Hiển thị các bài đăng có nhãn China. Hiển thị tất cả bài đăng
Hiển thị các bài đăng có nhãn China. Hiển thị tất cả bài đăng

Thứ Hai, 6 tháng 5, 2013

Federal Forfeiture Complaint Filed in ACCG Baltimore Test Case

The United States Attorney's Office for the District of Maryland has filed a complaint to seize and forfeit ancient Chinese and Cypriot Coins. The Ancient Coin Collector's Guild (ACCG) attempted to import the coins into Baltimore on April 16, 2009 in defiance of import regulations restricting the protected cultural objects under the Convention on Cultural Property Repatriation Act (CPIA).

The ACCG flew the coins in from London on British Airways and told U.S. Customs and Border (CBP) that they were from China and Cyprus, dated between 400 B.C. and 220 A.D., had no known provenance, and had no known find spots. CBP seized the coins, and the ACCG filed a lawsuit soon thereafter, before federal officials brought a formal forfeiture action.

The ACCG's suit failed in the federal district court, the court of appeals, and the U.S. Supreme Court.

Following the supreme court's March 25, 2013 rejection to hear the case, prosecutors filed a formal forfeiture complaint in the federal district court on April 22.  The forfeiture action brings a new opportunity for the ACCG to relitigate the matter.

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

Thứ Tư, 24 tháng 4, 2013

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

Chủ Nhật, 31 tháng 3, 2013

China MoU Renewal Announcement

Today's Federal Register announces China's intent to renew its Memorandum of Understanding with the United States under the Cultural Property Implementation Act.

The Cultural Property Advisory Committee (CPAC) will meet on May 14, 2013 to solicit public comment on the renewal.

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: www.culturalheritagelawyer.com

Thứ Tư, 18 tháng 1, 2012

Federal Attorneys File Appellate Brief in Baltimore Coin Case


Attorneys for the United States have filed their brief in the matter of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs. The United States’ brief rejects the Ancient Coin Collectors Guild’s (ACCG) interpretation and application of the Cultural Property Act (CPIA), writing that the ACCG “fundamentally misunderstands the CPIA’s statutory scheme.”

Last September the ACCG appealed to the Fourth Circuit Court after a federal district court judge dismissed its test case. The group initially filed the lawsuit hoping to challenge cultural heritage import protections enacted under the Cultural Property Implementation Act (CPIA). According to the government’s brief, “[o]n April 15, 2009, [the ACCG] transported [Chinese and Cypriot] coins from London to Baltimore with the intention of testing the validity of existing import restrictions. The invoice accompanying the coins identified each by type and indicated that each was minted in China or Cyprus, but provided no indication of when the coins first arrived in London (or any other information regarding the history of the coins).” Customs seized the ancient coins. The district court then struck down the ACCG’s challenge to the seizure after concluding that the group failed to make out a sufficient case to show that the government acted outside its legal authority.

The ACCG filed an appellate brief with the federal circuit court on October 31, 2011, arguing that the enactment and application of the import controls by the State Department and/or Customs and Border Protection (CPB) was unlawful and should be reviewed under the standards of the Administrative Procedures Act (APA).  (The APA is the law that instructs federal agencies about how they must establish administrative regulations.  The Act also outlines the procedures by which administrative decisions are reviewed by the courts.) The ACCG also argued in its brief that the United States government could not issue cultural property import protections on certain ancient coins since China allegedly did not request the import restrictions.  The group further explained that the CPIA’s import controls require federal officials to prove an ancient coin’s find spot before it can be seized. The United States’appellate brief, filed on January 13, 2012, counters these claims.

Attorneys for the United States contend in their brief that its agencies followed the rules while the ACCG did not follow the process.  The government's lawyers write that the ACCG should have followed the forfeiture process established by Congress.  Instead, the ACCG filed a lawsuit. “The CPIA’s provisions regarding seizure and forfeiture, in concert with the pre-existing statutory scheme addressing forfeiture proceedings, set forth a process by which claimants may contest a threatened forfeiture,” the government argues. Federal lawyers state that the “APA authorizes judicial review of agency action only ‘for which there is no other adequate remedy in a court.’ The circumstances in which extra-statutory review is available are similarly limited.  Here, however, Congress has expressly provided for challenges to the seizure and forfeiture of materials under the CPIA through the established mechanism of administrative or judicial forfeiture proceedings.”

