30th Anniversary of the Cultural Property Implementation Act

Symposium on the 30th Anniversary of the Cultural Property Implementation Act

http://culturalpropertyobserver.blogspot.com/2013/10/symposium-on-30th-anniversary-of_25.html
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 30^th 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.  

... 

****************

COMMENTARY

****************

 The New York City Bar  /  American Society of International Law symposium about the Cultural Property Implementation Act (CPIA) marking its 30^th 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.

****************

The Burnout Factor

In a perceptive comment to my previous post "The Blather Factor," a reader of this blog observed:

***************

"This pretty much sums up Mr. Barford, a.k.a. Warsaw Wally...

1.Trolls are immune to criticism and logical arguments. True trolls cannot be reasoned with, regardless of how sound your logical argument is.

2.Trolls do not feel remorse like you and me. They have sociopathic tendencies, and accordingly, they delight in other people having hurt feelings.

3.Trolls consider themselves separate from the social order.

4.Trolls do not abide by etiquette or the rules of common courtesy.

5.Trolls consider themselves above social responsibility.

6.Trolls gain energy by you insulting them.

7.Trolls gain energy when you get angry.

8.The only way to deal with a troll is to ignore him, or take away his ability to post online."


***************


I will leave it to readers of this blog to determine for themselves to what extent the above profile fits Mr. Barford.

Meanwhile, whether his blogging approach could best be described as trolling, blathering or simply not really being interested in posting anything other that "blog bites" intended to pursue propaganda purposes, Mr. Barford's blog posts have impressed this observer as no longer being worth reading. "Burned Out by Blather" would be a fitting description of that state of mind.

Blathering Barford

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.




***************
COMMENTARY
***************

blath·er
ˈblaT͟Hər/
verb: blather;
talk long-windedly without making very much sense
noun: blather; 
long-winded talk with no real substance.

When subjects relating to the science of numismatics, collecting ancient coins, the numismatic trade, the 1970 UNESCO Convention and its US implementation, and US cultural property law in general are expounded upon by Mr. Barford in his PACHI blog, a great deal is said regarding his disapproval of the USA, Americans in general and American antiquities collectors and dealers in particular. 

It seems to this observer that Mr. Barford is rather ill-informed regarding these topics, and that in expounding upon them at such length and so frequently,  without first going to the trouble of gaining any accurate understanding of these subjects, he indeed does talk long-windedly without making very much sense.

Here is, for one example, an illustration of his blissful ignorance of the history and ultimate adoption of the 1970 UNESCO Convention, its provisions and its US implementation:

 >  "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.


***************

The Blather Factor

In situations involving social unrest and conflicting ideologies, those who advocate controversial and radical perspectives regarding what is, in their view, morally and ethically correct, must demonstrate significant support for their views to be taken seriously.

Martin Luther King did so in in Washington, D.C., on Wednesday, August 28, 1963. Standing in front of the Lincoln Memorial, he delivered his historic "I Have a Dream" speech advocating that racial harmony should prevail upon the civil rights march he had organized. Whilst there was significant opposition to Dr. King's perspective, ultimately the extent of support for his views proved to be overwhelming, so that in the end they prevailed.

Dr. King's successful and (in the opinion of this observer) socially beneficial civil rights campaign depended, for its success, upon demonstrating that the views advocated had the passionate support of millions of individuals who were willing to endure severe hardships and unjustifiable mistreatment in order to demonstrate that their demand for civil rights to be extended equally to all U.S citizens regardless of  race, religion or other socially divisive factors should prevail.

In stark contrast to this grand and majestic social movement of the past, we are now obliged to examine far more uncertain and inadequately presented demands of certain "archaeologists," who dogmatically insist that "preservation of the archaeological record" is of such overriding importance that it should take precedence over all other human concerns and activities.

That is (on the face of it) an impossible proposal, absent a convincing demonstration that social justice depends upon assent to these demands.

What has thus far been advanced as substantiation for these demands? One would be hard pressed to find much, other than what Paul Barford has published in his notorious PACHI blog.

It is appropriate to examine what might be termed the "blather factor."  How much weight and importance should, in a critical examination, be given to blogs such as Mr. Barford's?


****************

Provenance Redux

ACCG Run by Story-Telling Clowns

http://paul-barford.blogspot.com/2013/09/accg-run-by-story-telling-clowns.html
by Paul Barford

...

UPDATE 29.09.13: The clownish storytelling continues: "Mr. Barford's Provenance" (Sunday, September 29, 2013). The ACCG's Mr Welsh sets out his path of deduction which led to his first story and which, as have said, rather casts doubt on his powers of reasoning in general. 

