Cultural Property Law

After Classical Coins opened, I began monitoring news relating to coin collecting. It was not long before a relatively recent development – cultural property law – came to my attention.

“Cultural Property” is a concept related to eminent domain. The idea is that a culture, through its government, owns its past artifacts. Old Masters paintings, for example, belong in museums of the nations in which they were originally produced. Rembrandts belong in the museums of the Netherlands, Sumerian cuneiform tablets belong in the museums of Iraq, and so on.

One can argue that cultures do have an important interest in some of their past productions. In the case of the Elgin Marbles, support has developed even in Great Britain for return of these pieces of the frieze of the Parthenon to that monument, or an adjacent museum. The Parthenon, after all, symbolizes not only Athens, but in many respects ancient Greece. Why the controversy about whether they should be returned? They are among the finest displays in the British Museum, which houses one of the greatest collections – perhaps THE greatest collection – of antiquities in the world. The marbles were acquired openly and legitimately by Lord Elgin, in the days when Greece was a province of the Ottoman Empire.

Cultural property law became important to residents of the United States in 1986, when the US ratified the 1970 UNESCO Convention on Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property. This Convention was, and remains, controversial because of its very broad scope. Definitions of things which may be considered cultural property (if a government wants to claim them) are:

Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;
property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;
products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;
elements of artistic or historical monuments or archaeological sites which have been dismembered;
antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
objects of ethnological interest;
property of artistic interest, such as:
pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);
original works of statuary art and sculpture in any material;
original engravings, prints and lithographs;
original artistic assemblages and montages in any material; rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; postage, revenue and similar stamps, singly or in collections; archives, including sound, photographic and cinematographic archives; articles of furniture more than one hundred years old and old musical instruments.

This list has justly been criticized as including almost everything made by the hand of man, that is more than 100 years old. Certainly all these things cannot be considered in the same light as the Elgin Marbles. Postage stamps, coins, and printed books for example, are mass produced replicas. The engravings, sculptures and manuscripts from which they are reproduced could fairly be considered original works of art, but thousands or millions of essentially identical replicas certainly lack any vestige of cultural identity.

The US did not accept all provisions of the UNESCO Convention. Public Law 97-446, the Convention on Cultural Property Implementation Act , details which obligations were accepted and their implementing procedures. Among the most important was creation of a Cultural Property Advisory Committee responsible for evaluating requests for import restrictions.

A significant consequence of accepting this Convention was a major change in US law enforcement policies regarding antiquities smuggling.

Nations where antiquities are found claim such discoveries as state property. It is illegal to dig up antiquities or export them without a permit. Property rights sacred in the US mean nothing - prospecting for old coins in your own back yard with a metal detector may be a perfectly legal hobby in the US, but in most Middle Eastern nations, it is a crime.

Citizens of these nations rarely receive compensation for artifacts taken by the state, or economic loss and inconvenience during their excavation and removal. It takes a long time to carry out an excavation, and then a huge hole remains to be filled. Officials have a backlog to attend to and it may be many months or even years before the excavation begins, during which no one is allowed to disturb the site.

Imagine you are a Middle Eastern farmer, plowing your back 40, when you turn up the head of a statue. You innocently report this, and a team comes out for a test dig. They discover a buried villa whose extent cannot be determined until excavation. You are ordered not to disturb the site (so you can’t farm it) until it has been excavated. The villa might extend beneath the properties of three neighbors, who also receive such orders.

This is a huge excavation requiring three years to organize and two years to carry out. When work ceases, a pit eight to sixteen feet deep extends over half of your field and half of one neighbor’s. Almost a million tons of dirt and rocks have been piled up over the rest of these fields. After the archaeologists take their findings away for study, you ask when the excavation will be filled in, and are told that this is your responsibility. You receive no financial benefit from reporting your great discovery, and have instead suffered enormous injury – loss of five years’ income from much of your property, a costly grading job before you can farm it again, and neighbors who want to kill you.

How many farmers report a discovery of artifacts on their property? Coins, for example? Ordinary people in these nations tend to regard the government as their enemy, and antiquities laws as measures designed to give corrupt officials opportunities to extort bribes. When they find coins and pottery, they destroy or hide them, or take them to a trusted local dealer who will pay a pittance to take these dangerous objects off their hands. In some villages, bronze objects are melted down to cast trinkets that can legally be sold to tourists. All this has been going on for centuries.

