March 2008 – Illicit Cultural Property

Yours Truly on the Americana Show

SHMU is a community media organization, and it operates a volunteer radio station here in Aberdeen. It reminds me in many ways of some of the very best things about College and community radio back in the US.

I don’t often write about it here, but one of the things that got me started researching cultural property issues were my early interest in copyright law in law school. It’s perhaps a tenuous link, but the animating ideas behind a lot of my ideas on cultural property law and heritage are directly related to what I think about excessive copyright laws and other restrictions on how we consume music and visual works in digital form. No matter how easy it may become to find music in the future (either legally, illegally or quasi-legally) I think music still needs to be curated.

As such I was very pleased to be a guest on my good friend Dougie Thomson’s Americana show last weekend. The man has an incredible knowledge of some great American tunes; and he was kind enough to let me bring in some of my favorites. The show will be archived for a few days if any care to listen in. I had a great time, though I think I need quite a bit of work on my DJ skills. Hopefully I was at least charmingly inept. If nothing else the contrast between my neutral midwest accent and Dougie’s Scottish accent should be worth a listen. Those interested in the Slovenian sensation I mention on the show can learn about him here.

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

Peru Wants a Piece of the Black Swan

Sam Jones of the Guardian had an interesting article earlier this week updating the dispute between Spain and Odyssey Marine over the enormous shipwreck known as the Black Swan. Odyssey Marine recovered a massive amount of gold off the ocean floor, which may in fact be the wreck of the Nuestra Senora de las Mercedes. The dispute is currently pending in US Federal Court in Florida; the admiralty law of salvage will most likely dictate that Odyssey Marine will at the very least get to keep a substantial portion of their haul provided the wreck was found in international waters.

Now it seems Peru has made claims:

But Madrid and Odyssey are now facing growing calls from Peru for some, or all, of the Mercedes’ cargo to be returned to the South American country.
Peruvian campaigners say that because the gold and silver coins were probably minted from metal taken without permission by the Spaniards, they belong to the modern-day country, not its former colonial master.
Last year, Peru’s production minister, Rafael Rey, said it was only “logical” that his country would seek the treasure’s return.
Blanca Alva Guerrero, director of the defence of cultural patrimony at Peru’s National Institute of Culture, said: “If we can establish that some or all of the recovered artefacts came from Peru, we are ready to reclaim them as material remnants of our past.”
She added that Peru had a legal right to recover any items deemed part of its “cultural heritage”.
Mariana Mould de Pease, a Peruvian historian who has successfully campaigned to oblige Yale University to return hundreds of artefacts taken from the Inca citadel of Machu Picchu, said that although Spain had “acted duplicitously, and – where necessary – brutally” during the colonial period, she hoped a deal could be reached. “Given the historical ties between the two countries, I think Peru should join Spain in taking part in the scientific recovery of the ship’s contents.”
She said that Italy’s recent success in securing the return of Roman items from the Metropolitan Museum of Art and the Getty Museum in the US had “already influenced countries such as Peru when it comes to taking legal action founded on cultural restitution”.
Spain, however, has so far dismissed the Peruvian claim, saying that the Mercedes was sailing under a Spanish flag and pointing out that Peru did not exist as a country in 1804.

This appears to be nothing of substance backing this up. I do not see any way in which Peru could intervene in the dispute between Spain and Odyssey Marine. Perhaps others are aware of this kind of thing working in other contexts, but as vile as the conquistadors may have been, they weren’t dealing with a legal entity or nation as they understood it. Peru did not exist when this gold was taken.
Also, many will of course note that the agreement between Yale and Peru is hardly a done deal, despite the fact its probably about as good a deal as Peru could get under the circumstances.

I’m also surprised at how the Italian repatriation successes of recent years are continuing to appear in circumstances which are wholly unrelated. The Odyssey project, as flawed as some may believe it was, appears completely legal, and is a far cry from the looting which the Italian repatriations were responding too.

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

UK Enforces Italy’s Export Restrictions

European Council Directive 93/7/EEC creates a regime for the return of cultural property within the Community for cultural objects belonging to the national artistic, historical, or archaeological heritage which has been illegally exported from a member state.

Martin Bailey of the Art Newspaper has an example of this in practice. Two works by Francesco Guardi have been seized by Scotland yard in London. The paintings, The Departure of the Bucintoro to San Nicolo on the Lido and The Return of the Bucintoro to the Palaxxo Ducale (picture here) were owned by Lord Shuttleworth, and were later bought by an Italian, Mario Crespi in 1952. The paintings were purchased three years ago by an Italian art dealer, but it appears an export licence was made in Milan but the works were perhaps intentionally misattributed to an “anonymous artist” thereby allowing for their export. When a UK art dealer sought to re-export the works from the UK, he correctly labeled the works. The works may be worth “€6m ($9.4m) in Italy, but over £10m ($20m)” elsewhere.

