Reflections on the Cultural Bogeyman

Here is a great article which clearly distinguishes between sensationalized, hysterical overstatements by the archaeology lobby and its fellow travelers, and the far more modest realities of the actual extent of illicit antiquities trading:


Francisco Goya (1746–1828) El Coco (The Bogeyman), Los Caprichos #3, 1797-1799, etching, aquatint, Museum del Prado

The international art market as cultural bogeyman

https://culturalpropertynews.org/the-international-art-market-as-cultural-bogeyman-part-1/

[This extensive and authoritative article should be read in full from the above link. Some excerpts are given here to provide a glimpse into its merits.]

How confusion, complacency and politics play their part
Ivan Macquisten - September 24, 2019

Formerly Editor of Antiques Trade Gazette, Ivan Macquisten is a writer, commentator, analyst, collector and campaigner in the international art market. His work includes advising the Antiquities Dealers Association (ADA) and International Association of Dealers in Ancient Art (IADAA), as well as trade organizations in other sectors and the UK government.

As the issues over cultural property become more complex and the arguments more entrenched, it is timely to take a moment to review how we got here and what the implications are.

The antiquities trade is the most politically sensitive area of the culture sector and of the international art market because it involves the buying, selling, private and public ownership of ancient art and artefacts that are considered to be part of other nations’ cultural heritage.

The notion of one nation possessing the cultural heritage of another has largely become anathema today because it is so closely associated in the minds of many with conquest and colonial exploitation. This has become increasingly the case in recent years as rights issues concerning race, gender and religion have come to the fore like never before.

Perhaps the best-known example of how cultural heritage has been politicised is the continuing dispute over the Elgin Marbles (also known as the Parthenon Marbles), but numerous other cases have recently come to prominence, from the Easter Island head in the British Museum to President Macron’s decision to institute a wide-ranging restitution policy from French museums to African nations – a policy that is now facing considerable difficulties because of conflicting legal and ethical positions.

Ethical issues around restitution are complex; why single out Nazi-looted art for special treatment, for instance, but ignore the rights of families whose ancestors were murdered in the terror of the French Revolution and had their property seized, which now forms the basis of other collections? What about the collection of Charles I? How far should one go back to right wrongs? And how often is it a simple case of right and wrong? The Benin Bronzes, for example, were created from the fruits of slavery; some even argue that returning them to their Nigerian source would be akin to condoning slavery.

Demands for restitution are often made by those who have little real understanding of – or interest in – the circumstances under which many artefacts were acquired.

Theft, looting and trafficking have certainly played their part, but what is largely ignored is that source nations also participated in extensive international trade in their own cultural heritage across the centuries. Indeed, in many cases what are now seen as treasured cultural artefacts were actually created as trade goods, notably ancient coins. In the 19th and early 20th centuries, nations including Egypt benefited from operating a partage system, whereby foreign interests provided the money and expertise for archaeological excavations and study in return for a share of the spoils of discovery with the agreement of the source country’s authorities. Most famously, this applied to the Tutankhamun expedition launched by Lord Carnarvon with the help of Howard Carter.

Egypt licensed more than 100 dealers to sell artefacts during a period of well over a century, whilst also operating a saleroom from the Cairo Museum for decades. Countless pieces left the country legally, sanctioned by the authorities.

Further issues addressed in the following sections cloud the picture. What is cultural property? What are antiquities? How do they differ? Why is it so difficult to distinguish what is legal and what is looted? Whose rights are more important and why? What would significant policy change mean and what would its wider impact be? What motivates the various interest groups in this field and how far should we rely on what they say? How reliable is the data and information published by internationally recognised bodies like UNESCO, Interpol and the European Commission? And how does propaganda, rather than fact, influence policy change?

Summary of key issues

Much of the problem surrounding the debate on cultural heritage arises from a lack of data, but other issues also play their part: conflicting definitions of what is being discussed, a lack of consistency across international policy and conventions, cross-cultural misunderstanding when debating the issues, political bias, propaganda and competing motives, confusion between legal and moral claims, as well as ideological ones, and intellectual failure accompanied by confirmation bias. Another basic issue is the simple question: What is the antiquities trade?

What is cultural property/heritage?

The definition varies to some degree between most of the important international laws and conventions. Some are more specific than others. Generally, it covers a wide range of art, antiques, antiquities, natural history such as fossils, books, manuscripts, film archives and coins.

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The term cultural property/heritage is generally understood to mean only antiquities in political debates concerning the art trade. This causes considerable misunderstanding and problems because data concerning the far broader legal definition of cultural property is mistakenly applied to the much narrower field of antiquities and this can and does influence policy unduly. It is possibly the single most significant reason that statistics relating to antiquities crime are frequently grossly exaggerated.

This continues today, with the most over-the-top claim ever coming in an article published on September 13 by the Atlantic Council, a US-based think tank that “promotes constructive leadership and engagement in international affairs”.

In reporting on a recent EU-sponsored conference on illicit trade and terrorism financing, the article, titled Europe moves to curb ISIS antiquity trafficking, states as ‘Fact’ that “the trafficking of fake and stolen antiquities is worth $45 billion a year, including $20 billion in Europe alone”.

