Saturday, March 21, 2015

Cultural Property Protection Bill Reintroduced in the House

"We need to strengthen our ability to stop history's looters from profiting off their crimes," declared Rep. Eliot Engel (D-N.Y.-16) on Friday after introducing H.R. 1493, whose stated purpose is to "protect and preserve international cultural property risk due to instability, armed conflict, or natural or other disasters, and for other purposes."

The proposed legislation is similar to a bill the lawmaker introduced last congressional session, the Protect and Preserve International Cultural Property Act (H.R. 5703), which failed to become law.

The text of the current bill is expected to be published by the Government Printing Office shortly and will be available here.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, March 19, 2015

The Assyrian Head Repatriation: Filling in the Details of ICE's Investigation

This week U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) returned a looted fragmented limestone head of Assyrian King Sargon II to Iraq. The stone carving once sat atop a sculpted winged bull.

In remarks prepared for Monday's repatriation ceremony held at the Iraqi Consulate in Washington, D.C., Assistant Secretary of Homeland Security and ICE Director Sarah R. Saldaña declared, “ICE will not allow the illicit greed of some to trump the cultural history of an entire nation.”

ICE offered limited details in a press release about the artifact's history. But the agency revealed that, "[a]s part of 'Operation Lost Treasure,' HSI New York special agents received information on June 30, 2008, that an antiquities dealer based in Dubai was selling looted Iraqi antiquities to dealers around the world. The special agents seized the limestone statue on Aug. 13, 2008, after it was shipped to New York by a Dubai-based antiquities trading company owned by the antiques dealer."
Assyrian limestone head fragment of Sargon II
repatriated by the U.S. to Iraq on Monday. Courtesy ICE

The press statement added that the "investigation identified a broad transnational criminal organization dealing in illicit cultural property. Some of the network’s shipments were directly linked to major museums, galleries and art houses in New York."

ICE reported that its investigation "resulted in one arrest, multiple seizures of antiquities ranging from Libya, Egypt, and Afghanistan, and the return of many of artifacts. A repatriation ceremony with Afghanistan was held two years ago and future repatriations are anticipated."

Publicly available information fills in some of the details about the trafficked head fragment.

A CHL blog post dated July 24, 2013 reported that federal prosecutors petitioned to forfeit the Assyrian head in federal court in the Southern District of New York. The complaint, filed in the case of United States v. One Iraqi Assyrian Headalleged that Dubai antiquities dealer Hassan Fazeli exported the artifact from the United Arab Emirates to the U.S. on July 30, 2008. Prosecutors, at the time, did not identify the head as a carving of Sargon II.


Rather than describing the head's country of origin as Iraq on the customs import form, prosecutors explained that Turkey improperly was listed as the country of origin. Rather than declaring the assessed value of the Sargon II head as $1.2 million, the import form incorrectly listed an amount of $6500, according to the court complaint.


Prosecutors sent notice of the forfeiture to Hassan Fazeli Trading Company in Dubai, the potential civil claimant. But after time passed without a reply, on June 17, 2014 the federal district court entered a default judgment, awarding the Assyrian sculpture to U.S. authorities with instructions that the head must be repatriated within 90 days "or as soon thereafter as conditions in Iraq permit."


The court granted an extension for the repatriation after a request made by an assistant prosecutor, who told the court that more than 90 days would be needed to return the artifact "[i]n light of [the] current state of world affairs."


The judge asked why there had been a gap between the 2008 seizure of the artifact and the 2014 forfeiture. The assistant prosecutor responded:

