Blame the Victim?

While some in the archaeological blogosphere dismiss questions raised about poor stewardship of cultural resources in source countries as nothing more than "blaming the victim," others take a far more thoughtful view of the subject.  Arthur Houghton suggested in a comment on a recent blog post on CPO that source countries should forfeit their rights to demand repatriation when they fail to take care of their own cultural patrimony.   Now, Yale educated archaeologist Sally Johnson raises the same issues on the Art World Intelligence Blog.  In so doing, Johnson discusses the casual destruction of a Mayan pyramid in Belize to provide road building materials.  Johnson asks, "What rules can be put in place�and enforced�to prevent such intentional destruction if the 'owner' of the 'property' chooses to destroy it?"  Ironically, just this year the State Department granted Belize a MOU that supposedly will assist that country "preserve its own cultural patrimony."

Chinese Hackers Don't Dissuade US State Department

Merely a week after CPAC met to consider the proposed renewal of the MOU with the PRC, the news broke about an extensive PRC program to  hack into US defense industry computer systems in an effort to steal US military secrets.

China is aggressively seeking an advantage against the US when it comes to defense preparedness.  But so too is it with respect to the maintenance of a strong antiquities market.  The difference is that the Defense Department is seeking to stymie Chinese ambitions, but our own State Department Bureau of Educational and Cultural Affairs and its Cultural Heritage Center seem all to willing to encourage a vibrant Chinese market at the expense of American interests-- all supposedly in the name of archaeology.

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.

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.

Shame on China III: The PRC's Cronyism and Mercantilist-like Approach to Collecting

I�m actually happy China allows and even encourages collectors to preserve, study and display artifacts from China�s glorious past. But China should be criticized for giving connected insiders like Poly Group, a Chinese auction house connected with the People�s Liberation Army, a leg up on the competition, both foreign and domestic.

China should also be taken to task for taking on a mercantilist-like approach to collecting; Chinese citizens can import whatever they want, but no exports of artifacts predating 1911 are allowed, officially at least. Of course, anything and everything still exits the free ports of Hong Kong and Macao. That allows recently looted artifacts to be re-imported into China no questions asked for rich Chinese collectors.

Why should the US State Department and US Customs preclude Americans from importing Chinese artifacts when China encourages its own citizens to collect the same artifacts, and indeed, the size of the internal Chinese market is many, many times the size of the US market in such materials?

Shame on China: Poor Stewardship of Cultural Resources

This is the first of a few short blogs on issues that should be highlighted-- but which will likely instead be ignored-- in discussions about the proposed renewal of the MOU with China.

Both UNESCO and the CPIA assume that China will take self-help measures to protect its own cultural property, but some 30,000 items on a 1982 list of historic properties have disappeared  due to China's aggressive economic development, particularly for the Olympics.  The bulldozer has even claimed  the home of China's pioneering preservationists.

Even worse, China has demolished large swaths of historic cities built by China's minorities.

Should the MOU with China be renewed given these circumstances?

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.

Far Away from the Archaeo-Blogosphere...

I enjoyed accompanying another collector who spoke to two classes of 7th and 8th Graders about ancient coins and what they can tell us about ancient societies.   Teaching about ancient history is woefully inadequate in our nation's classrooms, so it was great to find a school where the classics are still king and where the kids were both knowledgeable and engaged in the subject matter.

All this raises another point that does directly touch on "cultural property" issues.  The Bureau of Educational and Cultural Affairs (ECA) spends $500 million a year promoting "cultural understanding."  But, I can't help but think that ancient coin collectors do the same thing every time they talk to a class, discuss ancient history and coins, or interact with foreign collectors and dealers, and all at no cost to the U.S. taxpayer.  

One can only wonder if Assistant Secretary, ECA Ann Stock has any clue about the negative impact the actions of her Cultural Heritage Center have had on coin collectors and the good work they do promoting cultural understanding on a people to people basis.   If it's really about protecting archaeological sites rather than encouraging jingoistic nationalism, why promote-- as ECA's Cultural Heritage Center has done-- import restrictions based on a coin's place of production rather than it's find spot?

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.  

Supreme Court Denies Cert.

Disappointingly, but perhaps not surprisingly given the some 150 petitions before the Court at its last conference, the Supreme Court has denied the ACCG's petition for certiorari.  (The Court granted certiorari in four cases, two of which were summarily sent back to the Second Circuit for consideration of a decision just issued this year.)

The Supreme Court's order has no precedential value, leaving the Fourth Circuit�s decision that the State Department's and U.S. Customs' decision-making is generally only subject to "political" rather than "judicial" review only applicable in that Circuit.  

ACCG now plans to contest the forfeiture action the Fourth Circuit anticipates the Government will file against the coins the ACCG imported for purposes of its test case. 

The test case is part of the ACCG's continuing effort to educate the public and government decision-makers about the damage overbroad restrictions have done to the ability of American collectors to legally import coins of the sort that remain widely available abroad, including in places like Bulgaria, Cyprus, Greece, Italy and China.  

In that regard,  the latest post on the Chasing Aphrodite blog provides further discussion about the thinking behind the test case. 

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.

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.

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? 

Presidential Power: From Drones to Drachms

What issues link President Obama's drone war with the ACCG's  cert petition to the Supreme Court?  Find out in Michael McCullough's latest post, Presidential Power:  From Drones to Drachms.  It's well worth a read.

Law 360: Justices Asked To Hear Imported Coin Seizure Case

Law360, a well-known legal news service published this report on the ACCG case by Helen Christophi :

Law360, Los Angeles (February 15, 2013, 4:40 PM ET) -- The Ancient Coin Collectors Guild urged the U.S. Supreme Court on Tuesday to reinstate its suit against U.S. Customs and Border Protection and other agencies over the seizure of ancient Cypriot and Chinese coins after the Fourth Circuit tossed it over foreign policy concerns.