What the article does not give is give a source for its figures. This is hardly surprising considering that they are nonsense. However, despite expressing my doubts to him about this, the author Brooks Tigner insists that the claims came from Tess Davis, Executive Director of the Antiquities Coalition. I find this astonishing bearing in mind that having talked about “billions” over the past few years, the Coalition has gradually retreated from such claims in the face of evidence and, anyway, has never gone as far as even hinting at anything more than $7 billion, an equally fantastical figure. I am equally surprised that no one else in the room with expert knowledge sought to correct her, if this is the case, as the claims simply leave them open to the sort of ridicule already levelled at the claims on twitter by Chasing Aphrodite, the anti-trade blog.

According to the article, New York Assistant District Attorney Matthew Bogdanos, another expert witness to take the podium, declared that ISIS’s exploitation of the antiquities sector “is so profitable that it has its own division, alongside one for oil, with [ISIS’] structure”.

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Unless Bogdanos now knows something that the rest of us don’t, it remains the case that the only primary source evidence for ISIS’s exploitation of antiquities is the cache of documents seized in a US Special Forces raid on Abu Sayyaf, the nominal head of ISIS’s antiquities operation, in May 2015. Those documents revealed figures relating to licences for excavation that initially allowed the authorities to estimate ISIS’s take for antiquities, minerals and metals in Syria for that year at around $4 million, although even that figure is questionable as Ben Taub reported in the New Yorker in December that year, after having the documents expertly examined. 

Putting the Atlantic Council’s article’s figures in perspective: in March this year, the Art Basel report – the leading study of its kind in the world – estimated that the entire global art market in 2018 was worth around $67.4 billion.  Antiquities make up about 0.5% of the market, so about $337 million, while Syrian antiquities represent about 5% of this figure, so just under $17 million. And that is the legal market, which includes all the art that has circulated for centuries.

Bear in mind, too, that other official sources for art crime bear no resemblance to the article’s claim. In 2013, the FBI art crime unit estimated all art crime globally concerning everything from Contemporary art to stamps, not just antiquities, at around $4 billion to $6 billion, but that includes crimes such as domestic burglary, vandalism, fraud and so on. The World Customs Organisation’s (WCO) Illicit Trade Report 2017, published at the end of last year, showed cultural property (so, again, all art and antiques, not just antiquities) as barely registering on the scale compared to drugs (43%) and counterfeit goods (27%). The WCO points out that poor reporting on cultural property crime at national level means the figures are incomplete, but the gap between it (0.2%) and the other crime sectors when measured in terms of the number of cases being investigated, number of seizures and volume of material seized, is a gaping chasm. Mariya Polner, Senior Policy Advisor, Enforcement and Compliance at the WCO, also in attendance at the conference, should also have been able to enlighten Mr Tigner on the $45 billion and $20 billion figures.

Perhaps rogue claims like this wouldn’t matter so much if they didn’t influence those with power and responsibility for change and law enforcement. Multiple examples of how this has been happening range from figures published by UNESCO in 2011 to those published by the European Commission to justify its recent introduction of highly restrictive import licensing regulations for cultural property due to come into force in the next few years. The latest example came on September 12 in the launch release for a new international Virtual Global Taskforce involving US Immigration and Customs Enforcement (ICE), as well as the UK’s Art and Antiques Unit at Scotland Yard and ten other countries. It was ICE who published the release, in which they claimed “Trafficking in antiquities is estimated to be a multi-billion dollar transnational criminal enterprise.”

As anyone involved in this debate knows, this is not only untrue, but has been widely and publicly debunked. The European Commission was one of those who quoted this claim in its Fact Sheet in July 2017 to justify its new import licensing regulations, giving as its source Interpol. The Works of Art Crime home page on the Interpol website did indeed state: “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods.” However, the FAQs on the same page conflicted with this. To the question “Is it true that trafficking in cultural property is the third most common form of trafficking, after drug trafficking and arms trafficking?” Interpol replied: “We do not possess any figures which would enable us to claim that trafficking in cultural property is the third or fourth most common form of trafficking, although this is frequently mentioned at international conferences and in the media.

“In fact, it is very difficult to gain an exact idea of how many items of cultural property are stolen throughout the world and it is unlikely that there will ever be any accurate statistics.”

The problem has always been that while bodies like the European Commission and ICE have been quick to source the first quote, they have ignored or been unaware of the second. Fortunately, Interpol have now updated their website and removed the offending statement, but the damage has been done.

The fact that ICE has taken the claim as gospel and promoted it in its launch release does not say much for its due diligence or inspire confidence in the new global taskforce. Accurate provenance research is as much the responsibility of politicians and law enforcement – more so because they wield true power – as it is for the antiquities trade.

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While the antiquities market has made great strides towards transparency in recent years, with known or discovered ownership histories being published in catalogues, it is often not possible for the ownership history to extend back far enough to satisfy the critics of the trade who demand evidence that simply does not exist.

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While the auction houses and trade associations have well-developed codes of ethics and practice, other market areas do not. Internet sales via eBay, Facebook and other platforms have been identified as a particular problem in recent years when it comes to fakes and potentially trafficked items.

What is provenance?

The trade considers that provenance is an item’s known history. Academics and archaeologists tend to consider that provenance only means an item’s fully documented and confirmed history back to the point of its creation. Again, it is important to understand this when considering the arguments around provenance. Either way, provenance is important because the more certain we can be about an item’s history, including its trail of ownership, the more certain we can be about where it came from and when. This, in turn, has an impact on how it is viewed and is likely to affect its value.