I am not aware of why there was. I can offer that in many cases, your Honor, where there are assets to be forfeited, sometimes there are parallel investigations, criminal matters, and sometimes the government proceeds to file criminal charges in matters and items are forfeited in connection with criminal matters. Sometimes the government decides to just proceed civilly. This is a civil complaint in which the forfeiture is purely in rem and only the item that is at issue is being forfeited.
The assistant prosecutor told the court that a confidential source informed law enforcement officials that
Mr. Fazeli ... was attempting to sell this stolen item or an item that we believe to be removed from Iraq in violation of Iraqi law and in contravention of United States regulations as well. This individual, Fazeli, tried to sell it to the CS [confidential source] and based on recorded conversations, based on an investigation by Homeland Security, eventually was able to ship it to the United States with false documentation indicating false origin, actually indicated that the item was from Turkey.
Federal prosecutors in the Eastern District of New York named Hassan Fazeli Trading Company as a potential claimant in another forfeiture case. The civil case involved three ancient Egyptian limestone reliefs, a block statue, and a funerary boat valued at $57,000. It may be the one referred to by ICE on Monday when officials explained at the Iraqi repatriation ceremony that the investigation into the Sargon II head resulted in multiple seizures of antiquities, including from Egypt.

Docketed as U.S. v. One Ancient Egyptian Fragment Depicting Procession of Offering Bearers et al. and reported by CHL on March 23, 2013, the complaint alleged that the Egyptian archaeological material arrived in a FedEx shipment in August 2010 at Liberty International Airport in Newark, New Jersey. The ancient objects "were sold in and exported from Dubai, UAE by Hassan Fazeli Trading Company, LLC .... [They] were purchased and imported by [Salem] Alshdaifat, by and through Holyland [Numismatics],” claimed the prosecutors.

Alshdaifat pleaded guilty in December 2012 to a misdemeanor charge of accessory after the fact in the case of U.S. v. Khouli et al and received a sentence of a $1000 fine.

At this week's ceremony repatriating the Assyrian head to Iraq, ICE referred to a previous repatriation ceremony with Afghanistan that took place two years ago. The agency has only reported two repatriations to that country around that time, so ICE officials may have been referencing an event that occurred at the Embassy of Afghanistan in Washington, D.C. in September 2013.

At that ceremony, federal authorities returned an ancient Roman oinochoe, three 5th century B.C. gold foil appliques, and two 17th century gold ornaments from approximately the 17th century. ICE explained in an accompanying press release:
On March 21, 2011, U.S. Customs and Border Protection and the HSI New York El Dorado Task Force seized a shipment containing the gold artifacts and the ancient vase at Newark Liberty International Airport, Central Air Cargo Examination Facility, after HSI New York special agents discovered they were destined for a New York City man and later to a New York business suspected of dealing in looted cultural property. Through the investigative process, the antiquities were found to have originated in Afghanistan. On Jan. 25, 2012, the shipment was administratively forfeited.
If these artifacts from Afghanistan were tied somehow to the Assyrian sculpted head fragment from Iraq, that connection has yet to be explained by ICE.

Hopefully the federal agency will provide more complete details describing the investigation, recovery, and return of the Assyrian head fragment now that the matter has been concluded by ICE.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Monday, March 16, 2015

Cultural Property Crime on the U.N. Agenda: Upcoming Crime Conference Set to Tackle Heritage Trafficking

When the U.N. Security Council last month adopted a resolution targeting terrorists' ability to raise money, cultural heritage trafficking took a visible spot on the global stage. Now the U.N. Congress on Crime Prevention and Criminal Justice is set to address the topic at its April meeting in Doha, Qatar.

Representatives from Qatar meet with the U.N. Office on Drugs
and Crime in preparation for the Crime Conference in April.
A pre-conference document frames the discussion for next month’s quinquennial gathering of governments and experts in criminal justice. The document cautions, “Trafficking in cultural property and related offences are believed to be a constantly growing sector of criminality, and an increasingly attractive one for national and transnational criminal organizations.”

Conference participants are expected to urge U.N. member states to embrace the International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offences, adopted by the U.N. General Assembly in October 2014.

The preamble offers straightforward explanations about why the Guidelines were written, and articulates some important clauses:
 Alarmed at the growing involvement of organized criminal groups in all forms and aspects of trafficking in cultural property and related offences, and observing that illicitly trafficked cultural property is increasingly being sold through all kinds of markets, inter alia in auctions, in particular over the Internet, and that such property is being unlawfully excavated and illicitly exported or imported with the facilitation of modern and sophisticated technologies,
…  
Reiterating the significance of cultural property as part of the common heritage of humankind and as unique and important testimony of the culture and identity of peoples and the necessity of protecting cultural property, and reaffirming in that regard the need to strengthen international cooperation in preventing, prosecuting and punishing all aspects of trafficking in cultural property[.]

