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Thursday, January 16, 2014

Bilateral Agreements Adopted Covering Bulgarian and Chinese Heritage in Jeopardy

"[P]romoting U.S. leadership in achieving greater international cooperation towards preserving cultural treasures that not only are of importance to the nations whence they originate, but also to a greater international understanding of our common heritage."
That is the focus of the Convention on Cultural Property Implementation Act (CPIA) according to the 1982 U.S. Senate Report describing the implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

This week marked the adoption of a bilateral agreement with Bulgaria and the renewal of an agreement with China under the CPIA. These agreements, or Memoranda of Understanding (MoU) as they are called, create American import restrictions that hope to curb what the Senate Report calls "the demand for cultural artifacts [that] has resulted in the irremedial destruction of archaeological sites and articles, depriving the situs countries of their cultural patrimony and the world of important knowledge of its past."

Today's Federal Register reports that the State Department's Assistant Secretary for Educational and Cultural Affairs on November 20, 2012 determined under the CPIA, 
"That the cultural patrimony of Bulgaria is in jeopardy from the pillage of (a) archaeological material representing Bulgaria's cultural heritage (a) archaeological material representing Bulgaria's cultural heritage dating from the Neolithic period (7500 B.C.) through approximately 1750 A. D. and (b) ecclesiastical ethnological material representing Bulgaria's Middle Ages (681 A.D.) through approximately 1750 A.D. (19 U.S.C. 2602(a)(1)(A)); (2) that the Bulgarian government has taken measures consistent with the Convention to protect its cultural patrimony (19 U.S.C. 2602(a)(1)(B)); (3) that import restrictions imposed by the United States would be of substantial benefit in deterring a serious situation of pillage, and remedies less drastic are not available (19 U.S.C. 2602(a)(1)(C)); and (4) that the application of import restrictions as set forth in this final rule is consistent with the general interests of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes (19 U.S.C. 2602(a)(1)(D)).
The State Department's decision follows a public hearing held by the Cultural Property Advisory Committee (CPAC) in November 2011.

Monday's Federal Register, meanwhile, chronicles the renewal of the bilateral agreement with China for another five years, saying "The Assistant Secretary for Educational and Cultural Affairs, United States Department of State, has determined that conditions continue to warrant the imposition of import restrictions on the archaeological materials from China."

The renewal includes a so-called Article II agreement that calls on the Chinese government to fulfill certain obligations. For example, the agreement responds to concerns about Chinese loans to U.S. museums--an issue specifically raised by the Minneapolis Institute of Art, which requested quicker finalization of contracts and object lists, faster processing of passports, assistance with fulfilling the requirements for indemnity insurance, decreased premium shipping charges by China Air, a more simplified loan approval process, lengthened exhibition tour times, and increased availability of First Grade objects. The Article II agreement responds, in part, with these terms::
The Government of the United States of America recognizes that the Government of the People's Republic of China permits the international interchange of archaeological materials for cultural, educational and scientific purposes to enable widespread public appreciation of and legal access to China's rich cultural heritage. The Government of the People's Republic of China agrees to use its best efforts to further such interchange by ...  facilitating the approval of loan exhibitions to the United States of America, allowing objects in an exhibition to remain outside China for up to two years, increasing the number of Grade 1 objects allowed in an exhibition; and considering longer-term loans of up to five years of a limited number of objects.
In addition to collaboration, Article II calls for improved law enforcement, saying that the Chinese government "shall increase joint efforts with the Hong Kong Special Administrative Region and the Macao Special Administrative Region to stop archaeological material looted or stolen from the Chinese mainland from being trafficked into and out of these regions" and "shall seek to further implement regulation of its internal market for antiquities, with the aim of reducing unauthorized transactions."

Information sharing is also covered by Article II, which mandates that China "shall provide annually to the Government of the United States of America information and statistics about crimes of theft, clandestine excavation, trafficking (illicit trade and smuggling) and abuse of official power, and, as it becomes available, information about prosecutions and convictions pertinent to the MOU."

The public hearing on the U.S.-China renewal took place in May 2013. Public comments were submitted to CPAC both for and against.

A source of controversy surrounding both the Bulgarian and Chinese MoUs is the inclusion of designated ancient coins among protected the cultural objects subject to American import controls. But the adoption of this week's agreements reconfirms that ancient coins are considered archaeological material by the terms of 19 U.S.C. § 2601 of the CPIA.

Cultural objects covered by the bilateral agreements may legally pass through America's borders when they are accompanied by either an export permit or proof showing that they left the countries of origin prior to the effective dates of the restrictions. Cultural materials protected by CPIA's import controls may be detained, seized, and forfeited by U.S. authorities as contraband. Smugglers may face potential prosecution under criminal statutes.

This post was revised at 8:15 p.m. on January 16, 2014. Photo credit: shho

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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