Playing Gotcha

The Greek Reporter has a short  profile of  Dr. Christos Tsirogiannis, a Glasgow researcher, who uses police files procured "under the table" from the Greek authorities to play "gotcha" with auction houses and collectors.  CPO believes such behavior should not be celebrated but condemned.  The fair thing for Greek authorities to do would have been to share the materials with major auction houses so it can be reviewed as part of their due diligence process.  Instead, the Greeks (and presumably their Italian counterparts) use Tsirogiannis and his go-to blogger, David Gill, to publicly humiliate auction houses and prominent collectors with privileged information.  This gives the Greek and Italian cultural bureaucracies an easy "win" when the embarrassed collector and auction house surrender the artifact, and Tsirogiannis and Gill, two otherwise obscure academics, get some notoriety.   Perhaps all this helps divert attention away from the gross underfunding, bureaucratic incompetence and corruption that bedevils Greece's and Italy's poor stewardship of their own cultural patrimony, but it doesn't make it right.

US State Department Presses Foreign Governments on Repatriation at the Expense of the US Taxpayer

Dustin Roasa has written a comprehensive report about the ongoing forfeiture dispute between the US Government and Sotheby's over the fate of a Khmer statue.   Whatever the moral case for a return, the story should raise troubling questions about how elements within the US State Department, acting in concert with archaeologists with an axe to grind against private collecting, actively press foreign governments to seek repatriations from American interests.  And all at the expense of the US taxpayer.

Market Dominance

AFP reports that connected Chinese auction houses have achieved market dominance over their foreign rivals in selling Chinese antiquities:

"Western giants Christie's and Sotheby's are increasingly focused on China but barred from selling the hottest item -- antiques -- by laws aimed at protecting cultural heritage.

Meanwhile Chinese rivals Poly and Guardian have seen tremendous growth thanks to their greater freedom to act within the country, and their political ties." 

The net effect of self-imposed US restrictions is simply to turn the market over to Mainland Chinese auctioneers and dealers.  And again it must be asked: How can restrictions on the entry of ancient Chinese art into the relatively small US market have any impact on any looting within China itself when the much larger and rapidly expanding Chinese art market is allowed to sell the same ancient Chinese art without restrictions in Hong Kong?

Cambodian Import Restrictions Extended as Forfeiture Dispute Turns Nasty

The Federal Register has announced an extension of current import restrictions on Cambodian cultural goods for yet another five years.  Although the CPIA contemplates that import restrictions will only continue for a limited period to give source countries time to address looting,  State and Customs routinely continue them.

Meanwhile, the New York Times has reported on the accusations being traded between Sotheby's and the Government in a forfeiture action involving a Khmer statue.  These touch on CPAC and the State Department's Cultural Heritage Center, which also have responsibility for import restrictions.  The Government accuses Jane Levine, a former prosecutor and current CPAC member, of misrepresentations about the provenance of the statue in her capacity as the director of Sotheby's regulatory compliance department.  In the meantime, Sotheby's accuses an employee of the State Department Cultural Heritage Center of dreaming up a dubious theory to justify the government's seizure after a CBP agent (who presumably worked with Ms. Levine in her days as a prosecutor) misrepresented the strength of the government's case to Sotheby's.

Doing Justice or Pressing an Agenda?

In an ongoing forfeiture action, Sotheby's has alleged that a State Department Cultural Heritage Center employee (who also helps develop import restrictions on cultural goods) was tasked with finding a legal basis for Cambodia's claim to a Khmer statute when Cambodia itself was unable to do so.   Sotheby's also alleges that a CBP officer actively shut down any effort on Cambodia's part to come to an amicable settlement of the underlying dispute with Sotheby's:

"Documents the Government belatedly produced in late August of this year (more than a year after they were requested) show that at the outset of this investigation in March of 2011, and for months thereafter, Cambodia was repeatedly asked to identify a legal basis for its ownership of the Statue, but failed to do so. The U.S. Government recognized that without such a basis, it was “unable to do anything.” Ex. 2 at 1463. Undeterred, the U.S. government represented to Sotheby’s on April 1, 2011 that it already had “probable cause that the item was stolen after Cambodian cultural patrimony laws were enacted,” and instructed Sotheby’s not to move the Statue. Ex. 5. This bought the Government time, which it used, among other things, to try to find the very Cambodian law it claimed already to know made the Statue stolen property, asking a law professor on April 19, 2011 to “help us find the actual cultural property laws that protect Cambodian antiquities prior to 1975.” Ex. 6. Eventually, the U.S. State Department, eager to be as “cooperative with the Cambodians as possible, as cultural artifacts is one of those issues where the two governments have a shared interest,” Ex. 9 at 1413, cobbled together its own theory of Cambodian ownership based on “segments” of long-defunct French colonial decrees issued between 1900 and 1925, when Cambodia was a French protectorate. When the Cambodians persisted in seeking an amicable resolution rather than assert the State Department’s ownership theory, the U.S. Government insisted that “prior to the Cambodians getting their hands on it, we should be the vehicle utilized for the return. Not an Auction house,” and ultimately demanded that Cambodia “stop negotiating with Sotheby’s.” Ex. 8 at 1453; Ex. 10 at 1366."

The State Department's Cultural Heritage Center and elements within U.S. Customs have been criticized for aggressively pressing an anti-collector and anti-trade agenda in an "extralegal" fashion.  Sotheby's allegations will only add to that widely held perception.  

Sotheby's Motion for Judgment on the Pleadings in United States v. A Tenth Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (S.D.N.Y.) may be found on the Court's Pacer database. 

PRC Buys off the Opposition to MOU

In 2005, Sotheby's, with some some assistance from Christie's, helped lead the opposition to a MOU with the PRC. This time around, however, both auction houses have remained silent. Why the change? Recently, the PRC agreed to allow them to do business in China. Presumably, both companies have concluded selling modern art to Chinese citizens is more lucrative and far less of a hassle these days than selling Chinese antiquities to Americans.

Christie’s new business in China also presumably helps explain the Pinault family’s decision to repatriate  two of the bronze fountain heads that were allegedly looted from the Summer Palace in the 19th century by an Anglo-French punitive expedition. The Pinaults -- who own Christie’s-- are not the first astute business interests to offer such sculptures as gifts. Stanley Ho, a Macao based gambling tycoon, also gained favor with the PRC when he donated a horse’s head from the group to a Chinese museum.

Repatriation of the bronze fountain heads has been a cause célèbre for the PRC Government, Chinese Nationalists and their allies in American archaeological advocacy groups like SAFE.

On the other hand, Chinese dissident artist Ai Weiwei has produced his own ironic take on the sculptures. His gigantic versions of the diminutive heads say something about the over sized Chinese nationalism these sculptures have come to embody.

Cash-Strapped Italian Government to Convert Embassy to Food Emporium?

CPO has heard from a reliable source that the cash-strapped Italian Government is in talks with Eataly, the popular Italian Food Emporium, to take over its beautiful, modernistic Palazzo style Embassy in Washington, D.C. As part of the plan, Embassy officials are said to be considering auctioning off the building's impressive display of antiquities through Sotheby’s or Christie’s in New York. Alternatively, they will remain in situ for the enjoyment of Eataly patrons.

Eataly’s fall-back plan is to negotiate with the GSA to lease one of the federal government’s neo-classical buildings for the same purpose. Buildings mentioned include Union Station and the Art Deco style FTC headquarters on Pennsylvania Avenue. Meanwhile, less certain are plans of local Greek entrepreneurs to create “pop up” restaurants in the nearby Greek and Cypriot Embassies. 

Court Denies Sotheby's Motion to Dismiss

This is a banner week for the State Department’s Cultural Heritage Center and its "Cultural Antiquities Task Force."  First the denial of the ACCG’s petition for cert.  Now this decision allowing the government to amend its complaint and denying Sotheby's motion to dismiss the government's claim that a Khmer statue up for auction must be considered "stolen" given Cambodian law.