The Guidelines promote prevention strategies, criminal justice policies, and methods of international cooperation to combat cultural heritage crime. They range in scope from “improving statistics on import and export of cultural property” to encouraging “the widest possible mutual legal assistance in investigations, prosecutions and judicial proceedings.”

Of significance is the Guidelines’ call to transform perceptions of heritage crime from a novelty offense to a serious criminal enterprise that demands a strong legal response. They recommend that nations
consider criminalizing, as serious offences, acts such as:(a) Trafficking in cultural property;(b) Illicit export and illicit import of cultural property;(c) Theft of cultural property (or consider elevating the offence of ordinary theft to a serious offence when it involves cultural property);(d) Looting of archaeological and cultural sites and/or illicit excavation;(e) Conspiracy or participation in an organized criminal group for trafficking in cultural property and related offences;(f) Laundering, as referred to in article 6 of the Organized Crime Convention, of trafficked cultural property.

The U.N. Convention Against Transnational Organized Crime characterizes a “serious offence” as a crime that is punishable by at least four years in prison.

Further updates about the upcoming U.N. Crime Congress may be found here.

Photo credit: United Nations

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Friday, March 13, 2015

Kapoor Idol Trafficking Conspirator Sentenced

A New York criminal court has sentenced Salina Mohamed, one of several individuals implicated in the Subhash Kapoor idol trafficking case.

Chasing Aphrodite wrote extensively about Mohamed’s case after Manhattan Assistant District Attorney Matthew Bogdanos charged the defendant for her role in laundering heritage objects stolen from India.

Mohamed pleaded guilty in December 2013 to a misdemeanor charge of conspiracy in the fifth degree, which is the intent to commit a felony with one or more persons. The prosecution dropped felony charges of criminal possession of stolen property as part of a negotiated plea agreement.

Yesterday, the court handed down a sentence that consisted of a conditional discharge. The conditional discharge means that Mohamed must remain of good behavior for one year or face court-imposed sanctions.

Attorney Bogdanos is a pioneer in the prosecution of international antiquities trafficking cases under state law as opposed to federal law. He holds a masters in classical studies from Columbia University and investigated the looting of the Iraq National Museum in Baghdad during his time in the military.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, March 11, 2015

Endangered Archaeology from El Salvador Protected by Renewed MoU with the United States

Maya mask subject to
renewed import restrictions
with El Salvador.
The United States has agreed to renew a bilateral agreement with El Salvador, which offers protections to cultural heritage in danger. The Central American nation is rich with history, including ancient Maya culture.

The State Department Assistant Secretary for Educational and Cultural Affairs has “concluded that the cultural heritage of El Salvador continues to be in jeopardy from pillage of Pre-Hispanic archaeological resources,” according to the Federal Register. As a result, the U.S. government has extended import controls on endangered archaeological material from that country through March 8, 2020. The terms are cataloged in a renewed Memorandum of Understanding (MoU).

Few offered comments about the MoU when the Cultural Property Advisory Committee (CPAC) considered the renewal.

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP)* backed the renewal, explaining that looting continues in El Salvador and that “numerous El Salvadoran objects that would be protected under the MOU are currently listed on ICOM’s Red List of Endangered Cultural Objects of Central America and Mexico.” LCCHP added that “El Salvador has long played an active role in safeguarding its property through legislation, enforcement, education, creation of inventories, and international cooperation.”

The Association of Art Museum Directors (AAMD), meanwhile, opposed the MoU. In what may be a trend for the organization, the group complained that “El Salvador has benefited from more than 27 years of import restrictions by the United States and in that period … there does not appear to be a significant reduction in looting that can be linked to those restrictions.” The AAMD argued that “El Salvador is one of the best examples of why the current system of simply renewing MOUs is ineffective and inconsistent with the CPIA. The absence of a significant legitimate market in the United States for El Salvadorian Prehispanic objects has apparently had little or no effect on looting in El Salvador.”

