Some Thoughts on the Renewal of Cambodian MOU

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

CPAC Meeting on Renewal of Cambodian MOU

On February 27, 2013, I attended a public meeting of the Cultural Property Advisory Committee (“CPAC”) to discuss the renewal of the Cambodian import restrictions.  The following CPAC members representing the interests of the public, museums, archaeology and the trade were in attendance:  Nina M. Archabal (Museum);  Barbara Bluhm Kaul (Public); Lothar von Falkenhausen (Archaeology); Patty Gerstenblith, Chair (Public)  Rosemary A. Joyce (Archaeology); Katharine L. Reid (Museum);  Marta A. de la Torre (Public); Nancy C. Wilkie (Archaeology) and James W. Willis (Trade).  Jane Levine (Trade) was not present.  In addition, another trade slot remains vacant.  Cultural Heritage Center staff, including Executive Director Maria Kouroupas and staff archaeologists, were also in attendance for the U.S. Department of State.

There were seven (7) speakers, all of whom supported the renewal.  They were:  Dr. Brian Daniels (U. Penn Cultural Heritage Center/AIA); Tess Davis (Researcher/University of Glasgow); Diane Edelman (President, Lawyer’s Committee for Cultural Heritage Preservation); Josh Knerly (lawyer/AAMD); Paul Jett (Freer Gallery/Smithsonian); Karen Mudar (National Park Service, but speaking privately); Helen Jessup (Friend of Khmer Culture).

Brian Daniels spoke first.  Cambodian temple sculptures are still being looted.  Recently, the U. Penn received an email solicitation for the sale of such temple sculptures from Cambodia.  The U. Penn turned the matter over to the authorities.  The seller also sent the solicitation to the Brooklyn Museum of Art.  Cambodia has been very generous with loans to U.S. Museums and has made a real effort to inventory its national museum.  That work is being expanded to include inventories of regional museums and archaeological sites.   In response to questions, Dr. Daniels indicated: (1) there has been some cooperation between Thailand and Cambodia with regard to repatriation of looted Cambodian antiquities; (2) Cambodia has entered into an MOU with Australia that calls for the return of looted material; (3) Cambodia is truly interested in completing an inventory of its cultural treasures.

Tess Davis spoke next.   There are 4,000 known prehistoric sites in Cambodia.  Most have been looted. Cambodia is a much poorer country than its neighbors, Vietnam and Thailand.  It is ranked below the Congo and Iraq in terms of its economic development.  Yet, Cambodia has committed serious resources to protecting its cultural patrimony.  It is hosting an international conference on the subject.  It is going forward with an inventory.  Its law enforcement recently arrested a high ranking general and governor on charges of antiquity smuggling (along with weapons and drugs).  In response to questions, Ms. Davis indicated:  (1) a surprising number of inventory records have survived since the 1960’s given all the warfare that has beset the country; (2) tourism is a positive development, but requires educating tourists not to purchase looted materials; (3) because artifacts are easy to smuggle, U.S. import restrictions are a good second layer of protection; (4) there also is looting of Khmer materials in Laos and Burma, but statistics are hard to come by; (5) there is currently enough funding for the inventory project; (6) the agreement with Australia focuses on law enforcement; (7) the ultimate markets for Khmer artifacts are the U.S., Japan, France, Belgium and Switzerland; and (8) the Cambodian government is doing a better job of posting warnings to tourists.

Ms. Edelman spoke next.  The Lawyer’s Committee is an advocacy organization that is happy to add its agreement to the unanimous view that the MOU should be renewed. 

Josh Knerly then spoke in favor of the MOU.   Loans have been made to major U.S. Museums like the Freer Gallery, but more could be done to encourage loans to regional museums in the U.S.  The AAMD would like to see more direct loans as well.  Currently, all loans need to be negotiated under the authority of the U.S. Embassy.  The Embassy has been cooperative, but it makes sense that some private organization take over.  What the Korea Foundation had done provides a model.

Paul Jett discussed the Freer’s long-term collaboration with Cambodia.  This began in 1997 with the establishment of a metal conservation lab.  Next, was an investigation into the stone that was used for temple building.   Finally, there was the Gods of Angkor Wat exhibit of last year.  In response to questions, Jett indicated there are public education programs in Cambodia.  The inventories vary in quality.

Karen Mudar works for the National Park service but appeared in a personal capacity.  She previously worked in Thailand.  There needs to be public education about looting. The border with Thailand is porous and there are markets for Khmer objects in Thailand.

