Court Denies Sotheby's Motion to Dismiss

This is a banner week for the State Department�s Cultural Heritage Center and its "Cultural Antiquities Task Force."  First the denial of the ACCG�s petition for cert.  Now this decision allowing the government to amend its complaint and denying Sotheby's motion to dismiss the government's claim that a Khmer statue up for auction must be considered "stolen" given Cambodian law.

The real concern is that this gives yet more license to the Cultural Heritage Center and its �Cultural Antiquities Task Force� to repatriate artifacts based on unclear and obscure laws of ancient vintage, even where they have only recently been �dug up� so to speak as long as there is some alleged tie-in to a known site.

The subsidiary concern is that the Sotheby�s Court, like the T-Rex Bataar Court, is treating the obligation of a foreign country to actually enforce its laws at home not as an element of the claim up front, but to be raised as a defense to forfeiture after a long slog to trial�something most forfeiture claimants simply can�t afford.

Here is the ruling courtesy of the Chasing Aphrodite blog. 

Will Sotheby's cave or fight on?  Stay tuned.

Some Thoughts on the Renewal of Cambodian MOU

Cambodia certainly has a far more sympathetic case than many applicants for import restrictions.   On the other hand, I�m not sure that the case made to protect sculptural elements from Khmer temples justifies import restrictions on everything and anything old down to the 16^th Century, including things like beads and statuettes.   I�d also like to know more about collections formed in Cambodia itself, particularly the one evidently put together by a government minister.   Does his collection have any statutes or sculptural elements in it?  If so, where and when were they collected?   It seems wrong to me that U.S. Government has filed suit against Sotheby�s demanding the return of a statute that left Cambodia decades ago if wealthy Cambodians, including at least one government minister, have been allowed to collect such material �no questions asked.�

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.

Funding Opportunities Abound?

In reviewing some of the submissions for CPAC's upcoming public session concerning the proposed renewal of the MOU with Cambodia, I was struck by the submission of Christina Luke to CPAC advocating tapping into a vast amount of federal dollars for archaeological projects.   Ms. Luke is associated with Boston University and serves as the Chair of the AIA's "Cultural Heritage Policy Committee."

Leaving aside the self-serving nature of any such request, let's talk about its bad timing, what with sequestration coming this week.     If anything, the State Department should be considering whether any funding for foreign archaeological projects makes sense in a tough budgetary climate where there is pressure to cut other programs that benefit people in foreign countries far more directly, like funding for clean water and HIV/AIDs prevention.

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?

Soft Sell on Cambodian Repatriation

It's interesting to contrast the hardball tactics of elements within the US Government and the US archaeological lobby with the softer line on Cambodian antiquities taken by Prince Ravivaddhana Sisowath of Cambodia.  Is this a case of Good Cop/Bad Cop or is the archaeological lobby cart pushing the repatriation horse once again? 

"Blood Antiquities" or Stale Claim Against Legally Obtained Cultural Goods?

I am struck by the contrast between Sotheby's well-reasoned legal analysis of why the government's forfeiture action against its consigner's Cambodian statue should be dismissed and this well-written CNN opinion piece prepared by advocates for Cambodia.

Unfortunately, Sotheby's brief is not available on-line unless one has a "Pacer" account with the U.S. Court System.   However, "Cultural Heritage Lawyer" and former SAFE VP Rick St.  Hilaire has provided us with his own analysis.  Though St. Hilaire is also associated with the archaeological community, his summary does appear to convey most of Sotheby's arguments accurately.

It will be interesting to read the Government's response. But why has the U.S. Government taken sides at all?   Cambodia has plenty of friends in the archaeological community, including more than a few lawyers.   They should be pursuing any claims Cambodia may have rather than making the U.S. taxpayer foot the bill for such a stale claim that dates back at least to the 1970's (if you believe the Government) or perhaps far earlier (if you believe Sotheby's).

Slippery Slope

Cambodian cultural bureaucrats, no doubt emboldened by the US Government's case against Sotheby's, have now set their sights on more Cambodian statuary that has been on display at the MET for years.  See

http://www.nytimes.com/2012/06/02/arts/design/cambodia-to-ask-met-to-return-10th-century-statues.html

The statuary in question apparently arrived in the US years before import restrictions on undocumented Cambodian artifacts were imposed.  Moreover, unlike the Sotheby's case, there does not appear to be any hard evidence that the statuary came from a specific site.  Accordingly, at this point any Cambodian claims would seem to be based on little more than speculation and a cultural nationalist view that anything of Cambodian manufacture "belongs" to the modern nation state.

Could the Khmer Rouge Pass Good Title?

Tess Davis' recent opinion piece for the LA Times begs the question whether the Khmer Rouge could have passed along good title to the Khmer Statue that the US Government now maintains is stolen.  See http://www.printfriendly.com/print?url=http%3A%2F%2Fwww.latimes.com%2Fnews%2Fopinion%2Fcommentary%2Fla-oe-adv-davis-khmer-loot-sothebys-20120425%2C0%2C2456835.story&partner=Shareaholic

However despicable the Khmer Rouge were, they were internationally recognized as the legitimate government of Cambodia around the time the statue was thought to have disappeared, and held Cambodia's UN seat in a coalition government until the early 1990's with Western support.  Under the circumstances, should the US Government really take sides in this dispute between Sotheby's and the successor Cambodian government?