The U.S. and El Salvador first entered a bilateral agreement—authorized by the Convention on Cultural Property Implementation Act (CPIA)—twenty years ago, following American-imposed emergency import restrictions on endangered artifacts from the Cara Sucia region in 1987 and 1992. The MoU between the two nations has been renewed every five years since 1995.

Photo credit: U.S. Department of State
*The author is a board member of LCCHP.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Sunday, February 22, 2015

Italy Asks for MoU Renewal to Protect Cultural Heritage

The Italian government has asked the United States to renew a bilateral agreement or Memorandum of Understanding (MoU) restricting American import of archaeological artifacts in jeopardy of pillage.

The protective MoU between the two nations has been renewed twice before. The current agreement, in place since 2011, covers pre-Classical, Classical, and Imperial Roman artifacts from Italy.

The Cultural Property Advisory Committee (CPAC) will meet in public session on April 8 in Washington, DC to discuss the latest request.

To submit written comments concerning the proposed MoU, click hereComments are due to CPAC by March 20 and must relate to one, some, or all of the "four determinations" laid out by the Convention on Cultural Property Implementation Act (CPIA). These include:

(A) whether the cultural patrimony of Italy is in jeopardy from the pillage of archaeological or ethnological materials of the State Party; 

(B) whether the Italian government has taken measures to protect its cultural patrimony; 


(C) whether the application of the import restrictions, if applied in combination with similar restrictions by other nations individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and whether remedies less drastic are not available; and 


(D) whether the application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.


Photo credit: Aculine

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & PolicyResearch, Inc.

Saturday, February 21, 2015

Canadian Man Charged with Trafficking Dinosaur Fossils from China

U.S. District Court in Tucson, AZ.
A man has been arrested in Arizona for allegedly trying to sell dinosaur fossils imported from China to undercover federal agents. Jun Yang, a Canadian, faces criminal charges of archaeological smuggling and wildlife trafficking.

The charges, initiated by U.S. Homeland Security Investigations (HSI), likely will be challenged by defense lawyers because of legal irregularities.

Filed on Tuesday in federal district court (15-mj-07055), the complaint alleges that the defendant
did fraudulently and knowingly offer for sale and sell merchandise, namely one Psittacosaurus fossil and  approximately 15 Hadrosaur fossil eggs, after the merchandises' importation into the United States, knowing said merchandise had been imported into  the United States contrary to law; that is, ... Jun Yang knowingly sold said merchandise knowing that they are cultural property that had been imported into the United States from the People's Republic of China contrary to law, that is specially protected fossils are prohibited  from being sold to any foreigner or foreign organization, all in violation of Title  19, United  States Code  Section  2606(a) [the Cultural Property Implementation Act (CPIA)] and Title  18 United States Code Section 545 [the anti-smuggling law].
...
[and] did unlawfully and knowingly import in foreign commerce, transport, receive and acquire any wildlife, that is one Psittacosaurus fossil and approximately 15 Hadrosaur fossil eggs, knowing that said wildlife were taken, possessed, transported and sold in violation of the laws of the People's Republic of China. all in violation  of Title  16 United States Code. Sections 3372(a)(2)(A) and 3373(d)(l)(B) [the Lacey Act].
The CPIA, which is relied on by Count 1 in the charging document, is the federal statute that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. While the 1970 UNESCO Convention’s definition of "cultural property" includes "objects of palaeontological interest," the CPIA itself only applies to archaeological and ethnological objects. Palaeontolological material--like dinosaur fossils--are not archaeological or ethnological objects by definition. And while the U.S. has signed a bilateral agreement with China that restricts the import of designated Chinese archaeological and ethnological artifacts across America's borders, that agreement does not prohibit dinosaur fossils.

Count 2 relies on the Lacey Act, a federal law designed to protect wildlife and other natural resources. Under the terms of the statute, it is illegal to import or sell designated wildlife that is taken, possessed, or sold in violation of any law, treaty or regulation of the United States. But are dinosaur fossils wildlife? While the statutory definition of "wildlife" includes a dead wild animal or an egg, would either a dinosaur fossil or dinosaur eggs actually be considered "wildlife"?

