Month: June 2007

Rutelli, Repatriation and Cultural Policy

Lee Rosenbaum has some very interesting things to say over at Culturegrrl on the press conference Italian Culture Minister Francesco Rutelli had yesterday at the Italian Cultural Institute in New York.

First, as Lee says,

Robert Stiriti (second from left, above), attaché at the American Embassy in Rome for U.S. Immigration and Customs Enforcement (ICE), told me that criminal charges “are pending” in Italy (but have not yet been filed) against an American private collector who owned several objects (including the marble sarcophagus of a child) recovered by ICE on Oct. 20 from his New York residence.

Also, Rutelli announced there may be a forthcoming agreement between Italy and Princeton concerning some objects, which would likely involve some loans from Italy.

The two cornerstones of recent Italian repatriation efforts have been the threat of prosecution along with cultural loans if objects are returned. It’s a strategy that has worked quite well. The engine behind these efforts is the political goodwill engendered in Italy when objects are returned. That seems to make Italy unique, perhaps in all the world, where cultural policy matters.

It brings to mind a time when perhaps cultural policy mattered in America.

There’s been a lot of discussion about President Franklin Delano Roosevelt and the Pentagon of late. I always enjoy stories of the Works Project Administration making art and building places like Red Rocks and The Supreme Court Building during the great depression. Steve Vogel has been making the rounds on npr and the daily show for his new book The Pentagon: The Untold Story. They broke ground on the building 3 months before Pearl Harbor (on September 11, 1941). The initial site was supposed to be opposite the Lincoln Memorial. But President Roosevelt was pressured by the fine arts commission to move the building site. They didn’t want to disturb the vista between Lee’s Mansion and the Lincoln memorial. The President who led America through the great depression and WWII stopped to consider the view for future generations. I couldn’t imagine the current executive taking such considerations; I think that tells volumes about how cultural policy has changed dramatically.

Questions or Comments? Email me at derek.fincham@gmail.com

FBI Recovers Buck’s Manuscript

The Philadelphia office of the FBI has announced it has recovered a 400-page manuscript stolen around 1966 from the author’s farm. The Good Earth manuscript by Pearl Buck won the Pulitzer prize, and was the driving force behind the author’s Nobel Prize for Literature. It’s not clear whether the FBI’s Art Crime Team was involved in this recovery, as they are based in Philadelphia, or whether it was agents from the Philadelphia office who made the recovery. There is no precise value for the manuscript, but it is surely priceless for literary scholars.

Questions or Comments? Email me at derek.fincham@gmail.com

Vigango from Kenya


Robin Pogrebin has an interesting article in today’s New York Times on a decision to return 9 wooden grave objects to Kenya. A ceremony at the UN yesterday marked the decision. They had been purchased by Lewis and Jay allen and were on display in their Park Avenue apartment. Their daughter decided to return them to Kenya after learning of their significance to Kenyans. It took her four months to arrange for their return. That seems to be an underconsidered problem with many source nations: they need to make it easy for individuals to repatriate artifacts to ensure they aren’t subject to criminal liability and that there are places to hold the objects.

It seems the statues are used to decorate graves, and often become part of ongoing ceremonies, discussions and celebrations. It would be as if someone took the headstone from your grandmother’s grave and displayed it in their living room. The clear implication is that all vigango are stolen in one form or another. They are valued by collectors in the US, Europe and Japan because they are beautiful works of african art, but they may not know they were meant as grave decoration. This strongly indicates all exported vigango were stolen.

But some US museums have them in their collection, and are loathe to return them. The ethical and legal grounds for their return is very strong, the only thing missing from a repatriation would seem to be an initiative by the African source nations.

Questions or Comments? Email me at derek.fincham@gmail.com

Repatriation and Macchu Picchu


There was an outstanding piece in yesterday’s New York Times magazine by Arthur Lubow on the fate of objects excavated by Hiram Bingham from Macchu Picchu. He found the ancient city in 1911 and excavated the site in 1912 and 1914. The objects he excavated are currently held by Yale University. There is also an excellent slide show of pictures taken during the original excavation. The piece does a great job of highlighting how difficult it can be to generate consensus in cultural policy.

