On July 8, 2020, the Committee for Cultural Policy submitted written testimony on a proposed five-year extension of a Memorandum of Understanding (MOU) that has been in place for twenty years. Since 2001, the US has restricted the importation of ancient art and artifacts from Italy. This ban applies to US collectors and art and coin dealers as well as to arts institutions such as museums. A meeting of the Cultural Property Advisory Committee, at the Bureau of Education and Cultural Heritage, US State Department, will be held on July 22, 2020 at 2pm EST.
You may participate in the open session by video-conference. Please submit any request for reasonable accommodation not later than July 14, 2020, by contacting the Bureau of Educational and Cultural Affairs at firstname.lastname@example.org. For general questions concerning the meeting, contact Allison Davis, Bureau of Educational and Cultural Affairs— Cultural Heritage Center, by phone 202–632–6307 or email culprop@ state.gov. Visit http://culturalheritage.state.gov for information on accessing the meeting.
The Committee for Cultural Policy supports the Congressionally mandated application of the 1983 Cultural Property Implementation Act (CPIA). However, we object strongly to the imposition of import restrictions that are not justified under the CPIA and which will harm U.S. stakeholders. US museums and art collectors have been severely restricted in acquisitions from Italy for twenty years. If this MOU is renewed, they will continue to face an embargo that does not apply to Italian citizens or buyers in EU nations. If coins are included and deemed to be of Italian origin, then thousands of small US businesses that rely on lawful sales of coins already in international circulation will suffer serious and unjustified economic harm. Without measurable goals and data for review of past agreements – which Italy has failed to provide since the Italian MOUs came into force in 2001 – and without requiring Italy to take steps to demonstrate that it is working in good faith with US cultural institutions, US stakeholders will be left with a permanent blockade and nothing to incentivize meaningful and mutually rewarding cultural exchange.
Rule of law
The Committee for Cultural Policy is first and foremost an advocate for following the law that created and directs the Cultural Property Advisory Committee. Every agreement and renewal under the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. § 2601 et seq, must meet the standards set under that law. Given Italy’s inability to meet those criteria, if CPAC renews the Italian MOU, it will fail in its duty under the law.
Congress never intended that MOUs be perpetual. Yet the perception within the State Department bureau that administers the CPIA is that they are somehow both ‘beneficial’ (without demonstrating benefit to US stakeholders) and morally necessary regardless of whether or not they are effective in halting looting or in expanding cultural cooperation by the requesting country.
Under Section 2602 of the CPIA, the United States may grant an agreement that implements the importation restrictions of Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (the “Convention”) only if all of the following threshold standards are met.
- The requesting country must demonstrate that its archaeological resources are currently in jeopardy from pillage
Although Italy bears the burden of showing evidence for current pillage, it has provided no evidence that there is looting of many items on its excessively broad Designated List, which officially covers “Archaeological Material Originating in Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods.” In fact, the Designated List includes items whose find-places are not by any stretch of the imagination confined to within Italy’s borders, while restrictions under the CPIA apply only to objects first discovered within the requesting country.
Jeopardy is shown by evidence of pillage of each item on the Designated List through unauthorized excavations, clandestine digging, and other looting events at archaeological sites. Documentary evidence may be in the form of statistics, photographs, satellite imagery, case studies, and seizures by law enforcement of archaeological materials in unauthorized possession. Evidence intended to show loss of archaeological materials should, at a minimum, contain data for five years. Where is this evidence for each category on the Designated List?
Furthermore, CPAC should insist through clarifying language (see below) that import restrictions are only applied prospectively to items on the Designated List illicitly exported from Italy after the effective date of governing regulations. The restrictions only apply to objects actually found in Italy—and which are also subject to the export control of Italian authorities. US Customs and Border Protection instead applies import restrictions far more broadly to any cultural goods from the country of origin imported into the United States after the effective date of import restrictions merely because they are on the Designated List. The result is an embargo that goes beyond the current law, not the targeted, prospective import restrictions that Congress authorized.
- The State Party must have taken measures consistent with the Convention to protect its cultural patrimony.
Italy has been actively engaged in campaigns for restitution of its artworks and such campaigns are asserted to be evidence of its diligence in protecting cultural heritage. Such campaigns are not evidence of meeting the requirements of the CPIA; what they demonstrate is Italy’s lack of diligence in protecting its heritage. What the CPIA requires is that Italy undertake measures within its own borders to protect its cultural patrimony.
a. Lack of funding and lack of documentation
One definitive way of measuring such activities is by calculating the amount of funding available to protect and restore sites. Funding from the Italian government has been noticeably lacking, and much of what has been spent in Italy has come from other EU countries, notably in the restoration of Pompeii. Despite its vast number of monuments and thousands of state-run museums, Italy spends the second-lowest of all European nations on culture.
“There are more than 6,000 true ghost towns in Italy …most of which are filled with ancient villas with original frescoes… caught up in Italy’s endless bureaucracy… In most cases, any antique art or precious contents cannot be sold without a certificate of patrimony, essentially freezing the properties in time—and making them easy targets for enterprising thieves.”
Even well-known, ticketed tourist sites are vulnerable to pilferage.
“In the last 12 months, over 8,400 archeological artifacts have been stolen from open-air state-run institutions, according to Italy’s cultural patrimony police force. Many of these have been lifted from sites where a lack of staff and surveillance makes it easy for tourists and collectors to slip mosaic chunks or even larger pieces into their pockets or bags.”
Museums in Italy are even less capable of documenting and protecting their assets. A project begun in 2014 called Sleeping Beauty directed Italian museum directors to catalog the hundreds of thousands of works of art in museum storage (and in most cases, in storage that does not meet international museum standards for protection of the works). This list only reached 3,900 of the most valuable works and is not publicly available. According to a director of the Cultural Ministry, “the database cannot be consulted for security reasons because making such an inventory public would surely trigger a treasure hunt.”
