The Cultural Property Implementation Act: Is it Working?

The Cultural Policy Research Institute has placed a summary I prepared about its recent Capitol Hill Seminar on its website: http://www.cprinst.org/Home/issues

The summary, reprinted below, suggests that the State Department Bureau of Educational and Cultural Affairs' administration of the Convention on Cultural Property Implementation Act has gone seriously off the rails:

The Cultural Policy Research Institute (CPRI) Presents
The Cultural Property Implementation Act:
Is it Working?

Monday, March 21, 2011
Russell Senate Office Building 485, Washington, D.C. 20002

Summary by Peter K. Tompa, CPRI Legal Officer and Board Member

On March 21, 2011, the CPRI hosted a seminar on Capitol Hill to discuss America’s policies on the importation of cultural goods. The Honorable Kirsten Gillibrand helped make this event possible. The seminar achieved all its objectives: distinguished panelists, vibrant discussion, significant airing of the issues, open discussion of deep concerns about direction of both CPAC and stewardship by the Department of State, and forward-looking agenda for CPRI for other events of a like nature.

Background

In 1983, Congress passed the Convention on Cultural Property Implementation Act (CPIA) to enact the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property into U.S. law. Broadly speaking, the 1970 UNESCO Convention contemplates that governments will enter into agreements to enforce each other's cultural property laws. The U.S. Senate ratified the 1970 UNESCO Convention subject to reservations intended to preserve the “independent judgment” of the United States as to when and how to impose import restrictions on cultural artifacts when requested by State Parties to the Convention. The CPIA set up a panel of experts, the Cultural Property Advisory Committee, to assist the President in his decision-making. The President has delegated his authority to the State Department’s Bureau of Educational and Cultural Affairs (ECA). U.S. Customs and Border Protection has complementary authority to promulgate import restrictions. Over the years, the ECA’s administration of the CPIA and Customs’ implementation of restrictions has been much criticized.

Initially, import restrictions were imposed on behalf of poor, third world countries, and on narrow ranges of artifacts. After almost three decades, however, import restrictions are now in place on behalf of wealthy EU members like Italy and Cyprus, superpowers like China, and on ever increasing categories of artifacts like ancient coins. Archaeologists and their supporters applaud these developments, but critics in the museum and art communities believe that the State Department has disregarded the criteria established by law and cloaked its operations in secrecy to hide an abuse of power. In this seminar, experts discussed whether the CPIA is working as intended.

Panelists

Kate Fitz Gibbon (KF) was a CPAC member from 2000 to 2003. She is now an attorney practicing law in Santa Fe, New Mexico, with a focus on cultural heritage issues, matters involving international and Native American arts, and law pertaining to art collection and museums.

James Fitzpatrick (JF) is a senior partner of Arnold & Porter LLP’s legislative practice group. He represented the interests of the antiquities trade during in the passage of the CPIA. He is an adjunct professor at Georgetown University Law School where he teaches a course on cultural property law.

Richard Leventhal (RL) is a Professor of Anthropology at the University of Pennsylvania. His areas of research interest include Mesoamerica; Complex societies; archaeological theory and method; and the intellectual history of archaeology in the USA.

Jay Kislak (JK) chaired CPAC from 2003 to 2008. Mr. Kislak founded the Jay I. Kislak Foundation, a private nonprofit cultural institution engaged in collection, conservation, research, and interpretation of rare books, manuscripts, maps, and indigenous art and cultural artifacts of the Americas and other parts of the world.

Michael McCullough (MM) has extensive experience in customs law and international trade matters. He has counseled multi-national companies on the development and implementation of global policies and procedures related to U.S. Customs and Border Protection regulations, international trade agreements, export controls, economic sanctions constraints, anti-corruption rules, U.S. Fish and Wildlife regulations, and other government agency requirements. He is a former VP for compliance issues at Sotheby’s Auction House.

Andrew Oliver (AO) has served as a curator at the Met, a field archaeologist excavating in Cyprus and Turkey, and as a program officer at the National Endowment for the Humanities.

Introduction

Arthur Houghton (AH), former CPAC member, former State Department and White House Staff member, former Getty curator, and current CPRI President introduced the program. He said that critics of the government’s policies on the import of cultural goods believe that the process had “become a train wreck,” and that the promise of the CPIA lay in ruins. Others, however, maintain a different view, believing that the act is working as intended and there is no need for change. He then introduced the distinguished panel.

Session One: Congressional Intent in Passing the Convention on Cultural Property Implementation Act

(RL) Heritage is important to identity. We are losing Heritage around the world due to looting. The CPIA has helped. When the act was promulgated in 1983, archaeological artifacts were being imported for sale. Such artifacts are still being imported, but with some restrictions. These restrictions are less onerous than the guidelines adopted by the AAMD and AAM. Those guidelines require that museums only accession artifacts with documentary histories dating back to 1970. By adopting those guidelines, museums have opened up a new era of long term loans.

