Be a Judge: The 2015 National Cultural Heritage Law Moot Court Competition Needs You!

DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation are seeking attorneys to serve as judges during the Sixth Annual National Cultural Heritage Law Moot Court Competition. This year’s Competition is the largest and most competitive yet, with twenty-six teams representing nineteen law schools from across the country participating in the 2015 Competition! Oral arguments will be held on February 27-28, 2015 at the Everett McKinley Dirksen United States Courthouse, home of the Seventh Circuit Court of Appeals, in Chicago, IL.

The 2015 Competition centers on constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, which protects visual artists’ moral rights of attribution and integrity. The problem, which can be viewed here, addresses both a First Amendment and a Fifth Amendment challenge to VARA.

Attorneys who serve as judges during the competition may receive CLE credit if they qualify. Each judge also receives a complimentary ticket to the Awards Reception, to be held on Saturday, February 28^th in the Grand Ballroom of the Standard Club.  If you are interested in serving as a judge, please download and complete the 2015 Judge Registration Form on the competition website and email it to chmootjudges@gmail.com. Additional information regarding the 2015 Competition can be found at go.depaul.edu/chmoot.

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.

U.N. Report: Destruction of Heritage Flagged as Risk Factor Related to Atrocity Crimes

The destruction of objects of cultural or religious heritage is a signature feature of  genocide, crimes against humanity, and war crimes. That is the assessment offered by a recent United Nations report examining, what are collectively called, atrocity crimes.

Published by The Office of the Special Adviser on the Prevention of Genocide, Framework of Analysis for Atrocity Crimes: A Tool for Prevention describes risk factors associated with grave criminal conduct directed toward specific groups, civilians, and legally protected populations.

Several threats to cultural and religious heritage are listed by the report "that point to the likelihood that certain actors are taking steps towards a scenario of mass violence and possibly atrocity crimes." The risk factors include:

• The "[d]estruction or plundering of ... property related to cultural and religious identity;"
• "Attacks against or destruction of ... cultural or religious symbols and property;
• "Signs of patterns of violence against civilian populations, or against members of an identifiable group, their property, livelihoods and cultural or religious symbols;" and
• "Threats or appropriation, seizure, pillaging or intentional destruction or damage of ... property that belong, represent or are part of the cultural, social or religious identity of those protected under international humanitarian law, unless used for military purposes."

The report should prompt collectors of cultural property, who fail to use rigorous due diligence when purchasing objects, to carefully evaluate how their acquisitions of conflict antiquities or wartime looted art contribute to atrocity crimes.

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.

Back Again: A Bill Weakening the NHPA Has Been Proposed in the House

A bill that would weaken the National Historic Preservation Act (NHPA) is back on Capitol Hill.

Last week, California congressman Darrell Issa (R-CA-49) introduced H.R. 135, the latest incarnation of an earlier legislative proposal that would empower a single federal agency head to unilaterally prevent a property from placement on the National Historic Register or from designation as a National Historic Landmark.

The bill seeks to amend  the NHPA so that the head of the agency managing federal property can deny--based on unspecified national security grounds--historically significant properties from receiving federal protection.

The bill has been referred to the House Committee on Natural Resources.

[UPDATE 1/12/15 5pm]: The text and title of the bill have been released. Known as the Military Land and National Defense Act, its text may be found here.

Photo credit: Ben Shafer

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.

2014 - My year in review

I cannot believe that 2014 is almost at an end.  I write this post - my year in review - with trepidation.  To say 2014 was a roller-coaster would be an understatement.  I had one of the best years professionally, but encountered a few personal lows.  

I spent weeks freaking out about turning 30, but have since found it wasn't that bad (separate blog to follow!).  I had a few significant changes in my friendship group and have made some amazing new friends who I am so glad to have in my life.  A health scare made me realise there is more to life than just dancing all night long on a Saturday night and while I am fit, there needs to be a balance.

Overall, I would say that 2014 was an exciting, yet different year.  I can only hope to build on everything for a bigger and better 2015!

Here is my year in review (some of these questions have been taken from a previous Huffington Post blog).

What was the best thing that happened to me this year?

