Comment Fatigue Can't Mask Special Interest Nature of MOU Program

Given the short (7 day) comment period over the July 4th weekend, CPO is not too surprised that there were so few comments posted on the regulations.gov website concerning a proposed MOU with Libya:  https://www.regulations.gov/document?D=DOS_FRDOC_0001-4160

After eliminating duplicates and a few unclear comments, it appears that only 19% or 7 of the commentators supported the MOU with the remaining 34 opposed in whole or part.

Four of the proponents represented group interests.  Of these, one was a University and another was an archaeological group that also is a State Department contractor.  Six trade associations or collector advocacy groups were among those opposed to any MOU in whole or in part.  Most of the individual comments came from coin collectors or dealers.

No doubt some proponents will spin these the low numbers as a lack of public opposition to any MOU.  But what really should be asked is whether the whole enterprise is really nothing more than a special interest program for archaeological groups either tied to source countries where they excavate or the State Department which funds them.  Maybe there needs to be a rethink whether scarce State Department resources should be earmarked for other programs that further our national interest or promote American business abroad.

My Personal Comment on the Proposed Libyan MOU

Here is my personal comment on the proposed Libyan MOU:

Please accept these personal comments. I have also commented on behalf of a number of organizations.

1. CPAC should view this request with skepticism. Few details have emerged that support Libya's MOU request. Moreover, this request has been rushed, with a short comment period smack in the middle of a long holiday week. This action, which can only limit the number of comments CPAC receives, in itself suggests that this request should be viewed with caution-- even if the country itself wasn't a mess as it has been since its revolution of 2011.

2. The country has 3 governments, and two antiquities authorities jockeying for position. It's not even clear which of these entities supports this request. In any case, whatever "government" Libya has, powerful militias are in the background that can break these "governments" pretty much at will.

3. There are no guarantees that any artifacts Customs sends to Libya under any MOU will be protected, much less studied and displayed. None of Libya's museums are open and what staff remains have to make do under very trying circumstances.

4. Frankly, instead of yet another round of import restrictions, the State Department, along with other international organizations, should instead focus on helping Libyan community groups protect Libya's 5 UNESCO World Heritage sites from the deprivations of Islamic fundamentalists. Ultimately, Palmyra and Nimrud suffered severe damage because local communities didn't care enough to protect them from ISIS. Let's help those locals who care about these sites protect them.

5. I do not believe that Libya and the proponents of import restrictions have made out a case for either "regular" or "emergency restrictions." Nonetheless, if CPAC feels it cannot resist bureaucratic pressure to "do something," Libya's request should be treated as an "emergency one" and restrictions limited to site specific material from Libya's endangered World Heritage Sites: (1) Kyrene; (2) Leptis Magna; (3) Sabratha; (4) Tadrat Acacus; and (5) Ghademes. (See Libya's five World Heritage sites put on List of World Heritage in Danger, (UNESCO) (July 14, 2017), available at [URL REMOVED]

6. Under no circumstances should there be restrictions placed on historical coins except those identifiable as stolen from Libyan public and private collections. Here, IAPN, PNG and ACCG have noted what hoard evidence that is available shows that "Libyan" coins are typically found outside of the confines of modern day "Libya," which would make any restrictions placed upon them contrary to governing law. Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 801 F. Supp. 2d 383, 407 n. 25 (D. Md. 2011) ("Congress only authorized the imposition of import restrictions on objects that were 'first discovered within, and [are] subject to the export control by the State Party.").

Thank you for your consideration of these comments.

Sincerely,

Peter Tompa

Ask CPAC to Limit or Table the Problematic Libyan MOU request Rather than Rush it Through

The State Department has announced an exceptionally short comment period for a proposed MOU with Libya ending on July 10th.  The exceptionally short time frame for public comment as well as the timing of this request to coincide with a raft of highly exaggerated reports claiming that the antiquities trade funds terrorism emanating from the Antiquities Coalition, a well-funded and politically connected advocacy group with ties to MENA authoritarian governments, suggests that the Libyan MOU is yet another done deal.  

Still, if one feels strongly about their continued ability to collect ancient artifacts and/or historical coins, CPO believes they should comment on the regulations.gov website here: 

https://www.regulations.gov/document?D=DOS_FRDOC_0001-4160


Why? Because silence will only be spun as acquiesce by US and Libyan cultural bureaucracies as well as the archaeological lobby with an ax to grind against collectors.

A.    The Law

The Cultural Property Implementation Act (“CPIA”) contains significant procedural and substantive constraints on the executive authority to impose import restrictions on cultural goods. 

