18th Anniversary of the Gardner Theft


Today is St. Patrick’s day, which marks the 18th anniversary of the thefts from the Isabella Stewart Gardner Museum. The director of the museum, Anne Hawley repeated the offer that the Museum would pay $5 million for information leading to the recovery of the works. As her statement on Friday said, “the theft of these rare and important treasures of art is a tragic loss to the art world and to society as a whole,” Hawley said in her statement. “Imagine never being able to hear a performance of Beethoven’s Fifth, read Herman Melville’s “Moby Dick,” or listen to a Louis Armstrong jazz piece ever again . . . The loss of these remarkable masterpieces removes a part of our culture essential to our society.”

Pictured here is The Concert, by Vermeer perhaps the most valuable and important of the stolen works.

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

Conference: Return of Cultural Property to its Country of Origin.

Next week in Athens at the New Acropolis Museum, the Hellenic Ministry of Culture, in cooperation with UNESCO will sponsor a conference on “Return of Cultural Property to its Country of Origin”. Here is an excerpt of the press release by UNESCO:

The conference participants will reflect upon and exchange experiences on the issue of the return of cultural property, examining several successful return cases, including: the Axum Obelisk from Italy to Ethiopia, the return of the Stone Birds of Great Zimbabwe from Germany to Zimbabwe, the return of human remains to the Ngarrindjeri Aboriginal tribe of South Australia, the “Utimut” cooperation project for the return of cultural objects from Denmark to Greenland, the reunification of a Neo-Sumerian alabaster figure (cooperation project between the Louvre Museum and the Metropolitan Museum of New York) and the case of the ceremonial mask of the Kwakwaka’wakw people of Vancouver Island between the British Museum and Canada.

On the second day, four thematic workshops will debate:
• Ethical and Legal Aspects,
• Mediation and Cultural Diplomacy,
• Museums, Sites and Cultural Context
• International Cooperation and Research.

Discussions will also take place on ways to strengthen the action of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation.

Established by UNESCO in 1978, the Intergovernmental Committee provides a framework for discussion and negotiation on the return or restitution of cultural property. The committee, composed of 22 elected member states, remains strictly advisory, establishing forums for debate and offering non-legally binding recommendations.

Proceedings will be published and made available for the 15th session of the Intergovernmental Committee, scheduled for June 2009. The return and restitution of cultural property will also be the theme of another meeting to be held in November this year in Seoul (Republic of Korea), where an extraordinary session of the Intergovernmental Committee will be held to mark its 30th anniversary.

* The New Acropolis Museum, 2-4 Makriyanni Str, 117 42, Athens Greece

A Program of the events is here, and an impressive cast of heritage thinkers and experts have been assembled, including at least two fellow bloggers, Lee Rosenbaum and David Gill who will hopefully share their thoughts when they return.

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

Compensation for Restitution Experts

Elise Viebeck, a student writer for the Claremont Independent has an outstanding article about the conflicts of interest which arise when history and art history experts are brought in to assist the heirs of victims who lost valuable art to the Nazis during World War II. She details the actions of a CMC History Professor, Jonathan Petropoulos.

The article asks an important question: How should these experts, whose specialized knowledge can bring about the restitution of ultra-valuable masterworks be compensated? Swiss prosecutor Ivo Hoppler raided a Swiss safe in the Summer of 2007 as part of a “three-nation probe of a German art dealer accused of conspiring with an American at historian to withold a painting by French impressionist”. I talked about the discovery of the work at issue, Camille Pisarro’s Le Quai Malaquais, Printemps last summer, but was unaware of this controversy.

Here’s an excerpt of Viebeck’s interesting story:

The story of the Pissarro begins with Zurich resident Gisela Fischer, 78, who is of Jewish descent. She and her family fled Vienna in 1938 two days after the Nazi Anschluss. The Gestapo looted their home, and among the stolen items was a painting by impressionist Camille Pissarro, Le Quai Malaquais, Printemps.

