By Wayne Sayles – Ancient Coin Collecting Blog ….
The Convention on Cultural Property Implementation Act of 1983 (CCPIA) has been in effect for more than 30 years and was massaged through the legislative process over a 13-year span. The fact that this law has withstood many challenges and is still regarded by most as a fair and well-thought-out piece of legislation, places it in a class with few parallels. The reason for that can surely be ascribed in part to a deliberative process in its creation that focused intently on well articulated concerns from diverse interests.
Mark Feldman, representing the U.S. State Department before a Congressional panel held in Washington D.C. on December 28, 1975, clarified for the panel an important point of the 1970 UNESCO Convention. In response to a question from Professor James A. R. Nafziger, Mr. Feldman replied:
“…Article 4 of the UNESCO Convention specifically provides that the term ‘cultural heritage’ includes all cultural property found within the national territory whether it originated there or not.”
Mr. Feldman used the Elgin Marbles in the British Museum as an example, saying “England can claim the Marbles, because they would constitute a part of its cultural heritage as defined by the UNESCO Convention.” The operative feature of that accord, as explained by Mr. Feldman to Congress, is based not on where an object was created, but where it could be found as of 1970 or later. Everyone knows how the Elgin Marbles ended up in Britain and UNESCO has, according to the U.S. State Department, validated the British claim to them. That position seems to remain unchanged since the State Department has recently assisted in repatriation of ancient artifacts to Italy that were originally manufactured in Greece and sometime between their creation and 1970 had migrated to Italy where they would have been “first found” and “subject to export control”. The legislation that enabled this Resolution, 13 years after the fact, was very carefully crafted and many of the issues in contention today were equally contentious at the time of its consideration and eventual enactment.
The basic premise of CCPIA is that “significant” cultural property at risk of pillage or theft may, under certain conditions, be prohibited from entering the United States. This is accomplished by adding clearly defined objects to a “designated list” that serves as the basis for potential Customs detention or seizure. Under the law, there are numerous protections designed specifically to prevent maladministration and abuse of its provisions. The fact that some objects transfer internationally without proper authority is an unfortunate fact of life and numerous international laws prohibit illicit trade. Law enforcement agencies world-wide are busy interdicting “black market” trade and do a respectable job in many cases. There are cases, however, where ideology and professional ambition supplant the rule of law. This can be as damaging to justice as illicit trade. One of the tenets of major concern in a democracy is the burden of proof. Legislators, bureaucrats and law enforcement officers are, in a democratic society, restrained by the burden of proof—as a constitutional matter. In its most simplified form, an accuser bears the burden of proof, not the accused.
Mr. Feldman had something to say about burden of proof in the deliberations prior to enactment of CCPIA:
“One issue where the burden of proof is placed on the Government is to demonstrate that the object fits with the proscribed list. The Government must show both that it fits in the proscribed category and that it comes from the country making the agreement. So the burden of proof of provenance is on the Government, a burden which I don’t think has been appreciated by all the critics of the legislation.”
He went on to say:
“To put the burden of proof of provenance on the importer may be the only truly effective way of avoiding the importation of objects illegally removed from their countries of origin. But we in State Department have not promoted that solution, recognizing that where the facts are obscure, U.S. collectors should not be precluded from competing for the material.”
This compromise position of the U.S. State Department was accepted by lawmakers in the final version of the law that was enacted. It is still embodied within the letter and intent of that law. Unfortunately, it is no longer enforced with the same intent by State and Customs. Current bureaucratic philosophy and rule-making no longer embodies the protections of law that legislators fought so hard and long to assure. Instead, in case after case, State has created and Customs has applied MOU-designated lists that include ancient coins under very broad categories with no consideration of their cultural significance nor of other caveats provided under law. If, for example, a Roman Republican coin of even the most common generic type is imported into the United States today it must be accompanied by an export permit from Italy or proof that the coin was already outside of Italy prior to the date of the first MOU in which these coins were included. In other words, the coin must have a verifiable provenance, placing the burden of proving legitimacy upon the importer.
Ironically, Mr. Feldman also had some words to say about provenance:
“In most cases, it is impossible to establish the provenance of a particular coin or hoard of coins. Therefore, there would be no reason for the United States, in most cases, to list coins as one of the categories of objects or archaeological or ethnological interest that would be included in the agreement.”
He was right about the provenance issue, but not about State Department intentions.
In 1975, the fundamentalist wing of the Archaeological community in America had not yet established the level of peer domination and political influence that it wields today. Feldman could not have anticipated the changes that would come nor the day when even academic law professors would refer to State Department administration of CCPIA as “extralegal”.
Mr. Jay Kislak, former Chair of the Cultural Property Advisory Committee (CPAC) criticized the committee’s lack of transparency as “unAmerican”, stating in a public forum that
“In every other branch of government, there is disclosure, and information is made public. We have a democracy, and it is government of the people, for the people, by the people, not by the bureaucrats over them.”
In the same forum, another former CPAC chairman, Jack Josephson, said: “…[R]arely has Committee membership been in conformance with the Act.”
Former CPAC member Kate FitzGibbon added that “In many cases, from my plain reading, the Committee has substantively altered Congressional intent.”
Former CPAC member Robert Korver resigned in protest from the committee over similar issues. CPAC is one of the most important protections built into CCPIA, but in the past decade it has become a perfunctory enabler for State Department interests.
In the eyes of private collectors, independent scholars, non-academic affiliated museums, and members of various trade organizations and small businesses, CCPIA is doing more harm today than good. Not because elements of the law are no longer apropos, but because the law is no longer enforced as written and countless appeals for redress have gone unanswered by the bureaucracy and the courts. There can be little doubt that the current trends will eventually see a correction. In the meantime, we should all look to the rule of law for a rational way to co-exist.
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