The ADA gives a detailed definition of the three types of provenance on its website, distinguishing between Hearsay Provenance, Named Provenance and Documentary Provenance. (See How Reliable is Provenance at http://theada.co.uk/faqs/)

Why is it so difficult to trace provenance back to an object’s original discovery?

It is extremely rare, if almost unheard of, for an antiquity to have fully documented provenance tracing its history back to the point of discovery. The most that can be hoped for is a sales receipt accompanied by an export licence showing that the item was exported from its country of origin according to the laws that were in force at the time. This is deemed as acceptable proof that the item was not looted and trafficked from its source country. However, it is extremely rare for such paperwork to be extant for the following reasons:

Countries of origin often had no export licensing system when items were originally exported.

Even where source countries did issue export licences, requirements rarely demanded detailed invoices or licences, certainly not to the standards required today. A single export licence might cover hundreds of items, none of them described in sufficient detail to able to identify them from the licence today.

Where hundreds of items were exported on a single licence, that licence could not have remained with each item once they were sold or handed on, even when the licence itself was retained.

Even where licences, detailed or otherwise were issued, there was commonly no requirement to keep them on record once used.

Even where sales receipts and licences were initially retained, often the paperwork has been mislaid as the years have passed and items have changed hands.

Even where sales receipts and export licences are extant, the information allowing the owner to prove that the item was exported under the relevant laws of the day is usually not available.

Why is the lack of paperwork so significant?

While many academics and archaeologists are simply opposed to any trade at all in antiquities on moral grounds, they will reluctantly accept that there is a legal right to trade in items with what they see as sufficiently documented provenance. However, it is the widespread lack of paperwork (explained above) that goes to the heart of what seems the chief insoluble dispute between the trade and those who oppose it.

Where the documentation is either wholly lacking or incomplete, opponents of the trade, including source countries such as Egypt, argue that the burden of proof should be reversed and that the antiquity should be considered stolen unless the owner can prove otherwise.

To adopt such a policy under the law – which international organisations, among others, continue to press for – would have grave implications for fundamental human rights, including those of property ownership. This applies not just to antiquities but to personal possessions in general. Which of us could provide undisputed receipts for everything we own? Should we be deprived of it if we cannot provide the evidence?

Those who advocate such changes in the law doubtless consider that what they see as the moral claim of the source country to its cultural heritage outweighs the basic human rights of the current owners of these antiquities. Even the most aggressive U.S. prosecutor of antiquities crimes, NY Assistant DA Matthew Bogdanos, found reversing the burden of proof a step too far. Speaking at the Clyde & Co seminar in London on July 11, 2017, Bogdanos challenged the concept of reversing the burden of proof, saying, we don’t demand that persons charged with rape or murder prove their innocence, so why antiquities dealers?

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[To keep the length of this substantial post manageable, much of the original text has been elided - interested readers should consult the link to the original article.]

See also the continuation:

The international art market as cultural bogeyman, Part 2: Who Opposes the Antiquities Trade and Why?

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COMMENTARY

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Like other veterans in the collectors' rights advocacy, I have previously pointed out that in the "publish or perish" world of academia, an enormous edifice of moralizing publications, blaming  collectors (and the trade which supplies them) for looting of archaeological sites, has developed from what can justly be characterized as very slender and insubstantial foundations in factual, verifiable  data.

The construction of that particular edifice parallels another disquieting trend in archaeology: 

"Academic archaeologists" who rarely, if ever, get out into the field to collect data in a scientifically valid  manner instead now spend their time writing about what they view as the implications to be drawn from fieldwork carried out by others, in many cases long ago. More and more, it seems, is presently being written about less and less, in the way of genuine and factual new information.

The construction of such insubstantial edifices of verbiage seems to this observer to be distressingly comparable to building a pyramid upside down - so that upon a very narrow point in actual contact with solid ground, rests the weight of an enormous structure that becomes broader and broader the further it gets from its foundation.

Inverted Pyramid

As an engineer, I naturally view such an unstable, irrational arrangement with extreme skepticism. It seems to be a sort of modern recreation of the ancient "Tower of Babel,"  [Genesis 11:1–9] whose narrative is now scientifically characterized as an origin myth, meant to explain why the world's peoples speak different languages. 

Perhaps that is the real explanation for the present confrontation between the collecting community and archaeology: we speak different languages. They apparently have many words in common, however the words really mean very different things, according to one's perspective. It's not easy to imagine a more effective approach for creating confusion, misunderstandings and hostility.

Profoundly Ethical

“Profoundly Ethical”: the museum myth of the 1970 UNESCO convention

http://www.anonymousswisscollector.com/2018/12/profoundly-ethical-the-museum-myth-of-the-1970-unesco-convention.html

Even when museums appear to embrace ethics, false ideas about the law remain

by Donna Yates

The Cleveland museum taking a mould of the base of a statue of Hanuman which was stolen from Koh Ker, Cambodia either before 1970 or after. Doesn’t matter, still stolen, still had to be returned.

