The US has introduced an immediate four-year import ban on a wide range of art and antiques from Afghanistan.
The emergency measure, which came into force on 18 February and will last until at least 28 April 2026, aims to prevent the looting and trafficking of archaeological and ethnographical material. The US state department authorised the move under the Cultural Property Implementation Act (CPIA).
However, cultural property experts who advise the US government on collecting and the art market fear that the policy may result in any seized material being handed over to the Taliban.
The state department has published the designated list of items prohibited for import on the federal register. It covers a period stretching from 50,000 BC up to 1747 AD and includes archaeological material, stone, ceramics, faience, fired and unfired clay, metal, plaster, stucco, painting, ivory, bone, glass, leather, birch bark, vellum, parchment, paper, textiles, wood, shell, organic material, human remains, tiles and stained glass.
In effect, everything from coins and statues to pottery are covered by the ban.
As a piece of foreign policy, the government needed to give no warning of the ban, and this could create problems for galleries in New York and other centres, especially those preparing for Asia Week New York (16-25 March), who already have items in transit and are unaware of the measure.
They will need to provide evidence that any item potentially covered by the ban was outside Afghanistan before the restrictions were introduced.
While the measures have clearly been prompted by continuing concern over the Taliban takeover of Afghanistan, they also raise questions over what will happen to any material seized by US customs, which traditionally returns items thought to be illicit to their country of origin where they have established a Memorandum of Understanding (MoU) with them.
Proposals from the former government of Afghanistan for a Memorandum of Understanding between the US and Afghanistan were put before the US government’s Cultural Property Advisory Committee (CPAC) in September last year, with just five days’ notice for evidence to be submitted.
Kate Fitz Gibbon, a cultural property lawyer and former CPAC member herself, was one of those who gave evidence, and warns that the proposals contain no ‘safe harbor’ clause to cover emergencies such as the Taliban takeover.
She also has extensive first-hand experience of Afghanistan, where she worked as an art historian, liaising with archaeologists. She fled to Pakistan in 1982 with four million refugees during military action.
“The CPIA requires returning seized items to the State Party, in this case, to a Taliban Ministry of the Interior headed by a wanted terrorist,” she says.
Another expert who gave evidence was Peter Tompa, a lawyer, coin collector and cultural property specialist who advised CPAC on the MoU proposal on behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild.
“The real question is how these restrictions are going to be enforced and if any material that may be seized will be repatriated to the Taliban once diplomatic relations are restored,” he writes on his Cultural Property Observer blog.
This also raises the question whether the emergency import restrictions "will morph into a memorandum of understanding with Afghanistan’s Taliban government as was recently done with Libya,” he asks.
Art market trade bodies were so concerned about the potential impact of the Taliban that they released a joint statement in October emphasising their commitment to enhanced due diligence for Afghan cultural property.
Afghanistan permitted trade in and export of its cultural property until 1982. "Any archaeologist can tell you that the physical distribution of art from every historical period extended far outside of Afghanistan’s present borders, a situation that will make an effective Designated List an impossibility,” Fitz Gibbon advised the CPAC.
She is particularly concerned that this broad ban could blight ethnic and religious minorities: “I have spent my life studying Afghanistan’s history and culture,” she told the CPAC. “I want it to be preserved. I want America to do the right thing. That means not making a bad choice to adopt overbroad import restrictions that would treat Afghan refugees the same way as Jewish or Orthodox Christian minorities from the New East have been treated under past agreements, delivering personal and community property back to a hyper-authoritarian regime.”
• Full disclosure: The author is an adviser to trade organisations including CINOA, the Antiquities Dealers Association and the International Association of Dealers in Ancient Art