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.