Thursday, April 16, 2020

CPAC Meets to Consider MOU with Costa Rica


On April 15, 2020, the U.S. Cultural Property Advisory Committee (“CPAC”) met to consider a proposed MOU with Costa Rica.   The following CPAC members were present via videoconferencing: (1) Stefan Passantino (Public); (2) Adele Chatfield-Taylor (Public); (3) Karol Wight (Museums); (4) Nancy C. Wilkie (Archaeology); (5) Ricardo A. St. Hilaire (Archaeology); (6) Lothar Von Falkenhausen (Archaeology); and  (7) Anthony Wisniewski (Collector-Sale of International Cultural Property).

Chairman Passatino welcomed the speakers.  He indicated that the Committee had read all the comments, and that speakers would be allowed 5 minutes to focus on points most important to them.  After all the speakers were finished, he would open up the floor to questions. The order of speakers was as follows:  (1) Tess Davis, Antiquities Coalition; (2) Peter Tompa, Global Heritage Alliance and Committee for Cultural Policy; (3) Dan Sedwick, International Association of Professional Numismatists, and (4) Kate FitzGibbon.

Tess Davis indicated her organization has partnered with both the U.S. and foreign governments to protect cultural patrimony.  As Ms. Davis indicated that the Archaeological Institute of America and Costa Rican authorities had or would address three threshold requirements for a MOU, she focused her attention on the fourth “concerted international response” requirement for similar restrictions by other market nations. She appeared to be arguing that the legally mandated requirements of the Cultural Property Implementation Act were moot. The signing of the 1970 UNESCO Convention defined all signatories as treating objects exported without permission from source countries as illicit. Similarly, changes in EU law requiring export permits for lawful entry into the EU market showed the widespread global perspective that without a valid export permit, objects should be treated as illicit without proof that they were unlawfully exported - noting however that the EU rules were still being finalized.  She noted new laws in Germany prohibiting import without an export permit. She stated, inaccurately, that the UK in 2003 passed a law that required lawful proof of export for entry of antiquities. (The UK law only blocks entry of objects illegally exported after 2003 and has been very rarely used.) She also stated that only Switzerland and the United States, of all market nations, still require nations seeking protection to have a bilateral agreement.

Peter Tompa asked the Committee to focus on following the law.  He first focused on the CPIA’s requirement that the cultural patrimony of Costa Rica must be in jeopardy. He noted that there was considerable evidence of historical looting in Costa Rica, but he had been unable to find any references to current looting and, indeed, the AIA’s letter did not discuss current looting either. He then suggested that CPAC condition any MOU on Costa Rica considering the institution of a Portable Antiquities Scheme, site security measures at archaeological sites, and fair living wages for archaeological workers.  Next, he agreed with the Antiquities Coalition’s letter stating that the CPIA contemplated focused, prospective import restrictions on items illicitly exported after the effective date of any regulations, but noted that in practice U.S. Customs and Border Protection enforced CPIA restrictions as embargoes on all items on designated lists imported into the U.S. after the effective date of regulations, which is far broader.  He also noted that restrictions were particularly devastating to collectors of low value items like coins that often lack an extensive trail of provenance documents.  Finally, he noted CPAC is responsible for advising Customs about the content of the designated list, and that items like coins should be excluded because Costa Rican coins do not meet the definition of archaeological objects.

Daniel Sedwick indicates while he is not aware of Costa Rica explicitly asking for import restrictions on coins, it is his understanding that restrictions have been granted in the past even without an explicit request.  In light of that possibility, he provided a brief numismatic history of Costa Rica. Costa Rica was part of colonial Spain until 1821, but coins were not struck in Costa Rica (specifically the San José mint) until 1828, when it was part of the Central American Republic. In the 1840s the Republic of Costa Rica resorted to countermarking previously issued coins for circulation until finally issuing its own coinage starting in 1849. From that point on, the coinage of Costa Rica has been manufactured at various mints from around the world, including the Philadelphia Mint in the U.S. and the Heaton Mint in Birmingham, England, in addition to its own San José mint.

He noted that because of this history it should be evident that coins of the sort that circulated in Costa Rica are not inherently archeological in nature. In addition, to his knowledge there have been no hoards or other potentially archeological circumstances in which Costa Rican coins were discovered. Therefore, as discussed in the paper submitted on IAPN’s behalf, Costa Rican coins are not “archaeological objects” because they are not typically found within the ground, nor do they meet the 250-year-old threshold. In fact, Costa Rica’s government condones free trade of its numismatic material, both within and outside the country. For example, the Banco Central in Costa Rica is known for selling off duplicates from its own collection on the open international market. The curator of the Numismatic Museum of the Banco Central, Manuel Chacón, told Mr. Sedwick that he did not believe the MOU could possibly apply to Costa Rican coins because, as he points out, coins are not considered cultural property within Costa Rican law, and trade in coins there is not restricted.

Sr. Chacón’s views are consistent with limitations on import controls under U.S. law. As Mr. Sedwick understand it, the point of the CPIA is to help countries enforce their export controls, so as a predicate for U.S. import restrictions, there must be explicit Costa Rican export controls. While Costa Rica has no provision he is aware of concerning the exportation of coins, coins are specifically mentioned in their tax law and in fact their importation is taxed. So if the numismatic trade is legal in Costa Rica, and the importation of coins is taxed, he asks why should we restrict the entry of such coins into the US even if such a request is on the table?