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

Merryman on the Sevso Treasure (UPDATE)

John Henry Merryman has posted a thoughtful, provocative, and surely controversial working paper on SSRN, Thinking about the Sevso Treasure.

Abstract. The Sevso Treasure is an example of what are frequently called “unprovenanced antiquities.” Establishment archaeologists claim that by acquiring and showing them collectors and museums encourage looting, while collectors and museum officials contend that since the works have already been looted, they serve the public interest better if held by a museum or a collector (who may lend them to a museum). The demand for antiquities responds to a normal human interest in acquiring, enjoying and showing them. That demand could be met by a flow of provenanced objects in a licit international market, but retentive source nations, supported by establishment archaeologists, drastically constrict the supply, and an illicit market is the predictable result. Establishment archaeologists’ misguided campaign to have unprovenanced antiquities considered illicit unless proved licit unacceptably reverses the normal order of proof and creates a probatio diabolica. A museum interested in acquiring the Sevso Treasure should be encouraged to do so.

It’s extremely well-written as Prof. Merryman’s articles invariably are. However he sends a shot across the bow of the archaeological establishment, who will surely be quick to respond. The subject of the article is the Sevso treasure, and unprovenanced antiquities. The idea of classifying them as looted until proven otherwise is what Merryman calls a “probatio diabolica” or devil’s proof. He’s right in a sense, however many or all of these objects are more likely looted are they not? It’s a quick and lively read, but surely controversial.

He raises the critique first articulated Paul Bator in his seminal article, that much source regulation produces the opposite of its intended effect. He also argues source nations eliminate the possibility of a licit market in antiquities, using Greece as an example. These are important arguments, and cultural policy makers are still grappling with them. The response from the other side will no doubt be just as lively.

I have to express a bit of disappointment with the article, as it seems likely to further divide folks into the nationalist/internationalist camp, which would seemingly make meaningful discourse more difficult.

He does ask a meaningful question though, and its one without an easy answer: what to do with the treasure now? There has been a jury trial on the merits, and neither Hungary nor Croatia were able to establish ownership in a New York court. The Trust which now owns the treasure has very few options. Should it not be on display somewhere? The likely looting has already taken place. Punishment of the looters is impossible at this point. Is there not some value in displaying or studying the treasure somewhere?

UPDATE:

David Gill has read the working paper now as well, and gives a thoughtful response over on his blog. He sees a potential contradiction:

But I find a mismatch in Merryman’s approach. If he argues for our shared culture, does it matter if North American institutions (such as the AIA) and legal courts are in the forefront of protecting world (“cosmopolitan”) heritage? Can North American import restrictions help to reduce the destruction of archaeological sites on, say, Cyprus?

I think this misses Merryman’s core argument. Right or wrong, Merryman follows Paul Bator’s reasoning that source nation regulation actually increases the illicit market. I imagine Merryman would counter that what he calls “retentive” source nation regulation exacerbates the problem, as the desire to collect and display antiquities is a given, and we need to find a licit market to ease demands on the regulation in source nations.

Essentially the two have a fundamental disagreement about how best to proceed: should we construct a licit market, or attempt to prevent individuals from purchasing antiquities. The former would seemingly require a shift in source nation laws, the latter would have to fundamentally alter the market, perhaps ending it entirely. Neither seem to be particularly likely.

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

Conference: The Fate of Cultural Property in Armed Conflict

The Lawyers’ Committee for Cultural Heritage Preservation is sponsoring an interesting and timely event on cultural property during armed conflict:

Protecting the Past: The Fate of Cultural Property in times of Armed Conflict

WHEN:
April 24, 2008
1:30pm – 4:30pm Program
4:30pm – 5:30pm Reception

WHERE:
National Trust for Historic Preservation
Board Room, 2nd floor
1785 Massachusetts Ave, NW
Washington, DC 20052

COST:
There isn’t a cost to attend this event, but pre-registration is required, as space is limited

PROGRAM:

Panel I – Looking Back: Lessons Learned from Past Conflicts
Individual presentations, followed by questions.

Lynn H. Nicholas, Independent researcher of Nazi era social and
cultural policy and author of “Rape of Europa,” will discuss Nazi and World
War II art looting, wartime preservation measures and post-War restitution.

