Monday, 27 May 2013

Bulgarian Dugup Coin Seizure: The View From Baltimore County

The Bulgarian coin seizure discussed in the past few days seems to have put the jitters among quite a few people associated with the US  trade in dugup artefacts of foreign origin. Maybe it was James T. Hayes Jr., special agent in charge of HSI New York, saying the case would "send a message to those who mistakenly perceive cultural theft as a low-risk, high-return business". Now veteran campaigner and Tompa sidekick Arthur Houghton joins in the discussion on what he calls Peter Tompa's "forum" (recte lobbyist's blog). He reckons:
 the rules (sic) on ownership are clear: those countries that allow an open market in antiquities forfeit their right to claim those antiquities as belonging to the state. 
But, so far, we have been talking about export licences which are nothing to do with "state ownership". Once again the US antiquitist lobby is trying to befuddle us (or is itself befuddled) by trying to present chalk as cheese. There seems a lot of it about in those circles. Whether all, or any, artefacts are state or private property really has no relevance whatsoever to the export procedure, the two are, as I have pointed out several times, totally unrelated. We may use as just one example which should be well known to the US antiquitist lobby (because they are always banging on about it), England and Wales. Here, as in the UK generally,  non-Treasure archaeological artefacts from non-protected sites generally belong to the landowner to do as he or she wishes. They may gift, or sell, them to a finder for example. Nevertheless, in every single case, every find from a metal-detecting holiday, every eBay purchase, an export licence is still needed to send them out of the UK. To come back to the point Houghton was trying to make, nearly all of the recent cases of non-issue or deferral of UK export licences for cultural property have affected privately-owned items.  There really are no grounds for Houghton's dismissive tone, he clearly has himself got confused.

In general, as in many central east-European states, antiquities are vested in the state in Bulgaria, but the conditions under which archaeological finds become private property are given in Art 2a (3) of the ЗАКОН за културното наследство, I suggest people who think like Mr Houghton read it, there is an up-to-date translation into English.  .

Arthur Houghton, still stuck on the topic of "ownership", asserts that “good title can be passed whenthe objects are exported in violation of state laws”. This is a "they cannot touch you for it legality". That may be the case in the US (where all sorts of strange things are regarded as "legal"), but the US is not the only country in the world and it is not the same everywhere, the UK for example (2003 "dealing in cultural objects (offences) act”). This is where, if you analyse them carefully, the so-called codes of ethics of  dug-up dealers come unstuck, they only require the dealer/collector to be "ethical" by remaining merely within the law of their own state, rather than stipulating that any transactions are conducted in accord with all applicable laws. A strange idea of ethics that. Oddly enough though, not even the US always applies this principle like that, for example US citizens who travel abroad for the purpose of having sex with minors have been known to be arrested when back home for a crime committed abroad.It would be useful to see how this precedent could be applied to the trafficking of dugup antiquities. The foreign exporter may be out of reach of US authorities, but the importer who participated in (commissioned, agreed to and financed) the crime should not be.

UNESCO deals principally with restrictions on trade that should apply to “important” cultural property whose export would constitute an “appreciable impoverishment” of the national cultural heritage and defines “cultural property” as items that are “specifically designated” by a State Party as being “important" -- which, in the case of coins, Bulgaria has not done. 
Flubber, flibflam, flippsh - what a mess. I really wonder whether the retired museum professional has actually read the Convention in the last few years, or is he just quoting from (faulty) memory?

Let's deal with the last bit first. Houghton suggests that Bulgaria has "not specifically designated coins" as cultural property that comes under the Convention. For this we go to the much misquoted and on those grounds maligned (in US antiquitist circles) Article 1 of the Convention. Ridding ourselves of coiney misrepresentations of what it says, we find it actually states: 
For the purposes of this Convention, the term `cultural property' means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories... [followed by a list of categories]. 
Check it out. Now, obviously the place in which a state would do this is in the relevant section of the cultural property legislation of that state. Lo and behold, we find the Bulgarians doing that in the  ЗАКОН за културното наследство, in Art. 6.1 and 7.1-3 of the current antiquities law, as updated October 2012. Specifically designated in this legislation are any dugup artefact, and thus including coins, BUT there is an exemption for milled [machine-made] coins (Art. 7.4(1)), but no mention is made there of ancient coins and hammered coins, these therefore are included in the items coming under the term 'cultural property' in Bulgarian law - sanctioned by the convention's Art. 1. That's the easy bit. Houghton simply had not gone to the sources when making his assertions. Certainly not the first time that has happened when any coineys try to make some kind of argument in favour the no-questions-asked trade. I suppose they feel that facts only get in the way of a good story.