Some of Italy’s most famous sites have been effectively defunded by Italy’s government. Today, funds for restoration of major monuments come from philanthropic businessmen such as the owner of luxury brand Tod’s, who has donated many millions to restoration funding. While some businesses do not seek extensive rights, the Italian government has effectively sold advertising privileges to monuments to other commercial enterprises; fashion houses such as Fendi are funding restoration but also use sites for corporate promotion.
Meeting the criteria for an MOU is not about high-profile claims against auction houses or working with the Manhattan prosecutor to claim objects in US museums that left Italy 30-50 years ago with official collusion or selling monument space for corporate logos – it is about the Italian government taking measures to protect its cultural patrimony today.
b. Italian laws
Italy’s legal measures to protect its cultural patrimony go back to 1462 when Pius II issued a prohibition against removing decorative elements from ancient buildings in Rome without the express permission of the Pope. In Tuscany, a law was enacted in 1602 prohibiting the export (to other Italian cities as well) of works by 18 artists, including Giotto, Michelangelo, Botticelli and Benvenuto Cellini.
Today, the primary principles for protection of cultural heritage are established in Italy’s Constitution, in which Art. 117 grants Parliament exclusive competence to enact laws protecting cultural heritage, but also the Regional Councils may promulgate cultural laws so long as they are in accordance with the constitution’s provisions.
For over 60 years, Italy’s foundational legislation was Law no. 1089/1939 of 1 June 1939 entitled “Protection of goods of artistic and historical interest” which remained in force until 2004. Throughout this period, Italian cultural heritage law has been described as “complex, fragmented, and uncoordinated…” “an endless tangle of acts issued over the decades.”
Italy’s 2004 Code of Cultural and Landscape Heritage, Legislative Decree no. 42 of 22 January 2004, (hereafter “the Code”) was Italy’s first attempt at disentangling past legislation by enacting a comprehensive statute elucidating basic principles applicable to cultural heritage. However, the 2004 legislation is by no means straightforward as a guide. In part, this is because of internal conflicts over administration. Additionally, cultural heritage management and protection is also covered by Regional and local laws enacted in each of Italy’s 20 Regions. Five of Italy’s 20 Regions have special legal status that gives them separate lawmaking powers through which Sicily and a few other Regions, have enacted their own cultural legislation. Since 1949, Sicily has enacted almost 50 Regional laws affecting culture.
The legal situation is further complicated by sometimes conflicting EU regulations and directives adopted by Italy:
- (i) Council Regulation no. 116/2009 of 18 December 2008 on the export of cultural goods;
- (ii) Commission Implementing Regulation (EU) No 1081/2012 of 9 November 2012 for the purposes of Council Regulation (EC) No 116/2009 on the export of cultural goods;
- (iii) Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State, and amending Regulation (EU) no. 1024/2012.
In addition, the new EU legislation on the importation of cultural goods will be enforceable within Italy when it becomes effective at some point within the next three or four years. By its terms, this law does not apply to objects that originated in the EU in the first place. However, the most relevant point for the enactment of a US/Italy MOU is that Italian law allows circulation and sales of antiquities on the Designated List within Italy – and EU law allows greater freedom of travel of Italian cultural property within its Member States. Therefore, given US Customs current treatment of antiquities of Italian origin as falling within the parameters of the MOU when imported from the EU, US citizens will be unfairly prohibited from acquiring works in circulation when others are allowed to do so.
c. Definitions of cultural property
Article 2 of Italy’s 2004 Code of Cultural and Landscape Heritage defines cultural property as “immovable and movable goods which, pursuant to articles 10 and 11, present artistic, historical, archaeological, ethno-anthropological, archival and bibliographical interest, and of any other good identified by law or in accordance with the law as testifying to the values of civilization.” The State, the Regions, other territorial government bodies, any other public body and institution, private non-profit associations may be legitimate owners of cultural property. Private individuals also may be owners, but this requires a declaration of their interest by the competent cultural authorities. Buildings of recognized historic, archaeological and artistic interest, museum collections, picture galleries, archives, and libraries are part of the public domain (demanio pubblico), a key concept because Italian law treats property in the public domain as inalienable and third parties have no superior claim.
d. Criminal sanctions
Unauthorized demolition, removal, modification of cultural property or unauthorized detachment of frescoes, escutcheons, graffiti, inscriptions, tabernacles or other ornaments decorating buildings are punishable by imprisonment for a period of six months to one year and by a fine ranging from € 775.00 to € 38,734.50 under Article 169 of the Code.
e. Legal circulation within national borders
Auction houses in Italy sell antiquities. For example, the Bertolami Fine Art company in Rome has listed in its Auction #80, linked below, objects in ceramic, bronze, iron, glass, and stone; there are vessels, sculptures, tools and jewelry, and architectural fragments. Most are from the 5th c. BCE to the 8th c. CE. The auction specifies that the items are without export licenses.
Upon ministerial authorization, Italy allows sales within Italy of certain buildings in the public domain upon promise of restoration, and under Article 56 of the Code:
“a. the sale of cultural property belonging to the State, the Regions and other territorial government bodies, other than those examined above under (ii) and (iii), provided that such property is not relevant for public collections and that its alienation does not hinder its conservation and use by the public;
b. the sale of cultural property belonging to government bodies other than those indicated in letter (a) or to private non-profit associations, including ecclesiastical bodies that have been recognized as legal entities.
Authorization is also required in cases of sale by private non-profit associations, including ecclesiastical bodies that have been recognized as legal entities, of:
a. collections or series of objects and of book collections;
b. archives and single documents.”
Sales of the following archaeological properties over a value set by ministerial decree within Italy are required to be registered with the government. Among the properties listed under letter A, Annex A of the Code are
1. Archaeological finds that are more than 100 years old and found in:
(a) terrestrial and marine excavations and discoveries;
(b) archaeological sites;
(c) archaeological collections.
2. Elements that are an integral part of artistic, historical or religious monuments and are the result of dismemberment of monuments which are more than 100 years old.