Robert M. Edsel, Author of the non-fiction book, “Rescuing Da
Vinci,” co-producer of the documentary film, “The Rape of Europa,” and
Founder and President of the Monuments Men Foundation for the Preservation
of Art, will discuss the role of the WWII Monuments, Fine Arts and Archives
troops in protecting, preserving and restituting looted art.

András J. Riedlmayer, Harvard University, will discuss the
destruction of cultural property during the Balkan Wars of the 1990s.

Hays Parks, U.S. Department of Defense, will discuss the history of
and U.S. position toward the 1954 Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict.

Thomas R. Kline – Panel Chair, Attorney, Andrews Kurth LLP, and
Assistant Professorial Lecturer, GWU, Museum Studies Program.

Panel II – Looking Forward: Applying the Lessons Learned.
Round table discussion, followed by questions to members of both panels.

Corine Wegener, President, U.S. Committee of the Blue Shield;
Associate Curator, Architecture, Design, Decorative Arts, Craft, and
Sculpture at The Minneapolis Institute of Arts and Major (retired) in the
U.S. Army Reserve, will discuss looting and destruction of cultural property
at the Iraq National Museum and recovery efforts and also the role of the
Blue Shield in protecting cultural property in future conflicts.

John Russell, Professor, Massachusetts College of Art, and former
Senior Advisor to the Iraqi Ministry of Culture, Coalition Provisional
Authority, will discuss damage done to cultural heritage during the Iraq War
and efforts toward cooperation between the U.S. military and cultural
heritage professionals of different nationalities.

Richard Jackson, Special Assistant to the Judge Advocate General for
Law of War Matters and Army Colonel (Ret.), will discuss current attitudes
of the U.S. military toward the Hague Convention and obligations to preserve
cultural heritage during armed conflict.

Patty Gerstenblith – Panel Chair, Professor, DePaul College of Law,
and President, Lawyers’ Committee for Cultural Heritage Preservation.

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

Have American Museums Initiated "Real Change"?

Lee Rosenbaum has a very interesting post detailing her thoughts of the “Return of Cultural Objects” conference held in Athens this week. She participated in the panel titled “Museums, Sites and Cultural Context”, and described her own presentation as follows:

[I] lampooned (and occasionally praised) strategies used in labeling and installing antiquities by American museums, which often have scant information about the archaeological context of objects in their collections. I was struck by the contrast between American labels and those at Athens’ National Archaeological Museum, where almost every object is accompanied by information on where it was found.

I ended by championing the view that I share in common with my hosts, singling out two examples from U.S. museums that fit the Parthenon marbles theme—ancient objects that had been fragmented and should be reassembled through the amicable cooperation of the different owners.

However she expressed a more unpopular view when she argued, in sharp contrast to Ricardo Elia, that “there had been substantial recent changes in American museums’ antiquities-collecting policies, which had been implemented to varying degrees.” It’s great to get this kind of quick reaction to the discussion. As to the substance of the claim, whether there has been real change, I think Rosenbaum is probably right, but only for a limited number of museums. A couple institutions, the Getty and the Indianapolis Museum of Art have very strict acquisition policies that are the gold-standard. However these kinds of policies are still voluntary, and there are a number of other institutions who are still dragging their feet. Look to the recent raids in California of LACMA and other institutions for evidence of a failure to reform. Ultimately, both Elia and Rosenbaum are correct, depending on which institutions they might be discussing.

This calls to mind the recent string of repatriations from North American institutions, which can be seen as responses to earlier acquisition policies which may have been lacking. Stacey Falkoff, a third-year law student at Brooklyn Law School has published an interesting student note, Mutually-Beneficial Repatriation Agreements: Returning Cultural Patrimony, Perpetuating the Illicit Antiquities Market in 16 Brooklyn Journal of Law and Policy 265 (2007). She does a great job of describing and compiling the recent string of repatriations, and draws some conclusions. She argues two things essentially, that these Mutually Beneficial Repatriation Agreements (MBRAs) actually perpetuate the illicit trade by mitigating the damage which these institutions suffer when a repatriation takes place, thereby making it easier for museums to acquire potentially-looted objects, and second they hamper the formation of judicial precedent utilizing international conventions.

Certain aspects of these MBRAs may be questioned, however she doesn’t do a good enough job showing how the judicial interpretation may be needed, and she falls into the trap many student notes have of relying too much on secondary sources and other articles. I would give the piece high marks for thoroughly analyzing these recent agreements, and its well-researched as far as many of these secondary sources.

I’d argue the law may be complex in this area, but more judicial interpretation is not necessarily needed. I would come to a different conclusion. I think these repatriation agreements are a good thing, and I certainly think the Met will think twice before acquiring another “orphan” such as the Euphronios Krater, which was seen as suspicious when it was acquired.

