Symposium on the 30th Anniversary of the Cultural Property Implementation Act
by Peter Tompa
On October 22, 2013, the New York City Bar conducted a symposium
about the Cultural Property Implementation Act (CPIA) to mark its 30th
Anniversary. The event was co-sponsored by the American
Society of International Law (ASIL). The
panel was introduced by Michael McCullough (MM) (Michael McCullough LLC) and
Josh Lipsman, the Chair of the Bar’s Cultural Property Subcommittee. Irina Tarsis of ASIL also helped coordinate
The Speakers were Arthur Houghton (AH), a former State
Department official, Getty Curator and two-term Cultural Property Advisory
Committee (CPAC) member, Larry Mushinske (LM), a former US Customs National
Import Specialist for Art and Antiquities, Peter Tompa (PT), of counsel at
Bailey & Ehrenberg PLLC, Jonathan Illari (JI), Associate General Counsel at
Bonham’s Auction House, and Leila Amineddohleh (LA), the Executive Director of
the Lawyers’ Committee for Cultural
MM- The CPIA is compromise legislation that incorporated the
1970 UNESCO Convention into US law subject to reservations to ensure that the
US maintained its “independent judgment” over the nature and scope of import
restrictions on cultural goods.
Panel I-AH and LM.
AH- Times have changed since AH was on CPAC in its early
years. In those early days, restrictions
were very narrow. The first request was
for restrictions on particular types of artifacts from one site in El Salvador.
The early committee had representatives
of the trade on it, but they knew nothing of antiquities. Conflict of interest rules were used to keep
knowledgeable dealers off the committee.
Meanwhile, there was no question raised about conflict of interest for
archaeologists based on their need to secure excavation permits from source
countries. Today, there is no balance on
the Committee whatsoever. Archaeologists
are embedded as representatives of the public.
Public accountability and transparency are absent. AH does not believe import restrictions have
any discernible impact on looting.
Rather, they only move the trade overseas. European markets are also closing down for
similar reasons. Fresh material is now
going to the Middle East and Asia.
LM-LM was US Customs’ National Import Specialist for Art and
Antiquities. During his tenure, there
was an effort to reach out to the trade concerning issues of concern. He did a road show of the Ports to do training
for local Customs officers. Neil Levy
is now in his former position. It is a big job given the limited resources
that are assigned to it. LM thinks
importers should use Custom’s procedure asking for determinations about entry
of cultural goods. The goal is to have
a maximum 30 day turn around on vetting a piece for entry.
MM asked AH what he would do if he were Secretary of
State. AH indicate he would fire the
Cultural Heritage Center’s Director who he believes has been acting outside the
law. MM asked LM what he would do if
he were Customs Commissioner. LM
believes that there needs to be more coherent rules concerning stolen and
illegally imported property. He thinks
it’s odd that Customs is applying Egyptian cultural patrimony laws dating back
to 1983 when Egypt has not even asked for a MOU.
Panel II- LA, JI, and PT.
LA- MOUs have helped stem looting, show respect for other cultures
and provide a bridge for contacts between academics and museums.
Import restrictions have a broader reach than criminal prosecutions
under the National Stolen Property Act and do not
require a showing of scienter or guilty knowledge. Italy and Cambodia
are two success stories. The market needs to be more transparent.
JI discussed how Bonham’s vets articles for auction. The analysis always considers both the
National Stolen Property Act and import restrictions. Auctions are the most transparent way of selling
cultural property. JI is concerned that
our tough rules are driving material to private sales. He also suggests US firms are losing
consignments to foreign ones. Most
Chinese material is no longer sold here.
He is very concerned about subpoenas for information received pursuant to
Mutual Legal Assistance Treaties. They
can request information about sales that took place years ago.
PT discussed the ACCG test case. Coins make for a good test article because they are
extremely common, collected world-wide and are difficult to associate with any one single modern
nation state. He explained that the
significant procedural and substantive constraints on executive discretion
within the CPIA provide a basis to argue that State Department decision-making
should be subject to judicial review. He
also noted that the Court of Appeals' conclusion that import restrictions on
coins were a “foreign policy matter” is at odds with Supreme Court case law.
After the presentations, there was a question and answer
The New York City Bar / American
Society of International Law symposium
about the Cultural Property Implementation Act (CPIA) marking its 30th
Anniversary was the first organized critical re-examination of the CPIA that this observer is aware of.
No single one-day symposium can possible do full justice to the overall extent of this subject, and the evident need for in-depth exploration of a multiplicity of significant topics, each of which would clearly offer scope for a panel or subcommittee to explore and monitor on an ongoing basis, via hearings and discussion sessions with invited presentations by experts in the field.
Topics which Tompa's report indicate would be fruitful subject matter for such ongoing study include:
1) Evasion of the original purpose and intent of the CPIA.
Very credible observations and allegations have been made to the effect that under the thirty year direction of archaeologist Maria Kouroupas, administration and organization of the Cultural Property Advisory Committee (CPAC) -- and subsequent consideration of CPAC recommendations in determining State Department decision regarding requests for import restrictions -- have shifted from what was originally intended to be a searching, comprehensive and evenhanded analysis of the merits of each request to a ritualistic sham process of appearing to follow the letter of the law, while in reality evading the intent of Congress and pursuing a hidden agenda.
According to this perspective, requests for import restrictions are being secretly discussed between State department staff and representatives of foreign governments prior to submission, and there is reason to believe that these discussions often (if not always) become de facto negotiations, in which US accession to restrictions is exchanged for diplomatic objectives that have no connection with the 1970 UNESCO Convention, or other cultural property law.
2) Balance, objectivity and fairness.
Congress, in enacting the CPIA, made a very significant effort to enide sure that the CPAC would provide a balanced perspective between the interests of museums, collectors and the trade supplying them, archaeologists and anthropologists, and the general public.
As Tompa's report indicates, membership of the CPAC, and review and decision making process after submission of CPAC recommendations, are now controlled by archaeologists and State Department staff who are de facto allies of and proxies for archaeologists.
The CPIA, and the CPAC panel evaluating requests for import restrictions, were intended by Congress to offer a transparent process whose proceedings would be visible to the public and would offer proper scope for public opinion expressed via comments submitted for consideration by the CPAC.
Probably no other aspect of the whole maladministered CPIA system has been so egregiously, unscrupulously (and probably unlawfully) twisted and exploited so as to evade the legislative intent of Congress, as has the State Department's recalcitrant insistence upon drawing a veil of secrecy over its administration of the CPIA and its review of CPAC recommendations.
4) Legislative Review.
Congress clearly intended that our legislators would be able to review and oversee the workings of the CPIA's administration and decision making processes, by providing for a reporting system whereby according to 19 U.S.C. § 2602(g), Congress itself retained oversight of the CPIA process.
While reports satisfying the letter of the law are submitted to Congress they are not made public, and there is no reason to believe that such reports provide insights into the decision making processes followed. The actual workings of the CPIA's administration and decision making processes are not being disclosed to Congress, and no genuine and effective legislative oversight is taking place.
5) Routine renewal of MOUs implementing import restrictions.
The CPIA provides that renewal of import restrictions is contingent upon (a) whether the circumstances upon which the enactment of restrictions was based still exist and (b) whether the restrictions have proven effective in addressing those circumstances.
There is no evidence to indicate that effective fact-finding as to the justification for renewing import restrictions is actually taking place, nor is there transparency of process allowing the public or Members of Congress to understand the process for considering requests for renewal. Instead, there is every reason to believe that renewal of import restrictions has become automatic and that refusal to renew has never been seriously considered by the State Department.