At the time of the attempted import of the coins in Baltimore, lawyers for the United States say that “Customs provided [the ACCG] with the opportunity to present a certification of lawful export or other evidence establishing a right to entry . . . . [but the ACCG] disclaimed any ability to present such evidence.  On July 20, 2009, Customs seized the coins, and explained that – in light of [the ACCG’s] representations – the items would be subject to summary forfeiture absent a request by plaintiff for judicial proceedings.”  Government lawyers say that even though the ACCG requested a judicial forfeiture proceeding in September 2009, “Plaintiff [ACCG] did not await the commencement of judicial forfeiture proceedings by the U.S. Attorney’s Office.  Rather, on February 11, 2010 – five months after requesting such proceedings – plaintiff commenced this suit to challenge the seizure of its ancient Chinese and Cypriot coins.”  The government observes that “Plaintiff [ACCG] has invoked those procedures, but they have not occurred as this litigation has been ongoing. Plaintiff does not explain why its arguments should not be considered in the forum designated by Congress.”

Had the ACCG challenged the seizure of the coins through the congressionally prescribed forfeiture proceeding, it would have confronted a defined standard of proof requiring the ACCG to show that the coins were legal to import. The government’s brief describes the standard of proof that applies in a forfeiture proceeding: “the government must establish that the seized property is material that has been designated as restricted under [the CPIA].  After this initial showing, the burden shifts to the claimant [ACCG] to show that the property is not subject to forfeiture, or to establish an applicable affirmative defense.”

The United States rebukes the ACCG for short-circuiting the judicial forfeiture proceeding, avoiding its burden of proof, and claiming that the government acted beyond its authority (i.e. ultra vires).  The government contends that the “Plaintiff [ACCG] cannot properly circumvent the statutory scheme established by Congress by asking a district court to review this seizure under the APA and under the rubric of ultra vires review and . . . to further confound Congress’s intent by asking the court to disregard the burden of proof established by the CPIA.”

Attorneys for the United States further maintain that the ACCG has confused the meaning and requirements of the CPIA. They point out that “[t]o import the coins into the United States, plaintiff [ACCG] needed only to show that the coins had left Cyprus or China before the effective dates of the relevant Designated Lists.  Plaintiff declined to offer any declaration to that effect, claiming that it could not offer the evidence required by the statute because it did not know whether the coins had been ‘first found in the ground’ of either China or Cyprus. But the CPIA quite plainly does not require plaintiff to know where the coins were ‘first found in the ground’; all that was required was information as to the whereabouts of the Cypriot coins as of July 16, 2007 and of the Chinese coins as of January 16, 2009.”

The government's lawyers pointedly draw attention to the fact that the President exercises his foreign affairs powers when acting pursuant to the CPIA. The attorneys highlight that “[t]he provisions of the CPIA confirm that Congress recognized that these judgments are imbued with foreign policy concerns.” They describe how “[t]he CPIA provides the President with broad power to apply import restrictions pursuant to MOUs he enters into with foreign States in furtherance of the United States’s obligations under the Convention on Cultural Property and with the goal of ‘promoting U.S. leadership[] in the preservation of cultural treasures.’” The attorneys point out that “Congress recognized that allowing illicitly excavated and trafficked artifacts to enter into the United States, thereby permitting a market in such goods, threatened our relationships with other nations, and that this legislation was thus “‘important to our foreign relations.’” They also explain that “the issues raised by the import of cultural goods are ‘distinct from the normal concerns of the reciprocal trade agreements program or U.S. trade law.’”

The review of American foreign policy decisions by the courts essentially would be improper, suggests the brief, particularly where foreign policy considerations have other avenues of oversight.  “Rather than involve the courts in an inquiry into the conduct of foreign affairs, Congress provided for political review by requiring the CPAC [Cultural Property Advisory Committee] to share its reports with Congress, and requiring the President to report actions taken to Congress,” says the government’s brief.

Federal lawyers contend that even if there is court review of the government’s implementation of import restrictions enacted under the CPIA, government agencies acted properly. Their brief asserts that “[i]f the Court concludes that some form of judicial review is nevertheless appropriate in these proceedings, it should affirm the district court’s conclusion that plaintiff has not stated a viable claim.”

In support of this argument, attorneys for the United States point out that the ACCG’s “primary contention is that its 22 ancient Cypriot and Chinese coins were unlawfully seized based on their ‘type.’ Plaintiff urges that, although the coins appear on the Designated Lists of restricted materials published by Customs, the coins must be allowed entry to the United States unless the government can prove, on a coin by coin basis, that each was first unearthed in Cyprus or China. The district court correctly concluded that plaintiff’s proposed scheme lacks any basis in the statute.”  Therefore, the federal lawyers maintain that “[t]he Assistant Secretary [of State] exercised her judgment and discretion under the CPIA in determining that certain types of ancient Cypriot and Chinese coins qualify as the ‘archaeological material of the State Party’ and applying import restrictions to them. As the district court concluded, plaintiff’s approach can not (sic) be reconciled with the plain terms of the Act, is unworkable, and ‘would undermine the core purpose of the CPIA.’”