The defendant's arrest is explained by the allegations contained in the criminal complaint:
On or about February l0, 2015, in Tucson in the District of Arizona, agents of the Department of Homeland Security acting in an undercover capacity walked through the display area at [a gem and mineral show] .... Agents spoke with Mr. Yang about an item displayed and advertised as a Psittacosaurus Fossil. Mr. Yang stated the fossil was 100 to 130 million years old and from the province Henan and was "dug up" in  central  China  approximately 200-300 kilometers south of Mongolia. Mr. Yang stated the price of the Psittacosaurus Fossil was $15,000.00 (United States Currency) and was not negotiable because of the quality of the fossil. Agents heard Mr. Yang  speak with  another  customer regarding egg fossils adjacent to the Psittacosaurus fossil. Mr. Yang identified the eggs as Chinese dinosaur egg fossils  and told  the agents they were Hadrosaur  Eggs, a "duck billed" dinosaur in  China. A sign on the dinosaur egg fossils display box stated "$450.00" for each egg. 
On or about February 10, 2015, agents posing as shoppers ... again spoke with Mr. Yang about the Psittacosaurus fossil .... Mr. Yang stated that he illegally removed the fossils from China, put the fossils in containers with stone carvings, shipped them to the United States and didn't disclose that fossils were in the containers to US Customs and Border Protection, only paying tax on the stone carvings. 
When asked, Mr. Yang said that the exportation of the Psittacosaurus fossil and the Hadrosaur Eggs were in violation of Chinese law. Mr. Yang stated this was only a violation of the laws of China, not US. Mr. Yang stated he has no documents for any of the fossils. Agents asked for permission to photograph the fossils, and Mr. Yang agreed. 
The pictures were later sent to a Subject Matter Expert (SME) who, based on the photographs taken by the agents confirmed the fossils are a Psittacosaurus fossil and Hadrosaur Eggs and were indigenous to certain regions of China. The SME stated that these fossils are of high scientific value. A review of the law of the Peoples Republic of China prohibits the sale of specially protected fossils to foreigners or foreign organizations. 
On or about February 14, 2015 an agent acting in an undercover (UC) capacity entered the Arctic Products Inc. display area posing as a shopper. The UC agent started the conversation with Mr. Yang about the Hadrosaur Eggs that were on display and inquired as to how many they would be able to purchase for five-thousand dollars (USD-$5000.00). Mr. Yang stated that the Hadrosaur Eggs are from China, that they were very rare and that he used to have a lot, but may not be able to get them anymore. Mr. Yang stated that he already sold one (1) Hadrosaur Egg for four hundred fifty (USD-$450.00) but stated he would sell thirteen (13) Hadrosaur Eggs at a discounted rate for five-thousand dollars (USD-$5000.00) to the UC agent. 
The UC agent then inquired about the Psittacosaurus fossil.... Mr. Yang explained to the UC agent that the Psittacosaurus fossil was approximately 130-100 millions years old and it was for sale for fifteen thousand dollars (USD-$15,000). Mr. Yang stated that all the stuff was from China. Mr. Yang stated that he has had the Psittacosaurus fossil for a few years and that it was from the North-Eastern part of China. When asked how he got the fossils out of China, Mr. Yang stated the fossils are put in containers with the stone carvings and "we do not declare, we declare it as stone."
An arrest is not a finding of guilt; it is simply a process that initiates a criminal court proceeding. The prosecution bears the burden to prove that a defendant is guilty beyond a reasonable doubt.

Photo source: U.S. DoJ

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Sunday, February 15, 2015

Cultural Heritage Events in Dallas and Philadelphia You Won't Want to Miss

Roger Atwood
Red Arch board of directors Roger Atwood and Victoria Reed will be featured at two upcoming events you will want to attend.

Atwood will share his vast knowledge of cultural heritage looting on February 20 at the Dallas Museum of Art in Texas. Atwood is the author of Stealing History, a riveting account of the antiquities trafficking underworld. He is a contributing editor at Archaeology magazine and a London correspondent for ARTnews.