“Regular” restrictions may only be applied to archaeological artifacts of “cultural significance” “first discovered within” and “subject to the export control” of a specific UNESCO State Party.  They must be part of a “concerted international response” of other market nations, and can only be applied after less onerous “self-help” measures are tried.  They must also be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

“Emergency restrictions” are narrower.  They focus on material of particular importance, but no “concerted international response” is necessary.  The material must be a “newly discovered type” or from a site of “high cultural significance” that is in danger of “crisis proportions.” Alternatively, the object must be of a civilization, the record of which is in jeopardy of “crisis proportions,” and restrictions will reduce the danger of pillage.

 The Cultural Property Advisory Committee (“CPAC”) is to provide the executive with useful advice about this process.

   

The CPIA contemplates that CPAC is to recommend whether import restrictions are appropriate as a general matter and also specifically whether they should be placed on particular types of cultural goods.  In the past, CPAC has recommended against import restrictions on coins.  Initially those recommendations were followed, but beginning with the renewal of Cypriot import restrictions in 2007, this has changed.  Now, there are restrictions on coins made in Cyprus, China, Italy, Greece, Bulgaria, Syria and Egypt.  

  

Import restrictions make it impossible for Americans to legally import collectors’ coins widely and legally available worldwide.   Foreign sellers are typically unwilling or unable to certify the coin in question (which can retail as little as $1) left a specific UNESCO State Party before restrictions were imposed as required by the CPIA and U.S. Customs and Border Protection rules.   Restrictions have drastically limited Americans’ abilities to purchase historical coins from abroad and have negatively impacted the cultural understanding and people to people contacts collecting fosters. 

B.     The Request

The Committee for Cultural Policy has written a good analysis of the request: https://committeeforculturalpolicy.org/libya-requests-us-to-send-artifacts-back-to-war-torn-libya/  

I quote that analysis in pertinent part here:

The Public Summary of Libya MOU Request that has been made available is actually written by the Department of State, and “authorized” by the Libyan government. The Department does not provide copies of actual requests, which makes it impossible to know if the request itself complies with Congressional criteria.

No Central Government Control

It is important to note that this request comes from the current Government of Libya, which holds only a portion of Libyan territory at this time. Libya is divided and ruled by two competing governments and its territory is controlled by six major militia factions, and many smaller parties and entities. There is no single effective Government of Libya that controls Libyan territory.

As part of every US agreement on cultural property, the US agrees to send any art that enters the US back to the source country. This policy applies even to art that has poor prospects of surviving in conflict-ridden nations, and art from oppressed ethnic or religious minorities that have been forced out of the source country. The CPIA does not provide for return of embargoes art to anyone but a source country government.

The Request is Over Broad

The request for the imposition of U.S. import restrictions covers the entire history of the geographic region that is Libyan territory from the Paleolithic through the Ottoman Era (12,000 B.C.-1750 A.D.). and on its ethnological material dating from 1551 to 1911 A.D. That is – virtually everything – up to 1911.

The material covered would be “archaeological material in stone, metal, ceramic and clay, glass, faience, and semi-precious stone, mosaic, painting, plaster, textile, basketry, rope, bone, ivory, shell and other organics. Protection is sought for ethnological material in stone, metal, ceramic and clay, wood, bone and ivory, glass, textile, basketry and rope, leather and parchment, and writing.” That is, everything one can think of.

No Cultural Administration

The cultural administrative staff of Libya appear in the request to have been scattered and in considerable disorder. The request fails to demonstrate that there is currently a government hierarchy capable of administering cultural heritage in much of the country, even if it wished to do so. The request provides numerous examples of failure by the Libyan government to address cultural heritage issues. It notes that

• “[A]rtifacts, which had been excavated from temples, were also stolen from the storerooms.”
• “Museums have also been vandalized and looted by invading militias.”
• “There are also reported thefts from museums and storerooms of documented and undocumented objects.”
• “[A]ll of the country’s twenty-four museums are closed.”
• Lacking government support, Department of Antiquities staff “continue to take personal responsibility for the objects housed in their institutions.”

No US Market for Illicit Artifacts

The Libyan request’s description of the U.S. market for ancient artifacts in Libyan style does not claim that any came recently from Libya or that any were not legally acquired.

The Tuareg materials and Islamic objects of the 18th and 19th century for which “protection,” i.e. embargo is sought were legally available for trade in Libya for many decades and are widely and legally available in European, Asian, and US markets. The request does not even claim that ethnographic materials were restricted in export from Libya in the past.

No Access for US Citizens, No Study, No Sharing of Excavated Materials

The request fails to meet criteria set by Congress that require that US citizens have access to Libyan culture through museum exhibitions or other venues. There is not a single traveling exhibition mentioned in the request.

Although the request acknowledges that foreign institutions and missions have done extensive archaeological work in Libya, these archaeological agreements do not allow sharing or even permanent export from Libya of any objects for study.

Based on the written request as presented by the Department of State, Libya’s recent governments have done little or nothing in the last decade to protect Libyan sites. Nor has any Libyan government made any effort to ensure that US citizens were able to access Libyan art and artifacts through traveling exhibitions, museum loans, or even through providing digital online access to art in Libya itself.

