The U.S.- Bulgaria Bilateral Agreement and Ancient Coins: Some Thoughts

The recent adoption of a bilateral agreement between the United States and Bulgaria under the Convention on Cultural Property Implementation Act (CPIA) brings to mind two thoughts.

First is the rationale that supports protective import measures covering designated jeopardized cultural property, specifically ancient coins that are "first discovered" within a country of origin.

Fourth Circuit Court Judge James Harvie Wilkinson III provides an explanation. Appointed to the federal bench by President Ronald Reagan, he authored the unanimous decision in the 2012 case 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:

Section 2601 narrows the universe of articles that may be subjected to import restrictions under the CPIA. Only an object of archaeological or ethnological interest “which was first discovered within, and is subject to export control by” the requesting state may be restricted. 19 U.S.C. § 2601(2). The [Ancient Coin Collectors] Guild alleges that [the U.S. Department of] State and CBP  [U.S. Customs and Border Protection] acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were “first discovered within” China or Cyprus. Guild Br. at 21–22. According to the Guild, the government and the district court effectively read the “first discovered” requirement out of the statute. Id. at 24. 

We are not persuaded. As an initial matter, the CPIA is clear that defendants may designate items by “type or other appropriate classification” when establishing import restrictions. 19 U.S.C. § 2604. State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.

That raises the second thought.  What is the cultural property importer's responsibility?

Judge Wilkinson and his colleagues acknowledge that there are undoubtedly cultural objects, such as ancient coins, which are imported into the U.S. without provenance or export permits. But the court of appeals describes the process that allows importers to show that the objects are legal:

If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody ... until such documentation or evidence is filed with such officer.” 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable. (Citation omitted).

The court implies that the burden of proof imposed on importers by the CPIA is not as high as one might think because "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

More details about the legal responsibilities borne by cultural property importers can be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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