So, when you actually check the facts rather than engage in name-calling, it turns out that it is not "flat-out wrong" that "the UNESCO Resolution covers Bulgarian coins". Ancient coins dug up in Bulgaria are indeed covered by the relevant legislation. His suggestion that to assert otherwise is "mendacious poppycock" seems therefore rather to be due to his own misunderstanding of the facts. I am surprised to find that a cultural property lawyer would be posting such misinformation on his blog. I do not expect though either culprit will have the good grace to apologise for his mistake.
So what about the Houghton's notion that "UNESCO (sic) deals principally with restrictions on trade that should apply to “important” cultural property whose export would constitute an “appreciable impoverishment” of the national cultural heritage"? Where does that come from? Well, it is certainly not any text out of Articles 1, 2, 3, or 4 of the Convention. Most importantly it is absent from article 6 (the one about export licences). It is absent from the Convention's articles 7, 8 and the article 9 which the US has such a fixation upon. There's absolutely no mention of it in nine, check it out. It is also absent from articles 10 ("each item"), 11, 12 and 13 (we'll come back to 13d in a moment). You'll not find it in Articles 14-26 too. So where does Arthur Houghton get this idea from? 

The Convention's Article 5 discusses the setting up of specialist national conservation services for the protection of the cultural heritage (something the US has still to do) and then sets out seven tasks such a dedicated organization should carry out (not all of them having any relationship whatsoever to the actual subject of the Convention). Among the functions it postulates is that they should "draft laws and regulations designed to secure the protection of the cultural heritage and particularly prevention of the illicit import, export and transfer of ownership of important cultural property". Mr Houghton seizes on that last phrase. Clearly this relates to that which is deemed important by dint of being defined in the relevant local legislation, as opposed to other manifestations of culture which are not, rather than (as I assume Houghton thinks it should be read), important and unimportant individual examples within the categories defined in the legislation - note that defining that cannot be the domain of lawyers.  This article  of the 1970 UNESCO Convention also tasks the organization with: 
establishing and keeping up to date, on the basis of a national inventory of protected property, a list of important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage.
This is where Houghton gets the idea that the whole convention is about protecting only the objects mentioned in such a list. If the object is not on the list, is it the intention of the Convention's authors that the object should not be protected by export licences? Take the Crosby Garrett Helmet for example, dug up on a Friday, in the auction room on a Monday, not on anyone's list as it was not discovered until just before it was put on sale. Is it the intention of UNESCO that such an item should be exported willy nilly because not previously on an inventory? While the workings of the mind of UNESCO experts are not always clear to us, I hardly think anyone, apart that is from Mr Houghton and his dealer pals over in the USA, would consider that this really was the intention of its authors.

Nevertheless, I would suggest that if Mr Houghton really thinks we should all be bound by such an interpretation of the Convention, he tell us where the US has this specialist national conservation service doing the seven tasks set out in the convention, in particular, where is the US national inventory of protected important public and private cultural property? Let's not have the pot calling the kettle black, more US "don't-do-as-I-do,-do-as-I-say" hypocrisy. If Mr Houghton wants to condition compliance with article 3 of the 1970 UNESCO Convention on Bulgaria showing it complies with every single bit of every single article of the Convention, let the US lead the way by showing that it too has.  Every single bit of every single article, Mr Houghton, the US should in this regard either put up, or shut up.
The States Parties to this Convention undertake [...]  to prevent by all appropriate means transfers of ownership of cultural property likely to promote the illicit import or export of such property [...]  to recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported. 
Note, "certain cultural property" (like dugup archaeological artefacts coming under the antiquities preservation laws), not "certain items of cultural property".  Does Mr Houghton and his dealer and collector pals - citizens of a state party to the 1970 UNESCO Convention - "recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable", or not? If the US does not recognize this, then it should do the honourable thing and withdraw from the 1970 UNESCO Convention which many US citizens have not the slightest interest in, or intention of, "honoring".  

Vignette: The man and the flag he represents

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