Arguments For and Against U.S.-China MoU Renewal Submitted to CPAC

"The import restrictions are intended to reduce the incentive for pillage and illicit trafficking in cultural objects." That was the conclusion of the United States government on January 14, 2009 when it enacted protective import controls over endangered cultural property coming from China. Now the bilateral agreement, or Memorandum of Understanding (MoU), enacted between the two countries is up for renewal. The current MoU, authorized by the Convention on Cultural Property Implementation Act (CPIA), protects archaeological material from the Paleolithic Period through the Tang Dynasty as well as monumental sculpture and wall art older than 250 years.

The Cultural Property Advisory Committee (CPAC) meets next month at the U.S. State Department to listen to public comment. In anticipation of the meeting, individuals and groups have submitted written arguments for and against the MoU's renewal.

The Virginia Museum of Fine Arts writes that it "endorses the proposal to renew the Memorandum of Understanding and particularly applauds the efforts of the memorandum to enhance collaboration between China and the US in understanding the culture of China and its artifacts of world significance." The museum adds, "Our experience with the Palace Museum [Beijing] has been exceptional – collegial, collaborative, and open."

But Dan Monroe, Immediate Past President of the Association of Art Museum Directors (AAMD) and writing on behalf of the AAMD urges caution. He asks CPAC to

(1) carefully and thoroughly consider the impact of the current import ban on the protection of Chinese art and archaeological material; (2) reject any effort to extend the import ban to material created after the Tang Dynasty; and (3) assure that if the current import ban is extended the Chinese government will assure that it is vastly easier for American museums to arrange short and long-term loans from Chinese museums for purposes of exhibition, cultural exchange, and scholarship.

Monroe questions whether import restrictions have worked. "Speaking from an anecdotal perspective, it seems difficult to argue the current US Chinese import ban has achieved the requirements of the law—to wit, significantly reduced illicit trade or the destruction of archaeological sites." He writes, "The European and other markets for Chinese art and archaeological material covered by the current US import ban remain extremely active. It therefore seems very fair to argue the US import ban has done little or nothing to actually reduce illicit trade or protect Chinese archaeological sites."

Dr. Chen Shen, an archaeologist of Chinese prehistory and a senior curator at Canada's Royal Ontario Museum, disagrees. "I observe that over the past five years, the looting and trafficking of antiquities is slowing down, suggesting clearly the MOU is having an effect," notes Dr. Shen. Writing about his first-hand experiences in the field during the last 15 years, he says:

Over the years during my fieldwork I have observed looting situations. In 2001, during my Palaeolithic archaeology project in Shandong Province I and my team were called to help with a selvage (sic) excavation. A few tombs of Han Dynasty (206 BC – 220 AD) had been looted during a stormy night. When we inspected the site the next day, it appeared to us that these burials had already been looted many times before that night.
...
Ten years later when my team worked in the field in Shanxi province, about 1000 miles away from the location above mentioned, we also encountered looting activities nearby. The tombs that were looted date to 3000 – 2000 years old (the East Zhou period). Local authorities told me that these--if excavated properly--would have been a very important discovery, probably the largest scale ancient noble tombs for that period ever known in this region. Sadly few have survived unlooted. I must say, since I have worked in this region for ten years, that I have seen few significant archaeological objects from this region.... It is clear to me that the objects looted in 2011 could be much more significant given the scale of noble tombs identified from lootings.

Terracotta Warriors (Photo Credit: Steffen82)

AAMD asked the Minneapolis Institute of Art to comment in light of the museum's recent experience with the China Terracotta Warriors exhibition. The MIA explains, "We ... respect the desire of the Chinese government to protect and preserve its cultural heritage, and so support the concept of the MOU, but with changes in Article II ...."  Those changes would include quicker finalization of contracts and object lists, faster processing of passports, assistance with fulfilling the requirements for indemnity insurance, a decrease in premium shipping charges by China Air, simplification of the loan approval process, lengthening exhibition tour times from 52 weeks to up to 60 weeks, and greater availability of First Grade objects.

President Diane Penneys Edelman of the Lawyers' Committee for Cultural Heritage Preservation in her letter of support focuses on "the the ratification of multinational treaties and the creation of bilateral agreements with China as evidence that market countries have joined in a 'concerted international effort' to address the pillage of archaeological sites, both in China and throughout the world."

The Ancient Coin Collectors Guild submitted remarks in opposition to the MoU renewal following the trade organization's three failed court challenges to existing CPIA import restrictions covering ancient Chinese coins. Executive Director Wayne Sayles remarks,

If the provisions of CCPIA had been followed scrupulously and faithfully, the present import restrictions on coins from China would not exist. It might seem expedient for CPAC to look only at the status quo and opt for an extension of the existing MOU as is, but that would merely perpetuate the extremely controversial and highly criticized action of five years ago. Is the committee of today really willing to rubberstamp the actions of that era? Those actions by ECA/CHC [U.S. State Department Bureau of Educational and Cultural Affairs/Cultural Heritage Center], that have been labeled “extralegal”, “arbitrary”, “capricious”, “secretive”, “disdainful”, “unbearable”, “immoral”, “lawless”, “subversive” and “absolutely unAmerican” ought to be examined under a strong light before they are routinely perpetuated by CPAC.

Private collector Alan F. Wurtzel adds, "I believe that the current restrictions are not protecting the cultural artifacts of China or any other country from being looted." He says that "today by far the biggest market for Chinese tomb sculpture is in China" and argues that "Chinese tomb sculpture is highly repetitive and there are often hundreds if not thousands of examples of essentially the same image, many produced by molds." Wurtzel concludes that "[t]he greatest impact of US import restrictions is to deny US citizens the same opportunities as Chinese collectors and most of the rest of the world from enjoying a marvelous artistic tradition that helps to bind the US and China in a common pursuit of beauty and culture...."

President Elizabeth Bartman on behalf of the Archaeological Institute of America's 110 societies and 225,000+ members, by contrast, supports the MoU renewal because of its protection for archaeological context:

As befits a country of the size and geographic diversity of China, the range of archaeological materials and artifacts is vast and ranges from rare jade jewelry to ordinary bronze cookware, from ceramics to textiles to metalwork to sculptures in terracotta and other materials. Many of these works come from tombs, which are by nature scattered in the rural countryside and not easily policed and protected. Their unauthorized removal by looting—which unrestricted imports encourage--is an incomparable loss for both the Chinese and the rest of the world; without systematic and documented excavation, we lose the context of these works and thus the ability to date them, to chart their typological development, and to understand their meaning. We lose potential information regarding trade, social structure (particularly the expression of status and power), attitudes towards death and burial, and daily life, among other topics.

In recent years, Chinese archaeological works have come to be much better-known in the United States through a number of important exhibitions of newly-discovered works
organized by the Chinese authorities.

CPAC meets between May 14 and May 17 to consider the matter.  The public hearing will take place on May 14.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com