Mr. Sedwick then goes to question the idea that coins should be subject to restrictions where there is no evidence that they are the products of recent, illicit digs.

Kate Fitz Gibbon, who had earlier deferred time to Peter Tompa, said that the Committee's duty was to follow US, not foreign law, and illustrated its failure to do so by quoting Mark B. Feldman, the chief State Department negotiator for the US during the UNESCO Convention and the Congressional negotiations on the CPIA. 

She said, “there have been dramatic changes in U.S. law and practice that have established a very different policy balance than the one the State Department negotiated in the UNESCO Convention and that Congress approved in the implementing legislation.”

“Ultimately, most stakeholders agreed that carefully focused import controls were necessary to dampen market incentives for pillage of archeological sites and endorsed an international convention for that purpose provided it had no retroactive effect on existing American collections. The panel rejected the “blank-check” approach that would have implemented foreign export controls designed to keep art at home in favor of targeted import controls intended to discourage looting that threatened to destroy the record of human civilization while preserving imports of ancient art to promote study of ancient civilizations.”

“In recent years, the State Department has implemented the program vigorously believing strongly in its mission to help protect the cultural heritage of mankind and responding to the demands of foreign states.  This is commendable provided the Department complies with its statutory mandate.  The Executive is not authorized to establish import controls without international cooperation unless an emergency condition exists as defined by law, and Congress did not intend to authorize comprehensive import controls on all archeological objects exported from a country of origin without its permission.  The purpose of the program is not to keep art at home, but to help protect archeological resources from pillage; the findings required by the CCPIA were established for that purpose.”

Fitz Gibbon urged the Committee to follow US law and nothing else.

Question Period

Karol Wight asked Daniel Sedwick if IAPN only opposes import restrictions on coins and not a MOU.  Mr. Sedwick indicates that IAPN’s only concern is about coins and IAPN does not oppose a MOU.  She also asks him about his statement that the Banco Central has sold items.  He indicates that it is common for collectors as well as institutions to sell items to buy other ones or to upgrade.  Ms. Wight concurs there is nothing wrong with institutions deaccessioning objects for proper purposes.

Anthony Wisniewski asked Daniel Sedwick about the circulation of Spanish Colonial coins.  Mr. Sedwick affirmed that they were widely used as trade currency throughout the world including the United States (where they were legal tender until 1857) and Asia where merchants placed “chop marks” on them.  This makes it difficult to associate them with the cultural heritage of just one country.  Sedwick also indicated that the same applies to coins from the later Republican era, particularly "Cap and Ray" 8 Reales.

Anthony Wisniewski asked Peter Tompa about the term “two bits.”  He indicated it relates to a division of the Spanish Colonial 8 Reales coin into small change worth 25 cents.  He also indicated that this terminology as well as references in our literature show that Spanish Colonial coins are as much part of our cultural heritage as that of Latin America.

Rick St. Hilaire next asked Peter Tompa about self-help measures.  Tompa indicated that former CPAC Chair Marty Sullivan used to ask at most every meeting what countries could do better.  Tompa stated here CPAC should recommend that Costa Rica consider instituting a Portable Antiquity Recording Scheme, better site security and a fair living wage for archaeological workers.  He noted that UK authorities have in the past expressed an interest in providing technical assistance with regard to PAS. He also noted that site security is important to do for the long off season and much cheaper now due to cameras and other electronic security devices.  Finally, he indicated paying archaeological workers a fair living wage will help with site security because it will make it less likely that the impoverished people who work at archaeological sites will turn to looting in the long off season.  He cited David Matsuda’s article in Kate FitzGibbon’s book as a source as well as a recent study of site looting conducted by the Antiquities Coalition. 

Karol Wight asked Peter Tompa if his organizations oppose the MOU.  He indicated they do not; they simply want CPAC to follow the law before approving another MOU.

Ms. Wight also asked Tess Davis about any knowledge she has about drugs and antiquities being sold together in Costa Rica.  Ms. Davis indicated that has happened elsewhere, but she is an expert in South East Asia not Latin America.  She indicated  Donna Yates and another colleague should be contacted to provide such information.

Chairman Passatino allowed Tess Davis to add a few words.  In response to Peter Tompa, she indicated that Customs accepts a wide variety of information as proof of provenance, but, in any event, this is an enforcement issue for Customs, not CPAC.   The Chairman also allowed Tompa to respond.  He indicated that he gets phone calls and emails every few months from people who have had their collector coins detained or seized.  He also indicated that in one recent case, Customs seized coins legally exported from one EU country (Austria) based on a Greek designated list, even though Greece is bound to accept any export from Austria as a legal export under EU law. He also indicated that the issue should be CPAC’s problem because Customs refuses to meet on the issue, stating that it is bound by what the State Department wants. Further in this regard, Tompa noted he recently got a no relevant documents response from Customs related to MOUs with MENA countries even though the applicable regulations come from U.S. Customs.

Chairman Passatino then closed the meeting with promise that CPAC “checks the box” with regard to every finding it must make before recommending a MOU.

Monday, February 24, 2020

US State Department Approves "Emergency Import Restrictions" on Behalf of Yemen's Saudi Backed Government

The U.S. State Department has approved more import restrictions, this time with Yemen's Saudi backed government which stands accused of complicity in human rights abuses and the intentional bombing and shelling of Yemeni cultural sites.