The guild filed a petition arguing for a reversal of the Fourth Circuit's October decision dismissing its suit claiming ancient Cypriot and Chinese coins couldn't be traced to illicit excavations in either country, saying foreign policy concerns shouldn't undermine the law as it had in the lower court's ruling.

�The ACCG has raised serious questions concerning whether foreign policy concerns trump judicial review where Congress has imposed significant procedural and substantive constraints on executive authority to restrict the ability of American citizens to import common cultural goods widely sold worldwide,� Peter Tompa of Bailey & Ehrenberg PLLC, an attorney for the ACCG, said.

The case, originally lodged in Maryland federal court in February 2010, followed the seizure of more than 20 ancient Cypriot and Chinese coins the ACCG imported from London in 2009. The guild argued that it should not be assumed that a coin was stolen or illegally shipped because the owner was unable to show a chain of custody beyond a receipt from a reputable source.

But the government countered that no judicial review of the plaintiff's claims was available and that even if it was, the ACCG had not stated a claim for relief.

U.S. District Judge Catherine Blake granted the government's dismissal bid, and said that actions taken pursuant to delegated presidential authority under the Convention on Cultural Property Implementation Act weren't subject to review under the Administrative Procedures Act.

The Fourth Circuit in October threw out the ACCG's suit on appeal, saying that anything but the most basic review of the Federal Register and the district court opinion for procedural compliance �would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries,� according to the guild's Tuesday petition.

Congress enacted the CPIA in 1983, authorizing the president to enter agreements with other countries to limit the importation of objects of archaeological interest and cultural significance.

The U.S. signed off on such deals with Cyprus and China in July 2007 and January 2009, respectively, limiting the importation of ancient coins minted in the countries.

In its petition, the ACCG argued that the high court should verify that lower courts must apply a �political question� test when a party attempts to dismiss a case over foreign policy considerations.

�The court should grant the petition because the lower court's ruling ignores this court's test for 'political questions' and is directly at odds with case law in sister circuits,� the petition said.

The ACCG also contended that the court must clarify its own decisions on judicial review regarding the delegation of presidential authority to government agencies, saying that the imposition by Customs, rather than the Bureau of Educational and Cultural Affairs, of import restrictions on some coins put into question what the proper standard of review is.

Finally, the group asserted that the various courts' refusal to review import restrictions harms American museums, collectors and small businesses that trade ancient coins.

"The importance of these issues to the continued access of American citizens and institutions to ancient coins and other artifacts as 'hands-on' mediums of cultural exchange and understanding also argue for this court to take this matter up,� the petition said.

Representatives for Customs could not immediately be reached for comment Friday.

The ACCG is represented by Peter K. Tompa of Bailey & Ehrenberg PLLC.

The case is Ancient Coin Collectors Guild v. U.S. Customs and Border Protection et al., case number 12-996, in the U.S. Supreme Court.

1,000th Post: ACCG Files Petition for Cert.

Somehow it seems fitting.  For CPO's 1,000th post, I am linking to the ACCG's press release about its petition for certiorari.  The petition asks the Supreme Court to overturn the lower courts' refusal to engage in judicial review of controversial decisions to impose import restrictions on ancient coins from Cyprus and China.   

Why did the ACCG ask to file such a petition?   The first and last paragraphs of the body of the petition say it all: 

The Ancient Coin Collectors Guild (�the Guild� or �ACCG�), a nonprofit advocacy group for collectors and the small businesses of the numismatic trade, seeks judicial review of administrative decisions which  have drastically limited the ability of coin collectors to lawfully import historical coins of the sort widely available abroad.  In particular, the Department of State (�State�) and U.S. Customs and Border Protection (�CBP�) have restricted the entry of historical coins based on the country of manufacture, whereas Congress explicitly limited restrictions to coins �first discovered� in a particular country, which is completely different.   Such overbroad, unfocused restrictions have greatly inhibited ancient coin collecting in the United States.

...

The lower courts have effectively excused State and CBP from any scrutiny despite well-founded allegations import restrictions on historical coins were imposed without regard for the significant procedural and substantive constraints found in the CPIA.  Accordingly, the Guild respectfully requests that the Court grant certiorari, not only to decide important questions of federal law regarding the form and scope of judicial review, but also to ensure that federal regulators themselves are bound by the rule of law.   

The entire petition may be read here.

The Supreme Court apparently only accepts 4% of such petitions for further review, but should the Court decide to take the matter up, the Court then reverses the lower court some 76% of the time.

As those lottery commercials say, you "gotta play it to win it!"

ACCG to Petition the Supreme Court

The Ancient Coin Collectors Guild has decided to petition the U.S. Supreme Court and request reversal of the Fourth Circuit's decision to affirm the dismissal of its test case. 

Cultural Heritage Center Website Updated

The Cultural Heritage Center's website has been spiffed up with pictures, including one of Hillary Clinton gazing at a Greek statute.  Unfortunately, the Bureau of Educational and Cultural Affairs' tag line "promoting mutual understanding" rings hollow for ancient coin collectors at least.  Indeed, ECA's controversial import restrictions on millions of ancient Greek, Roman and Chinese coins of the sort avidly collected world-wide has, if anything, greatly harmed people to people contacts between collectors in the US and foreign countries.  Why not promote ancient coin collecting, and the cultural understanding it fosters (at no cost to the U.S. taxpayer), rather than seek to suppress it to the benefit of no one but a small number of academic archaeologists and their patrons in foreign cultural bureaucracies?