Helen Jessup spoke last.  There have been 4,000 archaeological sites identified in Cambodia.  There is a porous border with both Vietnam and Thailand.   Artifacts transit through each country.  For a poor country, Cambodia has made a big effort to protect its patrimony.  There are 511 Heritage police in the country.  Eighty-four were trained by the FBI.  Looting has taken place with road construction.  Friends of Khmer Culture have helped fund inventories which have been useful in recovering material from monasteries.  Cambodia has 26 regional museums.  Some are so small that they are housed in police stations or governor’s residences.  There have been zoning efforts to preclude digging near temples.  Outreach is important.  The bilateral agreement has been helpful to control the illicit trade.   In response to a question about corruption, Jessup stated that the situation is uneven.  There are some corrupt officials, but others are good.  There is a need to focus on education.  Tourism is important for Cambodia and in some instances the tourism ministry and the cultural ministry have not been on the same page.  The Cambodians have been extraordinarily generous with loans.  There have been some new museums put up.  A museum run by Thais was unpopular for political reasons.   Another built with Japanese funds but run by Cambodians has been successful. Thefts from monasteries are a continuing problem. One of the ministers in the Cambodian Government has a large collection and runs  his own museum. Other wealthy Cambodians also own Khmer antiquities.  The Ambassador’s Fund has been helpful.  The State Department funded the Red List of Cambodian antiquities at risk which has been useful for Customs officials.  There should be a better effort to post warnings for tourists at the airport.

Tail Wags Dog

Nathan Elkins has publicized a workshop he helped organize.   While I’m all for numismatic research, a perusal of the workshop topics just underscores what a former CPAC member told me: that he thought the State Department has allowed the archaeological tail to wag the numismatic dog.

     

The archaeological establishment has preached at CPAC meetings and elsewhere that coins—like other artifacts--lose their meaning without context, and that import restrictions are necessary to encourage academic research.  But all the workshop topics about coin iconography (including one Elkins himself chaired) simply belie this claim.   

Are import restrictions on coins and the considerable damage they have already done to thousands of American collectors and hundreds of American small businesses of the numismatic trade really justified by such academic endeavors?   Or does Elkins' workshop just provide more evidence that the archaeological tail has been allowed to wag the numismatic dog with little reflection on the veracity of the archaeological establishment’s claims?

Addendum (3/1/13):  On his blog, Elkins now confirms (rightly in my view) that despite the AIA's position to the contrary on unprovenanced objects, coins do indeed retain meaning without context.  He further states on Barford's blog (again rightly in my view) that the AIA's 1970 date should not apply to coins.  [I'm not posting either statement here, however, because frankly they are written in a rather insulting manner.]

But if so, how does Elkins square all this with his association with the AIA's position on cultural heritage issues, particularly if memory serves (it's not available on the AIA webstite) that Elkins is or has been a member of the AIA's Cultural Heritage Policy Committee?  Are the positions the AIA stakes out serious ones that its own members are expected to accept or are they to be conveniently discarded when their application might interfere with an AIA member's research interests?  It would seem the AIA is happy to try to hold museums, collectors and dealers to its views, but how about those associated with the organization itself? 

Funding Opportunities Abound?

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

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

Germany Helps Smuggle Manuscripts to Save Them

Germany has helped smuggle historic manuscripts from Timbuktu to save them from the clutches of Islamic radicals bent on their destruction. Was removing them from their context to save them justified?  Was Germany helping or interfering by supporting the effort?   I'd say an unqualified "yes" to the first question, and "helping" as to the second.  But what of UNESCO and the archaeological fanatics?  Do they support this effort or not?  I wonder.

Presidential Power: From Drones to Drachms

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

Egyptian Mob Torches Historic Structure Slated for Archaeology

In Mubarak's Egypt, archaeology served the state.  Perhaps then, it should not be surprising that a mob has destroyed a historic mansion slated to become a center for archaeology.   This follows last year's burning of a historic library.  For archaeology to survive and prosper, it must stay relevant to the people and not just serve as a nationalistic tool for the state.   Hopefully, Egypt's new government will disassociate archaeology from state power  and instead encourage appreciation for the past as an end in itself.

Law 360: Justices Asked To Hear Imported Coin Seizure Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Double Standards at CPAC?

The New York Times has reported that the Cambodian Government asked for CPAC member Jane Levine, who is also employed by Sotheby's, to be recused from deliberating on the upcoming CPAC meeting relating to the renewal of the Cambodian MOU.   Presumably, the Cambodians are claiming that Levine cannot fairly discharge her duties given the ongoing dispute involving a Khmer statue.  The article indicates Levine was not going to attend the meeting anyway due to a conflict with a Sotheby's board meeting, but also suggests that the "scheduling conflict" may have provided Levine and Sotheby's with a graceful exit from the dispute.

