Sunday, April 28, 2013

Antiquities Looting and the War in Syria

The U.S. Committee of the Blue Shield met earlier this month in Washington, D.C. to discuss the impact on cultural heritage caused by Syria's armed conflict. The Blue Shield is paying close attention to the situation as wartime traffickers spill artifacts onto the black market and looters trade artifacts for guns.

Several news outlets have described the deteriorating situation, including TIME MagazineThe Washington Post, and The New York Times. The April 7, 2013 CNN report below sheds light on how antiquities are exchanged for gun money.



This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Thursday, April 25, 2013

Arguments For and Against U.S.-China MoU Renewal Submitted to CPAC

"The import restrictions are intended to reduce the incentive for pillage and illicit trafficking in cultural objects." That was the conclusion of the United States government on January 14, 2009 when it enacted protective import controls over endangered cultural property coming from China. Now the bilateral agreement, or Memorandum of Understanding (MoU), enacted between the two countries is up for renewal. The current MoU, authorized by the Convention on Cultural Property Implementation Act (CPIA), protects archaeological material from the Paleolithic Period through the Tang Dynasty as well as monumental sculpture and wall art older than 250 years.

The Cultural Property Advisory Committee (CPAC) meets next month at the U.S. State Department to listen to public comment. In anticipation of the meeting, individuals and groups have submitted written arguments for and against the MoU's renewal.

The Virginia Museum of Fine Arts writes that it "endorses the proposal to renew the Memorandum of Understanding and particularly applauds the efforts of the memorandum to enhance collaboration between China and the US in understanding the culture of China and its artifacts of world significance." The museum adds, "Our experience with the Palace Museum [Beijing] has been exceptional – collegial, collaborative, and open."

But Dan Monroe, Immediate Past President of the Association of Art Museum Directors (AAMD) and writing on behalf of the AAMD urges caution. He asks CPAC to
(1) carefully and thoroughly consider the impact of the current import ban on the protection of Chinese art and archaeological material; (2) reject any effort to extend the import ban to material created after the Tang Dynasty; and (3) assure that if the current import ban is extended the Chinese government will assure that it is vastly easier for American museums to arrange short and long-term loans from Chinese museums for purposes of exhibition, cultural exchange, and scholarship.
Monroe questions whether import restrictions have worked. "Speaking from an anecdotal perspective, it seems difficult to argue the current US Chinese import ban has achieved the requirements of the law—to wit, significantly reduced illicit trade or the destruction of archaeological sites." He writes, "The European and other markets for Chinese art and archaeological material covered by the current US import ban remain extremely active. It therefore seems very fair to argue the US import ban has done little or nothing to actually reduce illicit trade or protect Chinese archaeological sites."

Dr. Chen Shen, an archaeologist of Chinese prehistory and a senior curator at Canada's Royal Ontario Museum, disagrees. "I observe that over the past five years, the looting and trafficking of antiquities is slowing down, suggesting clearly the MOU is having an effect," notes Dr. Shen. Writing about his first-hand experiences in the field during the last 15 years, he says:
Over the years during my fieldwork I have observed looting situations. In 2001, during my Palaeolithic archaeology project in Shandong Province I and my team were called to help with a selvage (sic) excavation. A few tombs of Han Dynasty (206 BC – 220 AD) had been looted during a stormy night. When we inspected the site the next day, it appeared to us that these burials had already been looted many times before that night.
...
Ten years later when my team worked in the field in Shanxi province, about 1000 miles away from the location above mentioned, we also encountered looting activities nearby. The tombs that were looted date to 3000 – 2000 years old (the East Zhou period). Local authorities told me that these--if excavated properly--would have been a very important discovery, probably the largest scale ancient noble tombs for that period ever known in this region. Sadly few have survived unlooted. I must say, since I have worked in this region for ten years, that I have seen few significant archaeological objects from this region.... It is clear to me that the objects looted in 2011 could be much more significant given the scale of noble tombs identified from lootings.
Terracotta Warriors (Photo Credit: Steffen82)
AAMD asked the Minneapolis Institute of Art to comment in light of the museum's recent experience with the China Terracotta Warriors exhibition. The MIA explains, "We ... respect the desire of the Chinese government to protect and preserve its cultural heritage, and so support the concept of the MOU, but with changes in Article II ...."  Those changes would include quicker finalization of contracts and object lists, faster processing of passports, assistance with fulfilling the requirements for indemnity insurance, a decrease in premium shipping charges by China Air, simplification of the loan approval process, lengthening exhibition tour times from 52 weeks to up to 60 weeks, and greater availability of First Grade objects.

