Friday, October 5, 2018

Jay Kislak dies at Age 96

Jay Kislak, philanthropist and former Chair of the U.S. Cultural Property Advisory Committee, has passed away at the ripe old age of 96.  All coin collectors should be grateful for Mr. Kislak's truth telling about import restrictions on Cypriot coins in the face of State Department claims that the decision was made with CPAC's assent. Jay knew better, and wasn't afraid to say so. 

Thursday, September 20, 2018

ACCG Seeks Rehearing

The Ancient Coin Collectors Guild has sought rehearing of the 4th Circuit's affirmance of the District Court's decision to forfeit the Guild's ancient Cypriot and Chinese coins originally imported for purposes of its test case.  In making its request, the Guild has stated,

"The Panel’s decision collapses any meaningful distinctions among detentions, seizures and forfeitures and between ultra vires and constitutional review.  Furthermore, it has effectively rewritten prospective, targeted CPIA import restrictions into embargoes on all archaeological objects of types found on designated lists.  Amicus support attests to the public importance of these issues.  Rehearing is warranted.... This Court should not sanction assuming away important elements of the Government’s prima facie case.  Nor should the Court close its eyes to relevant information, including Government admissions, or further a demonstrably false narrative about how import restrictions on coins were promulgated to justify its decision."

Wednesday, September 19, 2018

Chinese Art and Antiques Saved from Tariffs

The Trump Administration has abandoned plans to place up to 25% tariffs on Chinese art, antiques and historical coins.  The office of US Trade Representative was evidently swayed by arguments that collateral damage to US small businesses and cultural exchange with our allies in the United Kingdom, the EU and Asia, particularly Japan from tariffs outweighed any benefits.  If anything, such tariffs would play into Chinese Government efforts to redirect Chinese art back to China for the benefit of wealthy collectors and auction houses associated with the Chinese government.  Now, if only the State Department would rethink the proposed renewal of the cultural property MOU with China, which raises many of the same issues.

Sunday, August 12, 2018

4th Circuit Affirms District Court Ruling in Long Running ACCG Forfeiture Case

The Fourth Circuit Court of Appeals has affirmed the district court opinion in long running litigation which began when the Ancient Coin Collectors Guild originally sought judicial review of controversial import restrictions on ancient Cypriot and Chinese coins.  This latest case was an action where the government sought to forfeit the Guild’s coins which were originally imported for purposes of that test case.

The initial round of litigation approved the State Department’s decision to impose the import restrictions under a very limited “ultra vires” review standard.   Here, the Court ruled that the it could also assume major elements of the government’s case for forfeiture were established in that earlier decision.  What is disconcerting is that in so doing, the Fourth Circuit panel completely glossed over the Guild’s primary argument— that the Court could not assume away major elements of the government’s case in the context of a forfeiture action which implicated the Guild’s 5th Amendment constitutional due process rights.   This should be particularly troubling because how a court reviews executive action when constitutional rights are at stake was also at the heart of the same Court’s recent en banc (full court) rulings in the Trump travel ban cases.   That raises the obvious question, are private property and due process rights somehow less important than other consititutional rights?

The Guild intends to seek rehearing to ask the Court to address this fundamental issue.


Tuesday, July 31, 2018

Virtual CPAC Meeting on Algerian MOU Request and Honduran and Bulgarian Renewals


On July 31, 2018, the U.S. Cultural Property Advisory Committee (CPAC) held a “virtual” meeting where all speakers were linked via an internet based video platform.  According to my notes, at least the following CPAC members were in attendance at the State Department:  (1) Karol Wight (Museum); (2) Lothar von Falkenhausen (Archeology); (3) Nancy Wilkie (Archaeology); (4) Rosemary Joyce (Archaeology); (5) Dorit Straus (Trade); (6) Adele Chatfield-Taylor (Public); and (7) Jeremy Sabloff (Public-Chair).   Jim Willis (Trade) attended via videoconferencing. 

