Renewed Media Disinformation Campaign Underway

The Committee on Cultural Policy has called attention to a renewed media disinformation campaign  that presumably will be used to help justify the reintroduction of HR 5703, a flawed piece of legislation that would benefit the Assad regime and the archaeological lobby far more than it would "protect" Syrian cultural patrimony.   No doubt any bill that calls for the repatriation of artifacts back to a dicataorship that purposefully destroys them, creates a new White House bureaucracy devoted to furthering the interests of a small group of connected insiders, and provides this same group with a funding source with no strings attached will heavily rely on the inflamatory claim that Western collectors support terrorism to avoid the hard questions about any such legislation that decision makers should ask.

Thinking Outside the Box: Cronin on Resolving Cultural Property Claims

Charles Cronin, University of Southern California Law School, will be holding an informal talk on a paper he is preparing on the intersection between Cultural Property and IP law and a proposal on how cultural property claims can be resolved.

From the abstract:

If we were to perceive cultural artifacts fundamentally as works of information rather than of tangible property, the location of the original instantiations of them would be of little significance.  3D technologies might soon permit source nations to retain the essential intellectual value of cultural artifacts found within their borders, while simultaneously capitalizing upon sales of the originals to collectors who will pay for their “aura”.   

The talk will take place on Feb. 18th at 1:30 PM at GW Law School, Burns Bulding, 716 20th Street, NW, Washington, DC Rm. 505.

Preservation or Repatriation?

As expected, the UN Security Council has approved a Russian resolution that appears calculated to buttress Putin's friend, Assad, as much as anything else.

The aim is purportedly to help cut into ISIS' funding by clamping down on sales of Syrian antiquities, but the result will be the repatriation of  undocumented objects that have been out of the country for years back to the exact same murderous regime that bombed the old city of Aleppo into oblivion, that has struck early Islamic sites and whose military is involved in looting in places like Apamea and Palmyra.

So what's next?   In the UK, the sensible Brits plan to focus on using existing law to address the problem.  And in the US?  Will the archaeological lobby again use the tragedy to resurrect self-serving legislation that will enrich itself?  Or, will they follow the example of their Syrian, Dutch and U. Penn colleagues and seek to address the problem at the source?

Monopoly vs. Better, Faster, Cheaper

A turf battle in France between public and private sector archaeologists has led to the Louvre being occupied by angry public sector archaeologists.  Meanwhile, in the nearby United Kingdom as interested amateurs publish thousands of finds, materials excavated by professionals languish in warehouses.

Of course, the situation is far worse in the favorite countries of the archaeological lobby-- Cyprus, Greece, Italy and Egypt,   There, amateur archaeologists are treated the same as looters for profit  while underfunded and corrupt archaeological establishments are poor stewards of even the most  important artifacts.

Perhaps, the answer is more competition.  Unleash the passion of private individuals and groups in community archaeology efforts.  And, of course, let them share redundant artifacts with the state and landowers.  As long as items are properly recorded, preserved and published, why not?

The CPIA's Burden of Proof: How it is Supposed to Work...

Here is how Mark Feldman, the State Department's Deputy Legal Adviser, explained how what became the CPIA's burden of proof was supposed to work:

Now, if I may pass for a moment to the question of procedures and burdens of proof, which is the area of one of the great improvements in the bill.   I do want to clarify a matter which involves a difference of interpretation between the art dealers and the State Department. One of the major changes made in the legislation was to alter the presumption normally applied in customs cases putting the burden of proof on the Government in most particulars. One issue where the burden of proof is placed on the Government is to demonstrate that the object fits within the proscribed list.  The Government must show both that it fits in the proscribed category and that it comes from the country making the agreement.  So the burden of proof of provenance is on the Government, a burden which I don’t think has been appreciated by all the critics of this legislation.  This means in a significant number of cases it will not be possible to require an object’s return.   Now this is a policy judgment.   The burden of proof on provenance could have been placed on the importer, which would preclude importation where provenance could not be established.  We have not gone that far; it may be that Congress, when it focuses on this issue, may decide otherwise.  To put the burden of proof of provenance on the importer may be the only truly effective way of avoiding importation of objects illegally removed from their country of origin.  But we in the State Department have not promoted that solution, recognizing that where the facts are obscure, U.S. collectors should not be precluded from competing for the material. . . . .

The only country that would have the right to claim such an object under the bill is the country where it was first discovered.  It would have to be established that the object was removed from the country of origin after the date of the regulation. 

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Proceedings of the Panel on the U.S. Enabling Legislation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 4 Syracuse J. Int’l L. & Com. 97 1976-1977 at 129-130. 

As Feldman explains, questions of burden of proof -- particularly where they relate to forfeitures of private property rights--are for Congress to determine, not cultural bureaucrats, DOJ attorneys or even the Courts.   Yet, there seems to be an assumption by some bloggers associated with the archaeological lobby that advocating for one's rights to due process is somehow misguided or even the work of "idiot" "cowboys."  But due process is what is supposed to separate this country from dictatorships.  So, perhaps the ACCG should be commended not condemned for continuing to assert its rights to due process on its own behalf and on behalf of collectors everywhere in ongoing litigation and, if necessary, on appeal.

Smuggled Antiquities Again a Top ISIS Funding Source?

Who says?  Putin's Russia, one of the murderous Assad regime's last remaining allies, that's who.  Any new evidence?  No.  Any mention of the Assad regime's own intentional destruction of early Sunni religious sites or involvement of looting in places like Apamea?  Of course not.

And why not?  Could that be because the claim that looted antiquities are a top ISIS funding source will be used to justify an UN resolution that could result in any antiquities that are seized being repatriated back to Russia's ally, that same odious Assad regime?

The aim of any UN Resolution or UNESCO State Party action should be preservation not repatriation.  And any means used should respect the due process rights so lacking in places like Syria and Russia for that matter.

Due Process Imperiled?

After considering the matter for over six (6) months, the Hon. Catherine C. Blake has denied the Ancient Coin Collectors Guild's Motion for Reconsideration of a decision striking the Guild's Amended Answer in a short, three sentence order.  This decision once again raises the prospect that the congressionally mandated burden of proof found in CPIA Section 2610 has been judicially reassigned from the government to the Guild. If so, the Guild's due process rights are being imperiled, something that should be a concern to us all.