Sales and other transfers of paintings, mosaics, sculptures, incunabula and manuscripts and other antiques over 70 years old also cataloged under letter A, Annex A of the Code must be reported in detail to the government. Government authorities appear to have significant discretion in authorizing such sales and transfers.
f. Legal circulation in the EU
In 2017, legislation amending rules on the circulation of cultural property outside of Italy were amended to attempt to bring Italy’s policies more in line with the less-cumbersome EU rules. According to recent research by Legance Avvocati Associati, a plan to “export cultural property of minor value or falling into certain categories to issue a self-declaration when exporting the property instead of obtaining the prior authorization from the ministerial export offices as required by the Code” was proposed, but did not pass Parliament. The researchers state that, “the bureaucratic controls have nonetheless loosened.” However, this is apparently not the case for exports of “archaeological materials” such as on the Designated List, including coins, where there are reports that export is becoming more, not less difficult. (In Italy, coins are considered archaeological materials, apparently solely by virtue of their age.)
Permanent export is not allowed at all under Italian law for articles described under Article 10(1)(2)(3) – these are artworks or antiquities of high quality and significance. Nonetheless, cultural property may be authorized to be exported if it is not of the quality described under Article 10(1)(2)(3) and is worth less than € 13,500.00 and is not an archaeological find. Export certification requires the submission of documents for review before a “competent Export Office.” The Export Office may refuse such exports, and often does, even though the EU rules are binding on Italy as an EU member under Italian law. Again, coins that circulate freely in the EU are deemed “archaeological” under Italian law.
The Legance Avvocati Associati researchers state that: “Contrarily, the export of the following types of property is not subject to authorization (a) paintings and works of art that are attributable to living authors or that are less than 70 years old; (b) property possessing cultural interest that is the product of no-longer living authors and that are more seventy years old if their value amounts to less than € 13,500.00.”
The following chart shows the number of permitted exports of cultural properties and the significant differences between the numbers of approvals of within EU and outside EU permits. Regarding the exportation of cultural property outside the EU, the Code refers to EU Directive no. 2014/60.
|Petition for free circulation certificates within EU
|Number of certificates issued by EU
|Licenses of definitive exportation (outside EU)
|Licenses of temporary exportation (outside EU)
|Renewals of five year certificate import/export into/from Italy
|Denial of free circulation certificates
|Denial of declaration of cultural interest following the denial above
|Declaration of cultural interest upon the superintendent’s initiative
|Total amount in Euros
- Implementation of the import restrictions must be in concert with “similar restrictions implemented or to be implemented within a reasonable period of time, by those nations (whether or not State Parties) individually having a significant import trade in such material” and such restrictions “would be of substantial benefit in deterring a serious situation of pillage, and remedies less drastic than the application of the restrictions set forth in such section are not available.”
Aside from the MOUs with the US in 2001, 2006, 2011, and 2016, the only impactful agreements between Italy and foreign states are 2017 agreement with Greece to combat illicit trafficking in cultural heritage. An agreement with the Swiss Federal Council regarding the importation and repatriation of cultural goods (2006) has been important is restituting several collections of importance.
Other agreements with foreign nations are essentially “window dressing”: an agreement to collaborate on cultural matters with Iran (2015), an agreement with Japan on restoration, especially to do with earthquakes (2014), with the Dallas Museum of Art to facilitate restitution (2013), with the Chinese Province of Yunan (2012), an MOU on expositions, exchange, long term loans, and the prevention of illicit trafficking with China (2010). Italy has also signed a number of joint declarations since 2015 that have no prescriptive force.
The prospective EU-wide import controls on antiquities do not apply to objects that originated in the EU. There is no “concerted international response,” but rather its opposite, legislation that will free-up objects to circulate in the EU.
Certainly, remedies less drastic than the proposed embargo are available, such as the permitting regime are already available to satisfy many of the needs of citizens of EU nations. One is the adoption of a government supervised legal trade in duplicative materials that would benefit Italy, its citizens, and its significantly underfunded cultural sector, are noted briefly below. It is axiomatic that a lawful market very soon puts an unlawful market out of existence, and the adoption by Italy of a documented, transparent market under official supervision that utilized only a small number of the hundreds of thousands of duplicative antiquities now held in ill-protected and undocumented storage would soon satisfy the international demand for its antiquities.
- Application of import restrictions must be consistent with the general interest of the international community in the interchange of cultural property among nations.
In the experience of a number of past sitting members, including myself, CPAC has often deemed this legal requirement to be satisfied by an entirely subjective determination that import restrictions halt a morally indefensible trade in archaeological materials that encourages looting. Therefore, restrictions, however broad, are automatically in the general interest of the international community. First, this is emphatically not in conformance with the text of the CPIA or statements in the Congressional record.
Mark B. Feldman, who was the primary State Department negotiator on the CPIA has said:
“…there have been dramatic changes in U.S. law and practice that have established a very different policy balance than the one the State Department negotiated in the UNESCO Convention and that Congress approved in the implementing legislation.”
“In recent years, the State Department has implemented the program vigorously believing strongly in its mission to help protect the cultural heritage of mankind and responding to the demands of foreign states. This is commendable provided the Department complies with its statutory mandate. The Executive is not authorized to establish import controls without international cooperation unless an emergency condition exists as defined by law, and Congress did not intend to authorize comprehensive import controls on all archeological objects exported from a country of origin without its permission. The purpose of the program is not to keep art at home, but to help protect archeological resources from pillage; the findings required by the CCPIA were established for that purpose.” 
Second is should be stated that both the size and the value of the archaeological art trade in materials discovered in Italy has been wildly exaggerated, as has the trade’s connection to recently looted objects. But third and more importantly with respect to the terms of the CPIA, “the general interest of the international community in the interchange of cultural property among nations” is a far broader concept and tied to the circulation of art and ideas, not the furtherance of archaeology alone.