Cari Enav, who runs the Cultural Heritage Center, made introductions.  Andrew Cohen, who is the executive director for CPAC, provided the speakers with information about the 4 determinations CPAC was required to make before recommending a MOU or an extension.   Dr. Sabloff indicated speakers should take these requirements into account in their presentations. He then introduced the CPAC members before calling speakers for the Algerian MOU.

Algerian MOU

There were six (6) speakers:  (1) Kate FitzGibbon (Committee for Cultural Policy (CCP) and Global Heritage Alliance (GHA); (2) Peter Tompa (International Association of Professional Numismatists (IAPN)/Professional Numismatist’s Guild (PNG); (3) Gina Bublil-Waldman (Jews Indigenous to the Middle East and Africa (JIMENA); and (4) Carole Basri (Fordham Law School).  

Kate FitzGibbon- CPAC initially only recommended MOUs on a narrow range of artifacts from a limited number of poor countries.  Today, MOUs close off entire areas from collecting.  Even worse, the State Department has recognized the claims of nation states to property that has been expropriated from fleeing Jews and Christians.  Ms. FitzGibbon acknowledges that recent Libyan import restrictions have been rewritten to remove references to Jewish items, but states that most, if not all, would still be restricted under more general coverage for Ottoman items.  The only way to ensure that artifacts of repressed minorities will not be subject to seizure is with a specific exclusion.  The problem can also be avoided if the State Department adheres to the definition of ethnological objects in the Cultural Property Implementation Act.  Algerian Jewish artifacts are not the products of preindustrial or tribal cultures and should be beyond the scope of coverage under the CPIA. 

Peter Tompa- This is yet another troubling request from an authoritarian North African government which is all the more problematic because Algeria seeks recognition of its rights to objects associated with its displaced Christian and Jewish populations.  This issue potentially impacts unprovenanced coins now in French collections.  (Algeria’s French “Pied Noir” and Jewish populations mainly fled to France after Algeria gained its independence.)  There is a real question whether Algeria’s patrimony is in jeopardy as no information has been provided whether coins are being found with metal detectors.  If they are, they need to be regulated as a less drastic remedy than import restrictions.  The UK Treasure Act and Portable Antiquities Scheme is IAPN/PNG’s preferred model for regulation.  If restrictions are recommended for coins, such restrictions must be limited to those “first discovered within” and hence “subject to export control” of Algeria.  Here, while there is some room for debate as to whether “local currency” issued at Cirta, Icosium (Algiers), Hippo Regius and Iol-Caesaria is exclusively found within the confines of modern day Algeria, coins of the Numidian and Mauritanian kingdoms, and the Carthaginian, Roman, Byzantine and Islamic Empires circulated well beyond the boundaries of modern day Algeria.  One cannot simply assume such coins were actually found in Algeria and hence are subject to Algerian export controls. 

Gina Bubill-Waldman- Ms. Waldman was driven from her home in Libya as a child.  She believes that these MOUs are a cynical tactic created to deny North African and Middle Eastern Jews patrimony and assets which were stolen from Jewish people when they were brutally expelled. The Libyan MOU has set a very dangerous and unjust precedent for countries who erase Jewish heritage by claiming it as their own, when Jews, the people who actually created it, have been hunted and expelled. Because these MOUs were passed without specifically excluding Jewish items, Jewish patrimony can now become the patrimony of the same governments which have destroyed, looted and harassed their now extinct Jewish communities.  CPAC is charged with the important job of protecting patrimony of antiquities. But by passing this type of MOU, CPAC would in fact be endorsing the opposite of what its mission tries to achieve: preservation of historical property by its proper owners. This MOU seeks to make the American government unwittingly collude with the thieves who stole, destroyed and defaced the Jewish-Algerian patrimony in the first place.

Not a single one of the Middle Eastern and North African countries from Morocco to Yemen, from Iraq to Egypt has earned the right to call thousands year old Jewish patrimony their own. Not after expelling their Jewish population, confiscating what was rightfully Jewish property, desecrating, looting, destroying synagogues and purposefully building skyscrapers on top the cemetery where Ms. Waldman’s grandparents are buried, like in Tripoli, Libya. 

