Monday, April 23, 2018

Cultural Property Groups Weigh In on China MoU (including how to watch the May 2, 2018 CPAC hearing live)

China United States cultural property MoU

The cultural property Memorandum of Understanding (MoU) between the United States and China is up for renewal.

The MoU memorializes the two nations' bilateral agreement--first adopted in 2009 and later renewed in 2014--that imposes American import restrictions on endangered Chinese archaeological objects. These protections are authorized by the Convention on Cultural Property Implementation Act (CPIA), the federal law 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 MoU renewal under consideration covers artifacts dating from 75,000 B.C. through 907 A.D., as well as monumental and wall art 250+ years old.

The Cultural Property Advisory Committee (CPAC) will hold a public hearing on the matter on Wednesday, May 2 at 3:00 p.m. EDT. This portion of the meeting is expected to last an hour. You can watch the proceedings on the web by clicking here.

Before next month's meeting, written comments were submitted to CPAC expressing both support and opposition to the renewal of the bilateral agreement.

The Association of Art Museum Directors (AAMD), made up of about 240 major art museum directors in North America, wrote in support of the renewal, emphasizing "the excellent cooperation that exists on numerous levels between American museums and their Chinese peers." But the professional association voiced concern about China's past compliance--or lack thereof--with the existing bilateral agreement. In an eight page statement, the AAMD outlined several problems, including that:
  • China had not used best efforts to allow museum exhibition objects to remain outside its borders for up to two years. "[T]he AAMD has not discovered any Chinese loan to AAMD members (or anyone else) made in the last five years with durations longer than one year, much less two." Short exhibition durations increase loan fees and costs and "make organizing an exhibition in the United States challenging."
  • China had not adequately supplied choice objects for American museum exhibitions. "Though the [current] MOU requires an increase in the percentage of Grade 1 items permitted in an exhibition (currently 20%), the AAMD observed little change."
  • There were high museum loan fees, "which are to some extent mandated by a system in China requiring museums to generate substantial revenue through object loan fees." "Despite [China] being required to encourage museum loans of archaeological material, including recently excavated objects, for research and public display purposes, as well as to facilitate loan exhibitions to the United States, significant barriers remain."
  • The MoU favors the Chinese art market to the disadvantage of the U.S. art market. "[T]he United States should not be a market for looted antiquities, but the United States market should not be restricted in order to advantage other markets."
  • China still has no immunity from seizure law that protects American art loaned to China from government seizure. "China benefits from the immunity from judicial seizure statute in the United States when loans are made to American museums .... While many of the major marketplace countries of the world have adopted immunity from seizure laws ... China has no such protections for works of art entering its borders on loan."
  • The MoU's designated list of protected archaeological objects needs to be rewritten. "The list is overly broad, the categories sometimes incorrect, its descriptions provide little guidance for customs officials, and in many respects, it fails to put importers on fair notice of what can and cannot be imported."
The Antiquities Coalition (AC) voiced strong support for the MoU renewal. Attorney and archaeologist Tess Davis, executive director of the nonprofit whose mission is to combat antiquities trafficking, wrote: "Our organization ​believes that MOUs between the United States and foreign governments like China are an important tool in the fight against cultural racketeerin​g." The AC observed that China "is in effect one large archaeological site," making "this ancient history ... difficult to protect from looters and traffickers."

Davis pointed out that the original MoU, adopted in 2009, came on the heels of a crisis in the illicit trade in antiquities, prompting the publication of an International Council of Museums Red List to spotlight endangered Chinese artifacts. "However, despite much progress in the fight against cultural racketeering, China’s ancient sites remain at risk, and will so long as there is an illicit market for its art and artifacts," she added.

The AC observed that the U.S. is "a major destination for Chinese antiquities, both licit and illicit" with Davis writing that the "American market for Asian art is still the 'Wild, Wild East,'" noting that "one of the most prominent U.S. dealers of Chinese antiquities, Nancy Wiener, is now facing felony charges." "Clearly there is still a need for the U.S.–China MOU," the AC concluded.

Attorney Peter Tompa, writing on behalf of the Committee for Cultural Policy and its sister organization Global Heritage Alliance, voiced opposition to the renewal of the bilateral agreement. "[I]t is impossible to reconcile the MOU's import restrictions with the booming market for Chinese artwork and antiquities in Mainland China," the Washington lawyer and lobbyist wrote. " The rise in demand for Chinese artwork and antiques in China indicates that the Chinese government sees antiques not as something to be protected, but as something to be commodified and enjoyed by Chinese citizens even as the U.S. on China's behalf seeks to restrict the supply of such objects to its own citizens."

Tompa also submitted an opposition letter on behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild urging that "CPAC recommend either suspending the current agreement with the PRC [People's Republic of China] or delisting all bronze 'cash type' coins." Tompa is the attorney pursuing the long-running Baltimore coin test case.

This round's MoU renewal process between the U.S. and China takes place against the backdrop of several flashpoint issues, including a battle between the two nations over tariffs, China's expansion in the South China Sea, the Chinese government's intensified campaign targeting Christian churches, its role in the North Korean nuclear crisis, and its human rights abuses as chronicled by last Friday's U.S. State Department report.

CPAC's role is to give advice the White House when foreign nations petition the U.S. for help under the terms of the 1970 UNESCO Convention to protect cultural heritage in jeopardy of looting. All CPAC's eleven current members were appointed or reappointed by former President Barack Obama.

The MoU renewal is formally docketed as Memorandum of Understanding Between the Government of the United States of America and the Government of the People’s Republic of China Concerning the Imposition of Import Restrictions on Categories of Archaeological Material from the Paleolithic Period through the Tang Dynasty and Monumental Sculpture and Wall Art at least 250 Years Old (DOS-2018-0013-0018).

Photo credit: Lyndon Smith/

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