Ancient Coins as Cultural Property: A Legal Perspective on 'Numismatics and the Antiquities Trade'
The May 1998 Celator featured an article that Martin Beckman authored about the ethics of collecting ancient coins entitled, "Numismatics and the Antiquities Trade." The purpose of this present paper is to provide the reader with some additional legal insight concerning the same issue.
Peter K. Tompa, The Celator |
July 01, 1998
The May 1998 Celator featured an article that Martin Beckman authored about the ethics of collecting ancient coins entitled, "Numismatics and the Antiquities Trade." The purpose of this present paper is to provide the reader with some additional legal insight concerning the same issue. As hinted in Mr. Beckman's article, cultural property laws cover ancient coins even if their practical impact to date has remained quite limited.
Whether a "free market" in ancient coins will continue unfettered (at least here in the United States) will depend, in no small measure, on the commitment of collectors themselves. Unfortunately, given the prospect of increasing regulation in the area, numismatists can no longer afford to ignore the issue completely. Rather, numismatists must make their feelings known to American decision makers to counter those foreign governments and members of the archeological establishment pressing for wholesale restrictions on collecting any antiquities. Otherwise, these decision makers will see only "one side of the coin" when they are confronting the difficult issues raised in Mr. Beckmann's article.
Cultural Nationalism vs. Cultural Internationalism
How a society views an ancient artifact impacts the degree to which that society will encourage or discourage private collectors. "Cultural Nationalism" considers an artifact to "belong" to the descendants of its maker as part of the society's "cultural patrimony." Cultural nationalist states, like Turkey, strictly restrict or prohibit private collecting in favor of state ownership. For a cultural nationalist, the state should hold title to all ancient artifacts, including common ones like coins, because it is considered protector of the cultural patrimony.
In contrast, "Cultural Internationalism" holds that artifacts should be shared as products of a "common human culture." Collecting is acceptable, but may be subject to some restrictions. A cultural internationalist country, like the United Kingdom, allows private individuals to collect common objects like most ancient coins. Controls, to the extent they exist, are reserved for only unusual or rare objects.
International treaties reflect a cultural nationalist perspective. The 1970 UNESCO Convention contemplates that governments will enter into agreements to enforce each other's cultural property laws. "Cultural property" is defined broadly under the 1970 UNESCO Convention as "property which, on religious or secular grounds, is specifically designated by each state as being of importance for archaeology, pre-history, history, literature, art or science" and which falls within a number of broad categories, one of which specifically relates to antique coins.
In contrast to the 1970 UNESCO convention, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects focuses on the role of courts in controlling illicit traffic in cultural property. Significantly, it mandates the return of illegally exported cultural objects to the country of origin treating them as if they were "stolen." Although the 1970 UNESCO Convention and the 1995 UNIDROIT Convention have sought to limit the antiquities trade internationally, many of the richest countries most likely to import artifacts have either refused to ratify these instruments, or have only agreed to their provisions on a restricted basis. The United States provides a case in point. The United States Senate adopted a watered-down version of the 1970 UNESCO Convention and United States delegates refused to sign the 1995 UNIDROIT Convention at all.
There is a marked contrast between federal statutory law and the decisions rendered by some federal courts. While federal statute takes a cultural internationalist approach to collecting antiquities, some federal courts have adopted a cultural nationalist view espoused by foreign governments seeking the return of ancient artifacts allegedly removed illegally from their soil.
The 1983 Cultural Property Implementation Act enacted the 1970 UNESCO Convention with some restrictions. These limitations require the executive branch to exercise its own "independent judgment" in deciding whether the United States will enforce foreign national ownership laws. A Cultural Property Advisory Committee reviews requests from foreign countries for import restrictions and makes recommendations on the issue to the executive branch. Import regulations result from these deliberations.
At present, there are no import restrictions on ancient coins. This, however, is subject to change. For example, Archeology reports that Italy is planning to request that the United States impose import restrictions on artifacts originating from that country. The details of Italy's request have not been reported, but presumably Italy may seek import restrictions on ancient coins along with other artifacts. If so, it will be the responsibility of the Cultural Advisory Committee to weigh the merits of Italy's request.
In contrast to federal legislative pronouncements, a number of federal courts have taken a cultural nationalist approach in ordering the return of ancient artifacts to the country of origin. These decisions rest on a subtle distinction between whether an object is "illegally exported" or "stolen." At present, it is not illegal under the 1983 Cultural Property Act to import an ancient coin exported illicitly from another country. On the other hand, if a court considers a foreign state to "own" that same coin under a national ownership statute, that court may conclude the object is "stolen." If so, the court will order the return of the coin to the "true owner," the foreign state, without any compensation to the collector. Significantly, in doing so, the court is in effect applying the rule of law promulgated in the 1995 UNIDROIT Convention - - a treaty the Unites States has refused to sign.
