Cultural Property Advisory Committee Meeting, September 24-26, 2024 to Discuss New MOUs with Lebanon and Mongolia and a Renewal With El Salvador

The State Department’s website has given advanced notice of a Cultural Property Advisory Committee Meeting to discuss new cultural property Memorandums of Understanding (MOUs) with Lebanon and Mongolia and a renewal with El Salvador.

The proposed MOU with Lebanon should be highly controversial. The UNESCO Convention assumes that nation states are the “best stewards” of cultural heritage and MOUs authorize US Customs to repatriate cultural goods seized under them to their care.  But Lebanon is a failing state.  The power there is not in the weak and corrupt government, but Hezbollah (“the Party of God”), a heavily armed Shiite militia group that acts as the Iranian regime’s proxy force against Israel and the United States.  The United States Government has designated  Hezbollah as a terrorist organization, and right now, it has been raining down rockets on Northern Israel,  forcing residents to flee.   Israel, of course, has retaliated, shelling and bombing  parts of Lebanon intensively in an effort to root out Hezbollah terrorists and their allies.

How then can a MOU with Lebanon even be considered?  Repatriating objects to failed states that have become war zones is not a recipe for their “protection” under any circumstance.  Moreover, the State Department's Cultural Heritage Center and its  "partner organization," the Antiquities Coalition, have claimed that "looted antiquities" are a significant terrorist funding source.  RAND Corporation and others dispute such claims, but given that “narrative” shouldn’t the State Department also be concerned that Hezbollah will resell whatever may be returned for funds?

The public session will take place September 24, 2024, at 2:00 p.m. (EDT).

 Public comments will be due no later than September 16, 2024. 

Proposed new MOUs with Lebanon and Mongolia that will likely again cover collectors coins that circulated regionally or internationally making it difficult to import them from legitimate markets in Europe again underscores the need for HR 7865.  More here: https://accguild.org/HR-7865

Addendum (8/19/24):  Regulations.gov is now accepting comments for these MOUs.  Here is a direct link to comment:  https://www.regulations.gov/document/DOS-2024-0028-0001

Alternatively, go to Regulations.gov and then search for DOS-2024-0028.  

What should you say?  Of course, it is much better to speak in your own words, but here is a template for coin collectors:

CPAC should reject any MOU with Lebanon.  Any such MOU would not help "protect" cultural heritage.  Rather, repatriating artifacts would be disastrous for their continued preservation.  Lebanon is a failed state dominated by Hezbollah, a terrorist group and Iranian proxy at war with Israel and the United States.  There is no money to properly preserve artifacts and there is a real danger they will be either destroyed in a conflict or sold to fund Hezbollah's terrorist activities.  

Additionally, there is no reason to apply import restrictions to coins for Lebanon, Mongolia or El Salvador.  For most of their history, these countries were but small parts of much larger Empires, meaning all or most all coins that circulated there also circulated in much greater quantities elsewhere.  One simply cannot assume that coins of a particular type were found there, a prerequisite for them being restricted under the governing statute.    

Enough Already

The Association of Art Museum Directors has made a powerful case to CPAC that the State Department's standard operating procedure of simply renewing (and sometimes expanding) MOUs and associated import restrictions  over and over again is not working.  Here is part of what the AAMD has told CPAC in its public comments on the proposed renewal of a MOU with El Salvador:

El Salvador is one of the best examples of why the current system of simply renewing MOUs is ineffective and inconsistent with the CPIA.  The absence of a significant legitimate market in the United States for El Salvadorian Prehispanic objects has apparently had little or no effect on looting in El Salvador.  If the past, and presumably current, submissions to this Committee are to be believed, United States import restrictions alone have not been effective in significantly curtailing looting in El Salvador.  The time has come for the Committee to explore new ways, within the confines of the CPIA, to render real assistance to countries like El Salvador. 

The AAMD does not suggest that it has all of the answers to this issue, but one can begin to identify those answers by admitting that simply repeating what has been done in the past is not likely to have any different result than what has occurred over the last 27 years.  In 2010, the AAMD recommended to this Committee that El Salvador be encouraged to begin a legal system of exchange of cultural property. This can be suggested under 19 U.S.C. § 2602(a)(4). Any such exchange should be taxed and the proceeds of that tax should be used to protect cultural sites and to encourage related employment by the local populations and the scientific exploration, storage and conservation of objects from those sites.  There may well be other approaches that reasonable people on all sides of these issues can recommend, but the first step needs to be taken by this Committee in acknowledging that new and different approaches must be taken if the archaeological record of a country like El Salvador is to be preserved and protected.

Backsliding on Long Term Loans?

The extent of Italy’s compliance with its promise to share long term loans with American museums that had not voluntarily repatriated artifacts was an important issue during the recent CPAC hearing to address renewal of the current MOU. Under the circumstances, I was surprised when it was recently brought to my attention that a similar long term loan requirement was quietly dropped when the MOU with El Salvador was extended yet again in March 2010.

The March 7, 2005 version of ART II of the MOU with El Salvador stated,

A. The Government of the Republic of El Salvador will use its best efforts to encourage long and short-term loans, for research and scientific purposes, of its archaeological materials under circumstances in which such exchange does not jeopardize its cultural patrimony and when consistent with the responsibilities of the National Council for Culture and Art(CONCULTURA), as carried out in accordance with the Special Law for the Protection of Cultural Patrimony of El Salvador. (Emphasis added.)