Effective Feb. 5, 2020, import restrictions have been imposed on a wide variety of Yemeni archaeological and ethnological artifacts, including coins and books and manuscripts, which would cover religious artifacts of Yemen's displaced Jewish population.

The list of coins is extensive.  It includes:

9. Coins—A reference book for ancient, pre-Islamic material in Yemen is M. Huth, Coinage of the Caravan Kingdoms: Ancient Arabian Coins from the Collection of Martin Huth, New York, 2010, pp. 68-152. A reference book for Islamic coinage to A.D. 1750 is S. Album, Checklist of Islamic Coins, Santa Rosa, 2011, pp. 116-127. Some of the best-known types are described below:

a. Ancient—In gold, silver, and bronze/copper, with units ranging from tetradrachms down to various fractional levels.
i. Earliest coins from Yemen are imitations of silver tetradrachms from Athens; feature a bust of Athena on the obverse and an owl on the reverse. The style of these imitations is distinctive, and they are usually marked with Arabian monograms or graffiti. Approximate date: 500 B.C. and later.
ii. Minaeans produced schematic imitations of the Athenian coinage; these coins have angular shapes, often triangular. Style is distinctive with monograms with Arabian letters. Approximate date: 200 B.C.
iii. Sabaeans struck distinctive local imitations of Athenian tetradrachms, with or without monograms, often with the curved symbol of Almaqah to the right of the owl, and of smaller units than previously. In the 1st century A.D., the head of Athena is replaced with a male bust resembling Augustus; owl on the reverse continues, as do monograms and the curved symbol. In the 2nd and 3rd centuries A.D., a beardless male head appears on the coins with the curved symbol, and a facing bucranium (a bull's head) appears on the reverse with the curved symbol and monograms. Approximate date: 400 B.C.-A.D. 300.
iv. Himyarite coins feature beardless male heads on the obverse coupled with bearded male heads on the reverse. Various South Arabian monograms appear on the coins. Rulers include Yuhabirr, Karib'il Yehun`im Wattar, Amdan Yuhaqbid, Amdan Bayan, Tha'ran Ya`ub, Shamnar Yuhan`am, and unknown kings. Approximate date: 110 B.C.-A.D. 200.
v. Qatabians produced imitations of Athenian coins also in 2nd-4th century B.C., with or without monograms; distinctive style. From the 2nd century B.C. to the 2nd century A.D., head of Athena is replaced with male ruler portraits, including those of Yad'ab Dhubyan Yuhargib, Dhub, Hawfi`Amm Yuhan`am III, Shahr Yagul, Waraw'il Ghaylan, Shahr Hilal, Yad`ab Yanaf, and various unknown rulers. Reverses of early types have the owl, while later types have a second portrait on the reverse. Approximate date: 400 B.C.-A.D. 200.
vi. Bronze coins from Hadramawt have radiate male portraits in a circle on the obverse and a standing bull on the reverse; Arabian symbols appear. Approximate date: A.D. 200-400.
vii. Various South Arabian types imitate Athenian coins, Hellenistic Alexander tetradrachms with a head of Herakles on the obverse and Zeus seated on the reverse, and Ptolemaic coins with a cornucopia on the reverse. Style is distinctive; designs are accompanied by Arabian monograms.
b. Islamic Period—In gold, silver, and bronze, and including anonymous mints in Yemen, and coins of unknown rulers attributed to Yemen. Non-exclusive mints are the primary manufacturers of the listed coins, but there may be other production mints.
i. `Abbasid coins struck in gold, silver, and bronze, at non-exclusive mints San`a, Zabid, `Adan, Dhamar, `Aththar, and Baysh mints. Approximate date: A.D. 786-974.
ii. Coins of the Amirs of San`a, struck in gold, at the mint of San`a. Approximate date: A.D. 909-911.
iii. Rassid (1st period) coins struck in gold and silver at Sa`da, San`a, Tukhla', and `Aththar. Approximate date: A.D. 898-1014.
iv. Coins of the Amirs of Yemen, struck in silver, at an uncertain mint. Approximate date: A.D. 1000-1100.
v. Coins of the Amirs of `Aththar, struck in gold, at the mint of `Aththar. Approximate date: A.D. 957-988.
vi. Tarafid coins, struck in silver, at the mint of `Aththar. Approximate date: A.D. 991-1004.
vii. Ziyadid coins, struck in gold and silver, at non-exclusive mint Zabid. Approximate date: A.D. 955-1050s.
viii. Khawlanid coins, struck in silver, at the mint of San`a. Approximate date: A.D. 1046-1047.
ix. Najjahid coins, struck in gold, at the mints Zabid and Dathina. Approximate date: A.D. 1021-1158.
x. Sulayhid coins, struck in gold and debased silver, at non-exclusive mints Zabid, `Aththar, `Adan, Dhu Jibla. Approximate date: A.D. 1047-1137.
xi. Zuray'id coins, struck in gold, at the mints of `Adan and Dhu Jibla. Approximate date: A.D. 1111-1174.
xii. Coins of Mahdid of Zabid, struck in silver, at the mint of Zabid. Approximate date: A.D. 1159-1174.
xiii. Rassid (2nd period) coins, struck in gold and silver, at non-exclusive mints Zufar, San`a, Sa`da, Huth, Dhirwah, Kahlan, Muda', `Ayyan, Bukur, al-Jahili, and Dhamar. Approximate date: A.D. 1185-1390.
xiv. Ayyubid coins, struck in gold, silver, and bronze, at the mints of Zabid, `Adan, Ta`izz, San`a, al-Dumluwa, Bukur, and Mayban. Approximate date: A.D. 1174-1236.
xv. Rasulid coins, struck in gold, silver, and bronze, at non-exclusive mints `Adan, Zabid, al-Mahjam, Ta`izz, San`a, Tha'bat, and Hajja. Approximate date: A.D. 1229-1439.
xvi. Tahirid coins, struck in silver, at the mint of `Adan. Approximate date: A.D. 1517-1538.
xvii. Rassid (3rd period) coins, struck in silver and bronze, at the mints of San`a, Zafir, and Thula. Approximate date: A.D. 1506-1572.
xviii. Ottoman coins, struck in gold, silver and bronze, at the mints of Zabid, San`a, `Adan, Kawkaban, Ta`izz, Sa`da, al-Mukha, and Malhaz. Approximate date: A.D. 1520-1750.