President Diane Penneys Edelman of the Lawyers' Committee for Cultural Heritage Preservation in her letter of support focuses on "the the ratification of multinational treaties and the creation of bilateral agreements with China as evidence that market countries have joined in a 'concerted international effort' to address the pillage of archaeological sites, both in China and throughout the world."

The Ancient Coin Collectors Guild submitted remarks in opposition to the MoU renewal following the trade organization's three failed court challenges to existing CPIA import restrictions covering ancient Chinese coins. Executive Director Wayne Sayles remarks,
If the provisions of CCPIA had been followed scrupulously and faithfully, the present import restrictions on coins from China would not exist. It might seem expedient for CPAC to look only at the status quo and opt for an extension of the existing MOU as is, but that would merely perpetuate the extremely controversial and highly criticized action of five years ago. Is the committee of today really willing to rubberstamp the actions of that era? Those actions by ECA/CHC [U.S. State Department Bureau of Educational and Cultural Affairs/Cultural Heritage Center], that have been labeled “extralegal”, “arbitrary”, “capricious”, “secretive”, “disdainful”, “unbearable”, “immoral”, “lawless”, “subversive” and “absolutely unAmerican” ought to be examined under a strong light before they are routinely perpetuated by CPAC.
Private collector Alan F. Wurtzel adds, "I believe that the current restrictions are not protecting the cultural artifacts of China or any other country from being looted." He says that "today by far the biggest market for Chinese tomb sculpture is in China" and argues that "Chinese tomb sculpture is highly repetitive and there are often hundreds if not thousands of examples of essentially the same image, many produced by molds." Wurtzel concludes that "[t]he greatest impact of US import restrictions is to deny US citizens the same opportunities as Chinese collectors and most of the rest of the world from enjoying a marvelous artistic tradition that helps to bind the US and China in a common pursuit of beauty and culture...."

President Elizabeth Bartman on behalf of the Archaeological Institute of America's 110 societies and 225,000+ members, by contrast, supports the MoU renewal because of its protection for archaeological context:
As befits a country of the size and geographic diversity of China, the range of archaeological materials and artifacts is vast and ranges from rare jade jewelry to ordinary bronze cookware, from ceramics to textiles to metalwork to sculptures in terracotta and other materials. Many of these works come from tombs, which are by nature scattered in the rural countryside and not easily policed and protected. Their unauthorized removal by looting—which unrestricted imports encourage--is an incomparable loss for both the Chinese and the rest of the world; without systematic and documented excavation, we lose the context of these works and thus the ability to date them, to chart their typological development, and to understand their meaning. We lose potential information regarding trade, social structure (particularly the expression of status and power), attitudes towards death and burial, and daily life, among other topics.

In recent years, Chinese archaeological works have come to be much better-known in the United States through a number of important exhibitions of newly-discovered works
organized by the Chinese authorities.
CPAC meets between May 14 and May 17 to consider the matter.  The public hearing will take place on May 14.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Tuesday, April 23, 2013

Terrorist Financing Risks and the Illegal Trade in Cultural Property

There is sufficient anecdotal evidence to conclude that the illegal trade in cultural property may constitute a source of funding for terrorist networks.* This judgment is tacitly acknowledged by the Financial Action Task Force (FATF), an independent inter-governmental organization that helps to identify, assess, and understand terrorist financing (TF) and money laundering (ML).

I
n recommendations published earlier this year
, FATF expressly takes into account the illegal cultural property trade. 
Its 2013 guidance report titled "National Money Laundering and Terrorist Financing Risk Assessment" describes categories that should be included when authorities assess terror funding and money laundering risks. The report lists illicit trafficking of cultural goods, counterfeiting of antiquities, and the illegal trade of antiquities. The report also identifies art and antique dealers and auction houses as businesses "that may be useful [to include] in building a list of the ML/TF vulnerabilities that can be exploited in regulated entities."

FATF recommends that risk assessments focused on terrorist financing and money laundering "should ultimately allow public authorities to make a judgment on the levels of the risks and priorities for mitigating those risks."