See http://exchanges.state.gov/heritage/culprop/esfact/pdfs/es2005mouext.pdf

In contrast, the March 8, 2010 version of ART. II the MOU now only states,

D. Both governments shall endeavor to permit the exchange of pre-Columbian archaeological material under circumstances in which such exchange does not jeopardize the cultural patrimony of El Salvador, such as through temporary loans for exhibition purposes and study abroad, to benefit the people of both countries, including persons of Salvadoran heritage currently living in the United States of America (Emphasis added.)

See http://exchanges.state.gov/media/office-of-policy-and-evaluation/chc/pdfs/sv2010mouextameng.pdf

Was CPAC consulted about dropping this requirement? If not, was the vote to extend the current MOU made under the false assumption that El Salvador would continue to be required to provide such loans as a quid pro quo ?

What does this say about the long term loan requirement in the current MOU with Italy? Will the State Department's Bureau of Educational and Cultural Affairs also quietly drop that requirement rather than hold Italy to it? One would hope not, but based on the El Salvadoran example, that possibility cannot be discounted.

Revised MOU with El Salvador Available

The State Department Bureau of Educational and Cultural Affairs Cultural Heritage Center has published the text of revisions to the MOU with El Salvador on its website. For more, see http://exchanges.state.gov/heritage/whatsnew.html and http://exchanges.state.gov/media/office-of-policy-and-evaluation/chc/pdfs/sv2010mouextameng.pdf

I discussed the extension of the MOU in an earlier post. See http://culturalpropertyobserver.blogspot.com/2010/03/mou-with-el-salvador-extended.html

I'm glad to see the revised MOU seeks to address an El Salvadoran archaeologist's suggestion that artifacts be made available for display to El Salvadoran immigrants in the United States.

According to Art. II Sec. D:

Both governments shall endeavor to permit the exchange of pre-Columbian archaeological material under circumstances in which such exchange does not jeopardize the cultural patrimony of El Salvador, such as through temporary loans for exhibition purposes and study abroad, to benefit the people of both countries, including persons of Salvadoran heritage currently living in the United States of America.

On the other hand, I am sorry also to note that there is no reference to fostering legitimate markets in El Salvadoran material, despite the fact that at least some of this material is likely redundant to that already held in El Salvadoran public and private collections.

Somebody needs to help finance the study and appreciation of El Salvadoran cultural material in the United States for the benefit of El Salvadoran immigrants in a money-starved environment. Something also tells me that collectors could help do this, if only they were actually encouraged to do so rather than being discouraged from collecting El Salvadoran material at all.

MOU with El Salvador Extended

The State Department Bureau of Educational and Cultural Affairs ("ECA") has extended the US MOU with El Salvador. See http://edocket.access.gpo.gov/2010/2010-4783.htm and http://exchanges.state.gov/heritage/culprop/esfact.html

I attended the CPAC hearing to consider the renewal back in November. No speakers testified against the restrictions. Indeed, most MOU's are really not that controversial. Instead, the real controversy comes when restrictions impact artifacts long and extensively traded on international markets.

That is not to say the MOU does not raise any issues. Interestingly, in this particular case, I recall that an El Salvadorian archaeologist that testified in favor of the MOU also suggested that El Salvadorian artifacts should be made available to US based community groups. He explained that access to these artifacts would help El Salvadorian immigrants keep in touch with their own culture. I agree with him that this would be a good idea. I will be pleasantly surprised if his suggestion finds its way into the new MOU (which has not yet been posted).

In any event, the series of MOU's with El Salvador are notable for several other reasons. First, by the time this extension is again up for renewal in 2015, restrictions will have been in place for some twenty-eight (28) years. There is a strong argument to be made that the Convention on Cultural Property Implementation Act ("CPIA") did not contemplate restrictions being left in place for so long. Rather, the legislative history suggests that restrictions were only meant to be imposed for a limited period to give the requesting nation some time to "get its own house in order." Some might consider five (5) or even ten (10) years to be long enough.

Second, the series of MOU's with El Salvador demonstrates the principle of "culture creep." When restrictions were first imposed in 1987, they were limited to artifacts from a specific region that was in danger of pillage. As time went on, however, the scope of the restrictions have been extended to all of El Salvador. At least, the El Salvador restrictions have remained limited to Pre-Columbian artifacts. Restrictions in place for other Latin American countries have over time been extended to a host of Colonial period artifacts as well.

For example, it is debatable whether some of the items on the Bolivian "designated list" truly meet the threshold criteria for "ethnological" artifacts for coverage under the CPIA. Compare CPIA Section 302 (2) (B) (ii)http://exchanges.state.gov/heritage/culprop/laws/pdfs/97-446.pdf with http://exchanges.state.gov/heritage/culprop/blfact.html and http://eca.state.gov/icpp/bolivia/sect6.htm and http://eca.state.gov/icpp/bolivia/sect7.htm

Time will only tell if the current MOU with El Salvador will also be expanded in the future to Colonial era artifacts if it is extended again.