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

Italian Police Seize 1,000 Artifacts… last year

The AP is reporting that Italian police have announced the raid of a wealthy Roman’s country home and the seizure 1,000 artifacts. It seems the objects had been stolen years ago in 2002 from one of Emperor Trajan’s villas. The suspect is not in custody, “The prosecutors declined to identify the suspect since authorities were still probing the theft, but said he was an affluent engineer who used the stolen artifacts to decorate his country home, inserting pieces of ancient Roman mosaics in his basement floor and decorating his fireplace and bathroom with other pieces.”

This is a depressing announcement for a number of reasons. First, why did it take so long for the announcement. Second, the thefts appear have been taken from a known site, which is only partially excavated. By all accounts this is an extremely important archaeological site. What kind of site security was in place in 2002? If the known sites cannot even be protected, how can unknown tombs and undiscovered sites be adequately policed. This highlights that though the antiquities trade is international, not every buyer of looted Italian antiquities comes from outside Italy, and in fact the looters are most often Italian. Finally, will there be no criminal charges filed? The wheels of the Italian justice system seem particularly slow.

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

Insurgents Selling Antiquities in Iraq

The AP is reporting on the views of Marine Colonel Matthew Bogdanos, a participant in this weeks conference in Athens. Bogdanos is a New York assistant DA, and was instrumental in the efforts by US forces to undo much of the damage and looting which occurred when the invasion began.

He argued it was “undeniable” that extremist groups were using antiquities smuggling to gain funds. As he said, “the Taliban are using opium to finance their activities in Afghanistan… Well, they don’t have opium in Iraq, what they have is an almost limitless supply of is antiquities. And so they’re using antiquities.” He even has heard from sources that Hezbollah is taxing antiquities.

The claim is open to speculation of course, because so much of the trade is hidden. However Bogdanos is a passionate and thoughtful advocate for the protection of Iraq’s national heritage, and as such the Pentagon and World leaders would be wise to listen. The more attention the looting problem in Iraq receives the better. Unfortunately, the US and Europe are doing very little to prevent this smuggling or to protect archaeological sites in Iraq.

Sadly, I think antiquities from this region will be appearing on the market for decades to come, and as such buyers, who should perhaps know better, will be confronted with the same embarrassing legal and ethical questions which have plagued North American institutions in recent years in their acquisitions of antiquities from Southern Italy. Of course they can avoid this controversy by refusing to purchase potentially tainted objects.

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

The Long Shadow of the Parthenon

Michael Liapis, Greek Minister of Culture, gave the opening remarks at the conference on “Return of Cultural Property to its Country of Origin”. He managed to get a good deal of press coverage, including a Reuters story.

Unfortunately I found his comments unhelpful, as did David Gill. He attempts to link the Greek quest for the return of the Parthenon marbles from the British Museum and elsewhere with the decisions by the Getty, the Met, and the MFA in Boston to return relatively recent and looted antiquities. The two claims could not be more different. One can be characterized as a historical dispute, while the others are examples of clear wrongful conduct, many of which involved criminal wrongdoing.

Liapis argues “More and more museums are adopting tighter ethics codes and governments promote bilateral and international cooperation (for the return of ancient objects)… So an ideal momentum is being created … for clear solutions on this issue.”

Gill responds, quite rightly, that the major difference between these two claims is context. We know where the Parthenon Marbles came from, we have their context. In fact one can see the context from the new Parthenon Museum, pictured here. However we don’t know for sure where many of the looted antiquities which were returned in recent years came from. Their context is lost to us. He follows this up by asking a pointed question in return, will Greece take steps to return Bulgarian silver from the Pazardzhik Byzantine Silver Hoard?

Others have perhaps said this more persuasively than I, but I think cultural policymakers only make the situation worse when they link historical events such as Lord Elgin’s removal of the marbles with recent criminal activity on a widespread scale. There may be a persuasive claim for the return of the marbles to Athens, however such a claim is not likely to succeed by making such unhelpful comparisons.

The closer link is with the Bulgarian silver, which it seems Greek’s legal system is unable to adequately return to Bulgaria.

On an unrelated note, the Acropolis museum, where this event is being held was reviewed by Richard Lacayo.

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

Major Theft Outside Paris

Details are very slim still, but AFP is reporting that 30 paintings by Monet, Cezanne, Corot and Sisley have been stolen, along with a Rodin sculpture. The works were taken from an antiques dealer near Paris. Five men broke into the home in Le Pecq, and took the works. They abandoned their vehicle in a nearby wooded area and burned it.

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