Cultural Property Advisory Committee (1983-2025): Its History, Implementation, Separation of Powers Considerations, and Proposed Amendments

March 24, 2025

By Devin Dowling

Since the Center’s latest edition of Keeping up with the Convention on Cultural Property Implementation Act, the Cultural Property Advisory Committee’s (“CPAC” or the “Committee”) February 2025 meeting has been postponed indefinitely, as of this article’s publication.^{The public meeting was expected to address a new request for cultural property import restrictions from Vietnam, as well as the renewal of memoranda of understanding with Chile, Italy, and Morocco.^{The agreements are set to expire on September 30, 2025, and January 12 and 14, 2026, respectively, unless they are extended.^{Some critics have questioned whether the Committee should convene before President Donald Trump appoints new members.^{This article explores the President’s executive powers to appoint and remove Committee members.}}}}

Table of Contents

Historical Context and Enactment

Following the growth in illicit trafficking of cultural objects after World War II, the United Nations Educational, Scientific, and Cultural Organization (“UNESCO”) began drafting an international convention for regulating the cultural property market.^{After more than a decade of drafting, the UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 UNESCO Convention”) was finalized on November 14, 1970, and went into effect in 1972.}

It provides States Parties to the Convention with a common framework for cooperation to combat illicit trade of cultural property.^{The Convention is a non-self-executing international instrument, meaning some states, like the United States, have to implement legislation after ratifying for the provisions to be enforceable under domestic law.^{However, some argue that the varying success of the Convention’s implementations around the world suggests that the treaty reflects a policy preference among nations rather than establishing an international standard for the treatment of cultural property.}}

The United States actively participated in the drafting of the 1970 UNESCO Convention, and the Senate unanimously gave consent to its ratification in 1972.^{However, it would take Congress until 1983 to pass the implementing legislation: the 1983 Convention on Cultural Property Implementation Act (“CCPIA”).^{Congress struggled to pass the CCPIA earlier because of the immense pressure from dealers and collectors who worried about import and export restrictions affecting the art and antiquities market.^{As with most legislation, there were tradeoff considerations that prolonged negotiations.^{Through the CCPIA, the United States’ international commitment to preserving cultural heritage under the Convention was officially binding law.}}}}

However, the CCPIA only explicitly translates Article 7(b) and Article 9 of the 1970 UNESCO Convention into binding U.S. law—though other sections, such as Article 1 definitions, are incorporated.^{The largest difference is that the U.S. legislature rejected the implementation of Article 3, which some countries consider the key obligation.^{Colloquially known as the “blank check” approach, Article 3 has been interpreted to mean that any cultural object removed in violation of another country’s laws is automatically illicit.^{In contrast, the CCPIA authorizes the President to enter into bi- and multilateral agreements to impose import restrictions on cultural property from specific countries that request and meet certain criteria.}}}

In an emergency condition, such as war, the U.S. may impose emergency import restrictions under the authority of the President, sans a negotiated agreement, if certain conditions of urgency are met.^{For example, on March 5, 2024, President Joseph Biden’s designee, the Assistant Secretary for Educational and Cultural Affairs, imposed emergency import restrictions on select artifacts that may come out from war-affected Ukraine.^{Additionally, when a State Party provides documentation that cultural property has been stolen from one of their cultural heritage institutions, such property shall not be imported into the United States.^{Agreements entered into have a five-year term limit that may be renewed an indefinite number of times if the extension criteria are met.^{To advise the President or his delegated decision maker, the CCPIA establishes the Cultural Property Advisory Committee.}}}}

Advising the Executive: CPAC’s Role in Cultural Property Import Recommendations

When deciding to enter into an agreement with a foreign nation under the CCPIA, the President is required to submit to the Committee information about the import restriction requests and then consider the views and recommendations contained in the Committee report—as long as it is submitted within the statutory time frame.^{The Committee has up to 150 days to submit its report for the President to be statutorily required to consider it.^{If the Committee fails to provide its recommendations within this timeframe, the President may proceed without them.}}