At issue are the artifacts Bingham took back to Yale, which Peru argued were only to be on temporary loan. The excavated artifacts at New Haven are:

a bit of a letdown. Mostly, the pieces are bones, in varying stages of decomposition, or pots, many of them in fragments. Unsurpassed as stonemasons, engineers and architects, the Incas thought more prosaically when it came to ceramics. Leaving aside unfair comparisons to the jaw-dropping Machu Picchu site itself, the pottery of the Inca, even when intact, lacks the drama and artistry of the ceramics of earlier civilizations of Peru like the Moche and Nazca.

However, many Peruvians want the objects returned, in a dispute which echoes the claims made by the Greeks for the return of the Parthenon Marbles. However in this case I think Yale has a much stronger ethical claim.

Hilda Vidal makes the argument for the return of the collection:

“My opinion reflects the opinion of most Peruvians,” Hilda Vidal, a curator at the National Museum of Archaeology, Anthropology and History of Peru in Lima, told me. “In general, anything that is patrimony of the cultures of the world, whether in museums in Asia or Europe or the United States, came to be there during the times when our governments were weak and the laws were weak, or during the Roman conquest or our conquest by the Spanish. Now that the world is more civilized, these countries should reflect on this issue. It saddens us Peruvians to go to museums abroad and see a Paracas textile. I am hopeful that in the future all the cultural patrimony of the world will return to its country of origin.”

Part of that makes a good and sound argument to be sure, but you aren’t going to get far in a repatriation dispute by arguing the museums in Paris, New York, London, etc. should be emptied. Likewise, I have a difficult time lumping Bingham in with the Spanish conquerors who stripped temples and melted down gold to return to Spain. That doesn’t mean Bingham is a revered figure in Peru by any means. Rumors (which have been discredited) suspect Bingham of smuggling out gold during the excavation. Also, some accuse Bingham of not even discovering the ancient complex, which had always been known to local farmers.

Lubow correctly points out though that these antiquities and remnants of ancient cultures are used as objects of political power today. And they also have value for lots of other interest groups. As he said, “Historic relics have pragmatic value: politically, for purposes of national pride and partisan advantage; economically, for display to tourists, museumgoers, magazine readers and TV-program watchers; scientifically, as research material for scholars pursuing academic careers; and, most nakedly, as merchandise for dealers in antiquities.”

That’s exactly right, and all these interest groups make it difficult to forge cultural policy. The strict national patrimony laws of Peru even make it difficult for reasonable compromise with Yale. Yale has generously offered:

The university showed me two letters sent to Peruvian officials in which Yale offered to send back “the museum-quality (that is, whole) objects excavated by Bingham at Machu Picchu” for display in a “state-of-the-art museum exclusively dedicated to Machu Picchu” that would be opened in Cuzco in collaboration with Yale on the centennial anniversary of Bingham’s 1911 discovery of the site. To help raise money for the museum, Yale would resurrect its touring exhibition, which — including dioramas and ceramics — would end up permanently in Cuzco. This represents a significant concession over Yale’s past proposal to divide possession of the approximately 300 display-worthy objects. The research collection, however, would continue to reside in New Haven. “The museum-quality pieces are the ones that people will want to see,” Shailor, the deputy provost, told me. “I don’t think they will want to see the end of a little finger or five dog bones, but these are extraordinarily valuable from a research perspective.” When I spoke with him in early May, Levin said that Yale is prepared to concede Peruvian title to the entire collection, but only after the ultimate physical allocation of the objects has been negotiated. In other words, Peru’s pride will be assuaged if Yale’s research needs can be met. Whether Peru will consent to those terms — indeed, whether the GarcÃa government is at liberty to do so, legally or politically — is uncertain;

The offer strikes me as a fair compromise which would be a win for both sides, especially considering the current state of the museum near the Aguas Calientes train station:

I found evidence of none of those amenities. The doors were open to the air, which was moist from the nearby river, and the sole official was a caretaker who sold tickets and then exited the building. On display in the attractive (if unguarded) museum are the finds that Peruvian archaeologists have made at Machu Picchu in the years since Bingham’s excavations.

