Friday, October 25, 2013

Symposium on the 30th Anniversary of the Cultural Property Implementation Act

On October 22, 2013, the New York City Bar conducted a symposium about the Cultural Property Implementation Act (CPIA) to mark its 30th Anniversary.   The event was co-sponsored by the American Society of International Law (ASIL).  The panel was introduced by Michael McCullough (MM) (Michael McCullough LLC) and Josh Lipsman, the Chair of the Bar’s Cultural Property Subcommittee.  Irina Tarsis of ASIL also helped coordinate the event.

The Speakers were Arthur Houghton (AH), a former State Department official, Getty Curator and two-term Cultural Property Advisory Committee (CPAC) member, Larry Mushinske (LM), a former US Customs National Import Specialist for Art and Antiquities, Peter Tompa (PT), of counsel at Bailey & Ehrenberg PLLC, Jonathan Illari (JI), Associate General Counsel at Bonham’s Auction House, and Leila Amineddohleh (LA), the Executive Director of the Lawyers’  Committee for Cultural Heritage Preservation.

MM- The CPIA is compromise legislation that incorporated the 1970 UNESCO Convention into US law subject to reservations to ensure that the US maintained its “independent judgment” over the nature and scope of import restrictions on cultural goods.

Panel I-AH and LM.

AH- Times have changed since AH was on CPAC in its early years.  In those early days, restrictions were very narrow.   The first request was for restrictions on particular types of artifacts from one site in El Salvador.  The early committee had representatives of the trade on it, but they knew nothing of antiquities.  Conflict of interest rules were used to keep knowledgeable dealers off the committee.  Meanwhile, there was no question raised about conflict of interest for archaeologists based on their need to secure excavation permits from source countries.  Today, there is no balance on the Committee whatsoever.  Archaeologists are embedded as representatives of the public.   Public accountability and transparency are absent.   AH does not believe import restrictions have any discernible impact on looting.  Rather, they only move the trade overseas.   European markets are also closing down for similar reasons.   Fresh material is now going to the Middle East and Asia.

LM-LM was US Customs’ National Import Specialist for Art and Antiquities.  During his tenure, there was an effort to reach out to the trade concerning issues of concern.  He did a road show of the Ports to do training for local Customs officers.   Neil Levy is now in his former position.   It is a big job given the limited resources that are assigned to it.   LM thinks importers should use Custom’s procedure asking for determinations about entry of cultural goods.   The goal is to have a maximum 30 day turn around on vetting a piece for entry.  LM also noted that there is confusion about country of origin compared to find spot as well as the findings necessary to renew a MOU. 

MM asked AH what he would do if he were Secretary of State.  AH indicate he would fire the Cultural Heritage Center’s Director who he believes has been acting outside the law.    MM asked LM what he would do if he were Customs Commissioner.  LM believes that there needs to be more coherent rules concerning stolen and illegally imported property.  He thinks it’s odd that Customs is applying Egyptian cultural patrimony laws dating back to 1983 when Egypt has not even asked for a MOU.  

Panel II- LA, JI, and PT.

LA- MOUs have helped stem looting, show respect for other cultures and provide a bridge for contacts between academics and museums.   Import restrictions have a broader reach than criminal prosecutions under the National Stolen Property Act and do not require a showing of scienter or guilty knowledge.   Italy and Cambodia are two success stories.   The market needs to be more transparent.

JI discussed how Bonham’s vets articles for auction.  The analysis always considers both the National Stolen Property Act and import restrictions.   Auctions are the most transparent way of selling cultural property.   JI is concerned that our tough rules are driving material to private sales.  He also suggests US firms are losing consignments to foreign ones.   Most Chinese material is no longer sold here.   He is very concerned about subpoenas for information received pursuant to Mutual Legal Assistance Treaties.   They can request information about sales that took place years ago.

PT discussed the ACCG test case.  Coins make for a good test article because they are extremely common, collected world-wide and are difficult to associate with any one single modern nation state.   He explained that the significant procedural and substantive constraints on executive discretion within the CPIA provide a basis to argue that State Department decision-making should be subject to judicial review.  He also noted that the Court of Appeals' conclusion that import restrictions on coins were a “foreign policy matter” is at odds with Supreme Court case law.

After the presentations, there was a question and answer period.  There was much back and forth over whether import restrictions have really helped staunch looting.  There was also discussion about whether import restrictions should be placed on coins, and, if so, whether documentation requirements should be lessened  for coins compared to more significant artifacts.  Finally, there was some back and forth about the definition of ethnological objects under the CPIA. 

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