He seems not to see any conflict in his (false) assertion that his subject allegedly "failed to matriculate  (he means graduate) from the Institute of Archaeology in London", yet within a few years "he became first an assistant lecturer at the Institute of Archaeology, University of Warsaw, and later was appointed as an Inspector of Ancient Monuments in the Ministry of Culture and National Heritage of the Republic of Poland". He imagines I left both positions in 1989, because there is some kind of an "absence of any published account", I do not follow the logic there at all, there is none. He also regards it as significant whether I am digging at present or not (presumably for him on this hangs the use of the label "archaeologist"). Since he does not read Polish he will have missed the reports on my fieldwork well subsequent to 1989 date (and he missed the documented fact that while this blog has been in progress I have been absent doing archaeological fieldwork in Luxor, Egypt for four months in 2009, 2010 and 2011). But then, I do not think "digging" or "fieldwork" is the only thing archaeologists do. 

In answer to his last "point", I have never presented myself as an "expert", I write a blog, my blog is about an issue. I write it for myself, it can be read by those who want to read it, or can be ignored by those that do not. I really have no obligation to explain to anyone else any more than that, and nor do I intend to. I think there is more than enough about me on the internet already and, seeing the misuses unscrupulous people like the ACCG's Mr Welsh put it to, do not intend multiplying it. I feel absolutely no need to justify myself to the likes of Mr Welsh and Mr Tompa's sock-puppet-Houghton or their guffawing metal detectorist and pot-digging friends. 

UPDATE 7.10.13 As a kid I had one of those "wobbly men", on a hemispherical base that was weighted in such a way that it kept boucing up every time it was pushed over. Coineys have their own version, the "Davewelsh Wobbly Man". Here he is, regardless of what is true or not, again spouting forth the same wobblylibellous junk on Peter Tompa's blog.  

- Barford left the Institute of Archaeology in London without matriculating. 

Not a fact, can be checked in the Institute's journal where a summary of my dissertaion is published. Mr Welsh has not checked any facts, he's just making this up.

- I believe that he was later awarded a baccalaureate degree from the Institute of Archaeology, University of Warsaw.

Not a fact, Polish universities in this period did not offer such degrees (they do now). At the time I studied a five-year course led to a master's degree, which I was awarded before I started teaching there (documented in the Institute's prospectus for the time). Mr Welsh is ignorant of this.

-  Mr. Barford's expectations [...]  were thwarted by the fall of the Polish Communist regime

Not a fact, as for many people in Poland in 1989, funnily enough this was the beginning, not an end. 
As I said, Mr Welsh continues to make it up as he goes along, filling in what he does not know from his own wild imagination - totally divorced from the realities of place and time. Again, in any kind of writing history, context is all important, decontextualisation makes any attempt to write history pure fantasy. 
 This is US numismatic "professionalism" folks, at its very best and worst. These are the people running the ACCG. 



***************
COMMENTARY
***************

Mr. Barford continues to display an obsessive concern with "misrepresentation" (by detectorists and numismatists) of his educational attainments, experience and accomplishments as a field archaeologist in the UK, his 1986 move to Poland and his activities and accomplishments since.

It is certainly understandable that members of the metal detecting and numismatic communities -- being incessantly, unpleasantly and (in their view) unjustly criticized by Mr. Barford -- desire to know his qualifications for posing as an expert archaeologist, and venting so much bilious anti-detecting and anti-collecting spleen in his notorious PACHI blog.

Notable members of the numismatic community have been singled out in Barford's blog screeds, with pejorative and insulting labels attached to their names, and derogatory images inserted. Examples include Wayne Sayles, Peter Tompa and Arthur Houghton, each of whom has a very distinguished reputation and high standing in his field.

Mr. Barford, conversely, has written one book, a number of journal articles -- and a notorious blog -- without ever discovering anything of archaeological importance, or gaining respect from archaeologists familiar with the details of his brief career as an archaeologist.  

Many of those who have been the targets of  Mr. Barford's invective have come to believe that there must be some compelling reason for his obsession for keeping details of his past private. What, they wonder, happened that he so intensely desires to conceal? Why does Barford refuse to publish a  detailed and factual curriculum vitae, such as every reputable scientist and scholar does?

This observer is not among those who imagine that there is anything discreditable in Mr. Barford's past, believing instead that his rather brief career as an archaeologist simply does not support his present pretensions to be regarded as an expert commentator.

 Speculation regarding Mr. Barford's actual credentials will continue, in various forms and forums, until a curriculum vitae is published.

 
***************