A few things, the most significant would be taking on my new job at a firm I really wanted to be at, in an area of law that I am passionate about.  A few other significant moments were:

• Participating in the Australian Institute of Management's International Women's Day Debate and all of the coverage that followed.
• Being named in the Who's Who of Australian Women 2015 List.
• Speaking at the Australian Women Lawyers Conference in Adelaide.
• Being voted in as Secretary of Women Lawyers Association of Queensland.
• Having the most supportive group of friends, who I was able to call at any time of the day or night to workshop ideas, or just have a good old fashioned cry and girlie heart to heart.
• Helping my friends expand into the social networking scene with blogs, LinkedIn profiles and Twitter accounts.

What did I do this year that I am really proud of?

Without a doubt, it would be the Debate.  This was a turning point in my year and the response has truly been overwhelming.  I found out a day or two before the Debate that there was something wrong with my liver (a suspected tumour) and I had just been referred to a specialist as it was suspected malignant.  The Debate was a perfect distraction from my health problems and also from  my breakup with my boyfriend that had happened over the same time.  I confided in my team members (Sara and Sharon) about my health problems and they were so supportive.

I received a text on the morning of the Debate that simply said "own the debate today".  It was great motivation and I could not have asked for a better day.  I got to stand alongside five other inspiring women as we were making our mark on such an important day for women around the world.  I am well and truly proud of the difference we were able to make. 

Who do I need to thank and acknowledge for having been there for me?

There is always a risk in answering a question of this nature that you will leave someone out.  Without a doubt the top two people would be one of my BFF's Jessica Turner and my awesome guy mate Blewie.  Jess was there for all of the moral support during my breakup, and Blewie was just amazing with all of my health problems and giving me a guy's perspective for everything (interpret tough love). 

Who else?  Dr Lois Frankel - I am so glad to have her as a mentor, her constant support and "checking in", really motivated me.  One of my other good girl friends Molly, and Cohen my guy BFF who I love to hate, have both played an important part, along with Bec, Liz, Laura, Nicole and Jelena, all girlfriends which I built a new, or strengthened a current, friendship with.  My boys were always there for me too, somehow all of them called me just when I needed it (still love the Dance Track Friday videos Mannion).

I am SO grateful for having such a great group of friends who all have unique qualities that make them the people that I love.

What is a lesson I learned?

People need to create their own life and happiness.  You cannot run your life to expectations of others as this will only create disappointment for you later in life. 

Another lesson I learned is that sometimes friends just grow apart.  I have a few draft blogs on this topic, which I just have not been able to finalise.  Dr Peggy Drexler has written extensively on the issue and I agree with a lot of her sentiments.  It is not that you no longer love and care for a friend, it is just that you grow apart, form different friendships, have different values and see the world through different light.  I still love and care for the friends that I grew apart from, I am grateful there was no "bust up" which resulted in hatred, but sometimes, even after 15 years, a friendship can run its course.  I know I went through a few life changes the past few years which contributed to me changing my whole outlook on life.  All I can do is wish those people all the best as they take on the world and achieve their goals.  Peas and Carrots.

Who did I really help?

This is hard to answer without asking others.  However, one person I know I did make a difference with is the young high school girl, CW, I mentioned in a previous blog.  She wrote to me after seeing the QB Monthly article, and we have since formed an amazing friendship.  I am so glad to have made a positive impact on her life and it is really humbling to be referred to as a role model by her.

What's something I got through that was really tough?

My health scare.  That week long wait before I had my blood tests and MRI to see whether or not the suspected tumour in my liver was malignant was the scariest week of my life.  I signed my contract for my new role in that week and resigned my then current position, which just added to the rollar-coaster of emotions.  I am thankful for all of the supportive people I had at work, who helped me through that time.

While it was confirmed that there is a 7cm tumour in my liver, I am so thankful that it is not malignant.  Just thinking about that week now is making my head spin.  I will always be grateful for Jess' call the moment I got out of the specialist appointment with the good news (no cancer!).  Best cab ride call of my life!

What character trait did I develop most this year?

This question made me realise I missed someone off my list from above (didn't I say I would forget someone!).  That person being Janine Garner, owner of LBD Group.  Each year Janine encourages members to choose their word for the year.  For me, 2014 was resilience.

