Friday 22 November 2013

CCP: Reform U.S. Law and Policy on Cultural Property (1)

I've been trying to read through the recent "White Paper" of the Committee for Cultural Policy "A Proposal to Reform U.S. Law and Policy Relating to the International Exchange of Cultural Property". It is a depressing experience. You would think in this day and age, whoever they were, this "Committee for Cultural Policy"  would try and suggest they understand why there are concerns about the international movement of cultural property and at least go through the motions of pretending that they too are concerned and want to do something to help resolve the problem. If that's what you think you'll find there, do not waste too much time looking for it. Over on page 36 the author, one William Pearlstein, uses the Ka Nefer Nefer mummy mask, the Mongolian dinosaur case ('Tarby' and the other bones)  and the  Sotheby's-Ruspoli di Poggia Suasa knocked-off Koh-Ker statue (part of a recently dismembered figural group) as examples of "extralegal forfeiture" that should not have happened. Astounding. He apparently thinks that US dealers, collectors and museums should not be subject to any legal restraints at all, even in such cases as these.

Right at the beginning we get a taste of what is to come:
It is relatively little known that U.S. criminal law -- both Federal and state -- can automatically be triggered by foreign national ownership laws, and that Federal agents can and frequently do seize objects that have been legally acquired abroad but presumptively fall within a foreign ownership claim. 
Firstly if it is "relatively little known" among the buyers of such items that there are legal constraints on the activity, it does not bode well. Secondly - and more importantly - what part of "taking sometyhing out of the country" does Mtr Pearlstein not understand? What is not at issue in this whole business is not the buying and ownership within a foreign country, it's walking off with it that causes the problems. One can buy Lord Percival Farthright-Fortescue's Titian, no problem, but to take it from Christie's to Topeka legally you need an export licence. That does not seem to me to be too difficult to understand, and it's a constant source of amazement to me that Americans simply do not get it. Neither do I see much of an attempt to "generate a dialogue" which the author glibly contends is his intent. To have a dialogue needs a little awareness of what the issues are - something which is totally absent from this document.
The White Paper offers five specific proposals to rectify the profoundly confusing situation that currently exists. Four involve changes to law or Federal agency practice; the last envisions the creation of a privately-held object database [...]. Each represents a positive step; taken together, these five proposals would establish a unified, integrated, and internally consistent policy governing the importation and ownership of ancient artworks and other cultural materials by Americans and U.S. museums.
The author forgets to mention that it would so emasculate the already pathetically inadequate US legislation currently serving to attempt to regulate the market, that collectors and dealers would be able to get away with virtually anything. These proposals provide no extra protection for the world's cultural heritage from the excesses of the greedy US market, on the contrary. Nasty, nasty, nasty.

Just in case anybody's interested, Pearlstein's four proposed legal changeds are as follows:

"1. Amend Criminal Law". Make collectors and dealers immune to any kind of legal sanctions unless caught involved in "actual theft of provenanced or site-specific objects". The whole point is of course that most of the material on the market has had its provenance removed, either by carelessness or deliberately.

"2. Ensure that Customs Practice Conforms with U.S. Law". Make any forfeiture of imported cultural subject to proof of actual theft:
whether the foreign law in question amounts to a clear and unambiguous declaration of national ownership, or is domestically enforced, or was in effect on the date of export, or whether the importer knew or consciously avoided knowledge of the applicable law at the date of export. 
Hang article 3 of the UNESCO Convention. So basically a dealer would not be done for smuggling a whole load of antiquities, Icklingham bronzes, a trunkload of Crosby Garrett Helmets or Vindolanda tablets from England, which has no laws and has difficulty mobilising itself to enforce what laws it has.

"3. Ensure that the Legal Requirements of the Cultural Property Implementation Act are Followed" Yawn. No surprise there. Coineys all over again. Absolutely no inkling of the thought that perhaps this cruddy old law needs reforming in itself to actually implement the main principles of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. He wants to move "the stewardship of" the Cultural Property Advisory Committee to the Department of Commerce or Department of Education, alienating it  from the Bureau of Educational and Cultural Affairs to reduce its role in advising US cultural policy making.
Promoting Mutual Understanding
- See more at:

"4. Harmonize ARPA". I'll agree with that one. But what a shame that Pearlstein did not suggest adding a US law that obviates the need to try and use ARPA to do something that it was not designed to do.


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