Victoria Reed
On March 27 in Philadelphia, Pennsylvania, Dr. Reed will share her experiences as a provenance investigator as a panelist at the Lawyer's Committee for Cultural Heritage Preservation (LCCHP) annual conference. She is Sadler curator for Provenance at the Museum of Fine Arts, Boston. 

This year's LCCHP's conference, co-sponsored by the Penn Cultural Heritage Center, is titled Cultural Property: Current Problems Meet Established Law and presents an all-star cast.

Patty Gerstenblith
Luminaries in the cultural heritage protection field like Professor Patty Gerstenblith of the DePaul Center for Art, Museum & Cultural Heritage Law, Corrine Wegener of the U.S. Committee of the Blue Shield, and many others are expected to offer crisp insights.

Register here today! The conference offers 4.5 CLE credits for lawyers, including 1.0 for ethics.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, February 12, 2015

Combating Terror Funding: Cultural Heritage Trafficking in Syria and Iraq Targeted by Unanimously Adopted UN Security Council Resolution

The United Nations Security Council unanimously adopted Resolution 2199 today. It is designed to strangle terrorists' ability to raise money through cultural heritage trafficking and other criminal sources like oil smuggling and kidnap and ransom.

Adopted under Chapter VII of the UN Charterwhich covers threats to peace, the resolution particularly targets fundraising efforts by the Islamic State (IS/ISIS/ISIL) and Al Nusra Front (ANF).

Ambassador Samantha Power, U.S. Permanent Representative to the UN, told Security Council members, "by imposing a new ban on the trade in smuggled Syrian antiquities, this resolution both cuts off a source of ISIL revenue and helps protect an irreplaceable cultural heritage, of the region and of the world." She highlighted how "the United States has sponsored the publication of so-called “Emergency Red Lists” of Syrian and Iraqi antiquities at risk, which can help international law enforcement catch antiquities trafficked out of these countries."

United Kingdom ambassador Mark Lyall Grant  expressed concern about the "disturbing body of evidence that Al Qaeda groups such as ISIL are generating significant incomes from the sale of oil, kidnapping for ransom and the looting and smuggling of cultural heritage items from Iraq and Syria." Speaking in support of the measure, Ambassador shared his view that the "resolution contains measures to constrain ISIL’s ability to fund their campaign of terror."

In the three paragraphs that cover cultural heritage trafficking, the Security Council declares that it
Condemns the destruction of cultural heritage in Iraq and Syria particularly by ISIL and ANF, whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects; 
Notes with concern that ISIL, ANF and other individuals, groups, undertakings and entities associated with A1-Qaida, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items from archaeological sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks;
Reaffirms its decision in paragraph 7 of resolution 1483 (2003) [that prohibits the trade in Iraqi cultural heritage objects reasonably suspected to have been illegally removed] and decides that all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by prohibiting crossborder trade in such items, thereby allowing for their eventual safe return to the Iraqi and Syrian people and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph[.]
The Permanent members of the Security Council include the United States, United Kingdom, Russian Federation, France, and China. Non-permanent members include Venezuela, Spain, Nigeria, New Zealand, Malaysia, Lithuania, Jordan, Chile, Chad, and Angola.

Russia authored Resolution 2199, and member states have four months to report the steps they have taken to comply with the resolution's aspirations.

Photo credit: Marmit

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, February 5, 2015

Federal Judge Denies ACCG's Motion to Reconsider

Judge Catherine Blake has once again said no to the Ancient Coin Collectors Guild in the case of U.S. v. Three Knife-Shaped Coins Et al.

In a short ruling issued Tuesday, the federal court judge for the district of Maryland wrote:
I have considered the motion for reconsideration ... filed by the Ancient Coin Collectors Guild (“the Guild”), together with the government’s opposition and the Guild’s reply. As I continue to believe that my opinion issued June 3, 2014 correctly interprets the Fourth Circuit’s ruling in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012), the motion for reconsideration is Denied.
Earlier court actions pursued by the Guild have resulted in losses in the federal district courtthe court of appeals, and the U.S. Supreme Court.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Hat tip: Gary Nurkin
Photo credit: Jason Morrison

Monday, January 26, 2015

Be a Judge: The 2015 National Cultural Heritage Law Moot Court Competition Needs You!

DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation are seeking attorneys to serve as judges during the Sixth Annual National Cultural Heritage Law Moot Court Competition. This year’s Competition is the largest and most competitive yet, with twenty-six teams representing nineteen law schools from across the country participating in the 2015 Competition! Oral arguments will be held on February 27-28, 2015 at the Everett McKinley Dirksen United States Courthouse, home of the Seventh Circuit Court of Appeals, in Chicago, IL.

The 2015 Competition centers on constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, which protects visual artists’ moral rights of attribution and integrity. The problem, which can be viewed here, addresses both a First Amendment and a Fifth Amendment challenge to VARA.

Attorneys who serve as judges during the competition may receive CLE credit if they qualify. Each judge also receives a complimentary ticket to the Awards Reception, to be held on Saturday, February 28th in the Grand Ballroom of the Standard Club.  If you are interested in serving as a judge, please download and complete the 2015 Judge Registration Form on the competition website and email it to chmootjudges@gmail.com. Additional information regarding the 2015 Competition can be found at go.depaul.edu/chmoot.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, January 22, 2015

Opposition to MoU's: A Change in Policy for the Association of Art Museum Directors?

Museums are vital to the protection of cultural heritage. They preserve art and artifacts for the benefit of present and future generations, and they inspire visitors, students, and scholars to appreciate and safeguard history.

Most museums are tax exempt charitable corporations, holding the public's trust as stewards of human civilization. They are expected to lawfully and ethically acquire artifacts. They also are counted on to promote policies that preserve cultural objects.

So it is with interest that the Association of Art Museum Directors (AAMD) last Tuesday opposed the renewal of a Memorandum of Understanding (MoU) meant to retain American import barriers on endangered heritage objects from Nicaragua. The group's objection follows a sequence of opposition to MoU's begun in 2014. Does this mark a new policy direction for the organization?

The AAMD is made up of important stakeholders, representing the directors of some of the largest and most distinguished cultural institutions in North America. The group often recites that “it deplores the illicit and unscientific excavation of archaeological materials and ancient art from archaeological sites and the destruction or defacing of ancient monuments” and that it “is committed to the responsible acquisition of archaeological materials and ancient art.” From this point of departure, the AAMD traditionally has supported—albeit softly—cultural property protection agreements authorized by the Cultural Property Implementation Act (CPIA). Lately, however, even this mild support has given way to clear opposition to bilateral agreements, which serve to protect archaeological and ethnological objects in danger of destruction.

By way of background, the Cultural Property Advisory Committee (CPAC) reviews petitions submitted by foreign nations that request American help to safeguard endangered cultural material. The help given takes the form of U.S. import restrictions on archaeological and ethnological objects in jeopardy of looting. The process used to enact these import barriers is defined by the CPIA, the federal statute that gives effect to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The CPIA requires CPAC members to assess whether a requesting government has satisfied four determinations. The full committee then offers a recommendation to the President about whether he should enact import barriers to protect cultural heritage in jeopardy. If import controls are approved by the White House, a Memorandum of Understanding is signed between the U.S. and the petitioning government. The MoU is often referred to as a bilateral agreement.

When Bulgaria requested American restrictions on cultural goods in 2011, the AAMD told CPAC in a written statement that the "AAMD supports the request for a Memorandum of Understanding from the Republic of Bulgaria with … concerns …..” The organization’s concerns seemed to have swallowed its articulated support, but the AAMD, nevertheless, expressly backed the adoption of the MoU. When CPAC considered a renewed bilateral agreement with Guatemala in 2012, the AAMD once again articulated its “concerns,” but it still offered support for the agreement. The AAMD offered similar backing for the Mali renewal in 2012 (“Subject to the concerns set forth above, the AAMD supports the request of Mali for an extension of the 2007 MOU”). Moreover, the proposed MoU with Honduras in 2013 garnered the AAMD’s endorsement, along with the usual tempering language, “Subject to the concerns raised below….”