About a week ago, a headline in the Cleveland Plain Dealer caught my attention:

Cleveland Museum of Art hires Seth Pevnick as ‘profoundly ethical’ curator of ancient Greek and Roman art

This article discusses how the hiring of this young “rising star from a new generation of curators and scholars” would help rehabilitate the Museum’s image after a series of recent illicit antiquities scandals triggered various high-profile, high-shame returns in recent years. I’m happy to see that the museum has put ethical practice at the centre of its hiring criteria for a new director. I look forward to seeing Pevnick, a Greek and Roman Art Curator snagged from the Tampa Museum of Art, lead in this field.

Yet I am let down to see representatives of the Cleveland Museum putting out such quotes as:

“we will not be acquiring anything that doesn’t have solid provenance back to 1970 and that doesn’t satisfy all of our questions to a degree that offers great certainty regarding where an object has been.”

In other words, the museum is under the impression that 1970, the date of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural Property, is a legitimate cut off point for antiquities provenance research.

It. Is. Not.

The fantastic and inspirational students in the master’s-level online PGCert programme in Antiquities Trafficking and Art Crime here at the University of Glasgow have been joking recently that they’re going to make t-shirts or hats (or get forehead tattoos) that say “1970 is not the cut-off”. The myth that 1970 has some basis in either law or provenance research good practice is so pervasive that, well, quotes like this exist in articles about how museums with a past history of poor decisions are trying to become “profoundly ethical”. Yet this idea, that if an antiquity was out of its country of origin before 1970 it is OK to buy, is at best terribly mistaken, at worst profoundly UNethical. It certainly is an idea that was manufactured to support a particular point of view rather than what either the law or best practice actually is.

A Greek donkey head rhyton that the Cleveland Museum purchased in 1977, tied to many of your favourite convicted and disgraced dealers. They sent it back to Italy in a group of 14 antiquities in 2008. UNESCO 1970, not a factor.

So to be as quick and clear about it as this non-lawyer here can be, the 1970 UNESCO convention does not establish what is and is not a stolen antiquity: local law does. A swirling mix of the law of the country of origin (usually ownership law) and the law of the country where the antiquity has ended up (ownership law as well as statutes of limitations and evidentiary standards for recovery of stolen property) determines which antiquities are stolen. So if a “source” country claims that an antiquity in a “market end” country is their property, and the market end country agrees based on their own law, it doesn’t matter when the antiquity left the source country. UNESCO and 1970 have nothing to do with it.

Or rather, let’s take a concrete example: in 1936 a relief of a Persian guard was stolen from the famous Iranian site of Persepolis. Nearly 80 years later, the relief was purchased by dealer Rupert Wace after some exciting twists and turns including a 60ish year stint in a public Canadian museum. When Wace imported the piece into the United States for sale it was seized by the authorities and returned to Iran, despite being absolutely, positively out of Iran long before 1970. Why? Because it was stolen. Iranian law that dates to before 1936 made the piece the cultural property of Iran and prohibited its export. The date of that piece of legislation is the cut-off date for antiquities from Iran, and anything on the antiquities market that was exported after that cut off date is at least illicit, possibly illegal (depending on the country it came to rest in), and could be seized at any time; 1970 has nothing, at all, to do with it.

Drusus Minor, here, was certainly stolen and almost certainly illegal, despite being stolen around 30 years before the UNESCO convention. Cleveland gave him back.

Indeed, one of the museum’s recent illicit antiquities scandals, discussed in the article announcing the new director, centred on their 2012 purchase of a Roman portrait head which had most certainly been stolen from Naples in the 1940s. They returned it. So, likely out of Italy long before 1970, but still totally stolen; Italy could have litigated for its return but luckily didn’t have to. The UNESCO date is entirely meaningless.

Every country has their own definitions of ownership and their own cut-off dates. If any of them happen to be 1970, it’s coincidence. Any museum, collector, auction house, or dealer treating 1970 as a legitimate cut off is not acting ethically. They are wilfully ignoring legal reality and are making up rules that don’t exist.

And let me tell you, many, many, many museums, collectors, and dealers [1] appear to firmly believe that the 1970 cut off is a real thing. Why?!

At least in the case of American museums, this false belief that 1970 is a thing seems to stem from the standards of the Association of Art Museum Directors (AAMD) who in 2004 or thereabouts brought 1970 on board as the cut off that “ethical” museums needed to establish an antiquity’s provenance back to. The 2008 version of those standards states:

“AAMD members normally should not acquire a work unless research substantiates that the work was outside its country of probable modern discovery before 1970 or was legally exported from its probable country of modern discovery after 1970.”

…which is terrible advice. It has absolutely no basis in the law.

For museums, their employees, and their professional organisations to truly be “profoundly ethical”, they must abandon the various myths that internally legitimise bad practice and illegal behaviour. The 1970 cut off is one of them.

I should note that I have grumbled about the Cleveland Museum of Art’s provenance looseness before, and I have grumbled about what museum reps have said about those purchases. I have nothing against the museum specifically, rather I am bothered by the mindset that the purchases and the comments represent.

With that, I wish Seth Pevnick the best of luck at the Cleveland Museum of Art, and I sincerely hope that he implements a regime of complete provenance research and staff training towards truly ethical behaviour and what the law actually is rather than what certain people want the law to be.

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COMMENTARY

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It would seem that Donna Yates has a view of "ethical behavior" that is for all intents and purposes identical to that held by Paul Barford.