Carole Basri- Ms. Basri is of Iraqi-Jewish heritage.  She authored a law review article about the harsh treatment of Iraqi Jews.  The property of Jews living in MENA countries was expropriated under color of law.  Such laws are against our own scruples as well as the UN Declaration on Human Rights.  There were originally 1 million Jews in Arab countries.  Jewish artifacts do not fit the definition of ethnological objects under the CPIA and should not be subject to detention and seizure. Jewish people were city dwellers and the cities where they lived were neither pre-Industrial nor tribal in nature.  The U.S. Government should not work with governments that have forcibly removed their Christians and Jews. 

Cari Enav interjects that new Libyan restrictions do not mention Jewish property so such property should be excluded from any import restrictions.  Kate FitzGibbon states that Jewish property is still included in the Libyan MOU because most Jewish property cannot be distinguished with what is otherwise described as Ottoman in the import restrictions.  That is why an explicit exemption is required.  All this could be avoided if the State Department followed the CPIA strictly and did not consider Jewish artifacts to be ethnological in nature. 

Honduran Renewal

There were three (3) speakers:  (1) Rocco Debitetto (Association of Art Museum Directors (AAMD)); (2) Kate FitzGibbon (CCP and GHA); and (3) Peter Tompa (IAPN and PNG). 

Rocco  Debitetto- AAMD supports the renewal with reservations.  Honduras needs to be held to account in Article II.  There needs to be long term loans.  The designated list is too broad and needs to be reformed to ensure that only archaeological and ethnological material as defined in the CPIA are covered.

Kate FitzGibbon- CCP and GHA oppose renewal of the MOU.  Honduras has been given blanket restrictions for 15 years.  It has not used this time productively.  Most of the budget for cultural heritage preservation stays in the capital rather than being used to protect sites on a local level.  The US House of Representatives has asked for an accounting of self-help measures as part of its authorization of funds.  Too much archaeologically sensitive land is being illegally used for cattle farms with nothing being done about it.   No more than $600-$700 is spent on sites per year.  There is little or no market for Honduran artifacts in the US. 

Peter Tompa- This MOU renewal raises the same issues for coin collectors as the recent Ecuadorian request.  Honduran historical coins cannot be considered either archaeological or ethnological objects. They were produced in industrial processes not consistent with them being ethnological objects.  Such coins circulated along with other Spanish Colonial coins throughout the Americas and beyond including the United States.  They should not be subject to restrictions. 

Karol Wight asks about AAMD’s recommendations.  Mr. Debitetto indicates a major one is one point of contact for loans.

Jim Willis asks Kate FitzGibbon about illegal exports from Honduras. Ms. FitzGibbon states it is difficult to answer that question because there is a lack of information. 

Bulgarian Renewal

There were three (3) speakers:  (1) Kate FitzGibbon (CCP and GHA); (2) Josh Knerley (AAMD); and (3) Peter Tompa (IAPN and PNG). 

Kate FitzGibbon- The Bulgarian designated list is all-inclusive and needs to be reformed to comply with the CPIA.  It includes many repetitive items that are not of cultural significance like coins, necklaces and beads.  Bulgaria has sorely neglected its archaeological sites.   Substantial EU funds have been wasted in archaeologically unsound rebuilding projects.  Very few Bulgarian artifacts aside from coins are of interest to collectors.  Coins are mass produced and not of cultural significance under the CPIA.  Bulgaria has not satisfied Article II of the MOU’s requirement that export permits be issued.  There is a lack of rigorous police enforcement. 

Josh Knerly- There is a major problem with the designated list.  The designated list can only restrict items authorized under the MOU.  Here, the MOU only authorizes restrictions on ecclesiastical objects from 681 AD forward, but the designated list restricts ecclesiastical items dating from the 4th Century AD.  This highlights much greater problems in how designated lists are prepared. 

