US Customs and State Department issue more grossly overbroad restrictions on behalf of another unfriendly authoritarian government, this time Pakistan

 The US State Department and its Cultural Heritage Center have again  deputized U.S. Customs and Homeland Security to enforce the export controls of another unfriendly, authoritarian government, this time Pakistan. It remains unclear how they will apply these exceptionally broad import restrictions, which cover a host of materials also found in Central Asia, Afghanistan, India, Sri Lanka, and, indeed, as far away as Northern Europe.  

The designated list for coins is in particular very broad.  It lists types that circulated regionally as well as internationally, including Roman Imperial coins, which the designated list itself admits are only "sometimes" found in Pakistan.  The entire designated list for coins is as follows:

(5) Coins—Ancient coins include gold, silver, copper, and copper alloy coins in a variety of denominations. Includes gold and silver ingots, which may be plain and/or inscribed. Some of the most well-known types are described below:

(a) Early coins in Pakistan include silver sigloi of the Achaemenid Empire. Gold staters and silver tetradrachms and drachms of Alexander the Great and Philip III Arrhidaeus are also found. Regionally minted Achaemenid-period coins include silver bent bars ( shatamana) with punched symbols such as wheels or suns. Local Hellenistic (Greek)-period and Mauryan imperial punch-marked silver coins ( karshapana) are covered with various symbols such as suns, crescents, six-arm designs, hills, peacocks, and others. Circular or square, die-struck cast copper alloy coins with relief symbols and/or animals on one or both sides also date to this period. Approximate Date: 6th-2nd Centuries B.C.

(b) Greco-Bactrian, Indo-Greek, Indo-Scythian, and Indo-Parthian coins include gold staters, silver tetradrachms, drachms, and obols, and copper alloy denominations. Copper alloy coins are often square. The bust of the king, the king on horseback, Greek and Hindu deities, the Buddha, elephants, bulls, and other animals are common designs. The name of the king is often written in Greek, Kharosthi or Brahmi script. Approximate Date: 2nd Century B.C.-1st Century A.D.

(c) Roman Imperial coins struck in silver and bronze are sometimes found in archaeological contexts in Pakistan. Approximate Date: 1st Century B.C.-4th Century A.D.

(d) Kushan coins include gold dinars, silver tetradrachms, and copper alloy denominations. Imagery includes the king as a portrait bust (“Augustus type”), standing figure with a fire altar, or equestrian figure; emblems ( tamgha); and figures from Greek, Zoroastrian, Buddhist, and Hindu religious traditions. Inscriptions are written in Greek, Bactrian, and/or Brahmi scripts. Approximate Date: A.D. 30-350.

(e) Sasanian coins include gold dinars, silver drachms, obols ( dang), and copper alloy denominations. Imagery includes the bust of the king wearing a large crown and Zoroastrian fire altars and deities. Inscriptions are usually written in Pahlavi, but gold dinars minted in Sindh with Brahmi inscriptions are included. Approximate Date: A.D. 240-651.

(f) Kushano-Sasanian or Kushanshah coins include gold dinars, silver tetradrachms, and copper alloy denominations. Some Kushano-Sasanian coins followed the Kushan style of imagery, while others resemble Sasanian coins. Inscriptions are written in Greek, Bactrian, Brahmi, or Pahlavi scripts. Approximate Date: A.D. 225-365.

(g) Gupta coins include gold dinars and silver and copper alloy denominations. Imagery includes the king in various postures and activities, the queen, Hindu deities, altars, and animals. Inscriptions are usually written in pseudo-Greek or Brahmi script. Approximate Date: A.D. 345-455.

(h) Coins of the Hephthalite, Kidarite, Alchon and Nezak Hun, Rai, Brahmin Chacha, and Turk Shahi Dynasties include silver and copper alloy denominations. Designs resemble Sasanian coins with a portrait bust of the ruler wearing a distinctive crown on the obverse and a fire altar or other Zoroastrian imagery on the reverse. Coins sometimes bear emblems ( tamgha s) and/or inscriptions in Bactrian, Pahlavi, Brahmi, or Nagari script. Designs are sometimes highly schematized. Approximate Date: 5th-9th Centuries A.D.

(i) Hindu Shahi silver coins often bear inscriptions in Nagari or Sharada script and depict a horseman and a bull, or an elephant and a lion. Approximate Date: A.D. 822-1026.