The real concern is that this gives yet more license to the Cultural Heritage Center and its “Cultural Antiquities Task Force” to repatriate artifacts based on unclear and obscure laws of ancient vintage, even where they have only recently been “dug up” so to speak as long as there is some alleged tie-in to a known site.

The subsidiary concern is that the Sotheby’s Court, like the T-Rex Bataar Court, is treating the obligation of a foreign country to actually enforce its laws at home not as an element of the claim up front, but to be raised as a defense to forfeiture after a long slog to trial—something most forfeiture claimants simply can’t afford.

Here is the ruling courtesy of the Chasing Aphrodite blog. 

Will Sotheby's cave or fight on?  Stay tuned.

Some Thoughts on the Renewal of Cambodian MOU

Cambodia certainly has a far more sympathetic case than many applicants for import restrictions.   On the other hand, I’m not sure that the case made to protect sculptural elements from Khmer temples justifies import restrictions on everything and anything old down to the 16^th Century, including things like beads and statuettes.   I’d also like to know more about collections formed in Cambodia itself, particularly the one evidently put together by a government minister.   Does his collection have any statutes or sculptural elements in it?  If so, where and when were they collected?   It seems wrong to me that U.S. Government has filed suit against Sotheby’s demanding the return of a statute that left Cambodia decades ago if wealthy Cambodians, including at least one government minister, have been allowed to collect such material “no questions asked.”

More Double Standards at CPAC?

The New York Times has reported that the Cambodian Government asked for CPAC member Jane Levine, who is also employed by Sotheby's, to be recused from deliberating on the upcoming CPAC meeting relating to the renewal of the Cambodian MOU.   Presumably, the Cambodians are claiming that Levine cannot fairly discharge her duties given the ongoing dispute involving a Khmer statue.  The article indicates Levine was not going to attend the meeting anyway due to a conflict with a Sotheby's board meeting, but also suggests that the "scheduling conflict" may have provided Levine and Sotheby's with a graceful exit from the dispute.

But, if so, it's worth recalling that State failed to recuse an archaeologist who received an excavation permit from Cyprus despite the clear conflict of interest issues her participation in deliberations related to the renewal of the Cypriot MOU raised.

So, once again, is there one standard applied to collectors and the trade and another for archaeologists aligned with the State Department and source country bureaucracies?

"Blood Antiquities" or Stale Claim Against Legally Obtained Cultural Goods?

I am struck by the contrast between Sotheby's well-reasoned legal analysis of why the government's forfeiture action against its consigner's Cambodian statue should be dismissed and this well-written CNN opinion piece prepared by advocates for Cambodia.

Unfortunately, Sotheby's brief is not available on-line unless one has a "Pacer" account with the U.S. Court System.   However, "Cultural Heritage Lawyer" and former SAFE VP Rick St.  Hilaire has provided us with his own analysis.  Though St. Hilaire is also associated with the archaeological community, his summary does appear to convey most of Sotheby's arguments accurately.

It will be interesting to read the Government's response. But why has the U.S. Government taken sides at all?   Cambodia has plenty of friends in the archaeological community, including more than a few lawyers.   They should be pursuing any claims Cambodia may have rather than making the U.S. taxpayer foot the bill for such a stale claim that dates back at least to the 1970's (if you believe the Government) or perhaps far earlier (if you believe Sotheby's).

Could the Khmer Rouge Pass Good Title?

Tess Davis' recent opinion piece for the LA Times begs the question whether the Khmer Rouge could have passed along good title to the Khmer Statue that the US Government now maintains is stolen.  See http://www.printfriendly.com/print?url=http%3A%2F%2Fwww.latimes.com%2Fnews%2Fopinion%2Fcommentary%2Fla-oe-adv-davis-khmer-loot-sothebys-20120425%2C0%2C2456835.story&partner=Shareaholic

However despicable the Khmer Rouge were, they were internationally recognized as the legitimate government of Cambodia around the time the statue was thought to have disappeared, and held Cambodia's UN seat in a coalition government until the early 1990's with Western support.  Under the circumstances, should the US Government really take sides in this dispute between Sotheby's and the successor Cambodian government?