Before acceding to the UNESCO Convention, the US accepted no obligation to enforce foreign export laws. Once an antiquity passed inside the borders of the US it was legal to acquire it, unless it could be shown to have been stolen from the collection of an individual or institution. Now the rules are different. They have been changed by a process that some consider not only very questionable, but a violation of the US Constitution’s separation of powers. Cultural property law is now being made by those whose proper business is its enforcement: the State and Customs Departments.

This began with United States v. McClain (1977), which found that defendants conspired "to transport and receive through interstate commerce certain Pre-Colombian artifacts . . . knowing these artifacts to have been stolen" because "Mexican law has declared pre-Colombian artifacts ... to be the property of the Republic of Mexico, except in instances where the Government has issued a license or permit … to possess, transfer, or export the artifacts." On appeal, the court ruled that "the trial court had erred … it was not until 1972 that Mexico unambiguously declared by statute that it was the owner of all pre- Columbian artifacts." Convictions on the substantive offense were reversed, but those on the conspiracy count were affirmed.

McClain came down as Congress debated legislation to allow the U.S. to ratify the UNESCO Convention. A grave concern was the nature of U.S. action (unilateral or multilateral) and the definition of stolen property. Congress granted "a limited exception to the requirement of concerted international effort . . . only in very specialized circumstances" as recommended by the Cultural Property Advisory Committee.

The UNESCO Convention limits the definition of stolen property to "cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Property to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution".

These points - multilateral action and limited definition of stolen property - argue against the McClain decision. As part of the compromise that led to the adoption of legislation implementing the UNESCO Convention, it was agreed that the McClain doctrine would be modified legislatively to bring it into accord with the enabling legislation. Senators Dole, Matsunaga, and Moynihan introduced a bill to overturn McClain in the 97th Congress, and Moynihan and Dole did so again in the 98th Congress. Both times the bill was opposed by officials of the State Department and U.S. Customs and was defeated.

As Congress debated the UNESCO Convention, U.S. Customs extended its authority over importation of ancient and ethnographic art by construing McClain as an instrument of Customs enforcement. On June 8, 1981, it issued an "Information Notice" declaring that "all types of pre-Columbian art or Ethnographic Antiques, may be the subject of violations of the national Stolen Property Act." On October 5, 1982, it issued a Policies and Procedures Manual supplement, Seizure and Detention of Pre-Columbian Artifacts, "… that all pre- Columbian materials should be detained by Customs until it determines whether the country of origin wishes to assert a claim of ownership."

Customs thus preempted Congressional action on the UNESCO Convention and appeared to violate Congressional intentions as expressed in the enabling legislation. This raised the question as to which branch of government was establishing national policy on import of cultural property. James Fitzpatrick wrote, "the Customs Directive establishes an institutionalized system to enforce foreign statutory ownership declarations. As such, it fundamentally rejects the operative premise of our customs law and policy, that is, that U.S. legislation properly describes what goods may be imported."

This activist construction of a questionable legal doctrine led to two prominent cases in which antiquities gallery owners were convicted of conspiracy to receive property known to have been smuggled.

First, Joel Malter, on June 19, 1998 incautiously bought a group of smuggled Turkish antiquities officially valued at “less than $5,000” (actually much less, according to Malter) from an undercover Customs agent. This transaction would have been legal before McClain. Considering the distaste (and outright contempt) dealers have long felt for the inefficiently and corruptly administered antiquities laws of nations such as Turkey and Egypt, it is understandable that Joel felt no ethical concerns. He bought the lot, just as he had lawfully bought other similar lots in the normal course of business over many years. Not being a lawyer, Joel had not kept up with the change in the law. Under McClain it was now illegal to do so.

Facing ruinous legal expenses to take McClain to the Supreme Court (as he would have had to do to defend his case), Joel sensibly decided that a plea bargain was the only rational decision. Many thought that he could easily have won the case had he the resources to defend it, and that the affair had “the stink of entrapment.” My own personal reaction was shame that my government could be capable of what I felt was monumental injustice. I have known Joel for many years, and regard him as having the highest ethical standards. That he is now a convicted felon is a heinous outrage. No private individual, unless he is a billionaire, can possibly hope to stand against the legal resources of the Government.

A later case involved a New York dealer, Frederick Schultz, considered by the art trade as one of its most prominent and respected dealers, who until shortly before his indictment was president of the National Association of Dealers in Ancient, Oriental and Primitive Art. Not knowing the defendant personally, or any details other than those in the public record, I will confine my remarks to recitation of the facts.