Attorneys for the United States also address in their brief the ACCG’s request for information.  “[The ACCG’s] amended complaint alleged that ‘China never formally requested import restrictions on coins,’ and urged that the government’s restrictions on Chinese coins should thus be deemed invalid. This is unsurprising, since – as the government has previously noted – China’s request did, in fact, address ancient Chinese coins, as noted in the public summary of the request that is posted on the State Department’s website.”  That said, federal lawyers declare that “the district court correctly rejected plaintiff’s request for discovery with regard to the precise contents of China’s diplomatic note requesting that the United States impose import restrictions under Article 9 of the Convention on Cultural Property. The United States has met all of its statutory obligations, and is not required to make such information public."

Finally, the government addresses the constitutional issues raised by the ACCG: “Plaintiff asserts that the import restrictions at issue 'impinge on collectors’ access to information materials' in a 'grossly overbroad' manner and are thus 'constitutionally suspect under both the First and Fifth Amendments.' Contrary to plaintiff’s characterization, the CPIA does not ban the sale of ancient coins or prevent individuals from accessing the information they offer. Rather, the [CPIA] allows the importation of the designated coins when particular requirements, which are designed to prevent the illicit trafficking of ancient artifacts that are under threat from pillage or looting, are satisfied. It is contrary to no recognized constitutional interest."

[Note: All quotes are from the government's appellate brief.  Citations in the original have been omitted.]

Contact: www.culturalheritagelawyer.com

Thứ Hai, 31 tháng 10, 2011

ACCG Files Appellate Brief in Baltimore Coin Case

Ancient Chinese Coins
Author mc559, Creative Commons
The Ancient Coin Collectors Guild (ACCG) today filed an appellate brief in the Fourth Circuit Court of Appeals. After setting up and losing a test case in the Maryland federal district court, the ACCG is now asking the appeals court to reverse that decision. The ACCG’s case began when it imported 23 Chinese and Cypriot ancient coins from a London dealer in 2009. The coins were brought to Baltimore in contravention of import protections enacted pursuant to the Cultural Property Implementation Act (CPIA).

The ACCG argues in its brief that the district court should have reviewed the decisions of the State Department and/or Customs and Border Protection to implement import protections under the Administrative Procedures Act. The APA is a seminal statute that describes how federal agencies shall establish administrative regulations and that outlines the procedures by which administrative decisions are reviewed by the courts. The ACCG argues that the decision of the Assistant Secretary [of State for Educational and Cultural Affairs] and/or US Customs and Border Protection approving import rules may be reviewed by a court under the Administrative Procedures Act. The lower court essentially argued that the President of the United States conducts foreign policy and that “primary responsibility for imposing cultural property import restrictions [rests] with the President, rather than with an agency.” It follows then that the APA cannot therefore be used to review an executive branch decision that is part of the President’s power to negotiate international agreements rather than part of an administrative decision of an agency. The lower court explained in its decision that “the State Department and Assistant Secretary were acting on behalf of the President, and therefore their actions are not reviewable under the APA. That conclusion is particularly justified here, because the Department and Assistant Secretary were acting in the realm of foreign affairs.”

The ACCG further argues that the district court erred when ruling that the government could issue cultural property import protections on coins without China purportedly requesting the import regulations. The appellate brief states that “[t]he District Court’s conclusion that ‘the CPIA does not require that a state party’s initial request include a detailed accounting of each item eventually covered by an [1970 UNESCO Convention] Article 9 agreement’ ignores the requirement that any request ‘must be accompanied by a written statement of the facts known to the State Party that relates to those matters with respect to which determinations must be made. . . .’” The lower court, in contrast, ruled that China’s request complied with the law, observing that “the CPIA [does not] require that the State Department publish verbatim the list of items requested to be restricted. Rather, it simply requires that a State Party make a ‘request . . . to the United States under article 9 of the [1970 UNESCO] Convention,’ . . . and ‘publish notification of the request . . . in the Federal Register.’ The notice published in the September 3, 2004, Federal Register demonstrates that such a request was made.”

Finally, the ACCG argues that the import regulations require federal authorities to prove that a particular coin was discovered in the modern nations of China or Cyprus before officials may seize the coins as contraband. The ACCG states in its appellate brief that “the CPIA itself only authorizes seizure and forfeiture of artifacts ‘first discovered within, and . . . subject to export control by’ the State Party seeking restrictions.” The brief adds that “[t]he Guild argued below that the Government could comply with this critical statutory requirement in either one of two ways: (1) establishing by undisputed scholarly evidence that the coins placed on the designated lists could only have been discovered in Cyprus or China and, hence must be subject to their export controls; or (2) demonstrating by documentary evidence that the coins that CBP seized were in fact first discovered in Cyprus or China and are subject to export control by those countries.”

