The CPIA "Covers" Coins?

Archaeo-blogger Rick St. Hilaire  has made the blanket assertion that the Convention on Cultural Property Implementation Act ("CPIA") covers ancient coins.  I'm not sure why he sees a need to comment on the issue now, except perhaps to try to bail out his fellow archaeo-blogger who has gotten himself in a bit too deep playing the part of a lawyer.

But St. Hilaire has to rely on distortion to make his point.   I'm not aware of the ACCG or anyone else saying that the CPIA "exempts" coins as St. Hilaire suggests.   Rather, what the ACCG and the trade have said is that restrictions to date on coins have not met the criteria of the CPIA for several fundamental reasons. 

First, the CPIA only allows restrictions on artifacts of "cultural significance."  19 U.S.C. Section 2601 (2) (I) (I).  The ACCG and the trade have maintained that coins as a class are not "of cultural significance" because they exist in many multiples.  The fact that they may or may not be of "archaeological significance" conflates any such inquiry; an artifact must be both of "archaeological interest" and "cultural significance" before it may be restricted.

Second, the CPIA only allows restrictions on artifacts "first discovered within" and "subject to the export control" of the UNESCO State Party seeking restrictions.  Id. Section 2601 (2).  The ACCG and the trade have maintained that restrictions to date have not met this criteria because the coins in question have circulated outside the boundaries of the UNESCO State Party such that neither the State Department nor U.S. Customs can properly assume that they were "first discovered" and "subject to the export control" of any of the UNESCO State Parties for which restrictions have been provided. 

Finally, there is the issue of a "concerted international response" and the requirement that "less drastic remedies" be tried first.  Id. Section 2602 (a) (1).  The CPIA's "concerted international" response requirement has not been met because all the coins that have been restricted to date are widely and legally available on international markets, including those within countries for which restrictions have been granted.  The "less drastic remedies" requirement has not been met because PAS type-schemes have not been tried in any of these countries, and some of them have not even actively enforced strictures against metal detector use. 

And what have government officials said about coins and the CPIA?  This is what Mark Feldman, then the State Department's Deputy Legal Advisor, represented to Congress when what became the CPIA was being debated: 

“I think in theory, they [coins] may well come within the definition, but we did not have coins in mind when we addressed the issue.  I think as a practical matter, it would not be a serious problem.  In most cases, it is impossible to establish the provenance of a particular coin or hoard of coins.  Therefore, there would be no reason for the United States, in most cases, to list coins as one of the categories of objects of  archaeological or ethnological interest that would be included in the agreement. … [T]his legislation and ratification of the convention would not have any immediate effect on coins and it is hard for me to imagine a case where we would need to deal with coins except in the most unusual circumstances.  See “Cultural Property Treaty Legislation,” Hearing before the House Subcommittee on Trade of the Committee on Ways and Means, 96^th Cong., 1^st session on HR 3403 at 8 (emphasis added).

And then there's the Cultural Property Advisory Committee ("CPAC"), presidential appointees who are supposed to represent the interests of the public, museums, archaeologists and the trade.  Let's not forget that coins only became "an issue" when according to past CPAC Chairman Kislak, the State Department overruled his committee's recommendations AGAINST restrictions on coins and then misled the Congress and public about it in official government reports.  Previously, CPAC had recommended against import restrictions on Cypriot coins (once) and Italian coins (twice), recommendations that had been upheld by the State Department bureaucracy. 

Finally, St. Hilaire's selective quotations from the Fourth Circuit's opinion in the ACCG's action seeking to strike down import restrictions on Cypriot and Chinese coins need to be placed in context.  First, that Court's statements are dicta.  Given the Court's upholding the dismissal of the action on "foreign policy grounds" the Court was not, and could not, be making a ruling on the merits.  Second, the Fourth Circuit also indicated that the ACCG would have its day in court in a forfeiture action.  That action has been filed, but has yet to go anywhere.  Finally, there is a real question of the continued vitality of the Fourth Circuit's ruling given the Supreme Court's decision in Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).  There, the U.S. Supreme Court issued a warning to lower courts that any "foreign policy" exception to justiciability must be construed narrowly based on the precise issue before the Court.  Can anyone really say with a straight face that import restrictions on coins widely collected in both Cyprus and China is a true "foreign policy question?"

So, does the CPIA "cover" coins?  As Mark Feldman noted, in theory perhaps, but unfortunately what was supposed to be the "unusual circumstance" has now become the default position to the "archaeology over all" State Department bureaucracy within the Bureau of Educational and Cultural Affairs and its Cultural Heritage Center.   And what of Gill, Elkins, St. Hilaire, Barford, the AIA and the rest?  They may provide some useful cover for "the nanny state" and its governmental overreach, but the facts are the facts and the law should be the law.