(Ironically, both Martin Huth and Stephen Album's firm have expressed concerns about import restrictions on coins to the Cultural Property Advisory Committee (CPAC) in the past.  Yet, here their scholarly works on these coins are being cited as a basis for the restrictions!)

What's All the Fuss About?

The archaeological lobby supporting import restrictions have pitched them as  a "consumer protection" measure designed to keep U.S. collectors from buying recently looted material.   Yet, they must know that import restrictions are controversial to the trade and collectors because, as construed by U.S. Customs and Border Protection, they embargo all undocumented items of types on designated lists imported after the effective date of the regulations, not just items illegally exported from a UNESCO State party after the effective date of import restrictions as required under Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601, 2604, 2606, 2610. Such regulatory actions have converted CPIA import restrictions into embargoes of all objects of restricted types rather  than targeted, prospective import restrictions that do not impact the purchase of artifacts from the legitimate marketplace abroad.

Import restrictions have been particularly hard on coin collectors and the small businesses of the numismatic trade because most collector's coins (which typically are of limited value) lack detailed provenance histories necessary for legal import. This has greatly damaged the legitimate trade in such items with fellow collectors, especially from within the E.U.

Jewish groups will feel particularly aggrieved by the State Department's treatment of their concerns.  As has been the case with other MOU's made by the Obama and Trump State Departments on behalf of other authoritarian MENA regimes, import restrictions on behalf of Yemen contain no explicit exemption for artifacts once owned by Yemen's displaced Jewish population.  That means the restrictions on books , manuscripts and other archaeological and ethnological artifacts also apply to Torahs and other personal property (like jewelry) that had to be abandoned when Yemeni Jews were forced from the country.  As these groups see it, this is tantamount to U.S. State Department recognition  of the rights of Yemen and other authoritarian Arab regimes to their  personal and communal religious property.

 There also is the obvious question about whether these import restrictions will really promote "cultural property protection."  Pursuant to the CPIA, any artifacts U.S. Customs and Border Protection seize will be sent to Yemen, a country involved in a multi-party civil war, and be given over to the custody of a  government which itself has been accused of complicity in bombing cultural sites.

Finally, there is an important issue of process.  The short comment period allowed before the CPAC meeting to address Yemen's request (which encompassed important Jewish Holidays) raised suspicions at the time whether the decision was already a "done deal."  Certainly, there was plenty of evidence of lobbying by the Antiquities Coalition, an archaeological advocacy group with ties to authoritarian MENA regimes, on Yemen's behalf.  Moreover, just recently, the U.S. Embassy in Jordan seems to have confirmed what Cultural Property Observer has long feared- that the State Department bureaucracy views CPAC as a mere rubber stamp for agreements already worked out in advance among  the archaeological lobby and the State Department and source country bureaucracies.  Hopefully, going forward, CPAC's new Chairman and its new members will do their utmost to instead ensure CPAC sticks to its mandate to offer the State Department decision maker useful advice on whether or not to agree to a MOU based on inputs from all stake holders-- not just those associated with the archaeological lobby who already have strong relationships with the State Department Cultural Heritage Center.

Certainly, CPAC and Trump Administration political appointees need to ask themselves whether the State Department is providing a good example to MENA governments about what good governance and democracy mean.  They also need to consider how the actions of the State Department are impacting ethnic and religious minorities, American small business owners, museum professionals and collectors, all of whom will be voting in the upcoming Presidential election.

Wednesday, February 12, 2020

Jordanian MOU Backstory: A Window into How MOU's are Orchestrated

The US Embassy in Jordan has helpfully confirmed what many who have closely followed the process of creating MOU's "protecting" cultural heritage already knew, i.e., that the process is orchestrated in advance by the State Department itself with the help of archaeological advocacy groups.

Here is what the US Embassy in Jordan itself has said about the process:

The idea of holding an agreement to protect the Jordanian cultural heritage from smuggling had begun on the margins of the meeting of the second ministerial conference entitled “Heritage under Threat” which was held in Amman on September 8, 2016, and was organized by the Ministry of Foreign Affairs and Expatriates Affairs, the Ministry of Tourism and Antiquities, the Middle East Institute and the Archaeological Institute of America (AIA), where the cultural section of the Embassy of the United States of America in Amman expressed the desire of the United States of America to conclude a bilateral agreement with the Government of the Hashemite Kingdom of Jordan represented by the Department of Antiquities, with the aim of protecting Jordanian cultural heritage from smuggling.  Accordingly, many meetings were held with specialists from the US State Department, the US embassy, and from the Ministry of Foreign Affairs and the Department of Antiquities, during which the broad lines were agreed upon to prepare a memorandum of understanding on preventing the import of Jordanian artifacts and recovering the artifacts from the United States and returning them to Jordan.  Workshops, lectures, and visits were organized for experts from the United States of America to introduce international agreements on preventing the trafficking of antiquities and protecting cultural heritage.  