As Feldman states:
“Ultimately, most stakeholders agreed that carefully focused import controls were necessary to dampen market incentives for pillage of archeological sites and endorsed an international convention for that purpose provided it had no retroactive effect on existing American collections. The panel rejected the “blank-check” approach that would have implemented foreign export controls designed to keep art at home in favor of targeted import controls intended to discourage looting that threatened to destroy the record of human civilization while preserving imports of ancient art to promote study of ancient civilizations.”
Italy’s denial of legal access to duplicative artworks – even to artworks legally sold in Italy or allowed to circulate legally within the EU, severely limits opportunities for cultural cooperation. Combined with Italy’s unwillingness to facilitate loan programs beyond major museums that have restituted objects to Italy, smaller US museums and cultural institutions other nations, especially museums in developing nations, will never be able to bring Italy’s culture to the public.
Without a legitimate art trade, the global collections of major museums around the world would not exist. With regard to the US, the presence of Italian artworks in US museums has enabled museums to bring enormous benefits to the US public through museums’ active engagement with schools from basic cultural education at the elementary level through advanced scholarly research on our shared historical, religious, and intellectual heritage.
In addition, the factors below mitigate against the proposed renewal of the Italian MOU.
Weak Documentation and Failure to Grant Access to Records.
Italy claims to have made an active commitment to working with American museums and art businesses toward a common goal of eliminating illicit trafficking. Yet Italy continues to deny access to information on stolen objects to museums as well as to auction houses and the legitimate art trade, despite the AAMD, dealer organizations, and auction houses having sought this officially for more than a decade.
As the AAMD noted in its 2015 submission on the third renewal of the MOU with Italy:
“A recent issue raises concerns about Italy’s commitment to protecting its cultural heritage from illegal transfers on the open market. Specifically, Italy has not made available the dossier of Gianfranco Becchina, a well-known Italian art dealer charged with (although not convicted of) illicit antiquities trafficking. The Becchina dossier is said to be made up of “over 7,400 photographs of relics . . . and 13,000 documents in 140 binders”; in short, meticulous records of Becchina’s dealings that spans his career as an art and antiquities dealer. Swiss authorities discovered the dossier in 2001 and shared it with Italian investigators, yet Italy continues to withhold substantially all of its contents… Beyond the Becchina dossier are “the trove of documents, photographs and objects that Italian investigators have seized from antiquities dealers Edoardo Almagiá, Robin Symes, Robert Hecht, and Giacomo Medici.”
The almost thirty year-old data from long-completed investigations of Italian criminal enterprises involving antiquities including the Becchina and Medici archives has never been made available to the public. Instead, Italy has shared these records with archaeologists and even with self-styled ‘antiquities hunters’ such as Christos Tsirogiannis, who have built careers through games of “Gotcha!” whenever an antiquity associated with the activities of these now-geriatric criminals that they know about, but the owners don’t, surfaces in a museum, private collection, or auction. This denial of information to museums and the legitimate trade, resulting in deceptive headlines and embarrassment to US museums and the art trade is unworthy of Italy’s distinguished cultural specialists and is too plainly driven by anti-collecting, anti-museum advocates in the political sphere.
Insufficient cooperation with American museums
By and large, American museums have maintained a cooperative relationship with cultural officials in Italian government and its museums. Despite encountering frequent difficulties in navigating administrative uncertainties and the frustrating lack of clarity regarding who has decision-making authority in Italy, US museums regularly work together with Italian museums. According to the Association of Art Museum Directors, past records show that major US museums loan as many (or more) artworks to Italian museums than Italian museums loan to museums in the US. The US public is widely supportive of the preservation of Italy’s thousands of extant archaeological and historic sites. American museums regularly take part in research, documentation, and especially preservation activities in Italy.
Despite all these good efforts by US museums, in many instances, Italy fails to make it possible for US museums to borrow objects for exhibition. It is notoriously difficult and expensive to borrow works under terms that are feasible for US museums because of, for example, Italy’s failure to adopt uniform and transparent procedures regarding international loan requests or to establish reasonable courier and other related loan fees, despite these having been called for in past MOUs. US policy in enacting MOUs should not allow Italy to prevaricate, delay, make negotiations difficult, and overcharge for short term loans.
The Government of the Republic of Italy avers – and its adoption of the 1970 UNESCO Convention attests – that it is committed to the interchange of archaeological materials for cultural, exhibition, educational and scientific purposes to enable widespread public appreciation of and legal access to Italy’s rich cultural heritage. Yet after twenty years of MOUs, there is little evidence that Italy is willing to undertake loans to more than a few US museums or to lighten the bureaucratic burden and expense of such loans when they do occur.
If loans are not forthcoming, and US import restrictions cover items that are available for sale inside Italy, then the Cultural Property Advisory Committee should confirm that the Italian government facilitates the export of legitimate archaeological items by verifying the actual number of export permits granted for antiquities.
Ancient coins included on the Designated List are sold legally within Italy by commercial vendors and auction houses. Ancient coins on the Designated List are also found in ancient circulation in many other countries. It is completely contradictory to the requirements of the CPIA to prohibit their import into the US.
Coins that circulated outside of Italy should not meet the criteria for inclusion on any Designated List because (1) the vast majority of Roman coins were never “first discovered” in Italy or subject to Italian export control, and (2) objects that exist in many multiples do not meet the criteria of being of cultural significance under the CPIA. Nonetheless, US Customs actions based on the Designated List appear to be far more restrictive than they should be.
As Peter Tompa has noted in the submission of the International Association of Professional Numismatists (IAPN) the Ashmolean Museum and Oxford Roman Economy Project’s Coin Hoards of the Roman Empire has recorded thousands of hoards found throughout the geographical area that once constituted the Roman Empire. The study, which looks at coinage in use between 30 BC and AD 400, found that only 2.8% of Roman Imperial coin hoards with Italian mint coins were found within the borders of modern Italy. Roman and other Italian mint coins are found more frequently outside Italy than within it.