(AO) There have been gains made against looting in countries like Italy. However, it must be recognized that once looted, the damage to an artifact’s context has already been done. AO recounts a visit with fellow museum professionals in S. Italy some years ago. His Italian colleagues lamented the fact that looters were protected by the Mafia. They suggested that locals needed to be engaged. Most looting in Italy relates to tombs found in farmer’s fields. They suggested that these should be excavated employing local people with funding from foreign museums and collectors. In return, the foreign museums and collectors would be awarded part of the finds. Unfortunately, this suggestion went nowhere with the Italian cultural bureaucracy. It’s clear the “perfect” has become the enemy of the “good.”

(JF) If you use the words of the CPIA as a baseline, the process for imposing import restrictions on cultural goods has gone off track. The statute was a compromise. It was not meant to close down the trade in antiquities. The US has a tradition of free trade in art. CPAC was meant to help moderate demands for embargos on art by helping to evaluate foreign requests for import restrictions. The “concerted international response requirement” was a compromise measure that opened the way for the CPIA to become law. It was meant to ensure that the U.S. would not act alone. Otherwise, the trade would be moved elsewhere with no impact on looting. The House had originally proposed legislation where the US would act alone. However, the bill as passed included the “concerted international response” provision that requires cooperation amongst art importing countries. Looting remains a severe problem, but the question is how best to address it.

First Question and Answer Period

(RL) The CPIA was a product of compromise. RL can’t speak to secrecy issues because he has never been a member of CPAC. However, he believes that the statute is working as intended.

(AO) The museum community was forced into accepting a 1970 provenance date for accessions, and has done so with much reluctance.

Session Two: How the Cultural Property Advisory Committee has Operated in Practice

(JF) The CPIA was meant to provide a rifle-like response to the problems of looting. Instead, State has used it like a shotgun. The CPIA was only to allow restriction of artifacts of “cultural significance.” Now, however, State equates “archaeological significance” with “cultural significance.” The “concerted international response” requirement has also been read out of the statute. As a result, the market in such materials has just been shifted elsewhere. China is a ridiculous case. We have closed our markets to ancient Chinese art when the biggest market for such material is in China itself. State has failed to administer the statute fairly.

(KF) “Sunshine Week” was just celebrated to promote government transparency. State makes its decisions behind closed doors. This has allowed State bureaucrats to consistently evade the CPIA’s statutory requirements. The secrecy has also allowed staff to control information flowing to CPAC. The CPIA requires foreign states to make self help efforts, but only the most minimal efforts—like putting signs up in airports—are required. Over the years, the statutory thresholds seem to get lower as the restrictions have gotten ever broader. Now, even coins have been restricted. Sometimes, State does not even bother to go through the niceties of seeking CPAC review. For example, “emergency” restrictions on artifacts from Mali were changed to “regular restrictions” though there are different standards for each, and there was no effort to consult with CPAC.

(RL) From the outside, it seems that the law has been followed. This is not a trade issue, but a foreign affairs issue. MOU’s foster respect for other cultures that translates into respect for our own. Source countries do their best to enforce their cultural property laws. In Egypt, we recently saw demonstrators locking arms together to protect the Egyptian Museum from looters. Not every source country protects cultural property the same way, but we do have 120 signatories to the UNESCO Convention. Switzerland enters into MOU’s like we do, but they do not have to be renewed every five (5) years. Italy and Cyprus have strong criminal laws. New Zealand, Australia, and Canada have strong customs laws. These are sufficient for the concerted international response requirement. As the result of MOU’s, Italy has agreed to change its loan period to four (4) years. Coins are the same as other archaeological artifacts and should be restricted. The aim of the CPIA is not just to save objects, but to save context and heritage.

(JK) JK has served on a number of government commissions, but CPAC has been the most secretive. CPAC has not been well served by State Department staff. One slept 20% of the time during CPAC meetings, but most are intelligent. The problem is that they foster secrecy. JK does not understand why newspaper articles included in briefing materials were routinely marked as “confidential.” State Department bureaucracy is maddening. While JK was visiting a source country, he was not allowed to confer with a State Department staffer or bring her to meet archaeologists at a dig he was involved with. JK was really “ticked off” with what happened on Cypriot coins. There was a special vote held. CPAC voted against adding them to the MOU with Cyprus, but State Department staff totally ignored the recommendation and proceeded to act on their own. JK added that State made sure that CPAC is “stacked” with members who principally reflect the archaeological view. For instance, when JK was chairman, both museum slots were held by individuals with either an archaeological background or from an archaeological museum. Given the composition of CPAC that favored the archaeological view, JK was surprised that the vote was to exclude coins from restrictions. Based on that experience, JK decided not to accept another term as CPAC chair. Why have a CPAC if staff feels it can overrule CPAC’s recommendations that don’t suit it?