Peter Tompa- Tompa produces a ruler to make a point.  A ruler goes from one inch to 12 inches.  We can all agree that some things like murder would be “12” on a scale.  But what about looting?  Many people would consider it a “1” on a scale, akin to a traffic violation.  That certainly is the case in Bulgaria where there are large numbers of treasure hunters and where the authorities themselves have been involved in looting.  Given this reality, it makes no sense to continue the MOU which only denies American coin collectors access to the same sorts of coins available elsewhere including Bulgaria itself.   If CPAC nonetheless approves a renewal, it should reform the designated list to limit restrictions on coins.  Moreover, CPAC should recognize that EU countries like Bulgaria are bound by EU export controls.  CPAC should recognize legal exports from EU countries of coins on the Bulgarian designated list.

Saturday, July 7, 2018

State Department Accepting Comments for New MOU with Algeria and Renewals for Bulgaria and Honduras

The State Department’s Cultural Heritage Center has announced it is accepting comments for a proposed new MOU with Algeria, and renewals with Bulgaria and Honduras.  For further details about how to comment before the July 15th close, see here.

Each MOU and renewal should give pause to all but the most ardent repatriationist.

Algeria is yet another authoritarian government that wants the State Department to recognize its rights to not only its ancient pre-Islamic cultures, but to its now displaced minorities as well (here French Pied Noirs and Jews).

Bulgaria’s imperfect democracy wants its MOU renewed despite its failure to live up to its own promises that were supposedly a quid pro quo for the initial agreement and its continuing disprespect for the private property rights of collectors.

Honduras wants yet another renewal of its 2004 MOU.  MOUs were only intended to remain in effect long enough for UNESCO state parties to get their own houses in order.  At what point is the US going to say enough is enough?

Is it just a waste of time commenting?  After reading former CPAC member Kate FitzGibbon’s well-informed critique of how the State Department has mal-administered the Cultural Property Implementation Act, one might be forgiven for just throwing up their hands in frustration.  However, CPO continues to believe that silence will be spun as acquiescence and for that reason alone those who value collecting and private property rights should comment.

Thursday, May 3, 2018

May 2, 2018 Cultural Property Advisory Committee Meeting to Discuss Ecuadorian MOU and Renewal of MOU with PRC

              On May 2, 2018, the U.S. Cultural Property Advisory Committee held a “virtual” meeting where CPAC members and all speakers were linked via an internet based video platform.  At least the following CPAC members were in attendance:  (1) Karol Wight (Museum); (2) Lothar von Falkenhausen (Archeology); (3) Nancy Wilkie (Archaeology); (4) Rosemary Joyce (Archaeology); (5) James Willis (Trade); and (6) Jeremy Sabloff (Public-Chair).  Cari Enav, the Cultural Heritage Center’s new chief, introduced Dr. Andrew Cohen as CHC’s new executive director and Dr. Sabloff as the Chair of CPAC. Dr. Sabloff ran the meeting.

                There were five (5) speakers:  (1) Peter Tompa (Global Heritage Alliance (GHA)/International Association of Professional Numismatists (IAPN)/Professional Numismatists Guild (PNG)); (2) Kate FitzGibbon (Committee for Cultural Policy (CCP)); (3) Josh Knerly (Association of Art Museum Directors (AAMD)); (4) Alex Nyerges (Virginia Museum of Fine Arts (VMFA)); and (5) Tess Davis (Antiquities Coalition).
Ecuadorian MOU
                Peter Tompa spoke on behalf of GHA, CCP, IAPN and PNG.  He indicated these groups had serious concerns about the short public comment period and the fact that the Ecuador’s proposal sought import restrictions on “Colonial and republican period coins; medallions more than 50 years old …manuscripts more than 50 years old; and certain works by modern artists.”  None of these materials may be restricted under the terms of the Cultural Property Implementation Act (CPIA) because they do not meet the definitions for archaeological or ethnological objects.  Archaeological objects must be at least 250 years old and be normally found in the ground.  Ethnological objects must be the products of tribal or non-industrial societies.  The Legislative History makes clear that Congress understood the term “ethnological” to only encompass what is considered “primitive” or “tribal” art, and not any object which is repetitive in character. 