The academic study of coins, much of which is done by coin collectors and dealers outside of university and traditional academic contexts, has produced immensely valuable scholarship and research for the better understanding of world history. The trade and collecting of ancient coins illustrates many of the most obvious benefits of maintaining a legitimate circulation of cultural objects. Coins, by their nature as a means of circulating wealth through time and across great distances, can rarely be identified as being found in a specific nation or even a specific continent. As minor, duplicative objects that have been alternately hoarded or collected over centuries, coins do not have provenance. Nor do valuable coins generally come from archaeological sites, as their small size and susceptibility to corrosion renders the majority of coins of very little interest to looters.
RAND Corporation debunks myths about Facebook and eBay sales
A major analysis, Tracking and Disrupting the Illicit Antiquities Trade with Open-Source Data, published by the RAND Corporation in May 2020 provides remarkable insight into the supposed rampant trade in illicit objects on Facebook, completely undermining claims that such Internet trade actually represents a significant illicit market. The RAND publication states,
“We find no evidence that illegal sales are occurring in large or even steady quantities on deep web platforms, such as Facebook or Telegram, and we find virtually no evidence of antiquities being traded on the dark web.”
Further, they state:
“Despite the arguments forwarded by antiquities blogger Katie Paul, who has assumed that the few examples of deep web or cryptocurrency transactions she has found are evidence of a more extensive hidden market, we find no evidence that the dark web hosts more than a trivial market for these goods.”
The authors do find evidence that
“Facebook’s ubiquity and broad reach has been co-opted by users in the Middle East as a way to advertise, buy, and sell illicit goods, including weapons and antiquities.” However, the publication states that, “While the illegal excavation and trafficking of looted or stolen antiquities is a crime, antiquities collecting is legal throughout the world. Numerous Facebook groups serve this community, thus allowing users to post their finds and purchases, share images of their collections, or sell or auction coins and artifacts and ask for information. There are, for example, groups for Roman coin and artifact enthusiasts in Bulgaria, British groups dedicated to Anglo-Saxon finds, and global groups for all manner of antiquities.”
The authors also note that while Facebook group users
“share glamorous images of gold artifacts, treasures, and valuable antiquities, with occasional accounts of treasure-hunting explorations of finds… this curated image is largely an illusion. Using Google’s reverse-image search quickly reveals that the majority of the images posted on these groups are actually recycled images from news articles and museum websites. Similarly, images that show gold artifacts still buried in the ground are often photos from professional archaeological excavations or stock photographs.”
The RAND publication’s stringent data analysis also provides surprisingly low numbers for sales on eBay. Fig. 5.8, which shows eBay Antiquities Sales by Country in a 30-Day Period identifies sales from Italy as in the 4-10 sales range. Italy does not figure in the Top Ten Seller Locations of Roman Antiquities Sold on eBay in a 30-Day Period, Table 5.3, and Italy is #16 in the number of listings in Table 5.2, Seller Location of Roman Antiquities Listed on eBay, with 280 total listing compared to the 2,484 in the United States, which is #1. (The RAND publication also notes that many of the items listed appear to be fakes.)
CPAC Should Make Clarifying Changes to Articles I and II
The public enthusiasm for Italian art and culture is inextricably tied to the history of American art collecting and the key role played by American art dealers in building US museum collections. That process continues today, albeit much more slowly through accessing works long out of Italy due to Italian restrictions on export in place since the Second World War. US museum acquisition has always been reliant on donations from private collectors, who in turn acquire works from legitimate art dealers and auction houses. This lawful circulation of artworks is a necessary part of the symbiotic relationship between the art trade and museums in the United States – a relationship based upon sound public policy encouraging charitable donations for the public good.
If the United States voluntarily relinquishes the advantages its cultural institutions derive from access to artworks from Italy, then Italy must not just ‘make an effort’ to fulfill measurable goals. It must provide proof not only of progress against looting, but also show through objective evaluation that the US restrictions have material results in deterring a ‘serious situation of pillage.’
There would be significant benefit to the US and to Italian public, supporting the underlying principle of the benefits of cultural exchange, if there was a legal market, overseen by the Italian government, that would allow for the legal sale and purchase of redundant archeological and other works of art.
Unfortunately, there has never been any serious attempt by Italy to facilitate a legal market of Italian cultural materials with the United States. Past conditions imposed on Italy under Articles I and II of agreements have been so vague as to effectively eliminate key requirements of the Cultural Property Implementation Act, such as failing to require that objects prohibited from import into the United States be first discovered in Italy or that Italy actually act to pursue effective measures to change looting paradigms – rather than simply “use its best efforts.” If “best efforts” have not resulted in action after twenty years, then Italy’s “best” isn’t good enough.
The Committee for Cultural Policy opposes the renewal of the MOU with Italy for all of the reasons above.
However, if the MOU is renewed, then CPAC should at least recognize that it is long past time for Italy to be held accountable to its past commitments and for US authorities to stay within the explicit limits of the CPIA. The provisions of Articles I and II of the Italian MOUs have been considerably weakened over the years. At various times, the AAMD and former CPAC members have suggested changes to Articles I and II. The Committee for Cultural Policy recommends that the following clarifications be made to Articles I and II of any future MOU with Italy to bring it into conformance with the law and with Congressional intent (key issues emphasized in bold):
A. The Government of the United States of America, in accordance with its legislation entitled the Convention on Cultural Property Implementation Act, shall restrict the importation into the United States of archaeological material first discovered in and unique to or circulating entirely within the territory of Italy, ranging in date from approximately the 9th century B.C. to approximately the 4th century A.D. including categories of stone, metal, ceramic and glass artifacts, and wall paintings that are subject to current looting within Italy and identified on a list to be promulgated by the United States Government (hereinafter known as the “Designated List”), unless the Government of the Republic of Italy issues a license or other documentation which certifies that such exportation was not in violation of its laws.
B. The Government of the United States of America shall offer for return to the Government of the Republic of Italy any material on the Designated List forfeited to the Government of the United States of America that entered the United States after the effective date of the most recent Designated List.
