Sunday, March 15, 2009
Friday, March 13, 2009
On March 11, 2009, the United States and Honduras extended their Memorandum of Understanding that restricts the import into the United States of Pre-Columbian archaeological materials. The United States enters into MOUs or bilateral agreements with other States Parties to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property under Article 9 of the Convention and the U.S.’s implementing legislation, the Convention on Cultural Property Implementation Act. These agreements last for a maximum of five years but can be renewed an indefinite number of times.
This agreement is substantially the same as the 2004 agreement with Honduras, the text of which can be found at: http://culturalheritage.state.gov/hnfact.html. Pre-Columbian objects that belong to one of the designated categories and are therefore subject to import restriction may enter the United States if accompanied by an export license from Honduras or if they left Honduras before March 12, 2004, the date of entry into force of the original agreement. The Federal Register notice may be found at: Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations 10483.
Monday, March 9, 2009
Law Students: Submit Your Paper To The 2009 LCCHP Student Writing Competition in Cultural Heritage Law
The District Court for the Eastern District of Virginia recently issued the first published decision in a case of forfeiture brought under a Memorandum of Understanding under the Convention on Cultural Property Implementation Act, 19 U.S.C. § 2602. The two paintings, an 18th and a 17th century oil on canvas, were brought into the United States from Bolivia through Miami International and Reagan Washington National Airports. Both paintings are representative of the Cuzco School of Art, which began in the Incan town of Cuzco in south-central Peru, and had been cut out of their frames for transport. A dealer who was asked to sell the paintings suspected they were stolen and contacted the FBI, which seized the paintings. The importer chose to contest the administrative forfeiture. The government moved for summary judgment, which the court granted.
The MOU with Peru includes on its designated list of cultural materials subject to import restriction “[o]bjects that were used for religious evangelism among indigenous peoples” and specifically mentions paintings of the Colonial period, between 1532 and 1821. Although required for the import of objects on the designated list that left the country after the effective date of the import restrictions, the importer could not produce a certificate showing that export from Peru was not in violation of Peruvian law.
The decision is notable because it clearly sets out the placement and shifting of burden of proof in CPIA forfeiture cases. The United States bears the initial burden of showing that the seized property is designated under an MOU with another State Party to the 1970 UNESCO Convention and is subject to import restriction under the CPIA. Once the government makes this showing, the burden of proof shifts to the claimant to establish “by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.” In this case, the claimant defended by stating that the paintings came from Bolivia, not Peru, but the court rejected this defense because the U.S.-Bolivia MOU also covers Colonial and Republican religious art, including oil paintings of the saints, angels, apostles and Holy Family and dating between 1533 to 1900. Therefore, regardless of whether the paintings had originated in Peru or in Bolivia, they were still subject to forfeiture.
Sunday, March 1, 2009
The sculptures of a rat and of a rabbit, originally part of the zodiac fountain of the Imperial Palace in Beijing, were each sold for close to $20 million at the Christie’s sale in Paris of the Yves St. Laurent estate. Despite China’s protests that Anglo-French forces looted the sculptures in 1860, the sale exceeded the pre-sale high estimates. Chinese authorities reacted angrily and, according to a Bloomberg News report, will require Christie’s to give details of the ownership and provenance of any artifacts it wants to bring in or out of China. A spokeswoman for China’s Foreign Ministry indicated that China will continue to seek the return of the sculptures, although, as the French court that heard a last-minute attempt to stop the sale evidently concluded, it is unlikely that any international conventions or domestic law will require these returns. And while it is desirable to seek more documentation and transparency in international art transactions, it is also not clear how China will carry out these additional requirements for Christie’s-related sales.