-and.html

Greek Import Restrictions: Winners and Losers

Winners

1. The Greek Cultural Bureaucracy-- The Greek Government has mismanaged its economy so badly that it is relying on Germany and the rest of the EU to bail it out. Greece's cultural bureaucracy is as poorly managed and as corrupt as the rest of the Greek government. Yet, the MOU will no doubt be cited as some sort of U.S. "seal of approval" for the status quo.

2. The Obdurate State Department Cultural Bureaucracy- You've got to hand it to the entrenched bureaucrats at the State Department Bureau of Educational and Cultural Affairs and its Cultural Heritage Center. Important members of Congress have expressed severe misgivings about the implementation of their statutory authority. They have been sued in Court, and even though their decisions have been upheld to date as a matter of judicial deference, this is not the same as a ringing endorsement. Yet, culture creep has turned into a roll with these expansive regulations, by far the most wide ranging since the Chinese MOU in 2009.

3. The AIA and its Archaeological Fanatics- These fanatics hold that the only legitimate exchange of archaeological artifacts is a museum loan. They view import restrictions as a way to clamp down on a trade they do not believe should exist. So far their anti-collecting agenda has meshed well with the nationalism of countries like Greece and the predilection of the State Department to trade favors to the detriment of American collectors, dealers and museums.

4. Wealthy Greek Collectors- The fanatics criticise American collectors and museums, but don't seem to care that wealthy Greek collectors buy from the same sources as American collectors do. Now, Greek collectors will gain a competitive advantage over their American counterparts who can no longer import undocumented cultural goods. No wonder a representative from the Alpha Bank, which maintains Greece's best coin collection in private hands, was part of the Greek delegation that attended the public meeting of CPAC that discussed the MOU.

Losers

1. Greece's Cultural Patrimony-Even before Greece's recent financial meltdown, the country was highly dependent on EU funds to care for its major sites. Now, with money so tight, how can the country take care of its major sites, let alone the millions of minor objects in its stores? Yet, Greek cultural officials will no doubt hope that news about the MOU will will divert attention away from these hard financial realities and help stave off much needed reforms.

2. The CPIA and the Process Congress Contemplated- Import restrictions under the CPIA are supposed to be limited to culturally significant artifacts. Less onerous measures are supposed to be considered first. The restrictions are supposed to be part of a concerted international response. Here, these broad restrictions simply ignore these requirements. Moreover, the failure to give heed to the vast majority of public comments that opposed restrictions on coins again suggests that the whole process is little more than a farce.

3. The Small Businesses of the Antiquities and Numismatic trade- Import restrictions bar entry of cultural goods legitimately for sale abroad where documentation requirements for legal import cannot be met. This is particularly a problem for the small businesses of the numismatic trade. The documentation necessary for legal import is either typically unavailable for artifacts of limited value like most ancient coins or cost prohibitive to produce for such inexpensive items.

4. US Collectors- US collectors of cultural goods, including the thousands upon thousands of Greek coin collectors will face considerable problems securing material, particularly as time goes on.

5. US Museums- Loans are a poor substitute for purchases or donations for collecting museums. The archaeological fanatics may promote loans as a substitute, but they don't have to arrange such loans with the Greek bureaucracy or pay the considerable expense associated with such loans, which typically include expensive conservation costs.

6. US Customs- US Customs officers now have another broad set of import restrictions to administer. While they may make the "big bust" on occasion, I doubt that will make up for the frustration factor of trying to ascertain whether every ancient coin or minor antiquity that "looks Greek" is on the designated list or not.

ACCG Gains Support for Appeal

Six different collector, educational and trade groups have requested leave from the Fourth Circuit Court of Appeals to file three separate amicus briefs in support of the ACCG's efforts to overturn the dismissal of its case to test import regulations on ancient coins. See
http://www.accg.us/News/Item/Organizations_submit_Amici_Briefs_to_Appellate_Court.aspx

Each brief focuses on the failure of the District Court to apply the plain meaning of the CPIA's limitation on import restrictions to coins "first discovered within, and [] subject to the export control by" either Cyprus or China.