C. Such import restrictions shall become effective on the date the Designated List is published by the U.S. Customs Service in the U.S. Federal Register, the official United States Government publication providing fair public notice.
D. Any legal export of an item on the Designated List from a sister E.U. nation, with or without an export permit according to the law of that E.U. nation shall be treated as a legal export from the Republic of Italy. In implementing restrictions under Italy’s Designated List, US Customs and Border Protection shall accept proof of lawful export from any E.U. member state to facilitate the legal import of coins of Italian types which are also legitimately for sale within Italy.
A. Representatives of the Government of the United States of America and representatives of the Government of the Republic of Italy shall take appropriate steps to publicize this Memorandum of Understanding.
B. Both Governments agree that in order for United States import restrictions to be fully successful in deterring pillage, the Government of the Republic of Italy shall take concrete steps to significantly increase and improve scientific research and protection of archaeological patrimony and protective measures for archaeological excavations at known sites, particularly in areas at greatest risk from looters. The Government of the Republic of Italy agrees to devote more public funds to guard archaeological sites and museums and to develop Italian tax incentives for private support of legitimate excavation.
C. Recognizing that restricting the importation of archaeological material by importing countries does not halt the looting of such material at the source, the Government of the Republic of Italy shall, with respect to the 1970 UNESCO Convention, adopt effective means to protect its cultural patrimony. In particular, the Government of the Republic of Italy shall
- ensure the prompt prosecution of looters,
- stop the illicit use of metal detectors in archaeological areas
- enhance training for the Carabinieri Special Unit for the Protection of Artistic Patrimony, and
- undertake measures that have been found effective in other countries, including measures such as providing prompt aid fair compensation for reported finds; establishing effective local outreach programs to encourage the reporting of archaeological finds; and undertaking public education efforts aimed at protecting both known and newly discovered archaeological sites and at increasing the awareness of citizens about the need to protect and safeguard Italy’s cultural heritage.
D. Both Governments agree that, in order for United States import restrictions to be most successful in thwarting pillage, the Government of the Republic of Italy shall seek to conclude effective agreements with nations in the Mediterranean Region for the protection of the cultural patrimony of the region, recognizing that political boundaries and cultural boundaries do not coincide; and shall seek increased cooperation from other art-importing nations to restrict the import and sale of archaeological material illegally exported from the Republic of Italy.
E. The Government of the United States of America recognizes that the Government of the Republic of Italy permits the interchange of archaeological materials for cultural, exhibition, educational and scientific purposes to enable widespread public appreciation of and legal access to Italy’s rich cultural heritage. The Government of the Republic of Italy shall encourage further interchange by:
- promoting agreements for long-term loans with a permitted loan term of at least ten years duration of objects of archaeological or artistic interest for research and education, agreed upon, on a case by case basis, by American and Italian museums or similar institutions, to include: scientific and technological analysis of materials and their conservation; comparison for study purposes in the field of art history and other humanistic and academic disciplines with material already held in American museums or institutions; or educational presentations of special themes between various museums or academic institutions;
- encouraging American museums and universities jointly to propose and participate in excavation projects authorized by the Ministry of Culture, with the understanding that certain of the scientifically excavated objects from such projects could be given as a loan to the American participants through specific agreements with the Ministry of Culture; and
- promoting agreements for academic exchanges and specific study programs agreed upon by Italian and American institutions.
F. The Government of the Italian Republic, in advancing the broadest possible participation in and exchanges between American and Italian museums, shall
1. adopt uniform and transparent procedures regarding international loan requests, including by providing a central point of information in order to facilitate loan procedures nationwide;
2. remove impediments that may exist in facilitating loans from the United States to Italy and from Italy to the United States and facilitate as much as possible subsequent loan operations;
- – by establishing reasonable courier and other related loan fees;
- – by further exploring opportunities for reciprocity such as loans of objects, technical expertise, and educational programs.
3. promote a legislative initiative on the application of immunity from seizure for certain objects of cultural significance imported into the Italian Republic for temporary display or exhibition.
G. Noting that the law of the Italian Republic, as it currently stands, allows the purchase of archaeological objects of verified legal provenance, the Government of the Italian Republic will facilitate further the final legal export of such objects. The Government of the Republic of Italy shall take steps to fulfill this goal by facilitating the export of archaeological items legitimately sold within Italy. To this end, the Government of the Republic of Italy shall allow citizens of the United States of America the right to purchase in and export from Italy archaeological materials that are not state property, including archaeological materials and coins that are permitted to be sold in Italy and cultural property, including archaeological materials and coins, that are permitted to be exported to other nations within the European Union. The Government of the Republic of Italy shall expeditiously grant export permits to citizens of the United States of America for materials covered by this provision and shall provide information on the number of certificates of exportation issued to each importing nation to the Government of the United States.
H. The Government of Italy shall issue export licenses for all coins openly available for sale within Italy itself absent proof they are the products of recent, illicit excavation.
I. The Government of the Italian Republic and the Government of the United States of America agree to encourage greater collaboration among law enforcement and members of the antiquities trade through increased information sharing for due diligence and research purposes. Recognizing that known looted material must not be allowed to circulate in commerce, the Government of the Republic of Italy shall promptly publish all available information about, and if available photographs of, archaeological material that is known to be looted or illegally traded in ways that do not jeopardize active criminal investigations.
CPAC has abdicated the responsible management of the twenty-year-long Memoranda of Understanding with Italy by setting increasingly vague goals and ignoring or excusing Italy’s failures to comply with past Articles I and II, or even to make a serious effort to do so. In the past, CPAC has not followed through with the Department of State to ensure that Designated Lists do not overstep CPAC recommendations. The State Department has clearly been unwilling to hold Italy to its undertakings; it ‘celebrates’ renewals instead of expressing disappointment at Italy’s lack of success in safeguarding its heritage. This unfortunate attitude has enabled Italy to evade meaningful responses to US concerns and to continue to discriminate against US citizens. The active participation of CPAC in formulating a new MOU would help to ensure that the Committee’s recommendations remain intact and unchanged.