What this really distills down to is that nothing will satisfy such ideologues, short of documentary proof of provenance extending to some evidence of unquestionably "licit origin."

In other words, without such documentary proof, in their view every antiquity in every collection worldwide is "possibly illicit."

Peter Tompa's take on this:

1970 No Safe Harbor

Of course, it was the AIA that first pushed 1970 as a safe harbor to entice AAMD if memory serves (please feel free to correct me) to retreat from a rolling 10 year period for provenance.

In any case, may all your antiquities be well provenanced, whatever the date you choose.

My opinion:

So long as Donna Yates and those who share her views are allowed to assert the ideologically motivated doctrine that every antiquity in every collection worldwide is "possibly illicit," in the absence of positive documentary proof of unquestionably licit origin, almost nothing - anywhere - in any collection - is safe from being seized and forcibly repatriated to some nation which claims it as "cultural property."

The uncertainty and adverse impact resulting from such a "standard of ethics" would be worse than chilling. It would be more like a deep freeze. For all intents and purposes, if this "standard of ethics" ever becomes law it will very likely prove to be the end of private collecting, and perhaps also, privately owned museums.

In this observer's opinion, the "cure" advocated by Donna Yates and those who share her views is a significantly greater threat to mankind's cultural heritage than the "disease" of looting of archaeological sites on the present scale.

I have repeatedly pointed out that there is absolutely no evidence to support the opinion of Donna Yates and those who share her views that the imposition of this standard they advocate would have any significant effect on the incidence of looting.

I myself am certain that it would not. The inexorable laws of economics trump all legislation. The concept that looting can be controlled by "destroying the market" for antiquities is an unrealistic, impractical fantasy.

ACCG Petitions to the Supreme Court

ACCG Requests Supreme Court to Hear Forfeiture Case

http://culturalpropertyobserver.blogspot.com/2018/12/accg-requests-supreme-court-to-hear.html

On December 12, 2018, the ACCG asked the U.S. Supreme Court to hear its forfeiture case.  Specifically, the Guild has requested the Supreme Court to consider the following questions for review:

QUESTIONS PRESENTED

            This case arises from the civil forfeiture of ancient Cypriot and Chinese coins under the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601 et seq. The coins are of types that appear on “designated lists” subject to import restrictions.  Congress limited the reach of such import restrictions to archaeological objects “first discovered within” and “subject to export control by” a specific State Party to the 1970 UNESCO Convention, and further placed the burden of proof on the Government to establish that such designated material was listed in accordance with these criteria.  19 U.S.C. §§ 2601, 2604, 2610. Congress also ensured such import restrictions are entirely prospective.  They only apply to designated archaeological material illicitly exported from the State Party after the effective date of the implementing regulations.  Id. § 2606.  The questions presented are:

1.         Did the courts below violate the Guild’s 5th Amendment Due Process Rights when they authorized the forfeiture of the Guild’s private property without any showing that the Guild’s coins were illicitly exported from Cyprus or China after the effective date of import restrictions?

2.         In a civil forfeiture action implicating the Guild’s 5th Amendment Due Process Rights, did a prior decision upholding import restrictions under a highly deferential ultra vires standard of review “foreclose” consideration of legislative history, judicial admissions, and other  information relevant to the Government’s burden of proof?

The Guild's Petition for Certiorari in its entirety can be found here. 

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COMMENTARY

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The ACCG's long and arduous legal effort to protect the rights of US antiquities collectors against the overreaching bureaucratic machinations of the State Department's Cultural Heritage Center has now reached what may prove to be its final step.

Actually, the ACCG has what in this observer's opinion (since I helped to frame it) is a very good case that would be difficult for the State Department to defend against in court - if the ACCG can ever get its "day in court."

I described the history of the ACCG's challenge in this post to my blog:

http://classicalcoins.blogspot.com/2018_10_21_archive.html

Peter Tompa summarized the State Department's thus far successful effort to prevent the ACCG from getting its "day in court" as follows:

"The result, after nine years of litigation, is that the U.S. Court of Appeals for the Fourth Circuit affirmed the original seizure of the coins, and also re-interpreted the plain language of the CPIA, by emphasizing ease of enforcement over due process and the clearly defined legal requirements in the original legislation."

Will the Supreme Court hear this case? The odds are starkly against that. 

Each Term, approximately 7,000-8,000 new cases are filed in the Supreme Court. Plenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each Term, and the Court typically disposes of about 100 or more cases without plenary review.

Approximately 200 cases out of more than 7,000 filed will be acted upon - roughly three per cent of those filed. The Court is primarily interested in the importance of each case, both to legal precedent and to the public interest.

The importance of this case is vastly greater than the small value of the coins that were confiscated, and the relatively small numbers of antiquities collectors whose interests are at stake. There are major issues regarding the principle of the "rule of law" vs. the arbitrary exercise of bureaucratic authority.

The case is still alive - and where there is life there is hope. For the Supreme Court to hear it would definitely be "doing the right thing." But the statistics make it clear that many such "right things" must be left undone for every one that the Court can act upon.

The Development of a Collector

Here is a story about a collector which I remembered after a remark was made in the Moneta-L Yahoo group about the ways people begin collecting ancient coins. It recounts the development of a collector, who went from a specialist in very high-grade US coins to a knowledgeable, studious collector of ancient coins, and wrote several interesting articles for the Celator magazine. The remark that caught my attention was:

" I am certain there are some who begin their hobby by purchasing rare and expensive coins."