The organizations filing jointly or separately are:

American Committee for Cultural Policy (ACCP) / International Association of Dealers in Ancient Art (IADAA) by Richard Rogers, Esq.;

International Association of Professional Numismatists (IAPN) / American Numismatic Association (ANA) / Ancient Coins for Education (ACE) by Michael McCullough, Esq.; and

Professional Numismatists Guild (PNG) by Armen Vartian, Esq.

Brief Filed in ACCG Test Case

The ACCG has filed this brief in the US Court of Appeals for the Fourth Circuit seeking the reversal of Judge Blake's dismissal of its case to test the validity of import restrictions on coins of "Cypriot type" or coins "from China." See http://www.accg.us/News/Item/ACCG_Appellant_Brief_filed_in_Cyprus_China_coin_seizure.aspx

This is from the summary of argument:

The District Court acknowledged that judicial review is appropriate where the Executive�s discretion is limited by statute, but then failed to consider whether the Assistant Secretary, ECA operated outside the law when she imposed import restrictions on ancient coins. Moreover, the District Court�s ruling turns the APA�s presumption of reviewability on its head. At a bare minimum, the District Court should have considered whether the Assistant Secretary, ECA, complied with the CPIA�s requirements or acted ultra vires, and also should have conducted a more thorough, APA-style review of the final agency actions to impose import restrictions on Cypriot and Chinese coins. Finally, the District Court�s rulings that it was unnecessary for China to ask for import restrictions on coins or for the Government to comply with the CPIA�s �first discovery requirement� are at odds with the plain meaning of the CPIA. Extending import restrictions to all unprovenanced coins raises constitutional problems that could be avoided if the �first discovery requirement� were given its plain meaning.

SAFE: Say Yes to the Corrupt Bulgarian Status Quo?

Saving Antiquities for Everyone (SAFE) has started yet another "Say Yes" advocacy campaign in support of import restrictions, this time on behalf of Bulgaria. http://www.savingantiquities.org/Bulgariamou.php

But, what will SAFE's campaign (and that of the AIA) for "no questions asked" import restrictions really do for Bulgaria and the protection of its cultural patrimony, but help support the corrupt status quo?

Though SAFE's advocacy document has plenty of links detailing individual stories about looting of archaeological sites, SAFE's advocacy fails to mention a sobering report about the state of Bulgaria�s cultural policy prepared by the Center for the Study of Democracy. See The Antiquities Trade-Dealers, Traffickers, and Connoisseurs, in Organized Crime in Bulgaria: Markets and Trends 178-197 (Center for Study of Democracy 2007) (�CSD Report�) (available at:http://www.csd.bg/artShow.php?id=9120(last checked, 10/19/11).

This report, prepared with funding from the U.S. Department of Justice, appears to largely reflect the views of government cultural officials and archaeologists. Nevertheless, the report contains some eye-opening facts that should give pause to anyone who might assume all is well with how Bulgaria manages its own cultural patrimony:

� From 100,000 to 250,000 Bulgarians regularly conduct illicit excavations. (Id. at 179.)

� �Most Bulgarian museums have poor recording practices of the artifacts in stock. The general lack of accountability, in particular of museum directors, further aggravates the situation�. The majority of museums do not observe the international standard for describing art, antiques and antiquities with photographs and descriptions of each object (the so called Object ID). In Bulgarian museums objects are often loosely described in general terms, which makes it impossible for them to be tracked, positively identified and restored. The dire state of museum documentation dooms to failure any efforts to trace stolen coins or other items transferred abroad.� (Id. at 183.)

� �To make their anti-looting and anti-trafficking efforts seem more effective enforcement agencies announce lavish values of the illicitly acquired cultural objects they capture.� (Id.)

� �During interviews, carried out for purposes of this paper, it was made clear that the prescribed system of registration [of coins in private collections] by commissions made up of local museum employees was not found trustworthy, as it did not provide safeguards against the theft of valuable coins which could be replaced with cheaper lower grade versions by museum workers.� (Id. at 193.)