(j) The Umayyad and Abbasid Caliphates and the Ghaznavid and Ghurid Empires issued gold dinars, silver dirhams, and copper alloy fulus (singular fals) bearing Arabic inscriptions on both faces. Inscriptions are often enclosed in circles, squares, rings of dots, or an inscription band. Silver and copper alloy denominations of local governors, the Habbari Dynasty of Sindh, and the Emirate of Multan are similar, but some coins of Multan carry inscriptions in Nagari or Sharada. Some Ghaznavid coins carry bilingual inscriptions in Arabic and Sharada scripts, and some bear images of a bull and horseman. Some Ghurid coins bear inscriptions in Devanagari and/or stylized images of a flower, bull, horseman, and/or goddess. Approximate Date: A.D. 712-1206.

(k) The Delhi Sultanate issued gold tankas, silver tankas and jitals, and copper alloy denominations bearing Arabic inscriptions, either enclosed in a circle, scalloped circle, octofoil, flower, square, or inscription band, or covering the full face of the coins. Some bear inscriptions in Devanagari and/or stylized images of a bull, horseman, lion, or goddess. Some coins are square. Approximate Date: A.D. 1206-1526.

(l) The Mughal Empire issued coins such as gold mohurs; silver shahrukhis, rupees, and tankas; copper and copper alloy dams, and other denominations. Coins bear Arabic inscriptions enclosed in a circle, ring of dots, square, or inscription band, or covering the entire face. Some coins are square. Some coins bear an image of the seated emperor, a portrait bust of the emperor, a sun, and/or Zodiac symbols. Approximate Date: A.D. 1526-1749.

It is also frustrating that the very same coins now subject to a State Department embargo are sold quite openly in Pakistan.  Moreover, despite the claim that Assistant Secretary, ECA Lee Satterfield considered "less drastic remedies" before imposing restrictions on coins, the coin trade's suggestions related to focusing restrictions solely on coins traced back to Pakistani contexts, the provision of export certificates, and the creation of a Pakistani Portable Antiquities Scheme were evidently ignored.  

State Department Inks New and Renewed MOUs with Authoritarian Governments After Giving and Getting A Little Help From Its Friends

In the last several months, the State Department has inked a significant number of cultural property MOUs with authoritarian governments.   These include new MOUs with Uzbekistan and Pakistan as well as renewals of current MOUs with Cambodia and Communist China.  Given their authoritarian nature, it is no surprise that these governments have demanded that such agreements cover the cultural heritage of displaced minorities and a wide array of artifacts, including common ones like collector's coins, which are legally, or at least openly, sold in these countries.  What should be more concerning is that our State Department now apparently feels that "soft power" is more important than honestly balancing the interests of impacted groups as Congress contemplated in the  Convention on Cultural Property Implementation Act.  And in doing so, the State Department has gone so far as funding archaeological advocacy groups to help "check the box" to help justify such dubious decision making. 

Summary of April 26, 2022, Cultural Property Advisory Committee Meeting to Discuss Proposed MOU with Islamic Republic of Pakistan

                 On April 26, 2022, the US Cultural Property Advisory Committee (CPAC) met to consider a proposed MOU with the Islamic Republic of Pakistan.  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); (8) Mark Hendricks (Sale of International Cultural Property); and (9) David Tamasi (International Sale of Cultural Property).  Allison Davis, CPAC’s State Department Executive Director, and Michele Prior, also of ECA, were also present.

                Chairman Passantino welcomed the speakers.  He indicated that the Committee had read all the comments which he found helpful and useful.   As there were only four speakers, while a five-minute limit would be observed, there would be time left over for questions. 

                The following speakers addressed the Committee: (1) Dr. Brian Daniels (Archaeological Institute of America); (2) Randy Myers (Ancient Coin Collectors Guild (ACCG); (3) Peter Tompa (Peter Tompa Law representing the International Association of Professional Numismatists (IAPN)); and (4) Kate FitzGibbon (Committee for Cultural Policy and Global Heritage Alliance).

                Dr. Brian Daniels (BD) indicated there was plenty of evidence of site looting, particularly of Gandharan material.  This was most recently demonstrated by the NY DA’s recent repatriation of Gandharan sculpture.  BD indicated that Pakistan met all the criteria for a MOU.  There are antiquities laws on the books which are now enforced at a regional level.  U.S.-Pakistani archaeological collaborations have taken place at Harappa in Punjab Province, Pakistan.  Pakistani scholars have expressed an interest in supplying loans to US museums. 