And that gets to the heart of repatriation disputes. Like it or not Yale has a great deal of funds at its disposal and is capable of performing good scientific study, while in Peru, the artifacts could be at risk of theft and are not climate controlled. It seems Yale’s offer to fund a museum in Peru would be an excellent opportunity for Peruvians. Yet it seems many of the strident cultural nationalists have a hard time with even this compromise.

Hat tip to Donn Zaretsky at the art law blog for pointing out the article.

Questions or Comments? Email me at derek.fincham@gmail.com

A Magritte is Recovered


Magritte’s Les Reflets du Temps has been recovered. The work had been stolen from storage in 2006. The work may be worth up to £350,000. The work was discovered by a member of the public who checked it against the London Stolen Art Database. This is welcome news, and perhaps will give pause before planned cuts the the Art and Antiques unit take place.

Det Supt Vernon Rapley, head of the unit, said: “For anyone considering buying art, antiquities or cultural property the database is an invaluable resource to help buyers check that they aren’t being sold stolen items.

“I am really pleased that the database has enabled this Magritte to be found so that the victim can have it returned to them.”

Exactly right, but the website explicitly states that it should not be used for due diligence purposes. The problem with databases, is there are too many, and they are divided regionally. Ideally there would be one overarching database any prospective buyer could check.

There is no word either on who stole the work. Unfortunately that is often the case when stolen art like this is recovered. The thieves are long gone, and the authorities main priority (and perhaps rightly so) is the recovery of the work. This also makes it appear as if there are little or no penalties to be had for stealing works though.

Questions or Comments? Email me at derek.fincham@gmail.com

Forthcoming Article on Federal Criminal Penalties for Dealing in Illicit Cultural Property


I have posted my new manuscript on SSRN: Why Federal Criminal Penalties for Dealing in Illicit Cultural Property are Ineffective, and a Pragmatic Alternative. It will be published in the Cardozo Arts & Entertainment Law Journal this fall. Pictured at right is Egon Schiele’s Portrait of Wally which has been locked away in storage for 8 years due to a protracted forfeiture dispute. Here is the abstract:

There have been many articles on this subject in recent years, and I add to the discourse in two important ways. First, I attempt to unpack the values at work in US federal criminal penalties for buying and selling illicit cultural property. The illicit trade in cultural property may be the third largest behind narcotics and weapons. I look at the various stakeholders which formulate cultural property policy and look at why their fundamental differences of opinion are producing an ineffective regulatory framework. A number of recent articles have dealt with this subject, however the discussion about what the law should be doing has prevented a discussion of the practical effect of the status quo. I hope my analysis will further the debate by showing that the current criminal penalties are not producing satisfactory results. Second, I show how a pragmatic approach to cultural property has worked well in the United Kingdom and how such an approach could be adopted in the US. This would give real effect to the federal criminal regulation of cultural property. The art and antiquities market lacks transparency at present. Until this trade begins to effectively distinguish between licit and illicit cultural objects, the theft, looting and destruction of historical sites will surely continue. I hope my discussion of the UK experience can bring attention to the illicit trade in cultural property and the criminal response in the US.

I would be delighted to hear any comments or reactions to the piece.

Questions or Comments? Email me at derek.fincham@gmail.com

55 Card Pick-up (UPDATE)


The Pentagon will be sending 40,000 decks of cards to troops in Iraq and Afghanistan. It is an attempt to raise awareness about the heritage of the two nations. Some may remember that there was another earlier deck of cards which showed the most wanted senior government officials.

