CCP Statement to CPAC on Cambodian MOU

Filed with the Department of State on October 14, 2017

Diego Delso [CC BY-SA 3.0 (], via Wikimedia Commons, Door surrounded by roots of Tetrameles nudiflora in the Khmer temple of Ta Phrom, Angkor temple complex, located today in Cambodia. The temple Ta Phrom, of Bayon-style, was erected in the 12th century as a Buddhist monastery and university.

Meeting of the Cultural Property Advisory Committee (CPAC) in Review of the Proposed 5 Year Extension of the Memorandum of Understanding between the Government of the United States of America and the Government of the Kingdom of Cambodia on Import Restrictions on Khmer Archaeological Material, October 23, 2017.

This statement is made on behalf of the Committee for Cultural Policy (CCP), a 501(c)(3) nonprofit organization established in 2011 by concerned museum professionals, legal scholars, art collectors and traders in antiquities, ethnographic, and Asian art. CCP’s goal is to educate and inform the public, encourage a balanced cultural policy, support museum interests in the United States and around the world, and foster appreciation of and access to the art of foreign and indigenous cultures and the preservation of artifacts for the public benefit.

CCP engages with constituencies from archaeologists to tribal artisans in order to strengthen public dialog regarding the economic and social impact of arts policy. CCP deplores the illicit and unscientific excavation of archaeological sites and destruction of monuments through looting, negligence or deliberate damage to heritage. We support the establishment of a working regulatory structure to foster lawful collection and global circulation of artworks. We promote a humanist perspective, conservation, and safe harbor; defend unrestricted museum and academic access; urge funding for archaeological research, site preservation and the building of museums in art source countries, and condemn the politicization of art.

The legal basis for bilateral agreements restricting importation under the Cultural Property Implementation Act

The framework for comment set forth by the Bureau of Educational and Cultural Affairs is to address the criteria required under the Cultural Property Implementation Act, 19 U.S.C. §§ 2601 et seq. (CPIA), for the Cultural Property Advisory Committee (CPAC) with respect to a renewal of the 2013 U.S.-Cambodian Memorandum of Understanding.

Congress required that the CPAC make findings that all of the criteria under CPIA are met in order to recommend such agreements and renewals. Under the CPIA, import restrictions may only be applied to archaeological and ethnological artifacts of “cultural significance” “first discovered within” and “subject to the export control” of a specific UNESCO State Party.  Id. § 2601 (2).  Import restrictions must be part of a “concerted international response” of other market nations, and can only be applied after less onerous “self-help” measures are tried.  Id. § 2602 (a)(1).  They must also be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.  Id.

The Determinations

The granting of an MOU is based upon meeting specific requirements commonly known as the Four (actually five) Determinations under the CPIA. Id.

“(A) that the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;”

In 1999, emergency import restrictions were imposed on Khmer stone sculpture and architectural elements, based upon evidence for contemporary looting in Cambodia. Nonetheless, the CPAC refused to recommend a bilateral agreement in 1999, and recommended emergency import restrictions instead, based on failure of the Cambodian government to undertake self-help measures and meet other statutory criteria.

In 2003, on the State Department staff’s own initiative, an agreement was recommended by the State Department and signed by the President.[note][/note] Import restrictions were expanded to cover stone, metal, and ceramic objects.[note][/note] The 2003 agreement was not brought before CPAC. State Department staff claimed that an MOU could be executed without CPAC review because, in the department’s opinion, Cambodia had met the criteria that the 1999 CPAC committee said were necessary for a MOU, but in which it had found the Cambodia government lacking.[note]Personal communication from Maria Kouroupas to Kate Fitz Gibbon, a member of the CPAC committee, in 2003.[/note] The Designated List (PDF) developed by State Department staff in 2003 was revised and expanded in 2008. The agreement was again amended and extended for an additional five years, on September 19, 2013.

As no new request has been published, it must be assumed that the Request covers the same all-encompassing range of materials as in 2013, covering artifacts from the Bronze Age to the end of the Khmer Empire. Documentation supporting the claim that this broad time period and range of materials is subject to current looting and pillage has not been provided.

While commenters from the academic community have stated that looting continues on a significant scale within Cambodia today, no documentation has been provided showing that the broad range of materials covered in the 2013 MOU are, or were previously, all at risk. (Instead, several commenters state, irrelevantly, that there is a large US demand for illicit Cambodian antiquities, though without providing evidence for that either.)

While instances from the 1990s are frequently cited, there is no publicly available documentation of current pillage; there are no specific examples that illustrate the vulnerability of each type and period of material in the current list of import restrictions. There is no available documentation from U.S. Customs inventorying items recently pillaged from Cambodia halted at the U.S. border. Rather than referencing specific instances of current looting; the sources cited in support of the MOU refer to pillage that took place 15-50 years before– and to more recent examples of neglect and infrastructure development causing damage to sites. The statute requires that “cultural patrimony… is in jeopardy…” from pillage, not that it was in jeopardy, and the burden is on the government of Cambodia to demonstrate it.