I responded:

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I had a very interesting and mutually rewarding long term relationship with a collector who began collecting Roman coins by purchasing one denarius in FDC condition. This collector had amassed a large collection of US coins that were of exceptional "condition rarity." They were valuable only because of their condition, not for scarcity in other grades.

This collector was quite knowledgeable in his US coin specialty and had a valuable collection. He gradually sold it off at the peak of the market to amass an eclectic, valuable collection of ancient coins, mostly Roman with a few other types acquired after I succeeded in broadening his interests.

This collector was very inquisitive. He took full advantage of my inclination toward educating collectors and my capabilities in researching difficult subjects. Here is one that I remember very clearly:
 
http://www.coinbooks.org/esylum_v19n10a19.html

This jeton from the 1680s is a sort of token that was very common in parts of France in those days. There was then a great shortage of "small change" and almost all of the officially issued copper coins in circulation dated back to Roman times. These French "jetons" were throws that were scattered as a form of largesse by feudal lords, in much the same manner as "doubloons" in Mardi Gras parades.

All sorts of speculative theories were inspired by this jeton, on the premise that it depicts a "flying saucer" or some other sort of UFO.

For example, here are links to some of this speculation:

https://ancientexplorers.com/blogs/news/ancient-coin-depicts-mysterious-flying-saucer

https://www.dailymail.co.uk/sciencetech/article-3475501/Does-mysterious-flying-saucer-French-coin-1680s-alien-UFO-visiting-Earth.html

I really made an impression on that collector when I finally decoded this mystery. The design of that jeton was inspired by a story from the mythical early days of the Roman Republic, and after I came up with the real explanation he shared it with others and it finally reached the Internet: 

http://www.thelivingmoon.com/49ufo_files/03files2/1680_UFO_on_Coin.html

The design depicts Numa's Shield falling from the sky, sent by the gods to protect and save the land from disaster.

from Plutarch's Lives, Volume I:

"In the eighth year of Numa's reign an epidemic raged throughout Italy, and afflicted the city of Rome. Now amidst the general distress it is related that a brazen shield fell from heaven into the hands of Numa. Upon this the king made an inspired speech, which he had learned from Egeria and the Muses. The shield, he said, came for the salvation of the city, and they must guard it, and make eleven more like it, so that no thief could steal the one that fell from heaven, because he could not tell which it was. Moreover the place and the meadows round about it, where he was wont to converse with the Muses, must be consecrated to them, and the well by which it was watered must be pointed out as holy water to the vestal virgins, that they might daily take some thence to purify and sprinkle their temple. The truth of this is said to have been proved by the immediate cessation of the plague. He bade workmen compete in imitating the shield, and, when all others refused to attempt it, Veturius Mamurius, one of the best workmen of the time, produced so admirable an imitation, and made all the shields so exactly alike, that even Numa himself could not tell which was the original. He next appointed the Salii to guard and keep them."

The actual ancilia were twelve "figure 8" shaped shields of the type used by spearmen in early Classical times, who fought in line for many centuries before the full development of the phalanx and adoption of the round shield (hoplon). There was a good depiction of this formation in the film Troy.

"Figure 8" spearman's shield

On denarii of P. Stolo, of the Licinia family [one of the moneyers of Augustus] is a reverse type of the ancilia, between which is the apex, or cap, of one of the Salii, with the legend P. STOLO. III. VIR. 

The obverse depicts Augustus with the legend  AVGVSTVS TR. POT.

Such shields of course were not used in the seventeenth century, and what was actually depicted on this unusual jeton was a contemporary buckler: a cavalryman's round shield that had a short spear point protruding from the boss in the center:

All good things must come to an end. This very interesting and studious collector eventually passed away, and his collection was sold at auction. I recognized many fine and rare "old friends" I had supplied to him in that sale.

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An Epic Legal Battle

...

...

The Long Legal Contest Against Arbitrary Import Restrictions

https://culturalpropertynews.org/an-epic-battle-u-s-v-3-knife-shaped-coins/

An Epic Battle: U.S. v. 3 Knife-Shaped Coins

Peter K. Tompa, of Bailey & Ehrenberg PLLC, Washington, D.C., lead attorney in the ACCG test case.

Upholding the CPIA: Congressional Mandate or Unlimited Executive Authority

A lawsuit involving fifteen coins from China and Cyprus, none very beautiful or valuable, began as a test case in 2009, and has been vigorously contested at every one of its many steps by the Ancient Coin Collectors Guild (ACCG). 

An important goal of this test case was to challenge the State Department’s actions in going far beyond the definitions and requirements enacted by Congress for import restrictions under the 1983 Convention on Cultural Property Implementation Act (CPIA).

The result, after nine years of litigation, is that the U.S. Court of Appeals for the Fourth Circuit affirmed the original seizure of the coins, and also re-interpreted the plain language of the CPIA, by emphasizing ease of enforcement over due process and the clearly defined legal requirements in the original legislation.

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COMMENTARY

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I won't go into all the details of the history and complex legal issues of this landmark case, which are ably and clearly presented in the Cultural Property News article by Peter Tompa. 

Instead I will comment upon the results achieved, and their significance, and why this case was of such great importance to all collectors of antiquities - not limited to, but importantly including, ancient coins - everywhere.