Italy has not provided facts substantiating that it meets the four determinations required by the Cultural Property Implementation Act. The mandatory statutory determinations under the statute need to be based on evidence and facts, not speculation about imaginary ‘dark’ markets or highly exaggerated tales of ‘illicit’ trafficking. Nor has Italy made serious efforts toward fulfilling its past commitments set forth in previous Articles I and II.
Under the aegis of the State Department’s Bureau of Educational and Cultural Affairs, import restrictions under the CPIA have provided for near permanent bans on the import of cultural items from countries which have sought agreements. If CPAC fails to heed the concerns of Congress regarding overbroad import restrictions that do not meet the four determinations, CPAC not only acts in derogation of U.S. law, but also lends support to what Congress feared, a loss of American control of its own cultural policies and promotion of an exclusively nationalist rather than internationalist policy on cultural heritage.
The Cultural Property Advisory Committee should live by the law that created it. For almost 20 years, critics of the operation of CPAC by the Department of State have argued that CPAC has routinely disregarded the rules. It’s time for a newly constituted CPAC to signal that the threshold requirements of the law are a barrier to repeated inadequate requests instead of a bump in the rug.
When the CPIA was passed, Congress contemplated a continuing trade in ancient art except in objects at immediate risk of looting. Halting the trade in art was never its goal. On the contrary, Congress viewed the CPIA as balancing the United States’ academic, museum, business, and public interests by assisting art source countries to preserve archaeological resources and ensure the U.S.’s continuing access to international art and antiques through a relatively free flow of art from around the world.
It is longstanding US public policy that the circulation of art promotes peace. The Educational, Scientific, and Cultural Materials Importation Act of 1966, Section 1(b) provides that “The purpose of this Act is to enable the United States to give effect to the Agreement on the Importation of Educational, Scientific and Cultural Materials… with a view to contributing to the cause of peace through the freer exchange of ideas and knowledge across national boundaries.”  History, truthfully presented, helps nations and peoples to avoid the mistakes of the past.
Today, we are responding as a nation to calls to rectify the past and to honor the history and culture of Black Americans. We are challenged to fully recognize their achievements in this country and to give the ancient history of African peoples a place of honor and respect in our museums and public institutions. In doing so, we should remember how museums work every day to counter prejudice, to teach the global nature of culture and celebrate how much we can learn from the past.
There is no comparison in the immigrant experience of Chinese, Irish, Jews, or Italians to the sufferings of slavery and the two centuries of state-sanctioned oppression experienced by Black Americans. But there may be a lesson in how to promote respect for others through cultural action. Think about how Italy and Italians are viewed in the US today – as the heirs to ancient Rome and its greatness – as a result of the respect for Italy’s past that museums have had an important role in teaching. Not too long ago, Italians in America were treated as second-class citizens, publicly denigrated as lazy and uncultured, denied access to decent jobs and political advancement, called insulting names in public and in the press, and much worse. The honored place held by great art from Italy past in US museums for decades has taught all Americans respect for Italian heritage, to say nothing of enriching Italy’s coffers by incentivizing travel and tourism. Does that harm the Italian nation?
The development of an internationalist cultural policy is key to teaching future generations to appreciate the contributions of ancient Italy to the development of civilization. Congress was correct in supporting the circulation of artworks around the globe; international trade and the open circulation of art should be allowed to flourish in a lawful, documented manner. That was the goal of the Cultural Property Implementation Act. It is up to this Committee to support that goal by following the explicit directions in the law.
 The Committee for Cultural Policy (CCP) is an educational and policy research organization that supports the preservation and public appreciation of the art of ancient and indigenous cultures.
CCP supports policies that enable the lawful collection, exhibition, and global circulation of artworks and preserve artifacts and archaeological sites through funding for site protection. CCP deplores the destruction of archaeological sites and monuments and encourage policies enabling safe harbor in international museums for at-risk objects from countries in crisis. CCP defends uncensored academic research and urges funding for museum development around the world. CCP believes that communication through artistic exchange is beneficial for international understanding and that the protection and preservation of art is the responsibility and duty of all humankind.
The Committee for Cultural Policy, POB 4881, Santa Fe, NM 87502. www.culturalpropertynews.org, email@example.com.
 The Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601, et seq.
 “Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural heritage of the requesting State.” Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property of 1970, Art. 9 (UNESCO).
 Extension of Import Restrictions Imposed on Archaeological Material Originating in Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods, Federal Register, Vol. 76, No. 12, Wednesday, January 19, 2011, 3012-3014. https://www.govinfo.gov/content/pkg/FR-2011-01-19/pdf/2011-882.pdf
 19 U.S.C. § 2606
 19 U.S.C. §§ 2601, 2604.
 See, for example, Menachem Wecker (2018). Looted vessels returned at event marking 15 years of US-Italy art crime fighting co-operation. The Art Newspaper. 6 November, 2018, and Clare Speak (2018). Italy to crack down on art crime after stolen artefacts recovered in USA. The Local. 5 November, 2018.
 Barbie Latza Nadeau, Italy’s Incompetence is Creating New Ruins, Daily Beast, June 04, 2019.
 Nadeau, supra at 8.
 Tod’s for Colosseum, https://www.tods.com/ww-en/stories/tods-for-colosseum.html
 Kate Fitz Gibbon, New York District Attorney Goes After Art Collections, Cultural Property News, February 11, 2018
 Global Art and Heritage Law Series: Italy & the EU, Legance Avvocati Associati, Committee for Cultural Policy, June 2020, 9. Punishment included excommunication, imprisonment, and seizure of assets.
 Id. at 12.
 Kate Fitz Gibbon, EU Regulation Curtailing Import of Art and Antiquities Now Law, Cultural Property News, June 16, 2019, https://culturalpropertynews.org/eu-regulation-curtailing-import-of-art-antiquities-now-law/.
