Sunday, 19 January 2014

Wrong-Headedness on the "First Found Principle" of the CCPIA


US No-questions-asked dugup-coin dealers and other Black Hat Guys are up in arms about something they call the "First Found Principle" of the Convention on Cultural Property Implementation Act. The CCPIA is in fact a misnomer, instead of actually implementing the principles laid down by the Convention, this Act is a tool for US hypocrisy - for it does nothing of the sort. Its compilation back in the 1980s was an attempt to juggle the needs of the US to be seen in the international community (indeed, lead it) to be doing something about the huge market for illicit goods (one in which the USA has long played an important part) while still pandering to the needs of the "powerful group of market capitalists and end-consumers" mentioned by Simon McKenzie the other day. In the event, this atavistic legislation fails totally on both counts and should be scrapped and replaced with one that does the job better. Or if it is not scrapped, the US should repudiate the 1970 Convention on the grounds that it cannot properly implement it.

Since they cannot contemp[late accepting the values which the Convention embodies, US shopkeepers and their lawyers look at this CCPIA and seek ways to undermine it, and they find them, because the law itself is incredibly badly written. You'd think the most powerful nation in the world (then) could at least have got a simple law, regulating such a marginal issue, right. Apparently not. 

This sorry text, therefore, begins by defining what the term 'archaeological or ethnological material of the State Party' means as used by the law. It is here that the shopkeepers and their lawyers find the "first found" clause. But that is where the average coiney runs out of mental stamina and stops reading. They do not notice that tucked away at the end of that first defining section is something called the 'designated archaeological or ethnological material'. They assume this must be the same as the object of protection (the list of designated material is created by a procedure laid down by Section 305 of the Act, a bit most collectors apparently never get to, which is another source of confusion).

The subsequent text of the Act then contains some mumbo-jumbo setting into operation a series of procedures of wholly Byzantine aspect. In other countries, some of this would have been relegated to an Executive Order. But then we come to the key part of the Act, section 307 (Import Restrictions) and in particular its first part "Documentation of legal Exportation":
No designated archaeological or ethnological material that is exported (whether or not such exportation is to the United States) from the State Party after the designation of such material under section 305 may be imported into the United States unless the State Party issues a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party.
The law (section 307 subsection b) is again poorly-drafted, for it allows other forms of documentation to be acceptable as evidence too.

The point however is that the "designated list" defines objects which should be closely examined at the point of entry to the US, and if the documentation is in order can pass through with no problem. Documentation has to be provided for these objects to show that the object (a) is not 'archaeological or ethnological material of the State Party' (and it is here that the 'first found principle' is important) and/or (b) if it is, it has been exported legally. There is a third possibility, if the documentation shows that a designated object has been in another country longer than a period specified by the US law, regardless of where it was actually dug up, it is not treated by US law as 'archaeological or ethnological material of the State Party'  (even if it had been originally).

It is unclear to me whether collectors, dealers and their lobbyists are failing to differentiate the different categories of artefact and evidence implicated in the CCPIA. Is it solely due to reading difficulties, or is something else involved? 

As readers of this blog will know, this 'first found principle' has become embedded in the challenge of the dugup antiquity dealers against the application of the CCPIA to them. The ACCG has staged an importation of Chinese and Cypriot coins which does not comply with the measures defined by the CCPIA. They are now engaged in a series of court cases, wasting public money, to try and get a judgement excusing them from being compliant with the CCPIA and its bilateral MOUs. But it really is a puzzle why they chose London as the place to export the coins from. Do they want the court to believe that ancient coins of Cyprus circulated in ancient Britain, alongside Chinese cash coins of various dates?

12 comments:

Cultural Property Observer said...

You are really tiresome. You are putting the cart before the horse. Let me break it down for you once more as simply as possible. It's a basic proposition that countries only have jurisdiction over archaeological material found within their own borders. Hence, for archaeological material to be restricted it must be "first discovered within" and subject to that country's export control of a specific UNESCO state party. That's in the definitions of the CPIA. The CPIA then provides that CPAC will provide advice on what artifacts should be placed on the designated list in part based on whether they were of the sort that can only be first discovered and subject to the export control of a specific country. This is reemphasized again in the provision discussing Treasury's (now Customs') preparation of the designated list. Congress indicated that Treasury is to make sure that the designated list only has artifacts on it that are covered by an MOU, which under the definitions provision had to be first discovered within and subject to the export control of a specific UNESCO state party. The certifications assume as much-- they go to whether an item has an export certificate and proof when it was out of the UNESCO state party-- there is an underlying assumption that the artifact was first discovered there.

Paul Barford said...

No, first READ what I wrote, OK?

You are the one being tiresome. You and your insulting friend who only want to dodge any discussion and dismiss anyone who, for whatever reason thinks differently from them.

I argue here, perfectly logically, that it is YOU who are putting the cart before the horse. READ IT, please. Then come back and discuss what I said properly, not what you think I said. OK?

If an individual object coming through US borders is documented as not having been found in the state party (let us say a Tanagra terracotta found in a shipwreck in Libyan territorial waters), then is it covered by the US/Greek MOU even though it is on the designated list? No.

Are you saying that Tanagra figures (or anything else that was put on a ship and moved from one place to another in the ancient world) should not be on the list because some examples are (or could be) found in other countries?