                The AIA’s written comments can be found here:  https://www.regulations.gov/comment/DOS-2022-0008-0036

                Randy Myers (RM) focused on two procedural objections and one substantive objection.  He indicates that the notice period of fourteen days is simply too short to elicit much informed comment.  He also indicates that the notice was procedurally deficient because there was little justification provided for the apparent inclusion of coins in this request.  He stated that as a retired U.S. Government attorney who worked on administrative matters, he believed that the notice of this hearing provided to the public to comment was deficient.  Substantively, RM focused on one issue related less drastic measures to be considered before import restrictions may be imposed.  He indicated that Pakistan should consider a program akin to the Portable Antiquities Scheme and Treasure Act as an alternative to import restrictions on coins.

                The ACCG’s written comments can be found here:  https://www.regulations.gov/comment/DOS-2022-0008-0007

                Peter Tompa (PT) focused on three major points.  First, how can Customs assume a given coin was “first discovered within” and “subject to” Pakistani export control given the overlap in find spots in  Pakistan, India, Afghanistan and Bangladesh?  Second, why restrict coins at all given the existence of a large internal market in Pakistan itself?  The rationale for import restrictions is that they will dampen market demand and hence decrease the incentive for looting, but US import restrictions would only have a negligible impact on demand because the primary market for Pakistani coins appears to be within Pakistan itself.  Finally, even if coins are restricted, CPAC should condition any import restrictions on coins on the provision the availability of easily obtainable export certificates. 

                The IAPN’s written comments can be found here:  https://www.regulations.gov/comment/DOS-2022-0008-0010

                Kate FitzGibbon (KFG) starts her presentation discussing a screen shot posted on Twitter from 2020 showing construction workers smashing a large Gandharan Buddhist statue with sledgehammers in the city of Mardan, Pakistan.  She goes on to describe poor stewardship of Pakistan’s cultural heritage that goes back at least to the 1970s. She notes that Pakistan has pawned off caring for cultural heritage to localities and that a scant $300,000 is spent annually on archaeology, which mostly goes to salaries of the cultural heritage bureaucracy.  She suggests that lack of interest, lack of education and discomfort about teaching pre-Islamic history in schools are major culprits. However, the main problem is top to bottom corruption in Pakistani society.  She urges that the State Department provide grants and educational help to try to build a cultural infrastructure that will enable basic protections inside Pakistan. She indicates this will be far more effective in safeguarding heritage than an MOU that will have no domestic effect inside Pakistan, and no legal justification under US law.

                The CCPs and GHAs written submission can be found here: https://www.regulations.gov/comment/DOS-2022-0008-0037  

                Chairman Passantino then allowed CPAC members a brief time for questions.

                Anthony Wisniewski asks KFG about open sales of cultural heritage in Pakistan.  She noted that coins are widely sold at the bazar in Peshawar.  She also indicates that items like old copper pots are often repurposed, noting that a pot she once owned while she lived in Pakistan showed up as a prop on a Pakistani TV program.  She also indicated that beautiful old wooden architectural carvings are shipped out of Pakistan by the container load.  The use of modern air conditioning has prompted homeowners to strip wood decorations out of their homes because it does not react well to an air-conditioned environment.  KFG does not believe a MOU will have any positive impact on the preservation of cultural heritage because of the endemic corruption in Pakistan. 

                Rachael Fulton Brown asks KFG if she believes import restrictions limited to specific period like the Hellenistic and Gandharan period could be effective.  KFG did not believe so because of the endemic corruption.  She also notes in passing that the material seized by the NY DA left Pakistan at least ten years ago and much of it appeared to be fake. 

                Ricardo St. Hilaire asks BD if he agrees with KFG’s characterizations of an internal market in Pakistan.  He indicates that while such a market is tolerated, that does not mean that it legal or that such material would be allowed to be exported. BD believes that a MOU would function as a loadstar to encourage Pakistani officials to crack down on corruption and the illicit trade. 

                Karol Wight asks BD to comment on museum loans in the absence of an AAMD (Association of Art Museum Directors) representative speaking.  BD indicates there has been efforts to secure loans.  He suggests that the visa problems Pakistani couriers had transporting an exhibit to the Asia Society may have made Pakistan gun shy.  He believes that a MOU could smooth over such issues.

                Mark Hendricks asks BD whether he believes that the existence of a large internal market in Pakistan will limit the impact of a MOU on looting. BD believes that a MOU will help encourage Pakistani officials to crack down on illegal activity and prohibit illicit exports.

                Anthony Wisniewski asks BD if items made in quantity can have cultural significance.  BD answers they can because studying groups of objects can tell us significant things about ancient cultures.  He gives the example of the forensic examination of the metallurgy of a collection of bronze ingots.