(AH) AH recognized Bob Korver (BK) in the audience. BK served as a trade representative on CPAC from 2003-2011. He is an expert in coins. He resigned twenty (20) days ago because he refuses to help add the veneer of legitimacy to the State Department’s illegal acts. When he began his service, he and other members received a letter from KF that expressed concerns about the lack of State Department transparency. At the time, BK did not realize that KF was an “optimist.” The lack of transparency allows staff to regularly break the law. CPAC members are not allowed to see past CPAC reports to allow them to gauge how past CPAC members addressed the issues. Nor are CPAC members allowed to review their own reports to ensure that they accurately reflect CPAC’s deliberations. RL posits that from “the outside” everything looks fine, but BK believes from the inside it “stinks.” The CPIA is not being given effect. Staff is supposed to help facilitate CPAC making recommendations, but Staff treats CPAC as a rubber stamp for what staff wants to accomplish. There have also been efforts to pack CPAC with archaeological supporters. For example, while BK was a CPAC member one of the public slots was held by a representative of ICOM, an organization that is aligned with archaeological interests. BK disagrees with JK about the quality of staff work. Before CPAC votes, staff would only provide CPAC with truncated versions of the findings CPAC must make. Secrecy is used to hide staff activism. This is an old problem. Not much has changed since Stephen Vincent’s article first exposed such staff activism. [See Steven Vincent, “Stealth Fighter: The Secret War of Maria Kouroupas,” Art & Auction 63 (March 2002).] BK believes that CPAC should be moved to the Department of Commerce.


Second Question and Answer Period

JF addressed a question about an action to recover a judgment in a terrorism lawsuit by going against Iranian cuneiform tablets held by the University of Chicago. JF believes such actions have a negative impact on loans. He cited as an additional example the refusal of Russia to loan paintings even though they had been immunized by the Department of State.

AO commented that although he considers coins to be archaeological artifacts, he refused to send a letter to CPAC advocating their inclusion in the Cypriot MOU because that would only benefit the Bank of Cyprus Cultural Foundation collection.

Peter Tompa (PT) notes that an exhibit currently at the Smithsonian entitled, “Cyprus, Crossroads of Civilization,” features unprovenanced ancient coins from the Bank of Cyprus collection.

In response to a question whether import restrictions are “anti-American,” RL states that we need to remember that different countries can have different perceptions of property than we do. RL believes that he CPIA is working well; the MOU’s benefit both the U.S. and the other country.

KF notes that there are no restrictions on US “cultural property” save for Native American artifacts.

Session Three: Customs Enforcement—Fidelity to the Law?

(MM) Customs has a difficult task enforcing the CPIA because there are no clear guidelines. The trade sought such clear guidelines in the past, but nothing came of it. MM believes Customs and Border Protection (CBP) is generally fair. On the other hand, its sister agency, Immigration and Customs Enforcement (ICE), is overly aggressive when it comes to these matters. There is confusion between normal customs procedures and the requirements of the CPIA. The CPIA restricts items based on their find spot, while Customs procedure is concerned with country of origin, which is typically associated with country of manufacture. Cultural property may also fall under three (3) distinct tariff numbers. As stated, on the “cargo side,” CBP is generally fair; however, ICE’s default rule is to seize first and ask questions later.

Final Question and Answer Period

KF mentioned the case of an entire auction being stopped by Customs two days before close. She also indicated that the FBI has begun to visit auction houses demanding provenance information for archaeological artifacts. MM acknowledged this has become an issue that causes substantial hardship to business. MM indicate there are always people that don’t get the word about restrictions, but that there is little actual smuggling going on.

RL asserted that smuggling antiquities is associated with smuggling drugs and weapons.

JF indicated that development in third world countries is probably more responsible for the destruction of heritage than looting. RL acknowledged that there is an interrelationship between poverty and illicit excavations. He noted that the Penn Cultural Center is addressing this issue.

AH indicated that archaeologists could do much more to promote cultural heritage in the countries in which they excavate but they are fearful of losing excavation permits. AH also asks how effective the CPIA can be if 90% of the archaeological material sold is done so in a source country like China.

BK responds to a question about the potential use of the CPIA to defeat a claim to a shipwreck. He indicates shipwrecks are not the thrust of the CPIA.

KF follows with the observation that import restrictions have become so broad that they have tainted the idea.

PT closed that session with thanks to the panel and with the expectation that CPRI will host similar events in the future.