Each card in the new deck shows a historic site or small antiquity. The goal is to show American troops that they should not pick up and take home artifacts. One would hope that such an education program had already been underway, but the troubling accounts at Babylon I talked about earlier reveal that is probably not the case.

A few of my favorite cards:

The seven of clubs shows the Ctesiphon Arch and says “This site has survived 17 centuries. Will it and others survive you?”

The five of clubs says “Drive around, not over, archaeological sites”.

The two of hearts shows ruins at Samarra and says “Ninety-nine per cent of mankind’s history can be understood through archaeology.”

Exactly right. Of course the US Military could have shown more concrete regard for these sites by better protecting and avoiding them during the invasion, or by abiding by the tenets of the 1954 Hague Convention. But if these cards raise awareness and stop a few GI’s from driving over millenia-old ruins they will have done their job. I would also expect them to be a major collectors item in the near future, and I’d like to have a deck myself.

UPDATE:

Mark Rose of the Archaeological Institute of America kindly informs me that the AIA have some pages documenting the destruction in both Iraq and Afghanistan, both of which are excellent. They also have a troop lecture program for troops headed to Iraq and Afghanistan, which you can read about here. That strikes me as an excellent idea, regardless of your stance on cultural property internationalism or the invasion of Iraq.

One can while away a lot of good time on wikipedia just learning about places like Ctesiphon, and it really is a pity many of these places have been damaged and looted in recent decades, by both Iraqis and invading forces during the periods of conflict.

Questions or Comments? Email me at derek.fincham@gmail.com

Troubling Decision at the High Court

Another recent attempt by Iran to use the courts of England and Wales has come up short. However this time Iran makes a much stronger case than it did in the Berend decision, and may reveal some very troubling shortcomings in the way Anglo-Welsh law responds to foreign claimants.

In Republic of Iran v. Barakat Galleries Ltd. [2007] EWHC 705 (QB), Iran sought to recover antiquities it claimed were from the Jiroft region, but were in the possession of Barakat galleries in England. The opinion was kindly forwarded to my by Gary Nurkin via LexisNexis.

Jiroft is located on the Halil river in Southeast Iran. If the antiquities were indeed from the Jiroft region, than they were almost certainly discovered in the last few years. Counsel for Iran claimed the takings were recent, as Jiroft experienced flooding in 2001 which washed away soil and revealed a large number of antiquities. Iran argued it is the lawful owner of all antiquities excavated from the Jiroft region based on a number of provisions of Iranian law. Justice Gray assumed the antiquities had been illegally excavated between 2000 and 2004, and yet Iran still has no title to them. Barakat argued that Iranian law does not give a possessory interest to Iran, and Iran never became owners of the objects under Iranian law. The ultimate issue, and the one that proved fatal to Iran’s case here is whether Iran has declared itself the owner of all undiscovered antiquities. Unfortunately for Iran, there is no specific nationalization provision, but rather a number of other provisions. Professor Taleghany, the Iranian law expert for the claimant said:


Since time immemorial Iran was ruled by absolute monarchs. The kingdom of Iran was the king’s domain, i.e. his estate. It was as such that the kings acquired further territories, ceded territories and exchanged part of their kingdom with the neighbouring kings. The last evidence of the exercise of such power was exhibited in 1893. However, a short while after this date there was a Constitutional Movement in Iran and the king’s domain became the Crown’s, or government property. When the Iranian main laws were codified in the Civil Code of Iran (section 1 of which was approved in 1928) the internal ‘government properties’ legally replaced the king’s domain.

Curiously, Justice Gray concedes there “would have been at some stage and by some means a transfer to the state or government of Iran of property rights previously owned by the king, these constitutional provisions form no part of Iran’s case in these proceedings. Accordingly I will pay no regard to them.” It seems then that Iran should have attempted to clear up what precise rights the monarchy gave over to the new state. It seems Gray J did not feel the need to look into the matter himself, as apparently the parties own experts seem to be the final experts of any foreign law, especially in this case as Iranian law is quite foreign to an English Judge.