In other words, despite what the Cultural Property Implementation Act contemplates, the decision to enter into a MOU does not actually depend on recommendations of the Cultural Property Advisory Committee, but rather a Committee meeting merely provides an opportunity for public comment before a body that has also been dominated by members sympathetic to the views of the same advocacy groups involved in orchestrating MOU's in the first place.

No wonder no MOU request has ever been turned down.

Friday, February 7, 2020

The US State Department Imposes Import Restrictions on a Wide Variety of Jordanian Archaeological Objects-- Including More ROPE!

The Federal Register has announced broad import restrictions on Jordanian archaeological objects, effective Feb. 5, 2020.  The Federal Register Notice along with the "designated list" of objects subject to restrictions can be found here.

The U.S. Embassy in Jordan announced the Memorandum of Understanding that authorized these import restrictions back in December.  While we now know what has been restricted, the MOU-- which should detail any promises Jordan has made as part of the agreement-- has yet to be released.

Exceptionally Broad List

As with other recent MOU's, the designated list is ridiculously broad.  For example, the State Department has concluded that Jordanian rope must be subject to detention, seizure and repatriation, just like Algerian rope  which was restricted earlier.  One really has to wonder how either could possibly  meet the CPIA's "cultural significance" test for objects to be restricted. 19 U.S.C.  § 2601.

Thankfully, the "designated list" for coins at least leaves out Greek and Roman types made elsewhere that circulated not only in Jordan, but throughout the Middle East and beyond.  Nonetheless, the list remains quite broad, incorporating not only local bronze issues, but Nabataean and Byzantine coins that circulated regionally.  

Here is the list for coins:

10. Coins—Some of the best-known
types include:
a. Nabataean—Coins in silver, lead,
copper or bronze and struck at Petra.
They typically have cornucopiae or
wreaths on the reverse and portrait of
the ruler or rulers on the obverse.
b. Roman Provincial—Coins in silver
and bronze were struck through the
third century A.D. at Roman and Roman
provincial mints of Abila (Abel), Adraa
(Daraa), Charachmoba (Al-Karak), Dium,
Esbous (Heshbon), Gadara (Umm Qais),
Gerasa (Jerash), Medaba (Madaba), Pella,
Petra, Philadelphia (Amman),
Rabbathmoba (Aroer) Capitolias/Dion
(Beit Ras), and Raphana. This type also
includes the pseudo-autonomous
coinage of the second and first centuries
B.C.
c. Byzantine—Coins in bronze and
struck at the Arab-Byzantine mint of
Aylah/Elath (Aqaba).
d. Early Islamic—Coins in bronze or
silver and struck at the Umayyad mints
of Adraa (Daraa), Gerasa (Jerash),
Philadelphia/Rabbath-Ammon (Amman)
and under the Abbasids at Philadelphia/
Rabbath-Ammon (Amman). These coins
are epigraphic in design, featuring one
or more lines of Arabic script. Some
Abbasid bronze coins from
Philadelphia/Rabbath-Ammon (Amman)
feature a small flower-like design in the
center of one side.
e. Crusader—These coins appear as
thin, light-weight, low-quality-silver
billon. Examples usually feature crosses
and/or crude portraits or buildings as
central images.

Jewish artifacts are another hot topic because import restrictions recognize the rights of Arab governments to the material culture of displaced Jewish minorities.  Presumably,  the State Department will argue it addressed the concerns of Jewish groups when it limited restrictions on manuscripts to archaeological objects dating before 1750 AD—but there was no specific exemption for Torahs and other Jewish artifacts as Jewish groups have requested.

What's All the Fuss About?

The archaeological lobby supporting import restrictions have pitched them as  a "consumer protection" measure designed to keep U.S. collectors from buying recently looted material.   Yet, they must know that import restrictions are controversial to the trade and collectors because, as construed by U.S. Customs and Border Protection, they embargo all undocumented items of types on designated lists imported after the effective date of the regulations, not just items illegally exported from a UNESCO State party after the effective date of import restrictions as required under CPIA, 19 U.S.C. §§ 2601, 2604, 2606, 2610. Such regulatory actions have converted CPIA import restrictions into embargoes of all objects of restricted types rather  than targeted, prospective import restrictions that do not impact the purchase of artifacts from the legitimate marketplace abroad.

Import restrictions have been particularly hard on coin collectors and the small businesses of the numismatic trade because most collector's coins (which typically are of limited value) lack detailed provenance histories necessary for legal import. This has greatly damaged the legitimate trade in such items with fellow collectors, especially from within the E.U.

There is also the question of what will happen when U.S. Tourists return with common ancient coins sold openly at Petra and at an annual numismatic bourse that takes place in Amman.  Presumably, if Jordan does not provide for export certificates for such items, they will be subject to detention, seizure and repatriation back to Jordan-- rough treatment for law abiding Americans that will be sure to sour any positive experiences for tourists simply wanting a memento of their journey.