One policy response that authorities might consider is the adoption of record keeping laws that spotlight black market antiquities. Such laws would foster transparency, helping to separate the legal cultural property trade from the illegal trade and serving to identify potential ML/TF crimes. A proposal describing these laws can be found in "Spotlighting Black Market Antiquities with Record Keeping Laws."
____________________
* See e.g., Eti Bonn-Muller, Inside the Israel Antiquities Authority: Interview with Amir Ganor, Archeology.org, 2010, http://www.archaeology.org/israel_antiquities_authority/ganor.html;
Blood Antiques (LinkTV broadcast Oct. 8, 2009); S Fidler, A black art: how the trade in stolen artifacts aids money laundering, organized crime, and terrorism. Financial Times. (May 24, 2003).

Research credit: Jayna Sutherland.  Photo credit: darrendean.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, April 17, 2013

Failed Negotiations Put Ka Nefer Nefer Forfeiture Case Back on the Docket

The U.S. Attorney in St. Louis today told the Eight Circuit Court of Appeals that negotiations have failed in the case of United States v. Mask of Ka Nefer Nefer. Federal authorities are attempting to seize and forfeit the mummy mask from the St. Louis Art Museum and hope to return it to Egypt.

The federal district court in St. Louis twice dismissed the case last year before prosecutors filed an appeal to the higher court. But prosecutors told the appeals court in a January 17, 2013 status report that negotiations might resolve the matter. "It is the hope of the parties that this meeting will result in the parties and the Republic of Egypt coming to terms that will settle this matter in its entirety, such that no further appellate proceedings will be required," the report explained.

Today's report, in contrast, closes the door on any negotiated settlement. It announces:

"In the interim between the United States’ last status report and the present date, the parties have continued to confer in good faith in an attempt to reach an amicable resolution of this case. Unfortunately, the parties’ attempts have so far been unsuccessful, and the United States no longer believes that a nonjudicial resolution of this case is likely in the foreseeable future."

The case will be placed back on the court docket and proceed to appellate litigation.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com  Photo credit woofwoof.

Wednesday, April 10, 2013

American Latino Museum Act Reintroduced in Congress

Photo credit: mpasquini
Lawmakers in both the Senate and the House last month reintroduced bills to create the American Latino Museum.  If passed, the museum's home would fall under the auspices of the Smithsonian Institution.

The identical bills (S. 568 and H.R. 1217) call for the creation of the museum within the Arts and Industries Building in Washington, DC. 

This same legislation was not enacted during the 112th session.

Bob Memendez (D-NJ) is joined by nine other sponsors of the Senate bill, including Harry Reid (D-NV) and Marco Rubio (R-FL). The House bill is sponsored by Xavier Beccera (D-CA34) and by Ileana Ros-Lehtinen (R-FL27).

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Tuesday, April 9, 2013

Three Upcoming Cultural Property Law Programs

Photo credit: Plex
Cultural property law is a fascinating and diverse field.  Knowledge of this area of law is valuable to museum professionals, archaeologists, art historians, paleontologists, collectors, dealers, lawyers, and more.  That is why three upcoming programs are worth exploring.

International Art & Cultural Heritage Law will be taught in Rome by Villanova Law's Diane Edelman.  More information can be found here.

If staying stateside is more convenient, a intensive one week session on Cultural Property Law will be offered by yours truly at Plymouth State University in July.  Register for the Heritage Studies course by clicking here.

In November 2013, the DePaul College of Law will host a symposium on the Repatriation of Archaeological and Ethnological Objects.  More information can be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Friday, April 5, 2013

Peruvian Artifacts Trafficking Prosecution is Worth Watching


A federal grand jury on Wedesday charged four defendants--Javier Abanto-Sarmiento and Alfredo Abanto-Sarmiento of Trujillo, Peru and Cesar Guarderas and Rosa Isabel Guarderas of West Valley City, Utah--with one count each of illegally smuggling and transporting Peruvian artifacts. An indictment is not a finding of guilt, and a defendant is presumed innocent unless proven guilty.