Iran argued its own Civil Code, Section 3 Article 26 states “Government properties which are capable of public service or utilisation, such as fortifications, fortresses, moats, military earthworks, arsenals, weapons stored, warships and also government furniture, mansions and buildings, government telegraphs, public museums and libraries, historical monuments and similar properties, and in brief, any movable or immovable properties which may be in the possession of the government of public expediency and national interest, may not privately be owned.

That provision could be clearer I suppose, but clearly suggests Iran has vested antiquities in the state. However Gray J stated that the words “‘and similar properties’ in Article 26 are not apt to extend the scope of that Article so as to embrace movable antiquities. I see no similarity between antiquities on the one hand and fortresses and the other specified properties on the other hand.” I strongly disagree on this point, as historical monuments can mean specially designated areas, and I don’t think are exclusive to large architectural remains or the like.
Also, the 1930 Iranian National Heritage Protection Act provides “all artefacts, Buildings and places having been established before the end of the Zandieh Dynasty in Iran [late 19th Century], either movable or immovable, may be considered as national heritage of Iran and shall be protected under the State control.”

Also, a 1979 law provides “Considering the necessity of protection of relics belonging to Islamic and cultural heritage, and the need for protection and guarding these heritages from the point of view of sociology and scientific, cultural and historical research and considering the need for prevention of plundering these relics and their export abroad, which are prohibited by national and international rules, the following Single Article is approved.”

Unfortunately these and a myriad of other Iranian provisions do not clearly state “Iran is the owner of all undiscovered antiquities”; rather Iran argued that the spirit of all of these various provisions must surely have given itself title to these antiquities. Iran was essentially asking the court to “infer title”.

Gray J also has some rather curious things to say about the 1930 act. Here is the excerpt from the judgment:

46. It is true that, as Professor Taleghany points out, Articles 13, 16 and 17 of the 1930 Act (see paragraph 22 above) provide (according to Professor Taleghany’s translation) for the “seizure” of movable assets or (according to the other translation included in the papers) for their “confiscation”. The word in Farsi is “zabt”. The dictionary definition of “zabt” includes both “seize” and “confiscate”. I do not find it necessary to decide which definition is preferable in the present context. It seems to me that the provision for seizure/confiscation is designed to spell out penal consequences of illegal excavation and attempted export respectively. According to Professor Taleghany’s thesis, these provisions are otiose [i.e. useless] since the State is already the owner. Confiscation/seizure does not happen unless objects are discovered in the course of illegal excavation or an unlawful export of antiquity by a dealer is attempted. In that sense Articles 13, 16 and 17 are inconsistent with a pre-existing state ownership of antiquities. Of course, by virtue of those provisions of the 1930 Act, ownership of antiquities may be transferred to and become vested in the State but only in consequence of the sentence of a criminal court.

47. I accept the evidence of Mr Sabi that the 1930 Act primarily regulates the listing of the national heritage and makes provision for measures to be taken to protect and preserve items of the National Heritage, for example by restricting excavations and export. Mr Shepherd is in my view right to stress that the obligations created by the Act are in personam obligations, including the obligations on the accidental or chance finder to inform the Ministry, which will decide whether the particular item is worthy of being listed in the National Heritage List. I cannot accept that the 1930 Act is concerned with property rights.


I frankly do not understand why a seizure provision cuts against Iran’s ownership declaration. In the US, some very aggressive seizures have taken place premised on the idea that foreign states have title to the objects. Indeed, US courts are much more receptive to these kinds of claims brought by foreign claimants. The upshot of this ruling is that courts in England and Wales may not adequately enforce foreign nationalization declarations. Granted, Iran’s declaration was hardly clear in this case, but I think there was ample ground for the court to infer title in this case. The decision continues, but clearly the Iranian vesting problem was the salient issue in the case.