This argument was originally rejected by the federal district court. The lower court opinion remarked that “the dispute is limited to whether the State Department has authority under the CPIA to prohibit the importation of coins with unknown ‘find spots’ . . . .” The district court judge found that “ACCG’s argument misses the mark, for three principal reasons. First, the subsection imposing the “first discovered” requirement . . . is silent on how the government must establish, in the absence of a documented find spot, whether a particular object ‘was first discovered within, and is subject to export control by, the State Party.’ Moreover, the CPIA anticipates that there may be some archaeological objects without precisely documented provenance and export records and prohibits the importation of those objects. . . . Thus for objects without documentation of where and when they were discovered, the CPIA expressly places the burden on importers to prove that they are importable, and prohibits the importation of those objects if they cannot meet that burden. Second, the CPIA anticipates that some categories of materials will be designated ‘by type or other appropriate classification.’ Congress apparently recognized that sometimes neither the requesting country nor the U.S. government will have enough information to list particular items with greater specificity than its “type.” . . . Third, interpreting the “first discovered in” requirement to preclude the State Department from barring the importation of archaeological objects with unknown find spots would undermine the core purpose of the CPIA, namely to deter looting of cultural property. . . . Looted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” (Citations omitted).

A link to the brief appears courtesy of Peter Tompa, legal counsel for the ACCG: http://www.accg.us/News/Item/ACCG_Appellant_Brief_filed_in_Cyprus_China_coin_seizure.aspx.

[UPDATE 1/18/12:  Federal attorneys have filed their appellate brief.]
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Thứ Hai, 26 tháng 9, 2011

ACCG Files Notice of Appeal in Baltimore Coin Case

After having its case dismissed in August, the Ancient Coin Collectors Guild filed a notice of appeal on September 21, 2011 in the US Court of Appeals, Fourth Circuit. http://dockets.justia.com/docket/circuit-courts/ca4/11-2012/
A federal district court last month dismissed the ACCG's lawsuit, which challenged protective American import restrictions placed on Chinese and Cypriot ancient coins. The court ruled that the ACCG failed to make out a sufficient case. The ACCG started the test case when the organization brought 23 ancient coins to Baltimore on a transatlantic flight


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Thứ Hai, 8 tháng 8, 2011

Judge Dismisses ACCG Challenge to Cultural Property Import Protections - Acknowledges President's Foreign Policy Role in MoU Process

Judge Catherine C. Blake of the United States District Court of Maryland yesterday dismissed the Ancient Coin Collectors Guild’s lawsuit against the federal government. The federal district court decision essentially declared that the ACCG failed to make out a sufficient case.

The ACCG set up a test case to challenge protective American import restrictions placed on Chinese and Cypriot ancient coins when the organization imported 23 from a London dealer in 2009, bringing them to Baltimore on a British Airways flight. The enactment of the import protections followed the president’s adoption of bilateral agreements with China and Cyprus under the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements in the United States the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

The court supplied a comprehensive 52 page memorandum outlining its reasons for dismissal. While many observations are worth noting, three are discussed here.

First, the ACCG’s challenge to the protective import restrictions failed to establish a meritorious legal claim on all counts. The court discharged the ACCG’s case in its entirety, even while assuming that the facts asserted by the organization in its legal complaint were true and construing any inferences in favor of the ACCG. The ACCG, naturally, may appeal but for now Judge Blake’s order stands: “[T]his case is dismissed; and . . . the Clerk shall CLOSE this case.”

Second, the court recognized that the negotiations and implementation of a bilateral agreement adopted under the CPIA involve the president’s broader role in foreign policymaking. A passage from Judge Blake’s memorandum is instructive:

“[W]hen those agencies [such as the State Department] act on behalf of the President, the separation of powers concerns ordinarily apply with full force—especially in an area as sensitive and complex as foreign affairs. As with respect to almost any international agreement, the decision whether to enter an Article 9 agreement [under the 1970 UNESCO Convention] with a particular country does not occur in a foreign policy vacuum. The decision necessarily will involve a variety of considerations beyond those set out in the CPIA, including the broader relationship between the United States and the requesting country and the potential impact of such an agreement on the United States’s relationships with other countries. Those considerations exist regardless of who ultimately negotiates and enters the agreement, the President or the Assistant Secretary [of State for Educational and Cultural Affairs] on the President’s behalf. Furthermore, by lodging primary responsibility for imposing cultural property import restrictions with the President, rather than with an agency, Congress likely recognized these separation-of-powers concerns. While the parties have not pointed to a conclusive explanation in the CPIA’s legislative history, Congress likely concluded that deference to the President was appropriate given the foreign policy considerations inherent in deciding whether to impose import restrictions.”

Finally, the court acknowledged the federal government’s authority to ban the importation of undocumented ancient coins. Judge Blake noted that the thrust of the CPIA is to mitigate the theft of cultural heritage. She intelligently observed that “[l]ooted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” Judge Blake therefore concluded that “the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department’s authority under the CPIA.”

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