On October 5, 2021, the US Cultural Property Advisory Committee (“CPAC”) met to consider proposed emergency import restrictions on behalf of the “former government of Afghanistan” as well as proposed renewals of MOUs with Peru and Cyprus. The following members were present: (1) Stefan Passantino (Chairman- Public); (2) Steven Bledsoe (Public); (3) Karol Wight (Museums); (4) J.D. Demming (Public); (5) Ricardo St. Hilaire (Archaeology); (6) Joan Connelly (Archaeology); Rachael Fulton Brown (Archaeology?); (7) Anthony Wisniewski (Collector-Sale of International Cultural Property); Mark Hendricks (Sale of International Cultural Property?); and David Tamasi (International Sale of Cultural Property?). Allison Davis, CPAC’s State Department Executive Director, and Michele Prior, also of ECA, were also present.
appears that the State Department has seated last minute Trump Appointees in
slots reserved to represent the interests of archaeology and the international
trade of cultural property, but that has not yet been confirmed on the State
Department website. Rachael Fulton
Brown is an associate professor of History at the University of
Chicago. David Tamasi is a
Founding Partner and Managing Director of Chartwell Strategy Group, a
Washington based government relations and strategic communications firm. Mark C. Hendricks is a principal at Taradin
Service Ltd., a private equity firm. Messrs.
Tamasi’s and Hendricks’ background in the international sale of cultural
property is unclear.
Chairman Passantino welcomed
the speakers. He indicated that the Committee had read all the
comments, and speakers could only be allotted 4 minutes time given the busy
schedule. He also indicated that due to
the addition of Afghan emergency import restrictions to the schedule, the
Committee’s consideration of the Cypriot renewal would be tabled until a
January meeting. Nonetheless, speakers
were free to discuss Cyprus if they were prepared to do so. Alternatively, they could defer their
comments until January.
The following speakers addressed
the Committee: (1) Kate FitzGibbon (Committee for Cultural
Policy/Global Heritage Alliance); (2) Josh Knerly (Association of Art Museum
Directors); (3) Dr. Elizabeth Greene (Archaeological Institute of America); (4)
Dr. Brian Bauer (University of Illinois); (5) Dr. Karen Olsen Bruhns (San
Francisco State University); (6) Peter Tompa (International Association of
Professional Numismatists/Professional Numismatists Guild; (7) Dr. Brian
Daniels (Archaeological Institute of America); (8) Tess Davis (Antiquities
Coalition); (9) Allen Berman (Author,
Professional Numismatist); and (10) Randolph Myers (Ancient Coin Collectors
Kate FitzGibbon (KFG) spoke
first on behalf of the Committee for Cultural Policy (CCP) and Global Heritage
Alliance (GHA). Although she also put in
a paper on Peru, she will focus her comment on Afghanistan. KG lived in Afghanistan from the 1970s to early
1980s writing about the culture and dealing in ethnographic art. She
had to flee the country in 1982 after the Soviet invasion. The real issue today is not looting but the
fear that the Taliban will intentionally destroy cultural heritage either intentionally
to score jihadist propaganda points or to exploit Afghanistan’s mineral
wealth. Section 1216 of the National
Defense Authorization Act does not provide a basis for safe harbor for Afghan
antiquities. ECA should forget about emergency import restrictions and instead
work with the trade and museums in protecting Afghan cultural heritage and
extracting Afghan archaeologists from the country.
The CCP’s and GHA’s testimony on
Afghanistan can be found here: https://www.regulations.gov/comment/DOS-2021-0032-0068
Their testimony on the proposed
renewal of a MOU with Cyprus can be found here:
Their testimony on the proposed
renewal of a MOU with Peru can be found here:
Knerly (JK) spoke next on behalf of the Association of Art Museum
Directors (AAMD). The request of the
“former Government of Afghanistan” raises some serious legal issues. The government that made the request no longer
exists and there was insufficient information provided about the proposal within
a short five (5) day comment period to make intelligent comment or for CPAC to
have a full grasp of the issues. The
effect of import restrictions may be to freeze objects in place in Afghanistan
where they may be destroyed by the Taliban. CPAC needs to consider the
consequences of any import restrictions carefully. Section 1216 of the National
Defense Authorization Act is not a safe harbor provision. It only immunizes from seizure institutional
loans already covered by an Afghan Government export certificate. It would make far more sense to defer
consideration of the matter until the situation on the ground is clearer. JK next discussed the Peruvian
renewal. He criticizes the State
Department’s replacement of tailored language for each MOU with generic
language in Article II of the Agreement.