Are you, yes or no?

PS, unlike, it would appear, many US coin collectors, I have actually read the CCPIA from front to back and back again, many many times, you REALLY do not need to tell me what it says)

James Chapman said...

You say:
"Documentation has to be provided for these objects to show that the object (a) is not "archaeological or ethnological material of the State Party" (and it is here that the "first found principle" is important) and/or (b) if it is, it has been exported legally."
Well, (b) above is correct, but where is justification for (a)? I see no such requirement in the CCPIA, but perhaps I missed it.

Ross Glanfield

Paul Barford said...

Yes, I think both James Ross and Chapman Glanfield in Sydney missed it. I guess you are on your own as I suspect it is unlikely that coin dealers and their lobbyists have any interest in explaining it to you. Try thinking about it.

Note the Tanagra figure example and ask yourself why Peter Tompa has not answered that question.

James Chapman said...

No actual answer given.
So let's press on - you say:
"They do not notice that tucked away at the end of that first defining section is something called the "designated archaeological or ethnological material". They assume this must be the same as the object of protection (the list of designated material is created by a procedure laid down by Section 305 of the Act,..."
Well, aren't they the same? And if not, how do they differ?

Ross G.

Paul Barford said...

Well, you are asking the same question, without - I'll wager - having first turned to the text of the CCPIA and exploring it yourself. As I said, consider the Tanagra figure and work from there, and your question will answer itself.

Once again, a collector is expecting someone else to hand it to them on a plate with zero mental effort from them.

Actually, it is not my obligation as a British archaeologist working in Poland to answer the question of an Australian coin collector about a badly-written US law!

The problem is, isn't it, that the very person ancient coin collectors should be able to turn to to give them an objective answer might be considered to have a personal interest in keeping them confused because he earns money by getting them to send uninformed comments to the CPAC as part of his own (paid) lobbying campaign.

And while collectors continue to expect (as you) to have everything handed on a plate and not doing any footwork themselves, the ACCG will continue to capitalise on their ignorance.

James Chapman said...

Well, you would certainly lose that wager.
In fact I have the CCPIA in front me, and am very familiar with it. The problem is that some of the points you made in your initial post seem to me to be either rather obscure (my second question) or not in agreement with my understanding of the act (my first question). All I am trying to do is clarify a few points, but clearly you are uninclined to assist me.
And the Tanagra figure doesn't enlighten me, although I get the general point.

Ross G.

(But why does the spellchecker dislike uninclined?)

Paul Barford said...

Everybody with a computer also has the CCPIA right in front of their nose, a mouse click away. The problem is few wade through it, I'm glad you did.

I wonder though whether you are reading it from the point of what is convenient for the trade (which is Mr Tompa's approach because he's retained by the dealers), and what the law actually says.

So think (in that light) again about the Tanagra figurine and what you'd do to import it legally and without any hassle, despite it being on the Designated List.... That surely answers your first question.




James Chapman said...

I'd provide evidence (easy in this example) that the figurine left the source country before the MOU came into force, i.e, documentation under Sec. 307(b)2(B).
However that seems to be quite different from the requirement that you initially stated, namely that
"Documentation has to be provided for these objects to show that the object (a) is not "archaeological or ethnological material of the State Party" (and it is here that the "first found principle" is important)...".
which seems to have no foundation in the act, which is why I asked my first question.

Ross G.

Paul Barford said...

Yes, you see, easy when you try.

The figurine in my example however not only "left the country before the MOU" but was not "first discovered within". So in other words, objects can be on the designated list without that meaning that every single example everywhere in the world is (therefore) "archaeological or ethnological material of the State Party". By virtue of the fact that you have shown that it is not "archaeological or ethnological material of the State Party" you can take it through US customs because your particular example is not covered by the terms of the MOU. The Designated objects list serves thus like a watch list.

Let me stress again, I am talking about the wording of the law, not the convenience of collectors and dealers who might want to buy stuff which has no proper documentation. The latter "might" have problems. But that is a separate issue from ACCG accusations that the law is being ABUSED by US government officials because "they" are "ignoring" the "first found principle".

I think you'd have similar problems if you tried to import beef or potatoes into the US which came from a seller who does not have the required paperwork.

James Chapman said...

OK, I concede your point (that designated archaeological material has to have been first found in the source country), so that archaeological material first found outside the source country is not subject to the import requirements of the CCPIA.
It is still noticeable though that the act doesn't explicitly mention this possibility, and in particular that the documentation requirements of Sec. 307 don't cover it (because they only cover designated material).
The ACCG of course claimed that Customs should have had to prove that the coins in question had been first found in their source countries.
Logically, that makes some sort of superficial sense, but the courts said that the onus was on the importer to prove the coins were first found somewhere else, (apparently) because otherwise the import restrictions would be virtually unenforceable.

Ross G.

Paul Barford said...

Well, I think if the ACCG turned up at the US border with a shipment of beef or potatoes without the relevant EU health certificates (for example) they'd be told they can't take them into the US, period and no amount of arguing that "US customs should prove the goods are diseased, and if they cannot they should let them in" really would wash. Don't you?

But again, the point is not what is convenient for the dealers which is in question here, it is what the law says and how the ACCG are twisting it around to suit them.

 
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