Tuesday, July 31, 2018

Virtual CPAC Meeting on Algerian MOU Request and Honduran and Bulgarian Renewals

On July 31, 2018, the U.S. Cultural Property Advisory Committee (CPAC) held a “virtual” meeting where all speakers were linked via an internet based video platform.  According to my notes, at least the following CPAC members were in attendance at the State Department:  (1) Karol Wight (Museum); (2) Lothar von Falkenhausen (Archeology); (3) Nancy Wilkie (Archaeology); (4) Rosemary Joyce (Archaeology); (5) Dorit Straus (Trade); (6) Adele Chatfield-Taylor (Public); and (7) Jeremy Sabloff (Public-Chair).   Jim Willis (Trade) attended via videoconferencing. 

Cari Enav, who runs the Cultural Heritage Center, made introductions.  Andrew Cohen, who is the executive director for CPAC, provided the speakers with information about the 4 determinations CPAC was required to make before recommending a MOU or an extension.   Dr. Sabloff indicated speakers should take these requirements into account in their presentations. He then introduced the CPAC members before calling speakers for the Algerian MOU.

Algerian MOU

There were six (6) speakers:  (1) Kate FitzGibbon (Committee for Cultural Policy (CCP) and Global Heritage Alliance (GHA); (2) Peter Tompa (International Association of Professional Numismatists (IAPN)/Professional Numismatist’s Guild (PNG); (3) Gina Bublil-Waldman (Jews Indigenous to the Middle East and Africa (JIMENA); and (4) Carole Basri (Fordham Law School).  

Kate FitzGibbon- CPAC initially only recommended MOUs on a narrow range of artifacts from a limited number of poor countries.  Today, MOUs close off entire areas from collecting.  Even worse, the State Department has recognized the claims of nation states to property that has been expropriated from fleeing Jews and Christians.  Ms. FitzGibbon acknowledges that recent Libyan import restrictions have been rewritten to remove references to Jewish items, but states that most, if not all, would still be restricted under more general coverage for Ottoman items.  The only way to ensure that artifacts of repressed minorities will not be subject to seizure is with a specific exclusion.  The problem can also be avoided if the State Department adheres to the definition of ethnological objects in the Cultural Property Implementation Act.  Algerian Jewish artifacts are not the products of preindustrial or tribal cultures and should be beyond the scope of coverage under the CPIA. 

Peter Tompa- This is yet another troubling request from an authoritarian North African government which is all the more problematic because Algeria seeks recognition of its rights to objects associated with its displaced Christian and Jewish populations.  This issue potentially impacts unprovenanced coins now in French collections.  (Algeria’s French “Pied Noir” and Jewish populations mainly fled to France after Algeria gained its independence.)  There is a real question whether Algeria’s patrimony is in jeopardy as no information has been provided whether coins are being found with metal detectors.  If they are, they need to be regulated as a less drastic remedy than import restrictions.  The UK Treasure Act and Portable Antiquities Scheme is IAPN/PNG’s preferred model for regulation.  If restrictions are recommended for coins, such restrictions must be limited to those “first discovered within” and hence “subject to export control” of Algeria.  Here, while there is some room for debate as to whether “local currency” issued at Cirta, Icosium (Algiers), Hippo Regius and Iol-Caesaria is exclusively found within the confines of modern day Algeria, coins of the Numidian and Mauritanian kingdoms, and the Carthaginian, Roman, Byzantine and Islamic Empires circulated well beyond the boundaries of modern day Algeria.  One cannot simply assume such coins were actually found in Algeria and hence are subject to Algerian export controls. 

Gina Bubill-Waldman- Ms. Waldman was driven from her home in Libya as a child.  She believes that these MOUs are a cynical tactic created to deny North African and Middle Eastern Jews patrimony and assets which were stolen from Jewish people when they were brutally expelled. The Libyan MOU has set a very dangerous and unjust precedent for countries who erase Jewish heritage by claiming it as their own, when Jews, the people who actually created it, have been hunted and expelled. Because these MOUs were passed without specifically excluding Jewish items, Jewish patrimony can now become the patrimony of the same governments which have destroyed, looted and harassed their now extinct Jewish communities.  CPAC is charged with the important job of protecting patrimony of antiquities. But by passing this type of MOU, CPAC would in fact be endorsing the opposite of what its mission tries to achieve: preservation of historical property by its proper owners. This MOU seeks to make the American government unwittingly collude with the thieves who stole, destroyed and defaced the Jewish-Algerian patrimony in the first place.

Not a single one of the Middle Eastern and North African countries from Morocco to Yemen, from Iraq to Egypt has earned the right to call thousands year old Jewish patrimony their own. Not after expelling their Jewish population, confiscating what was rightfully Jewish property, desecrating, looting, destroying synagogues and purposefully building skyscrapers on top the cemetery where Ms. Waldman’s grandparents are buried, like in Tripoli, Libya. 

Carole Basri- Ms. Basri is of Iraqi-Jewish heritage.  She authored a law review article about the harsh treatment of Iraqi Jews.  The property of Jews living in MENA countries was expropriated under color of law.  Such laws are against our own scruples as well as the UN Declaration on Human Rights.  There were originally 1 million Jews in Arab countries.  Jewish artifacts do not fit the definition of ethnological objects under the CPIA and should not be subject to detention and seizure. Jewish people were city dwellers and the cities where they lived were neither pre-Industrial nor tribal in nature.  The U.S. Government should not work with governments that have forcibly removed their Christians and Jews. 