It is quite ironic as I chose that word before the breakup, before finding out about my tumour and before I decided to change firms.  When reflecting on 2014, I believe I was successful in building resilience within myself.

What's next?

I am not someone who makes resolutions.  Instead I make a list of goals that I wanted to achieve, or things I want to do.  I hate the idea of an arbitrary day being required in order to make a difference in my life.  In 2014, I decided to practice what I preached and check in on myself every quarter to make sure I was achieving my goals.  I also had other little goals, such as going to a Ballet with my friend Emma (we went and saw the Nutcracker last weekend thanks to an incredible Special Counsel in my practice group at work), buying my first brand new car (which I did about a week ago and pick up on the 30th!) and joining a Committee.  Other goals had to be changed as I dealt with unsuspected situations, such as removing from my list learning Serbian.

I have not decided what goals I want for 2015.  That is on my to-do list (hmm a to-do list to do a to-do list).  Two things I have decided on - 1. I want to go overseas and am planning on tackling Yacht Week in Croatia with Laura and 2. that my word for 2015 is patience. 

Thank you to everyone who played a part in my 2014.  I only hope that 2015 is even bigger and better for all of us!  Remember to look forward to what it ahead. 

Arts and Artifacts Indemnity Program for Museum Exhibitions: New Budget Law Sets Higher Limits

The Arts and Artifacts Indemnity Program received a significant boost from lawmakers on Capitol Hill this week, and museums are sure to take note.

Tucked within the 1600 pages of the $1.1 trillion budget bill signed into law on Tuesday is a section that raises the indemnity limits for America's largest art insurance program.

Administered by the National Endowment for the Arts, the Arts and Artifacts Indemnity Program protects temporary museum exhibitions against loss or damage and saves nonprofit cultural institutions $30 million dollars a year in costs they otherwise would have spent on expensive commercial liability policies.

That estimate is given by Ford Bell, president of the American Alliance of Museums, who told senators in May that only $100,000 has ever been paid from the federal treasury over the last four decades of the art insurance program's existence.

Congress originally passed the indemnity law in 1975 to cover foreign art on loan to American museums. The statute was expanded in 2007 to cover domestic artworks as well. The law's text is codified at 20 U.S.C. Chapter 26A and 45 C.F.R. Part 1160.

The newly enacted Consolidated and Further Continuing Appropriations Act of 2015 increases the aggregate of loss or damage to art or artifacts from $10 billion to $15 billion for international exhibitions and from $5 billion to $7.5 billion for domestic exhibitions. Coverage for a single international exhibition, meanwhile, goes from $1.2 billion to $1.8 billion. The indemnity limit for a single domestic exhibition rises from $750 million to $1 billion.

The new indemnity limits reflect the higher prices that have been paid in recent years for objects sold on the fine arts and antiquities marketplaces.

Photo credit: Anna Hunter

Text copyrighted 2014 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 service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Cultural Heritage Trafficking Requires Deterrence

Police officers are good at tracking down and arresting criminals. Prosecutors are good at securing convictions, even in some of the most complex cases. So why aren't police and prosecutors routinely investigating and prosecuting cultural heritage traffickers?

HSI officials returned smuggled cultural artifacts to the Turkish government
during a ceremony held last week in New York City. Source: ICE

Last week Homeland Security Investigations (HSI) repatriated ancient arrowheads, coins, and jewelry to Turkey, which were smuggled into Newark International Airport in February 2013. The objects represented some of the "more than 7,150 artifacts [that] have been returned to 27 countries" since 2007, which HSI touted in a press release.

No arrests were announced. In fact, the number of criminals taken into custody over the years for heritage trafficking has been infinitesimally small. That may be why HSI does not regularly report the number of arrests or convictions resulting from its cultural property, art, and antiquities investigations.

The impact of HSI's "seize and send" policy is that criminal infrastructures are left intact--i.e. bank accounts, smuggling routes, transshipment points, warehouses, and the like--while looters, smugglers, fences, couriers, and other offenders are returned to their criminal enterprises without consequence.

Cultural heritage trafficking needs to be deterred. It is the job of police and prosecutors to apply the law to combat this criminal activity, holding accountable those who illegally import contraband heritage and methodically dismantling the frameworks that facilitate trafficking operations.

Text copyrighted 2014 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.