The Republic of Turkey v. OKS Partners case, pending before a federal court in Boston, is the one case where this rule has been applied to ancient coins. In a pretrial order, the court held that Turkey could pursue its action seeking recovery of a large hoard of Greek silver coins, featuring fourteen Athenian Decadrachms, on the theory that Turkey "owned" any coin removed illegally from Turkish soil. That case is now scheduled for trial this summer. Now, the major issue in the trial will be whether the coins did actually come from Turkey as is alleged.
Should Ancient Coins Be Treated as Cultural Property?
Martin Beckman raises many excellent points about the ethics of ancient coin collecting. Nonetheless, as an archeologist, Mr. Beckman's concern is mainly with preservation of the archeological record. In contrast, the focus of most foreign cultural property laws is on state control over artifacts found in that state's soil. If preservation of the archeological record were really the primary purpose of such legislation, such laws would only provide for the study of artifacts by requiring individuals to report their finds. There would be no issues related to whether the state should compensate finders or property owners because such artifacts would presumably be returned to the finder or property owner after a period of study. This focus on state versus private ownership rights raises the question of whether American decision makers should recognize foreign laws that designate ancient coins as cultural property. The ultimate issue is not whether foreign states can declare an ancient coin state cultural property but whether the United States should enforce that foreign declaration of ownership against United States citizens on American soil.
While this issue is admittedly complex, there are a number of factors relating specifically to ancient coins that argue against such coins being considered cultural property, particularly when compared with other ancient artifacts. First, ancient coins are, generally speaking, quite common. Even rare coins, like the Athenian Decadrachm, exist in multiple examples. Thus, there are certainly enough of most types available to satisfy the needs of private collectors and state museums alike without resort to confiscatory legislation.
Second, there is the issue of whether ancient coins can really be considered part of the "cultural patrimony" of any one modern nation state. For example, the Roman Empire spanned much of Europe and the Middle East. Under the circumstances, should one modern country be heard to claim that a coin type that circulated throughout this broad area is an important part of its "cultural patrimony?" Most ancient coin collectors would think not, particularly when ancient coins are compared with other archeological relics, like mosaics.
Finally, there is the issue of whether governments can or should seek to require a collector to establish the provenance of a coin when it is difficult, if not impossible, to verify when or where that coin was excavated. While Beckman cites estimates that 80% of all coins on the market today have been dug up within the last thirty years, such statistics do not suggest that a collector may distinguish such new finds from the thousands (if not millions) of other examples that have been traded avidly since the Renaissance. Coins with a "provenance" for the most part once resided in the trays of gentleman collectors or specialists. They are the stuff of individuals with considerable means, and certainly not the typical coin found in one's collection of ancients.
Should collectors worry? Probably not -- at least yet -- due to the immense practical difficulties associated with a foreign government tracking specific coins to a specific point of sale, and then seeking legal redress. Could this change? Possibly, if foreign governments, like Italy or Turkey, convince American decision makers to restrict all imports of ancient coins of Italian or Turkish origin, and this translates in practice to seizures by overzealous customs officials who suspect all ancient coins to have been excavated illegally from Italian or Turkish soil.
What can collectors do? Vigilance and engagement -- not an ostrichlike "head-in-the-sand" approach -- is the answer. Collectors should make their feelings known to decision makers in Congress and in the Cultural Property Advisory Committee about these issues. Leaving the field open to only one point of view virtually ensures an undesirable result. Only by making our feelings known can we ensure that decision makers will be able to balance all interests, including those representing our age old hobby, into the equation.
Martin Beckman, "Numismatics and the Antiquities Trade," The Celetor 34 (May 1998).
Andrew L. Slayman, "Italy Fights Back," Archaeology Magazine 43 (May/June 1998) Peter K. Tompa, "Ancient Coins as Cultural Property: A Cause for Concern?" __ J. Int'l Legal Studies ___ (forthcoming).
*Peter K. Tompa is a senior counsel at Carr Goodson Warner, P.C., a Washington, D.C. law firm. He collects ancient coins, specializing in those issued by the Roman Emperor Marcus Aurelius, and has served as an officer of the Ancient Numismatic Society of Washington, D.C. The views expressed in this article are entirely his own.