I'm able to do so with significant background knowledge of this case because I was intimately involved in the initial decision to begin this legal initiative, and in much of what went on behind the scenes. This was, essentially, a dramatic and tense legal battle between an unscrupulous bureaucracy with a secret agenda, dedicated to using every possible legal and regulatory artifice to advance that ideological agenda, and a much smaller collectors' rights advocacy, dedicated to requiring the law to be interpreted as Congress intended it to be.

Every important participant on both sides of this battle knew very well that the key personalities in the deliberations and proceedings involved in the drafting and enactment of the 1983 Convention on Cultural Property Implementation Act did not intend or expect that it would be twisted into a tool for relentlessly and zealously pursuing the ideological objectives of the Archaeological Institute of America, without regard for legislative intent or anything resembling fairness and equity to all concerned interests, as Congress clearly expected. 

That was, however, the end result of appointing archaeologist Maria Kouroupas to oversee the advisory committee of experts created to review and comment upon all requests for US imposition of import restrictions on cultural property. In hindsight, that end result could have been foreseen. 

In 1983 however, none of the key personalities - including those in the State Department - realized the extent to which archaeologists think of "protecting the archaeological record" as a sort of "higher law" that takes precedence over all considerations of impartiality, fairness and equity in administering the regulatory responsibilities with which they are entrusted.

What this test case did achieve was to force the bureaucrats of the Cultural Heritage Center to understand that everything they did was being scrutinized and analyzed by very competent observers who were out to publicly expose their private agenda and their disregard for observing fairness and equity in administering the law, to all concerned interests, as Congress had intended. 

One way to describe the effects of this steadfast, relentless opposition is to draw an analogy to a well-known military operation. 

At the beginning of the 1864 campaign of the Army of the Potomac, a Northern newspaperman asked General Grant how long it would take to reach Richmond. Grant responded airily, ‘About four days–that is, if General Lee becomes a party to the agreement; but if he objects, the trip will undoubtedly be prolonged.’

It took Grant two months of extremely bloody battles, during which Lee's army inflicted more casualties upon the Army of the Potomac than the total strength of Lee's army at the beginning of the campaign, to reach Richmond - and then a siege that lasted nine months began. 

In April 1865, superior resources ultimately prevailed and Lee was forced to abandon Richmond. His outnumbered, exhausted army was unable to elude the Union pursuit, and ten days later Lee surrendered at Appomatox.

The Union won the Civil War, and at this point, many would be inclined to think that the Cultural Heritage Center bureaucracy led by Maria Kouroupas has won the Cultural Property War. That isn't over yet, and the test case is still being pursued by appeal. 

The tremendous resistance put up by the gallant Army of Northern Virginia in the 1864 campaign and the later siege became an enduring part of US history. At the surrender ceremony, the Union army treated the dejected Confederates with great respect. An unexpected and much appreciated formal military salute expressed deeply felt admiration for their legendary fighting qualities.

The legal battle against the immense resources of the State Department has, from the beginning, likewise been a struggle against impossible odds. The question was, whether to delay the onset and limit the extent of the threatened isolation of the US antiquities market from the rest of the world. 

Ten years after the decision to begin the struggle was taken, it is apparent that much was achieved. As unpleasant as the import restrictions are, they would have been far worse and come sooner without that effort.

The legal parameters and issues involved have been clarified and in part tested, although the State Department has thus far prevented the "day in court" sought by the collectors' rights advocacy. 

This clarification, and the manner in which an open and fair legal hearing has been evaded and denied, are important grounds upon which a case can be made for future legislative action to restore proper respect for Congressional Mandate instead of unlimited executive authority.

State Department Propaganda Magazine

The US State Department's Propaganda Magazine

http://contentviewer.adobe.com/s/State_Magazine/b2113109-8f85-548a-a631-1655db4b0600/June_2018/Cultural-Heritage-Center.html#page_0

The current (June 2018) issue features an 8 page article about the Cultural Heritage Center

Cultural Heritage Center

Preserving and Protecting the World's Historic Treasures

By Erin Concors

The following is an extract from the article:

Protecting Cultural Heritage for Future Generations

In addition to the Cultural Heritage Center’s oversight of more than 130 active Ambassadors Fund for Cultural Preservation projects worldwide, the Center manages 17 bilateral cultural property protection agreements.

The United States is one of approximately 134 states party to a 1970 UNESCO convention on cultural property that facilitates collaboration to prevent the theft of culturally significant archaeological and ethnological material. Such theft deprives nations of their cultural identity and encourages unscientific digging that destroys the archaeological context in which the cultural materials are found. In 1983, in support of the convention, President Ronald Reagan signed into law the Convention on Cultural Property Implementation Act (CPIA). Under this legislation, countries may request that the U.S. government work with them to protect their

archaeological and ethnological items through agreements that impose import restrictions at ports of entry to the United States on cultural objects without export certifications. 

Such agreements also benefit bilateral relationships by supporting economic development through tourism, increasing local skills and employment, and enhancing law enforcement cooperation.