Thursday, January 23, 2020

Report on January 21, 2020, CPAC hearing to discuss proposed MOU's with Turkey and Tunisia


               On January 21, 2020, the U.S. Cultural Property Advisory Committee (“CPAC”) met to consider proposed MOU’s with Turkey and Tunisia.   CPAC is currently constituted as follows.  (1) Stefan Passantino (Public); (2) Adele Chatfield-Taylor (Public); (3) James Reap (Public); (4) Karol Wight (Museums); (5) Nancy C. Wilkie (Archaeology); (6) Ricardo A. St. Hilaire (Archaeology); (7) Lothar Von Falkenhausen (Archaeology); and  (8) Anthony Wisniewski (Collector-Sale of International Cultural Property).

                Due to the large number of speakers, the Chair indicated each speaker would only be allowed two (2) minutes rather than the usual five (5) minutes.  Those speakers in favor of MOU’s with Turkey and/or Tunisia were as follows: (1) Dr. Lynn Dodd; (2) Dr. Jane Evans; (3) Sam Hardy; (4); Dr. Christina Luke; (5) Dr. Brian Rose; (6) Tess Davis; (7) Dr. Nathan Elkins; (8) Dr. Elizabeth Greene; and (9) Katie Paul.  Those opposed to one or both MOU’s or their application to certain types of artifacts were as follows:  (1) Stephen Knerly; (2) Elias Gerasoulis; (3) Carol Basri; (4) Kate FitzGibbon; (5) Douglas Mudd; (6) Peter Tompa; and (7) Randolph Myers.

                Chairman Passatino welcomed the speakers.  He indicated that the Committee had read all the comments, particularly those of the speakers.  Given the large number of speakers, Mr. Passatino indicated that speakers would be limited to 2 minutes.  After all the speakers were finished, he would open up the floor to questions.

                Dr. Lynn Dodd is an archaeologist.  She supports Turkey’s MOU.  She indicates Turkey has met all the criteria to be granted a MOU.

                Dr. Jane Evans indicates coins are at risk from metal detectors.  She indicates excavation coins typically are local issues that do not circulate far from where they are made so they should be restricted.

                Sam Hardy starts his presentation honoring an archaeologist who took his own life rather than taking the blame for embezzlement.  He indicates trafficking is a real problem in Turkey.  He finds it odd that Turkey would not be granted a MOU because of problems within the country because granting a MOU will encourage positive forces in Turkey to clean up the country’s act.

                Dr. Christina Luke works in Turkey.  She echoes her support of others for a MOU with Turkey.

                Dr. Brian Rose of the University of Pennsylvania has seen looted sites.  Looting is a lucrative business that needs to be addressed. Turkey allows US Archaeologists to work in the country, which promotes educational exchange.

                Tess Davis and her organization, the Antiquities Coalition, supports the MOU with Turkey.  She focuses her comments on the third determination. She indicates there is a concerted international response of market nations now that the EU has promulgated import controls on cultural artifacts.
 
                Stephen Knerly spoke for the Association of Art Museum Directors.  He indicates that a MOU in this case would not be appropriate because the Turkish government is involved in state sanctioned looting and destruction of Turkey’s cultural patrimony.

                Elias Gerasoulis speaking for the American Hellenic Institute opposes any MOU with Turkey.  There is no rule of law in Turkey under Erdogan.  A number of Byzantine era cathedrals have been turned from museums into mosques.  Over 400 churches have been destroyed in Cyprus. Erdogan has shown disdain for religious minorities and the material remains of their culture.

                Dr. Nathan Elkins notes that prior MOUs have focused on coins that have circulated locally, but is time to expand upcoming MOU’s to include Roman Republican, Roman Imperial and Byzantine coins.  There are enough MOUs already where coins have been included that now is the time to treat all coins like other objects that are found on different designated lists.

                Dr. Elizabeth Greene supports the MOU.  MOUs ensure that objects of minority groups are preserved. From her work on shipwrecks, Greene knows that even common artifacts like transport amphorae are important to understanding the past.

                Katie Paul speaks for the Athar Project.  She shows images of artifacts from Tunisia and Turkey on sale on Facebook.  She indicates some buyers are located in the US.  She also indicates that she is Pontic Greek.  She wants Greek artifacts protected as evidence of the Greek Diaspora.

                Carole Basri contrasts her prior work for the State Department to more recent State Department efforts to recognize the rights of authoritarian MENA governments to the artifacts of displaced minority populations.  At some risk to her personal safety, Ms. Basri collected records of Jews in Iraq on December 11, 2003 for the State Department.  Some of these records were later deposited in the US Holocaust Museum.  Carole Basri believes there needs to be a carve-out in any MOU for religious artifacts of displaced Jews and other minority populations. 

                Kate FitzGibbon speaks for the Committee for Cultural Policy and the Global Heritage Alliance.  It is essential that CPAC adhere to the CPIA’s requirements.  Turkey has engaged in legalized theft of minority religious artifacts.  A book written by a US diplomat discusses the artifacts available in the Grand Bazar for sale to foreigners. 

                Doug Mudd speaks for the American Numismatic Association.  Import restrictions on coins have had a negative impact on the ANA’s educational mission.  An instructor at the Summer Seminar was afraid to bring his coins from abroad because he was concerned they would be seized.  People can learn from ancient coins which are amongst the most common ancient artifacts.