                Anthony Wisniewski asks PT whether a coin made outside of Pakistan could be claimed as Pakistani under the CPIA.  PT indicated this would require Pakistan to demonstrate with scholarly evidence that the coin type was only found in Pakistan or show that a particular coin actually came from there.  He also indicated that it would be difficult to show that such a coin had cultural significance to Pakistan.  PT believes that BD has confused archaeological interest with cultural significance, which requires an object to have importance to a given culture.  He indicated that it would be difficult for Pakistan to show that a coin made outside of Pakistan had cultural significance to Pakistan.             

                Chairman Passantino then thanked the speakers and CPAC went into a recess before reconvening in a closed session. 

CPAC to Consider New MOU with Pakistan

The State Department has announced that the Cultural Property Advisory Committee will meet on April 26-27 to consider a request for the United States to enter into a cultural property MOU with the Islamic Republic of  Pakistan.  According to the Federal Register Notice, public comments and requests to speak are due no later than April 19, 2022 for the public session which will take place from 2:00-3:00 PM on April 26, 2022.  

The Cultural Heritage Center's website indicates the exceptional breadth of the Pakistani request.  That request covers the lower Paleolithic period through the first half of the 20th century:

The Government of Pakistan seeks import restrictions on archaeological and ethnological material from the Lower Paleolithic, Mesolithic, Neolithic, Chalcolithic, Bronze Age, Iron Age, Historic Pre-Muslim Period, Early Muslim Period, Mughal, Sikh, and Colonial periods through the creation of Pakistan.  Requested archaeological material includes, but is not limited to, stone; ceramics; metal objects including coins; stucco/plaster; glassware; bone, ivory, shell, and horn; manuscripts, paintings, proclamations, deeds, books, and documents; textiles of silk, wool, leather; and wood, dating from the lower Paleolithic (2 million years before present) through the first half of the twentieth century A.D. Requested ethnological material includes, but is not limited to stone; ceramics; metal objects including coins; stucco/plaster; glassware; bone, ivory, shell, and horn; manuscripts, paintings, proclamations, deeds, books, and documents; textiles of silk, wool, leather, and wood objects both architectural and moveable objects; and wooden objects dating from the Pre-Muslim Historic period through the first half of the twentieth century A.D.

The request should raise a number of important general questions.  First, are all the listed archaeological objects not only of "archaeological interest" but of "cultural significance," and do they meet the governing statute's 250 year threshold? Convention on Cultural Property Implementation Act, 19 USC Section 2601 (C) (i) (I)(II). Second, are all the listed ethnological objects really the products of "tribal or nonindustrial society" "that are important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contributions to the knowledge origins, development or history of that people?"  19 USC Section 2601 (C) (ii) (I)(II).

Third, has Pakistan taken "measures consistent with the [1970 UNESCO] Convention to protect its cultural patrimony" under 19 USC Section 2602 (a) (1) (B) when concerns have been raised about Pakistan's notoriously poor stewardship of its own cultural heritage, including not only neglect but theft and outright disrespect for minority cultural heritage.

Finally, does the State Department intend to recognize the Islamic Republic's rights to ownership and/or control of the cultural heritage of  today's small Hindu, Christian and Jewish communities?  These groups have suffered from severe discrimination, and such recognition would raise the same concerns as has been expressed with other controversial MOUs with authoritarian Middle Eastern countries.  There also is the issue of ancient Buddhist statuary which has not only suffered neglect and disrespect as noted above, but outright destruction from local iconoclasts.  

Coins also raise a number of  specific issues.  First, there appears to be a substantial overlap in the types of Indo-Greek, Kushan, Indo-Sassanian, Turkish and later Islamic coins found in Afghanistan, Pakistan and India.  Under the circumstances, how can the State Department conclude that particular coins were "first discovered within and [are] subject to export control by" Pakistan? 19 USC Section 2601 (2) (C).

Second, coins of all periods are legally bought and sold in Pakistan. So, why should our State Department restrict Americans from buying the same type of "Pakistani" coins abroad?

Finally, metal detectors are in wide use in Pakistan.  That raises the question if they first should be regulated as both a "self-help" measure and "less drastic" remedy before import restrictions are placed on American coin collectors.  See 19 USC Section 2602 (a) (1) (A) (B).  

How to comment?  According to the State Department, 

For general comments, use http://www.regulations.gov, enter the docket [DOS-2022-0008], and follow the prompts.

Unfortunately, the links provided to comment do not appear yet to be active.  CPO hopes to update this post as soon as comments are accepted.

UPDATE (4/6/22):  The blue "comment now" button is now active on the regulations.gov website.  It may be accessed here.