James Willis Reappointed to CPAC

President Obama has reappointed James Willis to one of the trade slots on CPAC. See http://www.whitehouse.gov/the-press-office/2012/04/16/president-obama-announces-more-key-administration-posts

Jane Levine of Sotheby's continues in another trade slot despite the fact that the Department of State and its Cultural Heritage Center have funded Heritage Watch, the NGO that has been at the forefront of pressing the US and Cambodian governments to seek repatriation of a Khmer statue that was due to be auctioned off by Sotheby's. See http://ordinarymag.blogspot.com/2012/04/government-supported-by-archaeological.html

One other trade slot remains vacant.

SAFE Summary of Hearing in Khmer Statue Case

Despite the predictable editorial spin, this summary from the SAFE website about the initial hearing in the forfeiture case against the Sotheby's Khmer statue is worth reading:

http://www.savingantiquities.org/federal-court-judge-rules-that-10th-c-khmer-statue-remains-at-sothebys-for-now/

Will Return of Khmer Statue Back to Little Known Ruins Lead to Economic Development?

One can empathize with the Cambodians interviewed by the VOA who hope that the repatriation of a statue back to ruins in the area will lead to a tourist driven economic renaissance. See http://culturalheritagelawyer.blogspot.com/2012/04/voa-visits-cambodian-statues-original.html However, is this a realistic hope?

If one operates under the assumption that antiquities should be "saved for everyone" doesn't it instead also follow they should then be displayed in places where the most people will have an opportunity to see and enjoy them?

That is the point in this interesting comment I received from a knowledgeable individual after he reviewed the report:

Many of the local people in small towns in Italy, Greece, Turkey and elsewhere are convinced that having their own museum would be a panacea for all their ills. This, is in fact, never the case. That Getty statue found in the sea is often claimed as 'our' statue by the local villagers in the town where it was landed because they firmly believe that their town would become prosperous from all the visitors who would come to see it. This was also the case with the Riace bronzes, which the local people feel has been robbed from them because they are exhibited in Reggio. In Turkey they returned the Lydian Treasure to some dinky town museum in Usak which, according to that book on the treasure (by some woman I forget), received a total of 1000 visitors in the 5 years it had then been opened for. The fact that 1000s of people would see it per day in NYC versus 1000 in 5 years in Turkey is not a reason to accept illegal excavations, but it is, in a sensible way, justification for them!

If more Turks would view the items in the US than would ever see them in Turkey, well, this is a factor. The Melfi Sarcophagus is one of the top 10 or 20 of all Roman sarcophagi - found in 1856 it was for years stored in the Bishop's garage in Melfi (and had paint dripped on it when they painted the roof) but was removed to a new museum in the castle in 1976. How many people see it per year? If it had been found earlier and removed to Naples by the Bourbon kings, and put on display there how many more people would see it and how much better known would it be?In fact very few people travel to Melfi to see this object and few people leave any of their money there. Another perfect example of an object that is in an obscure place that you have to make a pilgrimage to see is the Vix Krater in the museum of Chatillon sur Seine. It is thelargest surviving ancient metal vessal and is super spectacular (I've actually seen it). But how many people actually get to see it? I am sure one can find out and I am sure that many,many more do go there than go to Usak or Melfi (and there is bound to be a restaurant nearby that has to be better than anything near either U or M). Thus, comparing a well run small museum in an out of the way place with totally useless small museums, brings up the question:if one of the basic tenets against private collecting is that the objects are for "everyone to enjoy", how can they do so if they are put in places that no one goes to?You can say that having objects from Turkey in the Metropolitan in NYC means that more people will see them (and 'enjoy' them) in a week than will see them in their place of origin in a year (or more), but this is very politically incorrect. But if they go on and on about how they are for everyone, it is thus better to have them where everyone is, rather than where they aren't.

While I actually think that major antiquities can be a draw for local tourism, I also believe for that to happen there needs to be an infrastructure in place, and that often takes substantial money that is well spent, and not wasted through poor planning or corruption.

And that is the real challenge, particularly when overgrasping cultural bureaucracies seek control over anything and everything old, rather than focusing on what is most important.

VOA Turns Up Heat on Sotheby's

The VOA, which is purportedly independent, but which has been identified with the US State Department since its inception (see http://en.wikipedia.org/wiki/Voice_of_America), has issued a report that has been publicised in the archaeological blogosphere that supports the seizure and repatriation of a Khmer statue back to Cambodia as stolen goods. See http://culturalheritagelawyer.blogspot.com/2012/04/voa-visits-cambodian-statues-original.html

According to Wikipedia,

A 1976 law signed by President Gerald Ford requires VOA to "serve as a consistently reliable and authoritative source of news." The VOA Charter states: "VOA news will be accurate, objective and comprehensive." However, the service has been criticized as an instrument of American propaganda.