An undercover Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agent cracked open the case last fall when he arranged the purchases of a dozen illegal Peruvian artifacts totaling $23,000, according to an amended complaint filed on March 25. The complaint explains that the purchases uncovered an alleged conspiracy:


Undercover telephone, email, and in-person discussions conducted concurrent to the purchase of artifacts further corroborates [Javier] Abanto-Sarmiento's and [Cesar] Guarderas' conspiracy in trafficking of Peruvian artifacts. Several discussions have resulted in declarations of the following: Guarderas stating Abanto-Sarmiento has access to over one hundred (100) pieces of pottery in Peru and is willing to ship them to the U.S.; Abanto-Sarmiento stating he bribes officials in Peru in order to get the artifacts out of Peru; Guarderas stating Abanto-Sarmiento knows where to look for pottery buried in the ground and that he acquires some of his pottery via this method; Guarderas stating Abanto-Sarmiento has a contact with the Institute of National Culture in Peru who provides Abanto-Sarmiento with authentic certifications stating all of his pottery are replicas; and Guarderas stating Abanto-Sarmiento uses these authentic certifications  to illegally export genuine artwork out of Peru.
The smuggling charge in this case differs from U.S. v. Perez where the defendant was found guilty of illegally importing artifacts from El Salvador in violation of the Cultural Property Implementation Act's (CPIA) import controls. An April 3, 2013 HSI news release recites, "In 1997, the United States and Peru entered into a bilateral agreement prohibiting the importation into the United States of specific cultural property originating from Peru, including artifacts and ethnological religious objects." But the cultural property import restriction on Peruvian cultural heritage--put in place by a Memorandum of Understanding (MoU) adopted pursuant to the CPIA--is not alleged to have been violated. Prosecutors have not charged the defendants with that section of 18 U.S.C. 545 that says "[w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law" is guilty of a crime. The current defendants instead are charged with knowingly and willfully smuggling "merchandise which should have been invoiced, or did make out or pass, or attempt to pass, through the customhouse any false, forged, or fraudulent invoice, or other document, or paper ...." The indictment does not allege further specifics.

The second count alleges a violation of the National Stolen Property Act, and states that the defendants "did transport, transmit and transfer in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud, and did aid and abet therein, in violation of 18 U.S.C. §§ 2314 and 2."

HSI cultural property cases often follow a pattern of "seize and send," whereby illegal cultural objects are seized by authorities and then sent back to their country of origin without criminal prosecution in the United States of the traffickers. In recent years, ICE's seize and send policy has repatriated several art and artifacts to Peru, including in 2012, 2011, and 2010, and 2009.  But it is not often that criminal charges are filed against alleged antiquities traffickers. That is why the Abanto-Sarmiento case is worth watching.

UPDATE January 10, 2014:  The district court yesterday set a schedule in this case as follows: Pretrial Conference set for 1/26/2015. Jury Trial set for 2/9/2015. Pleadings due by 8/18/2014. Expert Discovery due by 10/9/2014. Fact Discovery due by 7/18/2014. Joinder of Parties due by 8/18/2014. In Limine Motions due by 12/15/2014. Dispositive Motions due by 10/14/2014. Pretrial Stipulation due by 12/29/2014.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com.

Monday, April 1, 2013

Prosecutors Seize and Petition to Forfeit Artworks Linked to Money Laundering

U.S. Attorney Paul Fishman
Federal prosecutors have seized and petitioned to forfeit 14 crates of art allegedly used to launder money. In the case of U.S. v. Various Pieces of Artwork, U.S. Attorney Paul Fishman filed an in rem action in New Jersey federal district court on February 22, 2013 targeting 2,251 items, mostly photographs.

Between 2007 and 2012, the CEO of Green Diesel and Fuel Streamers and associates "fraudulently created and sold credits for renewable fuels that were never produced," declares the U.S. Attorney's forfeiture complaint. The parties "laundered the proceeds of their fraudulent activities by layering the proceeds through multiple bank accounts and by purchasing artwork, some of which was shipped to Newark, New Jersey, as part of an effort to hide the proceeds of the fraud and remove the proceeds from the United States ...."

The purchases totaled $18 million, say prosecutors, adding that "a substantial amount of artwork" was to be moved to Spain via the Netherlands after having been transported to Houston, Texas, and Newark, New Jersey.

Federal attorneys cite financial records showing purchases from seven dealers and galleries, including Sotheby's, Heritage Auction Galleries, and Swann Galleries. No wrongdoing is alleged to have been committed by any sellers.

The pieces targeted for forfeiture include photographs by André Kertész, Edward Weston, Eugène Atget, and Alfred Stieglitz.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com