Cambodia’s request for a renewed bilateral agreement in 2013 notably attracted the organization's clearest affirmation for an MoU (“For the reasons set forth above, the AAMD supports the renewal of the MOU”). The AAMD, meanwhile, did not offer an express objection to the enactment of an MoU with China, even though its position might be characterized as nuanced.

Then, nine months ago, the AAMD struck an entirely different chord, capped by last week's written comment directly opposing the renewal of a bilateral agreement with Nicaragua.

The AAMD’s statement on the renewal of the MoU with Nicaragua voiced unequivocal disapproval. “The AAMD respectfully recommends that the Cultural Property Advisory Committee … decline Nicaragua’s request…." For the first time, the organization included a paragraph captioned, “All Four Required CPIA Determinations Cannot Be Made for Nicaragua,” although the AAMD actually argued that only two determinations could not be satisfied. Regardless, the group expressed clear opposition to the adoption of an MoU.

The AAMD characterized Nicaragua's request as a plea for an “extraordinary type of protection” that could only be granted if the requesting nation itself proved "significant improvement in the protection of cultural property." The AAMD disquietingly added, “Any time that a country requests and is granted import restrictions without strict compliance with the requirements of the CPIA, the entire program contemplated by the CPIA is placed in jeopardy.”

The objection to a renewed U.S.-Nicaragua agreement followed demurrals aimed at petitions filed by El Salvador and Egypt last year.

The AAMD withheld its support for El Salvador’s renewal request this past September, gingerly writing, “The AAMD encourages the Cultural Property Advisory Committee … to carefully review El Salvador’s compliance …  In addition, the AAMD questions whether renewal of the MOU would meet the test of  19 U.S.C. § 2602(a)(1)(C)(i),” one of the CPIA’s four determinations. “Looting does not appear to have been significantly curtailed even after more than 27 years of United States import restrictions,” the organization added, and it asked “whether a new and different approach to an MOU is necessary.”

With respect to Egypt, the AAMD staunchly advised CPAC in May that it “not recommend any memorandum of understanding … between the government of the United States and the government of the Arab Republic of Egypt … or emergency restrictions at this time.” The AAMD questioned the foreign state's request, pointedly quizzing “Is Egypt Meeting the CPIA Determinants?” and answering the query in the negative, simultaneously downplaying archaeologists' observations of site looting in that country. “At this time, Egypt fails to satisfy at least two of the four determinants,” the AAMD flatly contended.

Given its opposition to bilateral agreements between the U.S. and Nicaragua, El Salvador, and Egypt, will the AAMD oppose future requests for American assistance under the CPIA? If this is the group's new policy, will all 237 members back it?

A number of art museums have been traveling a different road. While countless books and news articles have chronicled how museum collections formed, in part, from plundered archaeological, ethnological, and paleontological material, more than a few major institutions have turned away from--or are starting to turn away from--this legacy of loot.

In fact, the past few years have witnessed a greater awareness among art museum administrators of heritage trafficking. In 2013, for example, the Metropolitan Museum of Art repatriated two Khmer sculptures discovered to have been stolen from Cambodia. The Museum of Fine Arts, Boston (MFA) meanwhile, developed a close cultural exchange partnership with Italy after taking fresh steps to resist the accession of contraband antiquities from that country. The MFA even hired a curator for provenance to bring real integrity to its collecting practices. The Cleveland Museum of Art, the Minneapolis Institute of Art, and the Philadelphia Museum of Art joined the MFA, and they are now among the institutions that employ full-time provenance researchers who perform due diligence investigations to find out the true collecting histories of pieces. Dallas Museum of Art director Maxwell Anderson, moreover, spearheaded the effort to deaccession and repatriate artifacts believed to have been looted and smuggled. He earned praise for injecting principles of fairness and transparency to the discussion on heritage preservation as chair of the AAMD's Task Force on Archaeological Materials and Ancient Art.

Whether the AAMD continues to oppose bilateral agreements or chooses a different direction, only the time will tell.

Photo credit: Mike Thorn

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