(B) that the State Party has taken measures consistent with the Convention to protect its cultural patrimony;

The House Appropriations Committee in Congress recently went on record to state that, “The Cultural Properties Implementation Act (CPIA) requires countries participating in MOUs restricting cultural property take significant self-help measures… The Committee also requests the Secretary of State review the feasibility of collecting and reporting on the cost of measures taken by partner countries in support of their cultural property MOU with the United States and be prepared to report on such review during the hearing process on the fiscal year 2019 budget request.”[note]Report – State, Foreign Operations, and Related Programs Appropriations Bill, 2018, July 2018, 14. (last visited 10/14/2017)[/note] The House Appropriations Committee included language urging CPAC to “consider the annual national expenditures on securing and inventorying cultural sites and museums in its annual reviews of the effectiveness of MOUs, as well as during the reviews required by the CPIA for extension of an MOU.”[note]Id.[/note]

CCP agrees with other commenters that Cambodia has made significant progress since the days of rampant destruction of archaeological sites and monuments under the Khmer Rouge. While the most disturbing reports of wholesale looting by Cambodian military are several decades old,[note]Simon Makenzie and Tess Davis, Temple Looting in Cambodia, 54 Brit. J. Criminol. 722, 729-30 (2014). (“In late 1998, rogue Cambodian military surrounded the temple at dawn and blockaded it from the local community, with no explanation…For the next two weeks, heavy machinery was used to break up the complex and when the clamour finally stopped, soldiers loaded an estimated 30 tons of stone—including an entire 30 m of the southern wall, prized for its skilled bas-reliefs of Lokeshvara and Apsaras—onto six trucks and drive off for the Thai border just 15 km away.”); Saing Seentrith, Army Officer Smuggling Statues into Thailand Caught at Border, the Cambodian Daily (April 27, 2015), available at smuggling-statues- into-thailand-caught- at-border- 82692/ (last accessed 10/14 2017).[/note] and heroin and crystal meth production is now a far more lucrative and reliable source of revenue than antiquities ever were for corrupt officials, CPAC should seek concrete evidence that the Government of Cambodia is working to eradicate corrupt practices involving high-ranking officials in the country.[note]See and[/note]

ome Cambodian museum and cultural officials are eager to improve its cultural system, but do not receive necessary government support. Despite an unusually high revenue coming from archaeological tourism ($75.7 million in ticket sales from Angkor Park alone, so far in 2017), site guards remain underpaid in primary sites and are absent or are simply locals untutored in site management in less-accessible regions. Cambodia’s museums remain severely underfunded. The government has not made museum or site inventories accessible outside Cambodia.

The Cambodian government appears to feel that foreigner donors should continue to be the primary means of support for the cultural sector. Regrettably, despite generous U.S. private and public support, there are no benefits for the U.S. public in the form of accessible databases, and little cultural outreach outside of a few, very short-term loans to U.S. exhibitions (see below under (D)).

(C) that–

(i) the application of the import restrictions set forth in section 2606 of this title with respect to archaeological or ethnological material of the State Party, if applied 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, would be of substantial benefit in deterring a serious situation of pillage,

There is no current U.S. market for Cambodian objects unless the objects left Cambodia prior to 1970. Without good provenance, art galleries will not sell them; major auction houses such as Sotheby’s will not accept them on consignment.[note]Tess Davis, “Supply and demand: exposing the illicit trade in Cambodian antiquities through a study of Sotheby’s auction house,” Crime, Law and Social Change. Volume 56, Number 2, 155, 155-174 (2011) Tess Davis states that analysis of auction records showed 377 Khmer objects auctioned at Sotheby’s New York between 1988 and 2010 (she does not specify whether of Thai or Cambodian origin). In contrast, a review of Sotheby’s New York’s online records from their New York house from 2011 to 2017 shows sales of only three objects identified as Khmer, one with a collection history dating to 1968 and two deaccessioned from the Cleveland Museum of Art, both acquired in the 1930s. (, accessed 10/13/2017)[/note] The fact that there is no visible market has encouraged proponents of the MOU to embrace fantastic notions that ancient artworks from Cambodia are being sold in dark alleys; on the contrary, artworks must be promoted and displayed, generally under a spotlight, in order to be sold. Most major collectors – of every kind of art – collect with an eye toward eventual donation to a museum. U.S. museums have adopted policies that they will not accept ancient objects, even for donation, unless there is clear provenance to before 1970, and Cambodian objects are now subject to greater scrutiny than works from virtually any other nation.

