State Department Extends Cultural Property MoU with Nicaragua Despite AAMD Opposition

Earlier this year the Association of Art Museum Directors (AAMD) shifted its stance on bilateral agreements authorized by the Cultural Property Implementation Act (CPIA) when the group decisively opposed the renewal of U.S. import restrictions covering endangered archaeological material coming from Nicaragua. The State Department disagreed with the AAMD, and today backed a fresh memorandum of understanding (MoU) that extends these protective trade barriers for another five years.

Writing in opposition to Nicaragua's petition for a rejuvenated MoU, the AAMD argued in January that the Central American nation "simply fails to protect its own cultural property in the manner required by the CPIA."

The CPIA is the federal law that authorizes the enactment of heritage protection measures consistent with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

"Refusing to extend the MOU could be the very wake-up call Nicaragua needs to undertake real and substantial efforts at a critical time in its history," the AAMD contended in a statement submitted to the Cultural Property Advisory Committee (CPAC), the group that reviews MoU requests.

The State Department's Assistant Secretary for Educational and Cultural Affairs, however, "determined that factors continue to warrant the imposition of import restrictions and no cause for suspension exists," the Federal Register reported. "Accordingly, these import restrictions will remain in effect for an additional 5 years, and the CBP [Customs and Border Protection] regulations are being amended to reflect this extension until October 20, 2020."

The import controls cover pre-Hispanic artifacts including ceramics, vessels, statues, mace heads, jewelry, and more. Similar barriers were first erected fifteen years ago in an effort to deter the looting of archaeological objects.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Endangered Archaeology from El Salvador Protected by Renewed MoU with the United States

Maya mask subject to
renewed import restrictions
with El Salvador.

The United States has agreed to renew a bilateral agreement with El Salvador, which offers protections to cultural heritage in danger. The Central American nation is rich with history, including ancient Maya culture.

The State Department Assistant Secretary for Educational and Cultural Affairs has “concluded that the cultural heritage of El Salvador continues to be in jeopardy from pillage of Pre-Hispanic archaeological resources,” according to the Federal Register. As a result, the U.S. government has extended import controls on endangered archaeological material from that country through March 8, 2020. The terms are cataloged in a renewed Memorandum of Understanding (MoU).

Few offered comments about the MoU when the Cultural Property Advisory Committee (CPAC) consideredthe renewal.

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP)* backed the renewal, explaining that looting continues in El Salvador and that “numerous El Salvadoran objects that would be protected under the MOU are currently listed on ICOM’s Red List of Endangered Cultural Objects of Central America and Mexico.” LCCHP added that “El Salvador has long played an active role in safeguarding its property through legislation, enforcement, education, creation of inventories, and international cooperation.”

The Association of Art Museum Directors (AAMD), meanwhile, opposedthe MoU. In what may be a trendfor the organization, the group complained that “El Salvador has benefited from more than 27 years of import restrictions by the United States and in that period … there does not appear to be a significant reduction in looting that can be linked to those restrictions.” The AAMD argued that “El Salvador is one of the best examples of why the current system of simply renewing MOUs is ineffective and inconsistent with the CPIA. The absence of a significant legitimate market in the United States for El Salvadorian Prehispanic objects has apparently had little or no effect on looting in El Salvador.”

The U.S. and El Salvador first entered a bilateral agreement—authorized by the Convention on Cultural Property Implementation Act (CPIA)—twenty years ago, following American-imposed emergency import restrictions on endangered artifacts from the Cara Sucia region in 1987 and 1992. The MoU between the two nations has been renewed every five years since 1995.

Photo credit: U.S. Department of State

*The author is a board member of LCCHP.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Opposition to MoU's: A Change in Policy for the Association of Art Museum Directors?

Museums are vital to the protection of cultural heritage. They preserve art and artifacts for the benefit of present and future generations, and they inspire visitors, students, and scholars to appreciate and safeguard history.

Most museums are tax exempt charitable corporations, holding the public's trust as stewards of human civilization. They are expected to lawfully and ethically acquire artifacts. They also are counted on to promote policies that preserve cultural objects.

So it is with interest that the Association of Art Museum Directors (AAMD) last Tuesday opposed the renewal of a Memorandum of Understanding (MoU) meant to retain American import barriers on endangered heritage objects from Nicaragua. The group's objection follows a sequence of opposition to MoU's begun in 2014. Does this mark a new policy direction for the organization?

The AAMD is made up of important stakeholders, representing the directors of some of the largest and most distinguished cultural institutions in North America. The group often recites that “it deplores the illicit and unscientific excavation of archaeological materials and ancient art from archaeological sites and the destruction or defacing of ancient monuments” and that it “is committed to the responsible acquisition of archaeological materials and ancient art.” From this point of departure, the AAMD traditionally has supported—albeit softly—cultural property protection agreements authorized by the Cultural Property Implementation Act (CPIA). Lately, however, even this mild support has given way to clear opposition to bilateral agreements, which serve to protect archaeological and ethnological objects in danger of destruction.