                These limitations on archaeological and ethnological material should preclude restrictions being placed on coins and medallions.  While the State Department has—over the objections of the numismatic community and prior precedent—placed import restrictions on ancient and other early coins, the Spanish Colonial and Republican era coins at issue here cannot lawfully be restricted because they are neither archaeological nor ethnological in character.  More than that, however, they are as much a part of US culture as they are of Ecuadorian culture.  Large swaths of what is now the US was formally part of Spain’s Empire and even the United States itself—due to the shortages of hard currency at the time—used such coins as legal tender until 1857.  Indeed, such coins were so popular that the term “two bits” entered into our language as meaning 25 cents.  Moreover, references to “pieces of eight” and “gold doubloons” abound in our storytelling, including Melville’s Moby Dick and countless yarns about pirate treasure. 

                Before recommending a MOU, CPAC must also consider what self-help measures Ecuador has undertaken, including the funding Ecuador has devoted to cultural heritage protection.  At least one recent academic work has questioned Ecuador’s commitment in this area.

                Josh Knerly spoke on behalf of AAMD.  AAMD may have been in a position to support the MOU, but the short time span made impossible to poll members.  Knerly echoed Tompa’s concerns about import restrictions being misapplied to objects that are neither archaeological nor ethnological in character. 

                Chairman Sabloff indicates that staff ran into unexpected difficulties in getting out the notice for the CPAC meeting, and that in the future the Committee will try to do better.

                Rosemary Joyce asked about AAMD’s generic recommendations. Knerly indicated that AAMD typically asks for long term loans, low loan fees and immunity from seizure laws.

                In response to a question from Nancy Wilkie, Knerly indicated he did not know if any Ecuadorian artifacts were on display in US museums.  During the review of the China MOU, he later stated that he had learned that at least one AAMD member museum displays Ecuadorian artifacts.

China MOU

                Peter Tompa spoke on behalf of IAPN and PNG.  IAPN and PNG are all for Chinese collecting, but the reality of a huge, largely open internal Chinese market in common antiquities like pottery and coins, raises serious questions about the point of import restrictions imposed on American collectors.  This is especially problematical because the most successful Chinese antiquities sales outlets are controlled by insiders associated with the Chinese Government.  

                There is also the issue of Chinese obligations under the current MOU.     First, China was supposed to make it easier to legally export artifacts, but that provision was drastically limited in the 2014 renewal to Chinese objects imported into China for re-export and there is no indication China has even complied with this weaker provision.  Of course, few rules apply to the free ports of Hong Kong and Macao.  China was also initially supposed to clamp down on them, but it has not.  Instead, artifacts leaving these ports can still be re-imported into the PRC no questions asked.  

                Even more importantly for US coin collectors is the issue of Chinese fakes of historic US coins.    Chinese businesses licensed by the Chinese Government are counterfeiting untold thousands of fake historic US mint coins which are then being introduced into the US numismatic market.    

                Summing up, Tompa stated that the MOU with China should be suspended because it is doing nothing to actually protect Chinese archaeological sites.  At a minimum, Chinese cash coins, which exist in the billions and which are widely collected in China itself, should be delisted. 

                Lothar von Falkenhausen made a statement that what we know about Chinese coins comes from archaeology.  Tompa disputed this claim noting that much information has come from documentation and observation of the types of cash coins found in 1000 coin strings that were used for trade through the early part of the 20th century.

                Nancy Wilkie states it is not CPAC’s concern that China is counterfeiting US Coins.  Tompa states this is a matter of comity and falls broadly under cultural exchange.  Tompa states this should be addressed in Art. II of the agreement, the part that requires undertakings by the Chinese.

                Kate FitzGibbon spoke for CCP and GHA.  She stated the U.S. Senate recently condemned China’s repression of Tibet, including its cultural heritage.  She then stated there is no justification whatsoever for renewing the China MOU under the CPIA.

  • China has a billion-dollar annual internal market in art of all periods that includes the same kinds of antiques barred from US import.
  • China has more than adequate internal enforcement resources; its government does not need the US to be a distant, international policeman.
  • Past MOUs barring import of Chinese art have had no discernable effect on looting in China.
  • The United States is no longer a primary market nation; it has had a net outflow of Chinese art for the last decade. Thousands of US-owned antique objects have left the US – destined for China.