James Willis Reappointed to CPAC

President Obama has reappointed James Willis to one of the trade slots on CPAC. See http://www.whitehouse.gov/the-press-office/2012/04/16/president-obama-announces-more-key-administration-posts

Jane Levine of Sotheby's continues in another trade slot despite the fact that the Department of State and its Cultural Heritage Center have funded Heritage Watch, the NGO that has been at the forefront of pressing the US and Cambodian governments to seek repatriation of a Khmer statue that was due to be auctioned off by Sotheby's. See http://culturalpropertyobserver.blogspot.com/2012/04/government-supported-by-archaeological.html

One other trade slot remains vacant.

SAFE Summary of Hearing in Khmer Statue Case

Despite the predictable editorial spin, this summary from the SAFE website about the initial hearing in the forfeiture case against the Sotheby's Khmer statue is worth reading:

http://www.savingantiquities.org/federal-court-judge-rules-that-10th-c-khmer-statue-remains-at-sothebys-for-now/

VOA Turns Up Heat on Sotheby's

The VOA, which is purportedly independent, but which has been identified with the US State Department since its inception (see http://en.wikipedia.org/wiki/Voice_of_America), has issued a report that has been publicised in the archaeological blogosphere that supports the seizure and repatriation of a Khmer statue back to Cambodia as stolen goods. See http://culturalheritagelawyer.blogspot.com/2012/04/voa-visits-cambodian-statues-original.html

According to Wikipedia,

A 1976 law signed by President Gerald Ford requires VOA to "serve as a consistently reliable and authoritative source of news." The VOA Charter states: "VOA news will be accurate, objective and comprehensive." However, the service has been criticized as an instrument of American propaganda.

If the VOA truly strives to be as "accurate, objective and comprehensive" as claimed, why not also provide Sotheby's side of the story?

Overaggressive US Prosecutors Basing Sotheby's Seizure on Repealed Foreign Law?

It appears that the US Government is hinging its seizure of a valuable statue from Sotheby’s based upon French colonial era laws that were repealed when the Khmer Rouge took power. See http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html?ref=design

However, even assuming such colonial era laws vested absolute title over the statue in question in the Cambodian state, there is a real question whether they remain in force today. This is what a UN Report has to say on the subject.

According to Article 158 of the 1993 Constitution, laws and regulations which safeguard state property, as well as the rights and property of private individuals, and are consistent with the national interest, continue to be in force unless and until they are amended or repealed, except to the extent that they are contrary to the spirit of the Constitution. There have been sharp disagreements in the interpretation of this Article, between those who would prefer to limit its effect to those laws and regulations which were actually in force immediately before the entry into force of the 1993 Constitution, and those who seek to use its provisions to revive laws which had been in force prior to the Khmer Rouge regime, but have in effect been repealed by the Khmer Rouge. It is an issue which would need to be addressed and successfully resolved, through passage of fresh legislation, if need be, if the objectives of the publication of laws are to be fully achieved.

See http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN004695.pdf

This issue obviously requires additional research, but it again raises the legitimate question whether collectors, museums, dealers and auction houses should be subject to civil and/or criminal liability based on the vagaries of foreign law.

Government, Supported By Archaeological Lobby, Moves Against Sotheby's on Behalf of Cambodia

The Government of Cambodia has been criticized for its undemocratic ways and its border disputes with Thailand. Yet, the US State Department, its Cultural Heritage Center, and its allies in the archaeological community-- including the Department of State funded “Heritage Watch” --have been instrumental in imposing broad restrictions on cultural goods from Cambodia. This, despite the wide availability of this material in markets abroad and the forthright admission by Cambodia’s representative at the most recent CPAC hearing that the Cambodian Army is deeply involved in the supply of ancient Cambodian artifacts to world markets. See http://culturalpropertyobserver.blogspot.com/2008/09/cambodian-import-restrictions-extended.html

