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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 time will tell.

Photo credit: Mike Thorn

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 15, 2015

U.N. Report: Destruction of Heritage Flagged as Risk Factor Related to Atrocity Crimes

The destruction of objects of cultural or religious heritage is a signature feature of  genocide, crimes against humanity, and war crimes. That is the assessment offered by a recent United Nations report examining, what are collectively called, atrocity crimes.

Published by The Office of the Special Adviser on the Prevention of Genocide, Framework of Analysis for Atrocity Crimes: A Tool for Prevention describes risk factors associated with grave criminal conduct directed toward specific groups, civilians, and legally protected populations.

Several threats to cultural and religious heritage are listed by the report "that point to the likelihood that certain actors are taking steps towards a scenario of mass violence and possibly atrocity crimes." The risk factors include:
  • The "[d]estruction or plundering of ... property related to cultural and religious identity;"
  • "Attacks against or destruction of ... cultural or religious symbols and property;
  • "Signs of patterns of violence against civilian populations, or against members of an identifiable group, their property, livelihoods and cultural or religious symbols;" and
  • "Threats or appropriation, seizure, pillaging or intentional destruction or damage of ... property that belong, represent or are part of the cultural, social or religious identity of those protected under international humanitarian law, unless used for military purposes."
The report should prompt collectors of cultural property, who fail to use rigorous due diligence when purchasing objects, to carefully evaluate how their acquisitions of conflict antiquities or wartime looted art contribute to atrocity crimes.

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, January 12, 2015

Back Again: A Bill Weakening the NHPA Has Been Proposed in the House

A bill that would weaken the National Historic Preservation Act (NHPA) is back on Capitol Hill.

Last week, California congressman Darrell Issa (R-CA-49) introduced H.R. 135, the latest incarnation of an earlier legislative proposal that would empower a single federal agency head to unilaterally prevent a property from placement on the National Historic Register or from designation as a National Historic Landmark.

The bill seeks to amend  the NHPA so that the head of the agency managing federal property can deny--based on unspecified national security grounds--historically significant properties from receiving federal protection.

The bill has been referred to the House Committee on Natural Resources.

[UPDATE 1/12/15 5pm]: The text and title of the bill have been released. Known as the Military Land and National Defense Act, its text may be found here.

Photo credit: Ben Shafer

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.