As another internal check to the executive’s oversight powers, the President shall submit to Congress a report of any differences between the recommendations of the Committee and his actions, including the reasons for such differences.^{Taking the Committee’s input is a non-discretionary executive act—meaning the President must take the Committee’s advice into consideration. However, the President retains ultimate discretion to enter into (or decline to enter into) an agreement, and to extend an existing agreement or allow it to expire.^{Under the CCPIA, the President can delegate his responsibilities to a decision maker, who has usually been an official in the State Department’s Bureau of Educational and Cultural Affairs, typically the Assistant Secretary.^{Considering the President’s executive power has an oversight check under the CCPIA, a deeper examination of the Committee’s role is warranted.}}}

members of the Committee — CPAC Members, compiled by the author.

Structure

The Committee consists of 11 members appointed by the President.^{Three members represent the archaeology and/or anthropology perspective; three are experts in the international sale of archaeological and ethnological materials; two represent the museum community; and three represent the general public.^{The Committee, as part of its review process, seeks input from the public and conducts an open session where individuals can share relevant comments and engage with its members.^{The Cultural Heritage Center of the State Department’s Bureau of Educational and Cultural Affairs provides technical and administrative support to the Committee and releases information regarding public participation.^{However, since the Committee is designed to represent the various market perspectives and experts, there is no statutory mandate requiring a public session or consideration of external input. The Committee’s internal Charter also does not require it to hold public comment sessions, although it has a long-standing practice of doing so.}}}}

The Committee’s website indicates it meets quarterly, usually the last week of January, April, July, and October. However, its internal Charter says that it will meet three times a year, which it did in 2024.^{Participants are encouraged to focus their comments on the four statutory determinators found in the CCPIA,^{which are the following: (1) that the cultural patrimony of the requesting country is in jeopardy from pillage; (2) that the State Party has taken measures consistent with the Convention to protect its cultural patrimony; (3) that application of import restrictions, in concert with similar actions by other nations (if taken), would be effective in deterring pillage and that less drastic application of the restrictions set form are not available; and (4) that the application of the import restrictions 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.}}

Written comments may be submitted no later than one week before the meeting date, which is found on the State Department’s website and in the Federal Register.^{Thanks to the advancements in technology as of the 2020s, anyone can join the Virtual Open Session, which is held on Zoom, but participants must register to speak and send information to the culprop@state.gov email.}

Perhaps part of the increased transparency comes after public criticism of the Committee’s history of secrecy and conduct.^{James Fitzpatrick, who was personally involved in the CCPIA’s legislative development and enactment,^{stated on a panel at the Cardozo Law School Symposium on April 10, 2014, that “you would think we were dealing, on this Cultural Property Advisory Committee, with the future of Western civilization being subject to the threat of germ warfare” as opposed to balancing international cultural property preservation and domestic cultural interests.^{In that same event, the moderator, Arthur Houghton, mentioned that Jay Kislak, a former chairman of CPAC, in sworn statements, alleged that Committee staff deliberately misled Congress about not filing Committee reports that it should have regarding Committee members’ dissents.^{At the time of these comments, the public could submit statements but had to travel to Washington to participate in the open meeting.^{Fortunately, participation, transparency, and the spread of information have flourished with technological advances.}}}}}

Current State of Postponement

Participation with the Committee is strong, and recently some collector advocates publicly called for the Committee to postpone its scheduled meeting for February 4–6, which it did on February 3, 2025.^{The United States is a major art-importing country,^{and import restrictions impact the art and antiquities markets for specialty collectors. Specifically, coin collectors have been zealous advocates against import restrictions.^{Since the Committee is in the business of weighing evidence and making recommendations, Committee members with different experiences could come to different recommendations given the same facts and circumstances.}}}

The reason for the postponement is unclear as it has not been publicly shared, but its Executive Director, Allison R. Davis Lehmann, who sent the notice of the postponement, is no longer with the State Department, despite her still being listed on the website as of March 24.^{She had been the Executive Director since January 2020.^{The new date for the meeting remains to be announced, as well as the appointment of new board members, given that at least 8 of the current board members are expected to be replaced this year when their term ends.}}