This generic language does not help AAMD members negotiate with State
Parties on museum loans. The terms and conditions of each MOU should
encourage source countries to provide such loans with reasonable fees. Peru’s loan fees are very high.
AAMD’s written testimony regarding Peru and Cyprus can be found here:
Greene (EG) is the president elect of the Archaeological Institute of
America (AIA). She focuses her comments
on the Fourth Determination that any import restrictions are consistent with
the general interest of the international community in the international
exchange of cultural property. She indicates the AIA’s 200,000 members (this
figure derives from the number of subscribers to the AIA’s “Archaeology”
Magazine) have benefitted from the MOU.
Many have taken AIA sponsored trips to Peru to view Peruvian cultural
heritage. Peru has been generous with loans,
including one recent loan of 200 items. Dr. Greene specializes in the study of
transport amphora. They may appear to be
duplicates but have manufacturing marks that makes each unique. MOUs can protect duplicate objects like
amphora and coins as well as ensure the market only contains legitimate
material. They are not perfect, but they
do help reduce looting.
Bauer (BB) appreciates the fact that Spanish Colonial era documents have
been added to MOUs. He now asks CPAC to recommend
changes to Article II of the MOU with Peru to ensure that archaeological
samples can be exported for further study.
There are no labs within Peru which can do this work, but the Peruvian
cultural bureaucracy, especially on a provincial level, have made it a
bureaucratic nightmare to export such material.
Only material shepherded through the system with the help of Peruvian
colleagues gets exported. Many times requests for export get lost or
simply stay in limbo so long that the researcher just gives up. The MOU needs to be modified to encourage
Peruvian authorities to fix this problem.
Karen Olsen Bruhns (KOB) believes MOUs are essential to fight
illicit networks. She has been involved
in the fight against looting since 1963.
She has seen the depredations of looters in Latin America firsthand. She assists U.S. Customs in repatriating
artifacts. She names US dealers she
claims sell looted goods. She attacks US
Museums as being filled with looted material.
She views collectors as no better than looters.
Tompa (PT) spoke on behalf of the International Association of
Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG).
He defers his comments on Cyprus to
focus attention on Peru and Afghanistan.
Spanish Colonial and Republican era coinage of Peru do not fit the
statutory definitions for archaeological or ethnological material. They cannot be considered archaeological
material because they are not normally found underground and/or do not meet the
250-year-old threshold. Such coins were
also produced by Europeans using sophisticated industrial processes that
churned out thousands of virtually identical coins. As such, they cannot be ethnological material
either. PT then turns to Afghanistan.
He indicates that is should weigh heavily on CPAC that import
restrictions could have the perverse effect of requiring US Customs to “claw
back” undocumented Bactrian coins imported from Europe and hand them over to
the Taliban who could resell, or even worse, melt them. The CPIA does not contain a “safe harbor”
provision to keep that from happening, and Section 1216 of the National Defense
Reauthorization Act will provide no help.
Items will be repatriated when diplomatic relations are reestablished, a
decision that will be made based on considerations other than the Taliban’s
treatment of cultural heritage.
Restrictions are especially problematic for coin collectors since they
are applied not as prospective restrictions on illicitly excavated coins but as
embargoes to coins already on legal markets within our major trading partners
in the EU, UK, and Switzerland.
oral testimony can be found here: https://culturalpropertyobserver.blogspot.com/2021/10/the-cpia-cannot-support-import.html
and PNG’s written testimony on Afghanistan can be found here:
and PNG’s written testimony on Cyprus can be found here:
and PNG’s written testimony on Peru can be found here:
Dr. Brian Daniels (BD) spoke
for the Archaeological Institute of America (AIA). The request for a MOU by the former government
of Afghanistan allows the Committee to consider emergency import restrictions. There is looting of crisis proportions in
Afghanistan. Research has shown that 170
sites have suffered looting from 2000-2017.