� �Some collectors have voiced their suspicions that past burglaries of private coin collections have been committed with the involvement of corrupt police officers or other enforcement officials.� (Id. at 193 n. 312.)

� �Inertia and neglect are not the only factors to throttle effective enforcement. Widespread corruption among local middle-ranking law-enforcement officers who earn personal gains on the black cultural property market also has an adverse effect. Experts have outlined three major forms of corrupt relationships between police officers and antique dealers/looters: 1) policemen are bribed to cover looters and deter police investigation; 2) officers of higher rank become directly involved in illicit antiquities trading, and 3) officers that must prevent and fight cultural property violations become collectors. In addition, the grading of cultural objects held by looters, dealers or collectors is itself often done by would-be experts whose only training is a two-week course delivered by the Privatization Agency on a regular basis that can hardly have equipped them with the knowledge they need to possess about cultural goods. Despite their determination to get looters or persons in illicit hold of antiquities convicted, law-enforcement and investigative bodies are often hampered by either incompetent or intentionally falsified expert assessments presented at the trial phase.� (Id. at 194.)

� �In 2003, the head of Cultural Property Department at the National Police Col. Georgi Getov was discharged. According to media reports he had operated one of the main antiquity smuggling channels in Bulgaria in partnership with a number of prosecutors, NSCOC officers, local archaeological museum directors and other officials who had served as a supply link between looters and the implicated department head. Maritsa Dnes daily, 7 May 2003.� (Id. at 194 n. 316.)

The report goes on to make detailed suggestions on how to address the problem of looting in Bulgaria, including the regulation of metal detectors and the passage of a cultural heritage law that takes into account the concerns of collectors as well as archaeologists.

The report is relevant because Bulgaria is expected to take self-help measures before import restrictions are imposed. In addition, less severe remedies must be considered before the State Department again limits the ability of Americans to import artifacts. (26 USC Section 2602 (a) (1) (B) and (C)(ii).)

Under the circumstances, the US could best help Bulgaria by tabling any talk of import restrictions to allow Bulgaria time to act on the CSD report's recommendations. Though any looting of Bulgarian archaeological sites is regrettable, it is best addressed in Bulgaria itself through the regulation of metal detectors and serious consideration of CSD's other suggestions before import restrictions are imposed.

Obama Appoints Another Archaeologist to CPAC

The Cultural Property Advisory Committee (CPAC) is supposed to represent a diversity of opinion, but President Obama's appointments to date only represent one view-- that of archaeologists who want to clamp down on the trade in cultural artifacts.

Indeed, President Obama's latest appointment to CPAC is yet another archaeologist who has advocated for import restrictions before the same Committee on which she will now serve. See http://www.politicaldigestonline.com/tag/property-advisory/ and http://saa.org/Portals/0/SAA/GovernmentAffairs/honduras_joyce_testimony.pdf

As the notice reads,

Rosemary A. Joyce, Appointee for Member, Cultural Property Advisory Committee

Rosemary Joyce is a professor of anthropology and former chair of the Anthropology Department at the University of California at Berkeley. She is one of the world's leading experts on Honduran archaeology and once served as an Assistant Director of the Peabody Museum at Harvard University and Director of the Hearst Museum at Berkeley. She has served as an officer of the Archaeology Division of the American Anthropological Association, on committees of the Society for American Archaeology and the Archaeological Institute of America, and is a member of the Society for Historical Archaeology. Her research includes comparative study of collections of Honduran archaeological materials in museums in Europe, the United States, and Central America, and historical research on the origins of museums in systematic collecting of objects beginning in the sixteenth century. Professor Joyce received her A.B. from Cornell University and her Ph.D. in Anthropology from the University of Illinois-Urbana.

President Obama has protested he is not anti-business, but so far the White House has appointed no one to CPAC who represents the interests of those who actually have to deal with import restrictions on a daily basis. Instead, only academic critics of the trade in cultural artifacts have been appointed. How about appointing some members of the trade (for whom three slots should be reserved under the CPIA)? Or, why not appoint some collectors to the three public slots or museum professionals to the two slots reserved for museum interests? Shouldn't consumers of artifacts subject to restrictions also be represented?

