US Dealer Flubbers over 'Blather'http://paul-barford.blogspot.com/2013/10/us-dealer-flubbers-over-blather.html
by Paul Barford
Dugup antiquity dealer Dave Welsh has posted a text called "The Blather Factor" (Wednesday, October 23, 2013). It is a most odd text, and seems to be aimed directly at this blog. I think its context must be the publication a few hours earlier of a post when I pointed out the shortcomings of current US heritage protection legislation. Welsh dismisses such criticism as "blather".
I invite the reader to take neither my word nor that of my oponent, but to just click on the link and see for themselves what Article 1 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property says. There are 11 (actually 15) broad categories of items considered cultural property coming within the remit of the Convention. In the text I was discussing, Mr Houghton reminds the US Cultural Property Advisory Committee that by US law they can only institute measures to protect three of them (Art 1 c and f - and possibly d). The other twelve will not be protected through the CCPIA. That is not "blather", it is a fact readers can check out and then ask themselves what the point is of becoming State Party to a Convention which you are not going to honour? Let the US do the honourable thing and withdraw from a Convention they are not going to endorse and fully uphold. OR begin at last fully upholding it.
talk long-windedly without making very much sense
long-winded talk with no real substance.
> "I invite the reader to take neither my word nor that of my oponent, but to just click on the link and see for themselves what Article 1 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property says. There are 11 (actually 15) broad categories of items considered cultural property coming within the remit of the Convention. ... Mr Houghton reminds the US Cultural Property Advisory Committee that by US law they can only institute measures to protect three of them (Art 1 c and f - and possibly d). The other twelve will not be protected through the CCPIA ... what the point is of becoming State Party to a Convention which you are not going to honour?"
Mr. Barford obviously does not understand the essential role played by State Reservations in gaining the support of State Parties becoming signatory to the Convention.
Mr. Barford could have found a clear and thorough discussion of that subject, and other important aspects of the long and involved history of the Convention in "COIN COLLECTORS AND CULTURAL PROPERTY NATIONALISM," Wayne G. Sayles and David Welsh, Ed., presented at the Newcastle Conference on "Portable Antiquities: Archaeology, Collecting, Metal Detecting" in March 2011.
Mr. Barford is of course familiar with that paper, having written one of his snotty, disparaging critiques, going on at great lengths regarding every "flaw" his inimical eye could detect in its writing, organization and content. He did not however take advantage of this opportunity to learn the facts regarding the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
Had Mr. Barford taken the trouble to actually read the paper rather than hastily scanning it for "blog bites," he might have learned that pages 24 and 25 summarize the history of the adoption of the Convention, with this key observation:
"Working with other delegations, the United States obtained major modifications to the Secretariat Draft, the most important of which were:
1. Deletion of the provision requiring states to prohibit the import of any item of cultural property not accompanied by an export certificate.
2. Modification of various provisions through language allowing each state to determine what measures are appropriate for it or limiting obligations to measures consistent with states’ existing legislation.
3. Unlike the Secretariat Draft, the final Convention allowed for reservations."
The provision regarding reservations was pursued by many ratifying nations, including Australia, Belgium, Denmark, Sweden, the United Kingdom of Great Britain and Northern Ireland, and the EEC.
The United States deposited an Instrument of Ratification containing the following limiting provisions:
“The United States reserves the right to determine whether or not to impose export controls over cultural property.
The United States understands the provisions of the Convention to be neither self-executing nor retroactive.
The United States understands Article 3 not to modify property interests in cultural property under the laws of the States parties.
The United States understands Article 7 (a) to apply to institutions whose acquisition policy is subject to national control under existing domestic legislation and not to require the enactment of new legislation to establish national control over other institutions.
The United States understands that Article 7(b) is without prejudice to other remedies, civil or penal, available under the laws of the States parties for the recovery of stolen cultural property to the rightful owner without payment of compensation.
The United States is further prepared to take the additional steps contemplated by Article 7(b) (ii) for the return of covered stolen cultural property without payment of compensation, except to the extent required by the Constitution of the United States, for those states parties that agree to do the same for the United States institutions.
The United States understands the words “as appropriate for each country” in Article 10 (a) as permitting each state party to determine the extent of regulation, if any, of antique dealers and declares that in the United States that determination would be made by the appropriate authorities of state and municipal governments.
The United States understands Article 13(d) as applying to objects removed from the country of origin after the entry into force of this Convention for the states concerned, and, as stated by the Chairman of the Special Committee of Governmental Experts that prepared the text, and reported in paragraph 28 of the Report of that Committee, the means of recovery of cultural property under subparagraph (d) are the judicial actions referred to in subparagraph (c) of Article 13, and that such actions are controlled by the law of the requested State, the requesting State having to submit necessary proofs.”
US ratification of the Convention was delayed from 1972 until 1983 by the evolution and eventual adoption of the Convention on Cultural Property Implementation Act (CCPIA), whose legislative history and provisions are discussed in pp. 29-35 of the paper.
Without the constructive actions taken by the United States in first negotiating a Convention which could be accepted by States with significant art markets, then taking the lead by becoming the first States with a significant art market to ratify the Convention, the 1970 UNESCO Convention might very well never have been adopted for signature in the first place and had it been adopted, would today be a "dead letter" such as is the 1995 Unidroit Convention.
What all this recapitulation of history and facts regarding the 1970 UNESCO Convention and the 1983 CCPIA implementing it within the USA establishes is that Mr. Barford's concluding comment,
" ... what the point is of becoming State Party to a Convention which you are not going to honour?"
displays gross and inexcusable ignorance of the facts. The United States does indeed honor the 1970 UNESCO Convention, as limited by the reservations and understandings stated in its Instrument of Ratification.
Mr. Barford would do better to learn the facts, before blathering in his blog about subjects he does not understand.