By way of background, the Cultural Property Advisory Committee (CPAC) reviews petitions submitted by foreign nations that request American help to safeguard endangered cultural material. The help given takes the form of U.S. import restrictions on archaeological and ethnological objects in jeopardy of looting. The process used to enact these import barriers is defined by the CPIA, the federal statute that gives effect to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The CPIA requires CPAC members to assess whether a requesting government has satisfied four determinations. The full committee then offers a recommendation to the President about whether he should enact import barriers to protect cultural heritage in jeopardy. If import controls are approved by the White House, a Memorandum of Understanding is signed between the U.S. and the petitioning government. The MoU is often referred to as a bilateral agreement.

When Bulgaria requested American restrictions on cultural goods in 2011, the AAMD told CPAC in a written statement that the "AAMD supports the request for a Memorandum of Understanding from the Republic of Bulgaria with … concerns …..” The organization’s concerns seemed to have swallowed its articulated support, but the AAMD, nevertheless, expressly backed the adoption of the MoU. When CPAC considered a renewed bilateral agreement with Guatemala in 2012, the AAMD once again articulated its “concerns,” but it still offered support for the agreement. The AAMD offered similar backing for the Mali renewal in 2012 (“Subject to the concerns set forth above, the AAMD supports the request of Mali for an extension of the 2007 MOU”). Moreover, the proposed MoU with Honduras in 2013 garnered the AAMD’s endorsement, along with the usual tempering language, “Subject to the concerns raised below….”

Cambodia’s request for a renewed bilateral agreement in 2013 notably attracted the organization's clearest affirmation for an MoU (“For the reasons set forth above, the AAMD supports the renewal of the MOU”). The AAMD, meanwhile, did not offer an express objection to the enactment of an MoU with China, even though its position might be characterized as nuanced.

Then, nine months ago, the AAMD struck an entirely different chord, capped by last week's written comment directly opposing the renewal of a bilateral agreement with Nicaragua.

The AAMD’s statement on the renewal of the MoU with Nicaragua voiced unequivocal disapproval. “The AAMD respectfully recommends that the Cultural Property Advisory Committee … decline Nicaragua’s request…." For the first time, the organization included a paragraph captioned, “All Four Required CPIA Determinations Cannot Be Made for Nicaragua,” although the AAMD actually argued that only two determinations could not be satisfied. Regardless, the group expressed clear opposition to the adoption of an MoU.

The AAMD characterized Nicaragua's request as a plea for an “extraordinary type of protection” that could only be granted if the requesting nation itself proved "significant improvement in the protection of cultural property." The AAMD disquietingly added, “Any time that a country requests and is granted import restrictions without strict compliance with the requirements of the CPIA, the entire program contemplated by the CPIA is placed in jeopardy.”

The objection to a renewed U.S.-Nicaragua agreement followed demurrals aimed at petitions filed by El Salvador and Egypt last year.

The AAMD withheld its support for El Salvador’s renewal request this past September, gingerly writing, “The AAMD encourages the Cultural Property Advisory Committee … to carefully review El Salvador’s compliance …  In addition, the AAMD questions whether renewal of the MOU would meet the test of  19 U.S.C. § 2602(a)(1)(C)(i),” one of the CPIA’s four determinations. “Looting does not appear to have been significantly curtailed even after more than 27 years of United States import restrictions,” the organization added, and it asked “whether a new and different approach to an MOU is necessary.”

With respect to Egypt, the AAMD staunchly advised CPAC in May that it “not recommend any memorandum of understanding … between the government of the United States and the government of the Arab Republic of Egypt … or emergency restrictions at this time.” The AAMD questioned the foreign state's request, pointedly quizzing “Is Egypt Meeting the CPIA Determinants?” and answering the query in the negative, simultaneously downplaying archaeologists' observations of site looting in that country. “At this time, Egypt fails to satisfy at least two of the four determinants,” the AAMD flatly contended.

Given its opposition to bilateral agreements between the U.S. and Nicaragua, El Salvador, and Egypt, will the AAMD oppose future requests for American assistance under the CPIA? If this is the group's new policy, will all 237 members back it?

A number of art museums have been traveling a different road. While countless books and news articles have chronicled how museum collections formed, in part, from plundered archaeological, ethnological, and paleontological material, more than a few major institutions have turned away from--or are starting to turn away from--this legacy of loot.