This is not a partisan issue. There are plenty of Obama supporters who collect ancient artifacts, but they may very well be less likely to vote for his reelection if his administration continues its present course of ensuring that an "archaeology over all" perspective dominates CPAC.

Can an Effective Advocate Be a Good CPAC Chair?

CPAC's new Chair, Professor Patty Gerstenblith, has been a very effective and knowledgeable advocate for the archaeological cause. I've seen that for myself over the past decade from practicing before CPAC and serving with Prof. Gerstenblith in a leadership position in the ABA International Law Section's Art and Cultural Heritage Law Committee.

As Chair, Professor Gerstenblith's challenge will be to transition from acting solely as an advocate for the "context over all" archaeological position to ensuring that the Convention on Cultural Property Implementation Act is properly applied at CPAC and that all voices-- not just those of the archaeological community-- are heard and duly considered at CPAC meetings.

For CPAC to retain any relevance at all it will be critical for Professor Gerstenblith to make that transition. I'm confident she can do so, but she will certainly be up against the perceptions of both archaeologists and those opposed to the extension of import restrictions to even the most common artifacts, like ancient coins.

Obama Appoints Prof. Patty Gerstenblith to Chair CPAC

The Obama Administration has shown its support for the archaeological community by appointing Prof. Patty Gerstenblith Chair of the Cultural Property Advisory Committee. Professor Nancy Wilkie was also reappointed to represent the interests of the archaeological community on CPAC. See
http://www.whitehouse.gov/the-press-office/2011/06/24/president-obama-announces-more-key-administration-posts

The announcement does not state which interest group Prof. Gerstenblith will represent on CPAC. Presumably, Prof. Gerstenblith should represent the interests of the archaeological community, but it is also possible that the Obama Administration will designate her as a member representing the interests of the public.

In any event, it appears that the Obama State Department has decided to "solve" its "CPAC problem" by tilting CPAC to the extreme archaeological view adopted by the State Department Bureau of Educational and Cultural Affairs Cultural Heritage Center.

Opensecrets.org reports that Prof. Gerstenblith has donated $14,950 to Democratic candidates since 2008, including $2,300 to President Obama's election campaign and $1500 to his Senatorial campaigns.

Hawass Says Emergency Import Restrictions Coming; Confirms CPAC Process is a Farce

Egyptian Antiquities Pharaoh Zahi Hawass has put up a revealing post on his blog. See http://www.drhawass.com/blog/international-coalition-support-protection-egyptian-antiquities

Some hitherto little known archaeological group (the Capitol Archaeological Institute) as well as the usual suspects (AIA, ASOR, National Geographic) have apparently formed a coalition to conjure up new emergency restrictions on Egyptian cultural goods.

Hawass' report of his discussions with coalition representatives strongly suggests that the statutory requirements of the Cultural Property Implementation Act-- including the requirement of review by CPAC-- are utterly meaningless. In particular, Hawass has been told that the restrictions are a "done deal" and that the archaeological groups will be preparing a MOU on behalf of the U.S. and Egyptian governments that will also throw more US taxpayer money at Egypt's corrupt archaeological establishment.

According to Hawass, "The coalition reported that the US Government is willing to impose emergency restrictions on Egyptian antiquities....The coalition will be drafting a formal agreement between the US and Egyptian governments...."

All this is quite interesting. Doesn't this just confirm what those representing the interests of collectors, the small businesses of the coin and antiquities trades, and museums have long suspected-- that the archaeological lobby really runs the State Department Bureau of Educational and Cultural Affairs Cultural Heritage Center and that the CPAC process is a farce?

It�s also worth noting that Hawass long claimed that there was no such "emergency" in Egypt, but he is now apparently changing his tune to accommodate the coalition's efforts to clamp down on US collectors of Egyptian antiquities.