If the VOA truly strives to be as "accurate, objective and comprehensive" as claimed, why not also provide Sotheby's side of the story?

Overaggressive US Prosecutors Basing Sotheby's Seizure on Repealed Foreign Law?

It appears that the US Government is hinging its seizure of a valuable statue from Sotheby�s based upon French colonial era laws that were repealed when the Khmer Rouge took power. See http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html?ref=design

However, even assuming such colonial era laws vested absolute title over the statue in question in the Cambodian state, there is a real question whether they remain in force today. This is what a UN Report has to say on the subject.

According to Article 158 of the 1993 Constitution, laws and regulations which safeguard state property, as well as the rights and property of private individuals, and are consistent with the national interest, continue to be in force unless and until they are amended or repealed, except to the extent that they are contrary to the spirit of the Constitution. There have been sharp disagreements in the interpretation of this Article, between those who would prefer to limit its effect to those laws and regulations which were actually in force immediately before the entry into force of the 1993 Constitution, and those who seek to use its provisions to revive laws which had been in force prior to the Khmer Rouge regime, but have in effect been repealed by the Khmer Rouge. It is an issue which would need to be addressed and successfully resolved, through passage of fresh legislation, if need be, if the objectives of the publication of laws are to be fully achieved.

See http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN004695.pdf

This issue obviously requires additional research, but it again raises the legitimate question whether collectors, museums, dealers and auction houses should be subject to civil and/or criminal liability based on the vagaries of foreign law.

Government, Supported By Archaeological Lobby, Moves Against Sotheby's on Behalf of Cambodia

The Government of Cambodia has been criticized for its undemocratic ways and its border disputes with Thailand. Yet, the US State Department, its Cultural Heritage Center, and its allies in the archaeological community-- including the Department of State funded �Heritage Watch� --have been instrumental in imposing broad restrictions on cultural goods from Cambodia. This, despite the wide availability of this material in markets abroad and the forthright admission by Cambodia�s representative at the most recent CPAC hearing that the Cambodian Army is deeply involved in the supply of ancient Cambodian artifacts to world markets. See http://ordinarymag.blogspot.com/2008/09/cambodian-import-restrictions-extended.html

Now, the Government, again supported by the archaeological lobby, is seeking to seize a Cambodian artifact from Sotheby�s based on allegations that the statute was stolen from an archaeological site, presumably during the dislocation associated with fall of the US-Supported Cambodian government during the aftermath of the Vietnam war. See : http://www.nytimes.com/2012/04/05/arts/design/ancient-cambodian-statue-is-seized-from-sothebys.html?_r=1

My advice to Sotheby�s would be to fight. Experience teaches that press reports sourced to the archaeological lobby may not provide either a complete or accurate depiction of the actual strength of the Government�s case. If SLAM can prevail, perhaps Sotheby�s can as well.

The seizure does, however, suggests that Sotheby�s hiring of a former prosecutor, Jane Levine, has not protected Sotheby�s and its consigners from the aggressive repatriation efforts of the US Government.

Moreover, the seizure raises further questions about whether Jane Levine can serve as an effective member of CPAC or whether her defense of Sotheby�s import of the statue for auction raises conflict of interest issues that cannot be adequately addressed.

Asia Society: Collecting Art in the 21st Century

The Art Newspaper has this short piece about this discussion that took place at the Asia Society. See http://www.theartnewspaper.com/articles/Asia-Society-debate:-the-dos-and-don%E2%80%99ts-of-collecting-antiquities/26093

In addition, the Asia Society website has uploaded the discussion here: http://asiasociety.org/video/arts/collecting-ancient-art-21st-century

Meanwhile, as politically correct complaints from archaeologists and over regulation from the US Government have put a damper on collecting Asian antiquities here, China has now surpassed the US as the art market leader. See http://www.coinsweekly.com/en/News/4?&id=1101

Both the Obama Administration and the archaeological community should ask themselves if their efforts have done anything other than to move the trade oversees to the detriment of the public interest.

Addendum: Jason Felch has posted this summary of the Asia Society event on the "Chasing Aphrodite" blog:
http://chasingaphrodite.com/2012/03/23/at-asia-society-antiquities-collectors-describe-climate-of-fear-2/

Cambodian Cultural Property Fracas Again Shows Appeasment Leads to Escalating Demands

Leaving aside the merits of Cambodia's claim to a valuable statue that was to be auctioned off at Sotheby's, this latest fracas in the cultural property wars again suggests appeasing the archaeological lobby does little but encourage escalating demands. For more, see http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html

If Sotheby�s thought hiring a former prosecutor who has developed strong contacts with the archaeological community would win friends and influence people within the archaeological community, it was wrong.

Also, if anyone thinks 1970 provides a safer harbor to repatriation claims, the archaeological lobby's recourse to a 1925 law to press this claim also suggests that 1970 may not be the "safe harbor" date the archaeological community initially claimed as well.

Yes, appeasement leads to little but escalating demands for more.