Cari Enav interjects that new Libyan restrictions do not mention Jewish property so such property should be excluded from any import restrictions.  Kate FitzGibbon states that Jewish property is still included in the Libyan MOU because most Jewish property cannot be distinguished with what is otherwise described as Ottoman in the import restrictions.  That is why an explicit exemption is required.  All this could be avoided if the State Department followed the CPIA strictly and did not consider Jewish artifacts to be ethnological in nature. 

Honduran Renewal

There were three (3) speakers:  (1) Rocco Debitetto (Association of Art Museum Directors (AAMD)); (2) Kate FitzGibbon (CCP and GHA); and (3) Peter Tompa (IAPN and PNG). 

Rocco  Debitetto- AAMD supports the renewal with reservations.  Honduras needs to be held to account in Article II.  There needs to be long term loans.  The designated list is too broad and needs to be reformed to ensure that only archaeological and ethnological material as defined in the CPIA are covered.

Kate FitzGibbon- CCP and GHA oppose renewal of the MOU.  Honduras has been given blanket restrictions for 15 years.  It has not used this time productively.  Most of the budget for cultural heritage preservation stays in the capital rather than being used to protect sites on a local level.  The US House of Representatives has asked for an accounting of self-help measures as part of its authorization of funds.  Too much archaeologically sensitive land is being illegally used for cattle farms with nothing being done about it.   No more than $600-$700 is spent on sites per year.  There is little or no market for Honduran artifacts in the US. 

Peter Tompa- This MOU renewal raises the same issues for coin collectors as the recent Ecuadorian request.  Honduran historical coins cannot be considered either archaeological or ethnological objects. They were produced in industrial processes not consistent with them being ethnological objects.  Such coins circulated along with other Spanish Colonial coins throughout the Americas and beyond including the United States.  They should not be subject to restrictions. 

Karol Wight asks about AAMD’s recommendations.  Mr. Debitetto indicates a major one is one point of contact for loans.

Jim Willis asks Kate FitzGibbon about illegal exports from Honduras. Ms. FitzGibbon states it is difficult to answer that question because there is a lack of information. 

Bulgarian Renewal

There were three (3) speakers:  (1) Kate FitzGibbon (CCP and GHA); (2) Josh Knerley (AAMD); and (3) Peter Tompa (IAPN and PNG). 

Kate FitzGibbon- The Bulgarian designated list is all-inclusive and needs to be reformed to comply with the CPIA.  It includes many repetitive items that are not of cultural significance like coins, necklaces and beads.  Bulgaria has sorely neglected its archaeological sites.   Substantial EU funds have been wasted in archaeologically unsound rebuilding projects.  Very few Bulgarian artifacts aside from coins are of interest to collectors.  Coins are mass produced and not of cultural significance under the CPIA.  Bulgaria has not satisfied Article II of the MOU’s requirement that export permits be issued.  There is a lack of rigorous police enforcement. 

Josh Knerly- There is a major problem with the designated list.  The designated list can only restrict items authorized under the MOU.  Here, the MOU only authorizes restrictions on ecclesiastical objects from 681 AD forward, but the designated list restricts ecclesiastical items dating from the 4th Century AD.  This highlights much greater problems in how designated lists are prepared. 

Peter Tompa- Tompa produces a ruler to make a point.  A ruler goes from one inch to 12 inches.  We can all agree that some things like murder would be “12” on a scale.  But what about looting?  Many people would consider it a “1” on a scale, akin to a traffic violation.  That certainly is the case in Bulgaria where there are large numbers of treasure hunters and where the authorities themselves have been involved in looting.  Given this reality, it makes no sense to continue the MOU which only denies American coin collectors access to the same sorts of coins available elsewhere including Bulgaria itself.   If CPAC nonetheless approves a renewal, it should reform the designated list to limit restrictions on coins.  Moreover, CPAC should recognize that EU countries like Bulgaria are bound by EU export controls.  CPAC should recognize legal exports from EU countries of coins on the Bulgarian designated list.

Saturday, July 7, 2018

State Department Accepting Comments for New MOU with Algeria and Renewals for Bulgaria and Honduras

The State Department’s Cultural Heritage Center has announced it is accepting comments for a proposed new MOU with Algeria, and renewals with Bulgaria and Honduras.  For further details about how to comment before the July 15th close, see here.

Each MOU and renewal should give pause to all but the most ardent repatriationist.

Algeria is yet another authoritarian government that wants the State Department to recognize its rights to not only its ancient pre-Islamic cultures, but to its now displaced minorities as well (here French Pied Noirs and Jews).

Bulgaria’s imperfect democracy wants its MOU renewed despite its failure to live up to its own promises that were supposedly a quid pro quo for the initial agreement and its continuing disprespect for the private property rights of collectors.

Honduras wants yet another renewal of its 2004 MOU.  MOUs were only intended to remain in effect long enough for UNESCO state parties to get their own houses in order.  At what point is the US going to say enough is enough?

Is it just a waste of time commenting?  After reading former CPAC member Kate FitzGibbon’s well-informed critique of how the State Department has mal-administered the Cultural Property Implementation Act, one might be forgiven for just throwing up their hands in frustration.  However, CPO continues to believe that silence will be spun as acquiescence and for that reason alone those who value collecting and private property rights should comment.