The appeal will certainly be much anticipated, and I’ll post information here when I know more. Gray J has authorized the case for appeal. In the UK, appeal is not automatic as it often is in the US. So the Appellate decision should be fascinating reading, and I would expect this judgment to be overturned.

We can take a number of broader points away from this decision nonetheless. First, the UNESCO Convention has proved completely ineffectual for undiscovered antiquities. That convention, unless coupled with an effective bilateral agreement does very little. Also, Barakat galleries purchased these objects via France, Switzerland and Germany; which means dealers continue to launder objects through various jurisdictions. Finally, where was the potential criminal prosecution? This shows once again that the Dealing in Cultural Objects (Offences) Act 2003 allows far too many illicit transactions to be effectual. Finally, if this case were to appear in US courts, it is likely that federal prosecutors would have stepped forward and initiated a seizure proceeding to protect the rights of the source nation, even to the extent that many federal prosecutors have been accused of being overzealous. However no such seizure or assistance appears to be forthcoming in this case. I wonder to what extent Iran’s position on the international stage and by extension treatment in this case may be different from other friendlier source nations such as Egypt or Greece? If Iran’s appeal is unsuccessful, I would expect it to clearly state its intention to nationalize all antiquities.

In my view the relevant issue should be whether Iran has done enough to put looters on notice that what they are doing is illegal. Are they enforcing their laws domestically? Here it seems that they are. This highlights the need, once again, for the UK to adopt the recommendation of the Illicit Trade Advisory Panel and produce a database of source nation legislation, that would allow source nations to know when their domestic nationalization provisions are insufficient to be enforced at the market end, and would also prevent dealers from claiming they did not know an object could not be exported.


Questions or Comments? Email me at derek.fincham@gmail.com

Stolen Greek Statue Returned to Greece


This 1,900 year-old torso has been returned to Athens after it was seized in Switzerland. It was recovered in March from the Swiss city of Basel. It had been taken in 1991 from the island of Crete. Switzerland has historically been a transit state for many antiquities, however it has worked to change that in recent months by signing on to the largely symbolic 1970 UNESCO Convention, but also implementing that convention effectively by signing bilateral agreements with Peru, Italy and Greece.

I wonder why the Swiss dealer David Cahn who had the statue was not subject to any criminal penalties, or indeed why he gave up the object so freely. Had the object been in the United States, he would have been subject to Federal Prosecution.

This object was not illicitly excavated, but rather was stolen along with 9 other items. From the comments of the Greek Culture Minister George Voulgarakis, it seems he is connecting the return of this theft with the Parthenon Marbles in the British Museum. Clearly though, the two cases are much different.

Questions or Comments? Email me at derek.fincham@gmail.com

WMD and Antiquities?

Archaeology has an interesting but brief interview with Matthias Rossbach who has led a project which uses Nuclear Analytical Techniques to measure elemental composition of ceramic, stone and metal to learn more about the age and provenance of objects. Here is an excerpt:

The IAEA is best known for combating the illegal trade of nuclear materials—how did you get involved with archaeology?
When I joined the agency, there was a project in Latin America that used NATs for so-called pottery fingerprinting to determine provenance by studying the elemental composition of the clay from which the pottery was produced. This was restricted to Latin America, though, and I was looking for opportunities to enhance the application of NATs in all our member states. So, through this program, museums and excavators work with government labs to learn more about the age and provenance of their materials, and even learn whether their objects are fakes.

What makes NATs good tools for authenticating artifacts?
If you analyze the element content, you can easily determine what is authentic because the production procedures and materials differ between today and, let’s say, a thousand years ago. So the composition of the products is different and NATs are virtually nondestructive.

Interesting stuff. I wonder what the cost is for such an analysis, and whether this kind of study might be used for some high-profile antiquities where the original findspot or place of creation is unknown. I’m thinking primarily of the Sevso hoard and the Bronze Statue of a Victorious Youth currently in the Getty. It will be a long time before such technology can be used to actually determine provenance I think.

Questions or Comments? Email me at derek.fincham@gmail.com