Now, the Government, again supported by the archaeological lobby, is seeking to seize a Cambodian artifact from Sotheby’s based on allegations that the statute was stolen from an archaeological site, presumably during the dislocation associated with fall of the US-Supported Cambodian government during the aftermath of the Vietnam war. See : http://www.nytimes.com/2012/04/05/arts/design/ancient-cambodian-statue-is-seized-from-sothebys.html?_r=1

My advice to Sotheby’s would be to fight. Experience teaches that press reports sourced to the archaeological lobby may not provide either a complete or accurate depiction of the actual strength of the Government’s case. If SLAM can prevail, perhaps Sotheby’s can as well.

The seizure does, however, suggests that Sotheby’s hiring of a former prosecutor, Jane Levine, has not protected Sotheby’s and its consigners from the aggressive repatriation efforts of the US Government.

Moreover, the seizure raises further questions about whether Jane Levine can serve as an effective member of CPAC or whether her defense of Sotheby’s import of the statue for auction raises conflict of interest issues that cannot be adequately addressed.

State Indirectly Funding War on Sotheby's?

During the Vietnam war era, the US Government funded a "secret war" in Cambodia. Now, is the State Department Bureau of Educational and Cultural Affairs and its Cultural Heritage Center indirectly funding a not so secret war against Sotheby's Auction House?

Heritage Watch, an archaeological advocacy group with a focus on Cambodia, has been at the forefront of a recent campaign against Sotheby’s. See http://art-crime.blogspot.com/2011/10/what-does-lack-of-provenance-indicate.html
And http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html?pagewanted=1

At the same time, Heritage Watch has received funding from the State Department’s Bureau of Educational and Cultural Affairs and its Cultural Heritage Center:
See http://culturalpropertyobserver.blogspot.com/2008/09/eca-ambassadors-fund-awards-22-million.html and http://culturalpropertyobserver.blogspot.com/2008/09/cambodian-import-restrictions-extended.html

Is State indirectly funding the archaeological lobby’s war on Sotheby’s? If so, it would be consistent with State's ongoing funding of the Cyprus American Archaeological Research Institute, which has been at the forefront of lobbying for a clamp down on collectors of ancient coins and other artifacts from Cyprus.

Cambodian Cultural Property Fracas Again Shows Appeasment Leads to Escalating Demands

Leaving aside the merits of Cambodia's claim to a valuable statue that was to be auctioned off at Sotheby's, this latest fracas in the cultural property wars again suggests appeasing the archaeological lobby does little but encourage escalating demands. For more, see http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html

If Sotheby’s thought hiring a former prosecutor who has developed strong contacts with the archaeological community would win friends and influence people within the archaeological community, it was wrong.

Also, if anyone thinks 1970 provides a safer harbor to repatriation claims, the archaeological lobby's recourse to a 1925 law to press this claim also suggests that 1970 may not be the "safe harbor" date the archaeological community initially claimed as well.

Yes, appeasement leads to little but escalating demands for more.

Chinese Auction Houses to US State Department and AIA: Suckers!

The Art Newspaper has reported that China Guardian, a well respected Chinese auction house that sells Chinese antiquities and ancient coins, is to open a New York Office.

For now, China Guardian plans to use its office to drum up consignments for its auctions in China, but it is not foreclosing the possibility that its longer term plans may include establishing a presence in the US Market.

Of course, China Guardian will no doubt be able to use its excellent contacts with the Chinese Government to ensure that it secures export permits for any artifacts it might choose to sell abroad.

While China Guardian will no doubt execute its plans quite successfully, one must consider that any success it may achieve will likely be largely based on the competitive advantage it will have over Sotheby's and other US Auction Houses, all courtesy of the US State Department Bureau of Educational and Cultural Affairs and its moronic import restrictions on Chinese archaeological artifacts.

One must also wonder whether the AIA and all those self-righteous archaeologists that strongly supported a MOU with China now realize all they have done is to help allow the Chinese themselves to corner the market in Chinese artifacts.