In fact, the past few years have witnessed a greater awareness among art museum administrators of heritage trafficking. In 2013, for example, the Metropolitan Museum of Art repatriated two Khmer sculptures discovered to have been stolen from Cambodia. The Museum of Fine Arts, Boston (MFA) meanwhile, developed a close cultural exchange partnership with Italy after taking fresh steps to resist the accession of contraband antiquities from that country. The MFA even hired a curator for provenance to bring real integrity to its collecting practices. The Cleveland Museum of Art, the Minneapolis Institute of Art, and the Philadelphia Museum of Art joined the MFA, and they are now among the institutions that employ full-time provenance researchers who perform due diligence investigations to find out the true collecting histories of pieces. Dallas Museum of Art director Maxwell Anderson, moreover, spearheaded the effort to deaccession and repatriate artifacts believed to have been looted and smuggled. He earned praise for injecting principles of fairness and transparency to the discussion on heritage preservation as chair of the AAMD's Task Force on Archaeological Materials and Ancient Art.

Whether the AAMD continues to oppose bilateral agreements or chooses a different direction, only time will tell.

Photo credit: Mike Thorn

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law& Policy Research, Inc.

Two Court Battles Raise Questions of Liability for AAM, AAMD, and Other Cultural Property Organizations

Cultural property accrediting and membership organizations are likely consulting with their lawyers in the wake of recent litigation involving two separate court actions.

The case of Meyer v. Board of Regents of the University of Oklahoma, et al. took a new turn on January 10 as both the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) were curiously named as defendants in an amended complaint filed in New York federal district court.

The AAM advocates on behalf of thousands of museums across the country. It accredits hundreds of cultural institutions. The AAMD, meanwhile, is a leading cultural organization whose mission is to support art museum directors accepted for membership.

The Meyer lawsuit claims that AAM and AAMD share legal liability for the University of Oklahoma’s purportedly wrongful acceptance of a Camille Pissarro painting entitled “La bergère rentrant des moutons.” The artwork is alleged to have been taken by the Nazis during World War II, imported into the U.S. in 1956, and then bequeathed to the University of Oklahoma in 2000. “La Bergère” remains on permanent display at the Fred Jones, Jr. Museum of Art on the University of Oklahoma campus.

Meanwhile, in another case, a federal district judge in Virginia on January 17 ruled against a nonprofit college organization that revoked a school’s accreditation. The defendants in the case of Professional Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and Colleges (AACSC) immediately appealed the unusual decision to the Fourth Circuit. The AACSC court articulated the general rule that “great deference” is to be afforded an accrediting institution's decision. Nevertheless, the federal district judge ordered AACSC to pay damages after determining that the organization acted in an “arbitrary and unreasonable” fashion when revoking the accreditation of the Professional Massage Training Center. Damages of roughly $429,000 were ordered.

Meyer and AACSC both raise issues of what liability accrediting organizations may potentially face.

In the “La Bergère” case, Plaintiff Léone Meyer now argues in an amended complaint that the AAM and AAMD broke their accrediting and membership agreements with the The Fred Jones Museum, causing the plaintiff to suffer harm. Meyer's attorney characterizes the plaintiff as an intended beneficiary of both the accrediting and membership “contracts,” arguing that she was denied their expected benefits because AAM and AAMD did nothing after The Fred Jones Museum failed to follow the organizations' provenance investigation guidelines when the museum performed background checks on “La Bergère.” The amended complaint declares:

AAM failed to hold Fred Jones Museum to the high standards required in order to become accredited when AAM either issued or renewed Fred Jones Museum’s accreditation without any regards to its adherence to the Unlawful Appropriation Standards. 

....

[Moreover, the] "AAMD failed to monitor Fred Jones Museum’s lack of compliance with the guidelines in the 1998 Report [of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945)], and did not follow its Code of Ethics’ procedure pertaining to violations of its code when Fred Jones Museum utterly failed to comply with the guidelines in the 1998 Report." 

These contract claims undoubtedly will be challenged by lawyers for AAM and AAMD.

Among the questions posed at the outset might be whether the defendants’ published guidelines actually mandate obligations on museums. The difference, of course, between what a museum must do versus what it should do is the difference between a potentially enforceable obligation and a hopeful suggestion. In the Meyers case, plaintiff's counsel writes that the defendants are “bound,” a term that implies some duty. But the amended complaint simply articulates that museums are bound by “guidelines,” which are usually understood as aspirational calls to action rather than mandatory obligations.

Another question posed might be whether the contracting parties actually intended to have a third party benefit substantially from the accreditation and membership contracts. Generally speaking, a third party beneficiary may enforce a contract even though he or she is not a direct party so long as the third party is an intended beneficiary rather than an incidental beneficiary.

Was Plaintiff Léone Meyer an intended beneficiary of AAM's membership contract or AAMD's accreditation contract—assuming they were even contracts? Courts across the country typically look to the language contained in a contract as well as to the circumstances that formed the contract in order to determine if there was an intention to directly benefit a third party.

So while issues of liability are raised by the new lawsuit against AAM and AAMD for allegedly failing to act against one of its members, the Accreditation Alliance of Career Schools and Colleges (AACSC) has been sanctioned for the opposite, namely revoking the accreditation of one of its members.

Given the two lawsuits, accrediting and membership organizations in the cultural property realm must be wondering exactly what their legal responsibilities and risks are.

Photo credit: Peter Skadberg

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