Sunday, February 22, 2015

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: 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

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: 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

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: 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

UN targets cultural heritage terror funding
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 U.N., 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 Al-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: 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

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: 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