Wednesday, October 6, 2021

Summary of October 5, 2021, Cultural Property Advisory Committee Meeting to Address Emergency Import Restrictions Request on Behalf of the “Former Government of Afghanistan,” Proposed Renewals of MOUs with Cyprus and Peru.

                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.

                It 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 Guild).

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:

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:

                Josh 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. 

                The AAMD’s written testimony regarding Peru and Cyprus can be found here:

                Dr. Elizabeth 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. 

                Dr. Brian 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.

                Dr. 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.

                Peter 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. 

                PT’s oral testimony can be found here:

                IAPN’s and PNG’s written testimony on Afghanistan can be found here:

                IAPN’s and PNG’s written testimony on Cyprus can be found here:

                IAPN’s 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:

                Tess 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. 

                AC’s submission on Afghanistan can be found here:

                AC’s submission about Cyprus can be found here:

AC’s submission on Peru can be found here:

                Allen 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:

                His written testimony on Cyprus can be found here:

                Randolph 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.

                The 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. 

Tuesday, October 5, 2021

The CPIA Cannot Support Import Restrictions on Spanish Colonial and Republican Era Coins or Any Restrictions that Could Benefit the Taliban

 Here is what I said more or less at today's CPAC meeting:  

        Thank you for the opportunity to speak on behalf of IAPN and PNG.  I am available to answer questions on all our written submissions but will defer my comments on Cyprus until CPAC’s January meeting.   Let me discuss any proposed import restrictions on Peruvian coins first.  CPAC has looked at and rejected prior efforts to impose import restrictions on Latin American coins.  Spanish colonial and Republican era coinage simply do not fit the statutory definitions of “archaeological” or “ethnological” material.  Such coins do not meet the 250-year-old threshold for “archaeological” material.  Nor are they normally found within the ground.  European settlers ran Peru’s mints.  The coins were produced using sophisticated industrial processes churning out thousands of virtually identical objects.  As such, they cannot be deemed “ethnological” material either.  Nor can one assume that Peruvian coins imported into the United States from third countries were ever “first discovered within” or “subject to” Peruvian export control.  Spanish Colonial and Republican era Peruvian coins circulated widely in international commerce, and even served as legal tender in the United States until 1857.

          Now let me address Afghanistan.  It should weigh heavily on CPAC that any emergency import restrictions could very well have the perverse effect of requiring U.S. Customs to “claw back” undocumented Bactrian coins imported from Europe, so they can be handed over to the Taliban who could resell, or even worse, melt them for bullion.  CPAC should be skeptical of any claims this can’t happen because forfeited artifacts will be given “safe harbor” in the United States.  There is no “safe harbor” provision in the CPIA, which instead requires forfeited items to be offered to the State Party, here Afghanistan, now under Taliban control.   Section 1216 of the National Defense Authorization Act of 2021, cited by the Archaeological Institute of America, only applies to institutional loans that the Afghan government has authorized.  The reality is that objects forfeited under the CPIA must be repatriated when diplomatic relations are reinstated, and that decision will be based on factors other than the Taliban’s abysmal treatment of pre-Islamic cultural heritage.

          Finally, let me emphasize that import restrictions are especially problematical for coin collectors because they are applied as embargoes on all “designated” coins imported from legal markets of our major trading partners in the E.U., U.K. and Switzerland rather than as prospective restrictions only placed on “designated” coins illicitly exported from the State Party after the effective date of the governing regulations.  While we agree with the Antiquities Coalition on how the CPIA should operate, we know from hard experience that Customs and the State Department rely on the deference Courts have afforded the government in “foreign policy matters” to green light such confiscatory practices.  We therefore urge CPAC to be especially wary of approving of any new import restrictions on coins, particularly where the Taliban may be their primary beneficiary.  Thank you.