                Peter Tompa speaks for the International Association of Professional Numismatists.  Any MOU would recognize the Erdogan Government’s rights to “claw back” cultural goods of “ethnically cleansed” Greek, Armenian and Assyrian populations.  Since 2007, a series of grossly over broad import restrictions placed on common ancient coins of the sort widely collected worldwide (including within most of the countries for which import restrictions have been granted) have done quite a bit of damage to ancient coin collecting. Their cumulative impact has been problematic because outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.  Another embargo, this time potentially impacting a wide variety of Greek, Carthaginian, Roman Provincial, Roman and Byzantine coins struck or sometimes found in Turkey and Tunisia, will bring even more damage. As set forth in IAPN's submissions, there are many statutory reasons why this should not happen. Moreover, CPAC also needs to consider whether import restrictions on coins are really necessary, particularly because it appears that both Turkey and Tunisia allow for the internal sale of ancient coins.

                Randolph Myers is a coin collector.  Coins struck in large multiples lack cultural significance. CPAC should also consider whether less drastic measures, like the institution of a Treasure Act or Portable Antiquity Scheme, should be tried first.  Finally, there is no evidence presented that either Turkey or Tunisia are undertaking adequate self-help measures.

Questions:

              Karol Wight asks if the AAMD polled its members about loans from Turkey.  Stephen Knerly indicates that because the State Department has started using a standard Article II in their MOU’s there is no reason to seek this information from members.  He does note, however, that Turkey demands high loan fees.  It would be beneficial to all concerned if Art II of MOU’s (which relate to requirements placed on the foreign country) are written individually.

            Anthony Wisniewski asks Kate FitzGibbon if restrictions should be placed on coins.  She indicates it is important to look to the wording of the CPIA to ascertain whether restrictions are appropriate.  She then defers to Peter Tompa.  Peter Tompa indicates restrictions should not be placed on coins, but if they are so placed they must take care that they only apply to coins both first discovered within a country and subject to its export control.  He notes that restrictions would be wholly inappropriate on Roman coins which circulated from England to Sri Lanka and which are found in many more countries than where there are MOUs on coins.  Dr. Nathan Elkins is allowed to comment.  He believes restrictions should come in as long as over 50% of coins are found in a given place, but this should be further expanded to everywhere coins are found.

           Anthony Wisniewski asks Dr. Rose about the provenance of coins found in the University of Pennsylvania Museum.   Dr. Rose said that the Museum secured these coins years ago under a system of partage.

          Chairman Passatino asks Elias Gerasoulis if his group could live with any MOU with conditions to address concerns of the Greek community.  Mr. Gerasoulis indicates that his group is unalterably opposed to a MOU because the Erdogan government cannot be trusted. He believes a MOU would make the situation worse, not better.   Moreover, this MOU raises questions not only about Greek property, but other minority property as well.  For example, how can we trust Turkey to respect Jewish minority property, when Erdogan hosted the leader of Hamas, an anti-Israel U.S. designated terrorist group, at the Presidential palace in Turkey last month?  This issue is not simply one of archeology. The political context needs to be looked at and understood. 

Tuesday, January 21, 2020

Look Hard Before You Leap Again!

I planned to say this at today's Cultural Property Advisory Committee meeting on MOU's with Turkey and Tunisia, but had to limit my actual comments.  Due to the large number of speakers, the Chair only allowed 2 minutes not the usual 5 minutes to speak:

Any MOU with Turkey raises serious legal and ethical questions because it would recognize the Erdogan Government’s rights to “claw back” cultural goods of “ethnically cleansed” Greek, Armenian and Assyrian populations. Moreover, one or more CPAC members recently resigned over President Trump’s tweet threatening Iranian cultural sites, and House Foreign Relations Chair Elliot Engel—with the approval of archaeological advocacy groups supporting this MOU—has introduced H.R. 795 that declares that, “the intentional targeting or destruction of cultural property in the absence of imperative military necessity is a violation of the law of armed conflict and runs counter to the values of the United States.”  Yet, the Erdogan government has recently bombed an important Hittite site in Syria, flooded ancient cities, and has even threatened to turn Justinian’s Great Patriarchal Church, Hagia Sophia, from a museum into a mosque.  These measures are the polar opposite of the “self-help” obligations embedded in 19 U.S.C. § 2602 (a) (1) (b), and granting Erdogan a MOU will only encourage him on his destructive path.   As to coins, let me make the following points for both MOU’s:
·        There are large numbers of coin collectors and numismatic firms in the US.   Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses.
·        The brief of the State Department Bureau of Educational and Cultural affairs is to foster people to people contacts and the appreciation of other cultures. It does so with a huge budget of over $500 million. Ancient coin collecting fosters those same goals, but at no cost to the US Taxpayer.
·        Yet, since 2007, a series of grossly over broad import restrictions placed on common ancient coins of the sort widely collected worldwide (including within most of the countries for which import restrictions have been granted) have done quite a bit of damage to ancient coin collecting.
·        Their cumulative impact has been problematic because outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.
·        Another embargo, this time potentially impacting a wide variety of Greek, Carthaginian, Roman Provincial, Roman and Byzantine coins struck or sometimes found in Turkey and Tunisia, will bring even more damage. As set forth in IAPN's submissions, there are many statutory reasons why this should not happen. Moreover, CPAC also needs to consider whether import restrictions on coins are really necessary, particularly because it appears that both Turkey and Tunisia allow for the internal sale of ancient coins.
·        At a minimum, CPAC should ensure that Customs only applies the CPIA as written to items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly, and the one Court that has looked at this issue decided to defer to that decision making on “foreign policy grounds.”  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

·        CPAC should also make any import restrictions on coins contingent on the creation of a Portable Antiquities Scheme and the provision of export permits.  Turkey already pays for finds in some circumstances and both Turkey and Tunisia already allow for internal sales of ancient coins, which should make both programs possible under local law.  Thank you. 