The primary market for Cambodian antiquities, such as it is, is in Thailand and other Asian nations. Despite an agreement in 2000 between Cambodia and Thailand intended to impede illicit trafficking of both nations’ movable cultural property[note]Agreement Between the Government of the Kingdom of Cambodia and the Government of the Kingdom of Thailand to Combat Against Illicit Trafficking and Cross-Border Smuggling of Movable Cultural Property and to Restitute It to the Country of Origin, 2000. (last accessed 10/14/17)[/note] and to restitute each nation’s property, few restitutions have taken place. Extremely wealthy Thai private collectors from the industrial, political and military sectors continue to maintain major collections of Cambodian artworks. The international stigma against the collecting of Cambodian artworks has relatively little effect in Thailand, in large part because of the cultural identity shared between peoples of Khmer background.

“(ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and…”

The best remedy for halting theft of objects is the publication of and easy access to inventory. Internet-accessible documentation of inventory of museums and sites would be far more effective in deterring any remaining looting of monuments from Cambodia, or international acquisition of stolen objects. An object that is known to be stolen cannot be sold. The Cambodian government and museum system have resisted giving easy access to the inventories that were initiated and paid for primarily by U.S. private collectors. Scholars and students worldwide are deprived of research materials, and persons of Cambodian heritage are unable to gain access without travelling to Cambodia. U.S. funding would be far better directed toward assisting in documentation of monuments and collections and in making inventories globally accessible.

(D) that the application of the import restrictions set forth in section 2606 of this title in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes…

The Cambodian government has failed to move forward to expand cultural exchanges, as set forth in Article II of the 2008 and 2013 MOUs. These requirements were established primarily to remedy perceived deficiencies by the Cambodian government in meeting the criteria under the statute.  These were crucial undertakings, necessary to safeguard the American public’s access to Cambodian heritage through educational exchange and long and short term museum loans, and to demonstrate the Cambodian government’s commitment to build the capacity of its museums to care for, document and protect the cultural heritage of Cambodia.

It is a key principle of global access that if objects are not allowed to travel, then documentation must be accessible not only to the well-funded researchers who are privileged to travel to Cambodia, but also to students, scholars, collectors and museums worldwide.

Since the signing of the 2013 MOU, there has been one, 3 ½ month long exhibition, “Lost Kingdoms: Hindu-Buddhist Sculpture of Early Southeast Asia, 5th to 8th Century”[note][/note] at the Metropolitan Museum in New York with 22-24 objects on loan from Cambodia.[note]Statement of the Association of Art Museum Directors, Meeting of the Cultural Property Advisory Committee to Review Proposal to Extend the Memorandum of Understanding between the Government of the United States of America and the Government of the Kingdom of Cambodia Concerning the Imposition of Import Restrictions on Khmer Archaeological Material, February 27, 2013.[/note]

The 2010 U.S. census identified 276,667 persons of Cambodian background living in the United States. Such paltry cultural outreach by the Cambodian government clearly fails to compensate for the loss of access by U.S. citizens to the art of Cambodia through U.S. museums. Under these circumstances, a continuation of the Cambodian MOU, which will discourage museum acquisition of even well-provenanced art from Cambodia, is not “consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes,” and will particularly harm U.S. museums in their educational role as the primary institutions responsible for introducing American children to art that is both their own, and now part of America’s heritage.

The U.S. has broader democratic and human rights interests that raise concerns about the propriety of renewing the U.S.-Cambodian MOU.

The requirement cited above from the fourth Determination, that an MOU be “consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes…” deserves greater scrutiny for another reason. This requirement states that the international community’s interest in cultural exchange is found in benefits of science, culture, and education for the public. Not to benefit individual politicians or camouflage political repression. When, as in the case of the Cambodian request, the MOU is not warranted under the statute, and would not serve U.S. scientific, cultural, or educational purposes… why do it?

It is simply not in the United States’ interest to renew the Cambodian MOU. Yet, in the last few days, several individuals have submitted comments to CPAC, inaccurately characterizing a Committee for Cultural Policy Newsletter article as an attempt to promote illicit trade, and ignoring the legal and ethical objections to renewal that it raised. (The article is “5-Year Renewal Sought for MOU that Benefits Cambodia’s Corrupt, Anti-Democratic Government, September 30, 2017,

Such accusations are false and wholly unjustified. The Committee for Cultural Policy does not and never has encouraged or supported looting or the illicit trade or illegal actions of any kind.

In fact, the article described the sympathy of Americans for the suffering of the Cambodian people under the Khmer Rouge, focused on the need for federal agencies to respect U.S. law, decried the exploitation of U.S. cultural property policy by foreign political actors, and condemned violations of human rights by the Government of Cambodia. In it, we quoted U.S. Secretary of State’s Rex Tillerson’s statement on the proper uses of diplomatic power. We have linked that article in full.

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