 Id. at 17-21, for a much more detailed list of what is protected cultural property by type of object, age of object starting at 25 years for photographs and where located (including artist studios).
 Id. at 21.
 Id. at 21. However, it is possible for Italian authorities to de-certify specific objects, in which case they may be sold.
 Bertolami Fine Art, https://auctions.bertolamifinearts.com/en/auc/121/auction-80-antiquities/4/. See also Terms of Sale for necessity of meeting all export permit requirements under Italian law and release of liability of auction house for loss or seizure. https://auctions.bertolamifinearts.com/en/cnt/2/terms-of-sale-italy/
 Id. at 37-38.
 List of cultural property under letter A, Annex A of the Code. Id. at 41.
 Id. at 42.
 That is: (a) property, to whomsoever it may belong, which:
- – possesses cultural interest;
- – is the work of no-longer living artists;
- – is more than seventy years old;
- – is valued at less than € 13,500.00, unless the cultural property constitutes an archaeological find, a monument, an incunabula or a manuscript;
(b) archives and single documents, belonging to private individuals which present cultural interest;
(c) photographs, with their related negatives and matrixes, samples of cinematographic works, audio-visual material or sequences of images in movement, documentation of events, oral or verbal, produced by any means, more than twenty-five years ago;
(d) means of transport which are more than seventy-five years old;
(e) property and instruments of interest for the history of science and technology which are more than fifty years old.
Id. at 43.
 Id. at 46.
 Id. at 12. European Union Directive no. 2014/60 of 15 May 2014 was incorporated into the Code under Articles 73 et seq. and regulates the return of cultural objects defined by a Member State as “national treasures”, which have been removed from the territory of the Member State in violation of its legislation and not returned after a lawful temporary exit under which the return is based on cooperation and consultation between the Member States’ competent authorities.
 Id. at 17-18.
 Mark B. Feldman, Mark B. Feldman: Reform of U.S. Cultural Property Policy, Cultural Property News, April 10, 2014, https://culturalpropertynews.org/mark-b-feldman-reform-of-u-s-cultural-property-policy/. See also Kate Fitz Gibbon, CPAC – Building a Wall Against Art, Cultural Property News, June 28, 2018, https://culturalpropertynews.org/cpac-building-a-wall-against-art/
 Statement of the Association of Art Museum Directors Concerning the Proposed Extension of the Memorandum of Understanding between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical, and Imperial Roman Periods of Italy, as Amended, Meeting of the Cultural Property Advisory Committee, April 8, 2015, https://aamd.org/sites/default/files/key-issue/FINAL%20AAMD%20PRESENTATION%202015.pdf
 Kate Fitz Gibbon, Due Diligence: Access Denied to Data on Stolen Art, Cultural Property News, July 10, 2017, https://culturalpropertynews.org/due-diligence-access-to-databases-of-stolen-antiquities-denied/
 19 U.S.C. § 2601
 The J. Paul Getty Museum alone had, by 2018, among many other projects in Italy, supported 137 grant projects totaling more than $20 million, awarded more than $500,000 in fellowships to Italian scholars and hosted more than 130 scholars, fellows, and interns from Italy supported by grants totaling more than $1.3 million, lent more than 130 works of art including paintings, sculptures, drawings, photographs to over 50 different institutions in Italy, and lent expertise to the restoration of hundreds of works of art and cultural objects in Italy, including the Herculaneum Project, the Panel Paintings Initiative and conservation of Vasari’s Last Supper, and the MOSAIKON Initiative. Getty Support of Italian Cultural Heritage, http://news.getty.edu/gettysupportofitalianculturalheritage.htm.
 19 U.S.C. § 2601(2)(C)
 19 U.S.C. § 2601(2)(C)(i)(I)
 Peter K. Tompa accounts for this in part that most such hoards are military in nature and the legions were in large part stationed outside Italy in the Imperial period. Personal Communication, 7-8-2020
 Matthew Sargent, James V. Marrone, Alexandra Evans, Bilyana Lilly, Erik Nemeth, Stephen Dalzell, Tracking and Disrupting the Illicit Antiquities Trade with Open-Source Data, RAND Corporation, May 12, 2020, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2700/RR2706/RAND_RR2706.pdf
 Clarifying that Paul’s data was limited, they state: “It must be noted that Paul’s article includes data and screenshots obtained with a RAND login to a third-party data provider that were published without consultation or permission… her paper does not include access to data that was unavailable to us.” Id. at 43.
 Id. at 53.
 Id. at 54-55. See also on p 56, Fig. 4.4, a repurposed illustration on an Arabic Treasure-Hunting Site that is actually from the Museo Milano in Milan, Italy (Museo Milano, “Storia del commercio estero a Milano e Lombardia – Parte II – Dalle Origini all’ alto medioevo” [“History of Foreign Trade in Milan and Lombardy–Part II–From Its Origins to the Early Middle Ages”].
 Id. At 82.
 Id. at 81.
 Id. at 79.
 See Council Regulation (EC) No 116/2009, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32009R0116 (last visited June 7, 2020).
 Although the Code provides for payment for inadvertent reported finds or finds by a licensed concessionaire or an owner of a building in which a finding occurred of up to ¼ of the value of the finding if it is reported within 24 hours, there is not evidence that this process is sufficiently rewarding to redirect looters to becoming licensed concessionaires under the Code. See Art. 93(3)(4) of the Code for the assessment of valuation, also Article 175 under the Code.
 19 U.S.C. § 2602(a)(1)(A-D) and 19 U.S.C. § 2602(a)(4)
 The Educational, Scientific, and Cultural Materials Importation Act of 1966, Pub. L. No. 89-651, 80 Stat. 897 (1966).
 See Brent Staples, How Italians Became “White,” The New York Times (Oct. 12, 1919), https://www.nytimes.com/interactive/2019/10/12/opinion/columbus-day-italian-american-racism.html