The first actions taken under CPIA protected cultural property from El Salvador, Bolivia, Peru and Guatemala. All of these countries suffered from catastrophic looting and violence that fed the international art market in the 1980s. Over time, the situation in these countries improved, as incentive to loot was reduced and nations took steps to protect their own heritage. However, other regions suffer increasing threats. In 2016, in response to rampant looting of its cultural sites at a time of political upheaval, Egypt became the first country in the Bureau

of Near Eastern Affairs region to sign a bilateral cultural property agreement with the United States. AFCP also supports several tangible and intangible conservation projects in Egypt including the preservation of wooden coffins at the Egyptian Museum in Cairo and the restoration of the 13th-century al-Imam al-Shafi’i

Mausoleum in Cairo’s “City of the Dead”—the prominent burial place of Sunni Islam’s foremost moderate figure and the founder of one of its schools of jurisprudence.

Similarly, in Cambodia, U.S. government support to the Tuol Sleng Genocide Museum and the ancient temple of Phnom Bakheng reflect a holistic approach to protecting cultural heritage that includes conserving these sites for future generations.

The Phnom Bakheng temple was built between the ninth and 10th centuries in the ancient Khmer city of Angkor, now an archaeological park and UNESCO World Heritage Site. Prior to receiving U.S. government support, it was at risk of destruction by erosion and humidity. As urban development has rapidly

accelerated in Cambodia’s urban centers, the risk of looting and trafficking of precious heritage items has become a growing problem—thus the country’s cultural patrimony is protected through the important restrictions enforced by the bilateral agreement that was first signed in 2003.

Libya became the most recent partner country when it signed a bilateral cultural property agreement Feb. 23 in Washington, D.C. The Department first began partnering with Libya through a 2005 AFCP project grant that preserved the archaeological and photographic collections of Cyrene, a UNESCO World Heritage Site. Since then, the Department has significantly increased and expanded its support for conservation and capacity-building in Libya by providing training to diverse groups including Libyan law enforcement and leaders of the Libyan Boy Scouts and Girl Guides.

State Boosts Interagency Training Efforts to Combat Looting and Trafficking

While AFCP and the cultural property agreements often address the problems of looting after the fact, another program administered by the Cultural Heritage Center addresses the prevention side of antiquities trafficking. 

The Cultural Antiquities Task Force (CATF), established in 2004 by Congress and integrated into the CHCC in 2016, supports a results-oriented “One Government” approach to countering the criminal networks that traffic in cultural property. Chaired by the Cultural Heritage Center, the CATF supports hands-on training for both domestic and international law enforcement and cultural heritage professionals. One country of focus for such training is Peru.

Looting of cultural heritage sites poses an ongoing threat in Peru, as thieves target churches for their Colonial-era paintings, icons and religious items, and search for pre-Columbian and Inca pottery and textiles at other sites. In recent years, with the support of the CATF, the U.S. Embassy in Lima has cooperated with the Peruvian Ministry of Culture and archdioceses to train priests, nuns and lay persons in local laws for cultural heritage protection and in preventative measures against theft and trafficking. CATF-sponsored trainings have increased awareness among lay persons and law enforcement officials about the problem of cultural antiquities trafficking and its links to criminal networks. A partnership between the Department, DHS and the Smithsonian Institution, led by Immigration and Customs Enforcement–Homeland Security Investigations, has trained hundreds of law enforcement officers on cultural property investigative methods and proper documentation and handling of artifacts.

As the threat to cultural heritage worldwide increases, the work of the Cultural Heritage Center becomes even more important to advancing foreign policy goals. Through the center’s efforts, the United States is able to promote stability, economic development and good governance in partner countries, while denying critical financing to terrorist organizations and other criminal networks that engage in illicit trade.

Erin Concors is a strategy and outreach officer in the Cultural Heritage Center

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COMMENTARY

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To really understand the pervasive anti-collecting and anti-trade bias that saturates every aspect of the Cultural Heritage Center and its activities, it is essential to read this sort of propaganda very carefully.

• ... the Center manages 17 bilateral cultural property protection agreements.

Nowhere does this presentation indicate that such agreements were very clearly defined as being last-resort emergency measures intended to provide temporary relief from "rampant looting of ... cultural sites."

The 1983 CCPIA (the authorizing law for the Cultural Heritage Center and its activities) provides that each such agreement must be periodically reviewed:

"Agreements are in effect for five years, and may be extended, following a statutory process that includes a review by the Cultural Property Advisory Committee."

See A. Section 303 (19 U.S.C. § 2602): Authority to Enter into Agreements

https://eca.state.gov/cultural-heritage-center/cultural-property-protection/process-and-purpose/background

These import restriction agreements have however been converted by the Cultural Heritage Center into ongoing programs, each of which is "managed" as though it will go on forever without any prospect of ever being discontinued. In fact, no "cultural property protection agreement" has ever been allowed to lapse. Renewal has in reality become an automatic process that follows a pro-forma ritual whose outcome has been predetermined.

• ... another program administered by the Cultural Heritage Center addresses the prevention side of antiquities trafficking.

Nowhere does this presentation indicate that there is a licit international trade in antiquities, nor does it indicate that antiquities collecting is an important aspect of "cultural heritage." The presentation instead refers only to "the problem of cultural antiquities trafficking and its links to criminal networks," without ever indicating that the great majority of "cultural antiquities" transactions are licit exchanges between responsible, ethical collectors and the licit trade that supplies them. This presentation instead suggests that international "cultural antiquities" transactions are "illicit" criminal activities.

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Dave