US Organizations with Middle East Ties are Promoting the Libyan Request

This request appears timed to coincide with a raft of recent presentations about the trade in looted Middle Eastern art by the Antiquities Coalition and its various partners – much of it based on discredited data. The presentations have focused on the evils of the international trade in looted art from these regions, and by wholly unsubstantiated statements that looted artifacts from the crisis areas in the Middle East have entered the US market or are being sold here. In these presentations, the value of the legal market in provenanced antiquities, especially the auction market, are used to justify claims about a supposed illicit market. In the view of the Antiquities Coalition, agreements under the CPIA with authoritarian Middle Eastern governments are seen as positive because they will end the art trade.

C.     What You Can Do

Admittedly, all the evidence points to the matter being already decided—no matter what the CPIA says, what the facts really are, and what American citizens or others interested in collecting Libyan artifacts may think.  Still, to remain silent is to give cultural bureaucrats and archaeologists with an ax to grind against collectors exactly what they want-- the claim that any MOU is not controversial. 

So, to submit comments concerning the proposed MOU, go to the Federal rulemaking Portal and enter Docket No. DOS-2017-0028 and by all means speak your mind.  For a direct link, try here:  https://www.regulations.gov/document?D=DOS_FRDOC_0001-4160  and click on the “comment here” button to make your case.

 

What should you say?  Provide a brief, polite explanation about why the request should be denied or limited.  Indicate to CPAC how restrictions will negatively impact your business and/or the cultural understanding and people to people contacts collecting provides.   Coin collectors should add that it’s typically impossible to assume a particular coin was “first discovered within” and “subject to the export control” of  Libya and that Libyan historical coins while not as common as others, are widely and freely available for sale elsewhere, particularly in Europe.  And, of course, feel free to mention any concerns you might have about government transparency, whether this is a real “emergency” of “crisis proportions,” and how the State Department has generally handled this request.   Finally, you don’t have to be an American citizen to comment—you just need to be concerned enough to spend twenty or so minutes to express your views on-line.  

Problematic MOU Request

The State Department has notified the public of its receipt of a request for a MOU with Libya.  It remains to be seen how a country with two competing governments, that is over-run by militias and which remains in danger from ISIS can meet its obligations under UNESCO and the CPIA to protect and preserve is own cultural property let alone that which may be repatriated from the US under the terms of any agreement.  Libya needs our help, but that help should be focused on protecting its world class archaeological sites from the depredations of ISIS and other radical Islamic groups. Turning US Customs loose to seize and forfeit "undocumented" "Libyan" artifacts will only harm legitimate trade and the appreciation for Libya's ancient cultures.  It certainly won't help protect Libyan archaeological sites and museums from their greatest threat, which is hammer and explosive wielding religious fanatics.

Desperately Seeking Continued Funding?

On June 8, 2017, CPO attended a panel discussion entitled, "Preserving Northern Iraq's Cultural Heritage."   The major theme of the event was to document the good work the Smithsonian is doing stabilizing what is left of Nimrud after ISIS dynamited and bulldozed much of the site.

However, the continued hype about the supposed value of ISIS looted material ($80 million!) as well as surprising claims that cultural heritage preservation fights terrorism and fosters minority rights seem calculated to sway Trump Administration and Congressional budget officials as much as anything else.  Indeed, it probably was no coincidence that representatives of the House Foreign Relations Committee were in the audience.

If anything, the American Schools of Oriental Research (ASOR) should be subject to serious scrutiny from appropriators given the $900,000 taxpayer costs of ASOR's cooperative agreement with the State Department, ASOR's efforts to lobby on issues related to that same contract, and the continuing efforts of ASOR members to hype the value of looting by ISIS long after other, more disinterested sources have questioned such hype.

Museum and Auction House Work Together To Reunite Collector With His Coins

This is a great story about the efforts of Virginia State authorities, the Virginia Museum of Fine Arts and CNG, Inc. to find the owner of a box of ancient coins that had been lost.  A happy ending about how government officials and private industry worked together to reunite a collector with his collection.

Import Restrictions Without End

The drafters of the CPIA contemplated that import restrictions would give breathing space for source countries to get their own house in order, but they were never supposed to go on forever.  Yet, the State Department and US Customs have extended import restrictions on Peruvian goods for the fourth time.  So, Americans have been limited in their ability to import Peruvian goods from third countries for yet another 5 years.

The extension expands restrictions to colonial era manuscripts although it is dubious that they meet the definition of ethnological objects under the CPIA.  Presumably, the restrictions were put into place to keep Peruvian citizens from selling off old manuscripts to foreigners.  Materials within Peruvian institutions are already restricted from entry in the US under the CPIA's stolen property provisions.