But, if so, it's worth recalling that State failed to recuse an archaeologist who received an excavation permit from Cyprus despite the clear conflict of interest issues her participation in deliberations related to the renewal of the Cypriot MOU raised.

So, once again, is there one standard applied to collectors and the trade and another for archaeologists aligned with the State Department and source country bureaucracies?

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

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

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

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

...

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

The entire petition may be read here.

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

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

Throwing Tax Dollars at Foreign Archaeological Sites Doesn't Always Buy Friends

The U.S. Ambassador to Lebanon has learned the hard way that offers to throw US taxpayer dollars to fix up foreign archaeological sites does not necessarily buy the US friends abroad, particularly where the money is to be spent in Hezbollah territory in S. Lebanon.  Instead, the Ambassador has been subject to withering criticism because an Embassy vehicle damaged a wall during a tour of ancient Tyre.  In the Ambassador's defense, I suspect she did not leave her vehicle because of security concerns, not because she was "too tired or busy" as Arab media has suggested.

New Art and Cultural Heritage Law Blog

Michael McCullough, an art, cultural heritage and customs lawyer,  has started a new blog.  Michael can draw on a wealth of expertise from years at Sotheby's and in private practice representing the interests of dealers, collectors, artists and auction houses concerning the transfer of cultural goods.  His views should be a welcome addition to blogging in an area that remains dominated by academics with no practical experience in how markets work and the difficulties facing the trade.

More Problems Discovered at Pompeii

A week after reports surfaced about thefts of antique books from a historic library in Naples, Italian authorities have announced another arrest, this time of the head of a restoration firm that allegedly skimmed monies meant for the restoration of Pompeii.  

While it's good to see Italian authorities finally clamp down on some corruption, such news once again suggests that import restrictions, repatriation demands and the like are diversions from what really ails Italy's cultural patrimony.

Slim Public Support for Renwal of the Cambodian MOU

Only 37 public comments have been posted on the regulations.gov website regarding the proposed renewal of the Cambodian MOU.  It's a bit surprising  the number is so low, particularly given all the negative press drummed up against Sotheby's concerning the ongoing forfeiture proceeding in New York over a Khmer statue.  Unsurprisingly, though most comments come from archaeologists or those with some professional or business affiliation with the Cambodian cultural bureaucracy.  The list includes two groups who have or currently do receive public funds from the US Government or the EU.  This again suggests that import restrictions are largely "feel good measures" for special interests with friends in Government.   

Should Transparency Be a Two Way Street?

Archaeo-Blogger and Cultural Heritage Lawyer Rick St. Hilaire wants to mandate additional record-keeping for dealers in cultural goods in the name of "transparency."  Leaving aside whether creating more red tape will accomplish anything other than to place additional administrative burdens on the small businesses of the antiquities and coin trade, one wonders whether he would also acknowledge that transparency should be a two way street. 

So, how about some transparency for the State Department and CBP concerning their process for imposing import restrictions on cultural goods?  Or how about imposing new record keeping requirements on archaeologists, such as requiring them to publish their findings within in a reasonable time on the Internet so they will be easily accessible to interested members of the general public?

After all, State, CBP and the archaeological community all purport to act in the public's interest, so is some transparency from them too much to ask?

150,000 Served

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Thank you to all who read Cultural Property Observer.  CPO's last milestone was 100,000 page loads, which was achieved on Nov. 11, 2011.

Reaction to Hugh Eakin

The New York Times has published a series of Letters to the Editor concerning Hugh Eakin's recent opinion piece regarding repatriations.   Barbara Newsome, the founder of the Archaeological Conservancy, discusses both her organization's efforts here in the US as well as the importance of museums and collectors in preserving the artifacts of others because they value them.    Noted cultural property expert Bill Pearlstein questions whether archaeological looting is really driven by American demand given statements by the Italian police.  Finally, Fiona Rose-Greenland sees repatriation demands as nationalistic in character and part of power politics.   Perhaps, the archaeology-over-all perspective should not be allowed to dominate this debate. 

Timbuktu Library Update

It looks like early Islamic manuscripts thought to have been burned by fleeing Islamic fanatics associated with an al-Qaeda offshoot  may not have been destroyed after all.  If so, this is welcome news, though the situation still seems rather bleak.

This also once again raises the larger question of whether the assumptions behind the US MOU with Mali (a state capable of being a good steward for its cultural resources) are faulty.  Certainly, even when renewal of Mali's MOU was being considered, there was no reason to consider Mali anything but a failed state incapable of undertaking its own obligations under the UNESCO Convention to protect its cultural patrimony.