                According to a comprehensive study by Artnet and the China Association of Auctioneers, after the enactment of the original MOU with the United States in 2009, the auction market for art and antiques in mainland China experienced 500% growth between 2009 and 2011. In 2011, the Chinese auction market surpassed all other countries in the world.

                Even in 2014, the year after the MOU’s first renewal, the fastest growing import into China was art, antiques, and collector items, which increased at a staggering 2281% rate.

                Despite its pro-archaeological rhetoric, nothing in Chinese law prohibits the import of all objects predating the end of the Tang Dynasty, as the MOU now does in the US. Nor does Chinese law prohibit the trade or import of monumental sculpture or wall art more than 250 years old ‑ the very objects banned under the China-United States MOU.

                The CCP asked ArtNet, an independent art market research network, to analyze the largest auction sales. In 2016, the total sales of Chinese art at the top ten auction houses worldwide were $103 million dollars. Of this total, $58 million was sold at four auction houses in Hong Kong, and $46 million in six auction houses in Beijing and Hangzhou in mainland China. The only US auction house to make it into the top ten globally that year was Sotheby’s New York, with only 6% of total market share.

                In the United States, the most recent high-value sales are from long-held and foreign collections. A brief 2017 spike in U.S. sales of Chinese art resulted from a single record-breaking sale at Christie’s of a museum collection.  Even there, some of the largest buyers were Chinese

                There is an obvious contradiction between the Department of State’s designation of China’s government as systemically violating international norms of cultural tolerance, and the repeated renewal of US-China agreements on cultural property that grant China’s government absolute control over the same cultural heritage that it has sought to destroy.

                Jim Willis asked if the State Department should renew restrictions that touched on Tibetan art.  Kate FitzGibbon said we should not repatriate Tibetan art to China.

                Josh Knerly stated that AAMD was also hampered by the short time frame allowed in responding to the China MOU.  While AAMD museums have enjoyed good cooperation with Chinese museums, there has been very little progress in the last 5 years on issues related to the length of loans and legislation granting immunity for such loans.

                Karol Wight indicated that her museum, the Corning Glass Museum, was getting good cooperation from China.  She asked Knerly about access for scholars.  He stated such access has had problems at times.  In at least one example, a scholar did not learn whether they could examine objects before they actually arrived at the Chinese institution in question.    

                Alex Nyerges indicated that the VMFA has received good cooperation with Chinese museums with which VMFA has had its own MOUs.  He echoed Knerly’s concern about the length of loans.  Such loans should be for multiple years so that artifacts may travel to other venues so the exhibit is cost effective.  China should also send higher graded antiquities that can be the centerpiece of exhibits. 

                These cultural exchanges have been two way.  Recently, the VMFA sent an exhibit of FabergĂ© eggs to the Palace Museum in Beijing. 

                In response to a question from Nancy Wilkie, Nyerges has said that seizures of foreign exhibits in China has not been a concern.  He also indicates that the security at the museums VMFA has MOUs with has been excellent.  Other AAMD member museums such as Cleveland, the Met, and Indianapolis also have had very positive experiences with Chinese museums. 

                Tess Davis states China has met all the requirements for a renewal.  The first determination is met.  China has 760,000 archaeological sites that remain in jeopardy of looting. 

                The second determination relating to self-help is met.  China is making its best efforts to protect these sites.  There are export controls on artifacts.  Chinese cultural officials recently met with judicial officials to underscore the need to punish looters.

                The third determination regarding a concerted international response is met.  More countries have joined the UNESCO Convention.  Others now have strong anti-looting legislation favoring repatriation. 

                The MOU has promoted culture exchange.  The Terracotta warrior exhibit is a great example.    Davis believes protecting cultural heritage is a human rights issue. 

                Jim Willis asked how we can enter into an agreement that recognizes the Chinese government’s rights to Tibet’s culture.  Davis stated by restricting imports of Tibetan heritage in the US, we are helping to protect it for a future time when Tibet is hopefully free.