Presidential Discretion to Appoint and Terminate Members

The State Department is the lead U.S. foreign affairs agency within the executive branch, meaning the President has executive discretion to appoint and remove staff.^{As concerning the Committee, under the CCPIA, the President has the power to appoint members to the 11-member committee. Committee members are appointed for three-staggered terms and serve indefinitely until they are replaced.^{In 2022, Former President Joe Biden appointed 8 new members—almost an entire new board—to act as advisors.^{While the President can appoint members for their initial terms and reappointment afterward,^{there is nothing in the statute that says that a new president must respect the previous president’s appointments.}}}}

Given recent legal questions over executive power overreach and separation of powers, this article answers whether a president has the power to remove Committee members whose appointment was vested under the previous president. Under the current CCPIA,

Members of the Committee shall be appointed for terms of three years and may be reappointed for one or more terms. With respect to the initial appointments, the President shall select, on a representative basis to the maximum extent practicable, four members to serve three-year terms, four members to serve two-year terms, and the remaining members to serve a one-year term. Thereafter each appointment shall be for a three-year term.

Can President Trump cut one of these terms short without good cause, especially considering that Congress amended the term provision in 1987 from the 1983 version? The original 1983 act provided all 11 members were to be appointed for terms of two years.

Generally, the President has at-will removal power to remove executive officers unless Congress explicitly restricts this power.^{This principle is rooted in the understanding that the executive power vested in the President includes the authority to oversee and remove executive officers.^{Since there is an absence of specific removal provisions in both the CCPIA and the Federal Advisory Committee Act (“FACA”), there is a presumption of presidential removal power.}}

When Congress creates an executive committee, and each member has a set term, but the implementing statute does not include a removal provision—as is the case here—courts generally infer a removal standard based on the nature of the office and historical precedents.

But because the Advisory Committee does not wield substantial executive power, it is likely the members receive no removal protection.^{Courts will infer a for-cause removal standard for some independent regulatory agencies that wield substantial executive power even if the statute is silent, but that is not the circumstance Committee members find themselves.}

Generally, the Committee meetings are important so long as they influence the Committee report, but even then, the Committee is not independent as explained above. Regardless of when and whether the current Committee meets next, the President still has the power to reject the Committee’s recommendations and remove a new member at will.

Conclusion and Proposed Amendment

On January 21, 2025, the House introduced a bill to amend the CCPIA.^{Introduced by Representative Beth Van Duyne (R) of Texas, the Bill has picked up 6 co-sponsors: (1) Representative Dusty Johnson (R); Representative Mark Amodei (R); Representative Burgess Owns (R); Representative Sara Jacobs (D); Representative Lloyd Smucker (R); Representative Bradley Schneider (D).^{It is gaining momentum, with Represnetin Schneider deciding to co-sponsor on March 3.^{Overall, it has bipartisan support.}}}

The proposed legislation does not affect the Committee but instead would impact customs procedure of numismatic materials, specifically coins.^{The changes would add the term “numismatic material,” which includes coins, tokens, paper money, medals, and related objects.^{It then creates a special import path for numismatic material.}}

No longer would coins need to meet the same burdens as other archaeological or ethnological materials. Under the new provision, “satisfactory evidence” for numismatic material would include sworn declarations by the importer (or the person whose account the material is imported) stating that the numismatic material

(1) was acquired lawfully in one or more States Party;

(2) was lawfully exported from a State Party in which the numismatic material was acquired;

(3) is of a type known to exist in multiple examples which has been published in a reference work on numismatics; and

(4) is not known to be the direct product of illicit excavations. . . .

In other words, the amendment sets up a self-certification pathway for coin importers who can rely on declarations under oath instead of requiring documentary export evidence to import numismatic material. If passed, it would allow for a coin to be imported if the importer swears that it was lawfully acquired, is of a known type, and is not the direct product of illicit excavations within a State Party after the effective date of any import restrictions on coins.

Protection of cultural heritage is not about money. Collecting money is not about money. But collecting money, when the “money” is in the form of rare or valuable coins, is about cultural property. This amendment addresses long-standing complaints from collectors and dealers that the CCPIA is too rigid for objects like coins that were (and in some cases are) mass-produced, widely traded, and often lack provenance paperwork.

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Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.