In 2019, there was an uptick in looting of inscriptions. Customs has seized archaeological material
which appears to be from Tillya Tepe. In
the past decades, US archaeologists have worked on capacity building with their
Afghan colleagues. BD acknowledges Section 1216 of the National Defense
Reauthorization Act would only have helped evacuating Afghan material when the
former government was in power. Now
emergency import restrictions are necessary not only to keep looted material
off the market but to support Afghan colleagues. Customs has inherent authority to hold onto
such items until it is safe to return them to Afghanistan.
The AIA’s submission on Afghanistan
can be found here:
Davis (TD) spoke on behalf of the Antiquities Coalition (AC). The Antiquities Coalition supports emergency
import restrictions on Afghan cultural goods.
It is important to take decisive action now given the warning from the
Afghan National Museum that looters and smugglers are taking advantage of political
instability following the Taliban take over.
Emergency restrictions are not MOUs, but they can protect cultural
heritage and collections. They do not
vest title of artifacts in the government.
No concerted international response is necessary. The US did not adopt emergency restrictions
on Cambodian artifacts in the 1970s and we are now seeing the consequences with
investigations into Latchford’s sales of Cambodian conflict antiquities to US
collectors and museums.
on Afghanistan can be found here:
submission about Cyprus can be found here:
AC’s submission on Peru can be
Berman (AB) is an author, publisher and the American Numismatic
Association’s instructor on medieval coinage.
He believes that the law of unintended consequences may apply to import
restrictions on coins. Provenanced coins
already cost more, but there are very few comparatively on the market because
there was no reason historically to keep the provenance of most coins. On Peru, 95% of coins produced there was made
for export. On Afghanistan, the last
time the Taliban were in control, they not only dynamited the Bamiyan Buddhas;
they also smashed artifacts in the National Museum. AB is horrified by the prospect that the
US Government may hand over Bactrian coins to the Taliban. All these coins feature pagan images the
Taliban find offensive. As to Cyprus,
thousands of Crusader era coins are documented as having been found outside of
Cyprus so you cannot assume such coins were found there. It would be better for Cyprus and other
countries to try systems akin to the United Kingdom’s Portable Antiquity Scheme
and Treasure Act. This system encourages
people to report their finds and allows the government the right of first
refusal to buy them.
AB’s written testimony on
Afghanistan can be found here:
testimony on Cyprus can be found here:
Myers appeared on behalf of the Ancient Coin Collectors Guild (ACCG). Given the time, he indicated he would defer
his comments on Cyprus until January.
ACCG’s written testimony on Afghanistan can be found here:
The ACCG’s written testimony on Cyprus
can be found here:
Question and Answer Period:
Ricardo St. Hilaire asked JK about Article II
in the Peru agreement. JK indicated
that standardized Article IIs do not work.
Peru charges high fees for loans which need to be addressed on an
individualized basis in Article II of any renewal.
Karol Wight asks
JK if AAMD museums have faced the same bureaucratic obstacles to loans
as BB has experienced with exports of archaeological samples. JK responds that loans with Peru take
an inordinate amount of time to negotiate and that loan fees are high.
J.D. Demming asks if instead of keeping Afghan
artifacts in Afghanistan it would be better if they escaped the country given
Taliban control. KOB states that providing
a market for antiquities encourages looting.
The real problem is antiquities dealers in the US which now have a “bad
odor.” Sotheby’s now avoids selling antiquities
in the US to avoid this perception. KFG
indicates that KOB has an outdated view of the antiquities market
based on practices of decades ago. The
art market today takes pains to ensure that what it sells is legal. Complicating the situation here is that it
was quite legal to sell and export antiquities from Afghanistan for
decades. Therefore, one cannot assume
items on the market are the products of recent, illicit digs. Repatriating items to Taliban Afghanistan will
not help protect them. The real issue is
the danger of Taliban intentional destruction or destruction of artifacts
through mining. BD indicates that
import restrictions will protect items currently in the ground within
Afghanistan because there will be less incentive to loot them. US Customs and the State Department have
ample authority to provide safe harbor to any antiquities that are seized. PT appreciates what BD says
about import restrictions protecting unexcavated artifacts within Afghanistan,
but the problem is that Customs applies them far too broadly and will
repatriate artifacts that have been out of Afghanistan for decades merely
because they do not have solid provenances.
Anthony Wisniewski gets the last word. He has spent over 500 hours on his CPAC
duties. He has seen lots of conflict
between the parties, but thinks all sides believe in cultural property
preservation. He will be working to
bring people together to find common ground which promotes both transparency
and protects private collections.