Saturday, October 26, 2013

30th Anniversary of the Cultural Property Implementation Act

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 event.
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 Heritage Preservation.
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 period.  


 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.

3) Transparency.

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.



Blogger Cultural Property Observer said...

Thanks Dave. All true. This was also discussed at the CPRI seminar in WDC of some years back. It's too bad the NYC discussion wasn't captured on a transcript as the WDC meeting was.

5:03 AM  

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