During the early 1990s, a British restorer, Jonathan Tokeley-Parry, smuggled over 3000 antiquities out of Egypt by disguising them as cheap reproductions. New Scotland Yard eventually apprehended him, he was convicted in 1997 and served three years in jail. The smuggled antiquities included the head of Amenhotep III and a 6th-Dynasty statue of a striding figure. He arranged to sell these antiquities to Schultz. An ingenious part of the scheme was creation of the Thomas Alcock Collection, said to have been created in the 1920s (Thomas Alcock was a relative of Tokeley-Parry) which was now for sale by his heir. This collection was a complete fabrication for the purpose of making it appear that the antiquities had left Egypt before enactment of its current antiquities law in 1983. Schultz and Tokeley-Parry discussed which specific objects should be ‘placed’ in this collection and thus given a fake but saleable provenance. The labels for the collection were aged by soaking them in tea and baking them in an oven.

In July 2001, Schultz was indicted on one count of conspiring to receive, possess and sell stolen property in violation of the United States’ National Stolen Property Act. Schultz moved for dismissal by attacking the McClain doctrine. His motion was denied, he was convicted and sentenced to 33 months in prison, fined $50,000, and ordered to return a relief still in his possession to the Egyptian government. He filed an appeal with the Second Circuit Court, which was ultimately denied.

A decisive factor in both the original conviction and affirmation on review was judicial finding that Schultz’ intentions were not innocent, and that he acted with knowledge and fraudulent intent. Although Schultz’ challenge of McClain was unsuccessful, substantive issues of the challenge to McClain were not properly tested because of the taint of fraudulent intent. The jury is still out on whether McClain will ultimately stand as definitive US law.

In the mean time, any dealer in antiquities who does not take it into account is a fool. Not being a fool, I have established ethics standards for Classical Coins ( Ethics letter.doc ). Any supplier importing coins into the US, who is not already known to be a trustworthy importer, must submit a signed copy of this ethics letter. Having a highly ranked website, I constantly receive inquiries from individuals representing themselves as dealers in Egypt, Iran, Pakistan, India, Italy, Greece and Bulgaria offering to sell me coins and antiquities. All are duly informed that this letter is required, and very few inquiries go any farther. Who knows who the inquiry really came from?

Another convention, whose provisions seem even more threatening than the UNESCO Convention, was promulgated by the International Institute for the Unification of Private Law in 1995. The UNIDROIT Convention extends the definition of stolen property to include anything illegally excavated, provides that “stolen” or illegally exported objects can be seized without compensation, and requires that those collecting “cultural objects” maintain provenance records that would be utterly impractical for most collectibles. Reading this Convention, I was filled with alarm. This drastic measure might well mean the end of private collecting.

I immediately founded a Yahoo discussion list, Unidroit-L to conduct a searching analysis of its provisions and the problems that they could cause for collectors. After two years of this discussion, it has become evident that none of the major collecting nations have yet accepted this Convention, or seem likely to do so. Meanwhile the problem areas for collectors have been well defined, and changes required to remediate them are now being explored.

In June 2004, Wayne Sayles, a prominent ancient coin dealer, author and publisher founded the Ancient Coin Collectors’ Guild, http://accg.us/ , whose purpose is to defend the rights and interests of collectors against the threats of cultural property law. I was an early and active supporter, am currently Chairman of the International Affairs Committee, and a nominee for the Board of Directors.

It can fairly be claimed that in its year and a half of existence, the ACCG has halted the progress of the anticollecting movement, at least so far as collecting ancient coins is concerned. The imposition of import controls on ancient coins under the UNESCO Convention has been prevented, and in the last instance we were concerned with, it was eventually learned that such controls were never actually considered because of the proven strength of our opposition.

This post has been both long and filled with complex legal discussion. It is a large and complicated subject, which I have done my best to explain in a manner any reasonably patient person can understand. I have a good deal of sympathy for the motives and goals of many proponents of cultural property law, and see positive aspects to even such extreme measures as the Unidroit Convention. I have done my best to run Unidroit-L evenhandedly, given my admitted bias in favor of collecting.

Hopefully, if discussion continues on a rational level, we will eventually be able to agree on a body of cultural property law that allows for responsible private collecting while addressing legitimate concerns of those wishing to protect cultural heritage. Meanwhile, constant vigilance and effort are required.