Tuesday, November 26, 2019

Please Comment on the Proposed MOU's with Turkey and Tunisia


            The United States Department of State has proposed new Memorandums of Understanding (MOU’s) with Turkey and Tunisia.  Both proposals will be extremely problematical for coin collectors as MOU's could impose embargoes on the import of a wide variety of widely collected Greek, Carthaginian, Roman Provincial, Roman, Byzantine, and Islamic coins.  Further information about the January 21, 2020 Cultural Property Advisory Committee (CPAC) meeting and how to comment before the January 7, 2020 deadline can be found here:  https://www.federalregister.gov/documents/2019/11/26/2019-25683/cultural-property-advisory-committee-notice-of-meeting 

A.  Background for Coin Collectors

             There are large numbers of coin collectors and numismatic firms in the US.  Very few collectors do so to “invest.”  Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses. Private collectors and dealers support much academic research into coins.  For example, an American collector collaborated with academics to produce an extensive study of Seleucid coins. A further clamp down on collecting will inevitably lead to less scholarship.

            While what became the Cultural Property Implementation Act (CPIA) was being negotiated, one of the State Department’s top lawyers assured Congress that “it would be hard to imagine a case” where coins would be restricted.   In 2007, however, the State Department imposed import restrictions on Cypriot coins, against CPAC’s recommendations, and then misled the public and Congress about it in official government reports.  What also should be troubling is that the decision maker, Assistant Secretary Dina Powell, did so AFTER she had accepted a job with Goldman Sachs where she was recruited by and worked for the spouse of the founder of the Antiquities Coalition, an archaeological advocacy group that has lobbied extensively for import restrictions.  Since that time, additional import restrictions have been imposed on coins from Algeria, Bulgaria, China, Egypt, Greece, Iraq, Italy, Libya and Syria. 

            The cumulative impact of import restrictions has been very problematical for collectors since outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.  The CPIA only authorizes the government to impose import restrictions on coins and other artifacts first discovered within and subject to the export control of either Turkey or Tunisia. (19 U.S.C. § 2601). Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly.  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

      B.  What You Can Do

                Admittedly, CPAC seems to be little more than a rubber stamp.  Still, to remain silent is to give the cultural bureaucrats and archaeologists with an ax to grind against collectors exactly what they want-- the claim that any restrictions will not be controversial. 

            For comments, please use http://www.regulations.gov, enter the docket [DOS-2019-0043] and follow the prompts to submit your comments.  Alternatively, click this Federal Register link and click on the Green “Submit Formal Comment” Button which should pull up a screen that allows you to comment:  https://www.federalregister.gov/documents/2019/11/26/2019-25683/cultural-property-advisory-committee-notice-of-meeting)(Please note comments may be posted only UNTIL January 7, 2020 at 11:59 PM.

            Please also note comments submitted in electronic form are not private. They will be posted on http://www.regulations.gov. Because the comments cannot be edited to remove any identifying or contact information, the Department of State cautions against including any information in an electronic submission that one does not want publicly disclosed (including trade secrets and commercial or financial information that is privileged or confidential pursuant to 19 U.S.C. 2605(i)(1)).

C.  What Should You Say?

What should you say?  Provide a brief, polite explanation about why CPAC should deny or limit any import restrictions. Consider the following points:

  • The governing statute requires that restrictions only be applied on artifacts "first discovered in” Turkey or Tunisia. But hoard evidence demonstrates that many Greek, Carthaginian, Roman, Byzantine and Islamic coins circulated extensively outside the confines of those modern nation states.  The State Department and U.S. Customs have already recognized this fact for higher denomination Greek coins struck in Greece.  To be consistent, any restrictions should not touch higher denomination coins from Turkey or Tunisia, including Roman Provincial Silver, tetradrachms, and gold coins.  Nor should restrictions be placed on Roman, Byzantine, and Islamic coins struck in these countries. Such imperial coins circulated throughout the Empires for which they were made and beyond.  
  • The governing statute requires restrictions only be placed on artifacts of "cultural significance." But coins -- which exist in many multiples-- do not meet that particular criteria.
  • The governing statute requires that less drastic remedies be tried before import restrictions. But neither Turkey nor Tunisia has tried systems akin the UK Treasure Act and Portable Antiquities Scheme before seeking restrictions.
  • The governing statute requires that restrictions be consistent with the interests of the international community in cultural exchanges. But restrictions diminish the ability of American collectors (particularly Turkish or Tunisian Americans) to appreciate the cultural heritage of these countries and greatly limit people to people contacts with other collectors in Europe.
  • Much of what Turkey would be allowed to “claw back” if a MOU is granted are cultural artifacts of displaced Greek, Armenian and Jewish populations.  That simply should not be allowed to happen as it would only reward Turkey for its harsh policies to ethnic and religious minorities. 
Finally, you don’t have to be an American citizen to comment—you just need to be concerned enough to spend twenty or so minutes to express your views on-line. 

Addendum (Dec. 9, 2019):  For more information about the requests and the process, see the Cultural Heritage Center's post about the upcoming CPAC meeting:  https://eca.state.gov/highlight/cultural-property-advisory-committee-meeting-jan-21-22-2020