Tuesday, August 9, 2011

Judge Dismisses ACCG Challenge to Cultural Property Import Protections - Acknowledges President's Foreign Policy Role in MoU Process

Judge Catherine C. Blake of the United States District Court of Maryland yesterday dismissed the Ancient Coin Collectors Guild’s lawsuit against the federal government. The federal district court decision essentially declared that the ACCG failed to make out a sufficient case.

The ACCG set up a test case to challenge protective American import restrictions placed on Chinese and Cypriot ancient coins when the organization imported 23 from a London dealer in 2009, bringing them to Baltimore on a British Airways flight. The enactment of the import protections followed the president’s adoption of bilateral agreements with China and Cyprus under the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements in the United States the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

The court supplied a comprehensive 52 page memorandum outlining its reasons for dismissal. While many observations are worth noting, three are discussed here.

First, the ACCG’s challenge to the protective import restrictions failed to establish a meritorious legal claim on all counts. The court discharged the ACCG’s case in its entirety, even while assuming that the facts asserted by the organization in its legal complaint were true and construing any inferences in favor of the ACCG. The ACCG, naturally, may appeal but for now Judge Blake’s order stands: “[T]his case is dismissed; and . . . the Clerk shall CLOSE this case.”

Second, the court recognized that the negotiations and implementation of a bilateral agreement adopted under the CPIA involve the president’s broader role in foreign policymaking. A passage from Judge Blake’s memorandum is instructive:

“[W]hen those agencies [such as the State Department] act on behalf of the President, the separation of powers concerns ordinarily apply with full force—especially in an area as sensitive and complex as foreign affairs. As with respect to almost any international agreement, the decision whether to enter an Article 9 agreement [under the 1970 UNESCO Convention] with a particular country does not occur in a foreign policy vacuum. The decision necessarily will involve a variety of considerations beyond those set out in the CPIA, including the broader relationship between the United States and the requesting country and the potential impact of such an agreement on the United States’s relationships with other countries. Those considerations exist regardless of who ultimately negotiates and enters the agreement, the President or the Assistant Secretary [of State for Educational and Cultural Affairs] on the President’s behalf. Furthermore, by lodging primary responsibility for imposing cultural property import restrictions with the President, rather than with an agency, Congress likely recognized these separation-of-powers concerns. While the parties have not pointed to a conclusive explanation in the CPIA’s legislative history, Congress likely concluded that deference to the President was appropriate given the foreign policy considerations inherent in deciding whether to impose import restrictions.”

Finally, the court acknowledged the federal government’s authority to ban the importation of undocumented ancient coins. Judge Blake noted that the thrust of the CPIA is to mitigate the theft of cultural heritage. She intelligently observed that “[l]ooted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” Judge Blake therefore concluded that “the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department’s authority under the CPIA.”