After the war, Fischer’s father successfully located and reclaimed many of his family’s stolen assets. After her father’s death in 1995, Fischer concentrated her efforts on the Pissarro which had remained elusive. In early 2001, she registered the painting with the Art Loss Register (ALR), a London-based for-profit company involved in stolen art recovery.

The ALR began to research the painting’s provenance, or history of ownership, in the hope of ascertaining its location. There was no initial financial arrangement, as at that time the ALR did not charge for Holocaust and World War II art claims…

On January 8, 2007, at a meeting in Munich, a representative of the ALR gave Fischer a message from Petropoulos. He wrote in a letter dated December 7, 2006 that he had located the painting in Switzerland and was communicating with an unnamed contact of its owner. The owner was a “foundation created by the heirs of the person who purchased [the painting] in 1957.”

The foundation, he wrote, wished to remain anonymous.

Two days after the meeting in Munich, Radcliffe also sent Fischer a letter, this time to request a finder’s fee for the organization’s success in finding the Pissarro in Switzerland. Despite its earlier commitment not to charge Holocaust claimants, the company had changed its charging policy for Holocaust art claims, telling claimants that the company could complete restitution “at far less cost and often more efficiently” than the expensive lawyers who took some cases. The meeting with the ALR in January 2007 was the first Fischer knew of the ALR’s changed policy…

For the Pissarro case, Radcliffe proposed an elaborate compensation scheme, including 20 percent of the first $1 million, 15 percent of the second million and 10 percent of any additional value of the painting. Included in his price was a stipend for Professor Petropoulos, who had requested $100,000 from the ALR for his services.

In a letter dated January 23, Fischer’s lawyer, Dr. Norbert Kückelmann, rejected the ALR’s proposal. Three days later Petropoulos met with Fischer at the Hotel St. Gotthart in Zurich to try a new arrangement…

Radcliffe and Sarah Jackson of the Art Loss Register also went to Zurich, only to find themselves excluded from the dealings. “We went expecting to be included in the meetings with Ms. Fischer only to discover that they had already had meetings without us. We realized we had been cut out,” Radcliffe told the CI.

At the hotel, Petropoulos and Peter Griebert, a Munich art dealer, showed her digital photos of the Pissarro, claiming to have taken them that morning. According to an account published in ARTNews magazine, they did not give further details about its location or the identity of its owners at that time.

It’s a very interesting account, and I don’t think Petropoulos, nor even the Art Loss Register are painted in a favorable light based on this account. Though much nazi restitution litigation rests on the assumption that the law should compensate the victims of the holocaust and other misappropriation, the engine driving these claims are the large sums of money these works can bring at auction. I think an interesting issue which needs to be researched in more detail is how and to what extent these restitution experts owe a duty to claimants.

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

Is culture a basic need?

Dheera Sujan, presenter of Earthbeat on Radio Netherlands has an interesting account of something called a Cultural Emergency Response, sponsored by the Prince Claus Fund. You can listen to the show here.

It’s an international aid organization which both attempts to rescue and preserve culture during times of conflict, when “culture is the first to go and often the last thing on anyone’s mind.” The organization aims to prevent acts of destruction such as the destruction of the Buddhas of Bamiyan, the Serb bombing the library of Sarajevo, and indeed the loss to Iraq’s heritage when the US the UK, and the other coalition countries invaded Iraq in 2003.

Aid organizations often don’t focus on cultural loss, they are tasked with other matters such as humanitarian and other assistance; the CER attempts to fill t;his gap. Els van der Plas, director of the Prince Claus Fund says “We feel that culture is a basic need and we think that rescuing culture can give people a sense of hope and direction.”

When a disaster or armed conflict occurs, an application can be submitted for up to 35,000 euros for a project, so long as it is completed within six months. The CER has sponsored a number of projects. In Nablus it helped stabilize the foundations of historic houses which were being damaged by the widening of roads used by the Israeli army; in Morocco, it funded the rebuilding of a mosque destroyed by an earthquake. In Afghanistan, it restored a synagogue in Heart which had been damaged by flood in conjunction with the Aga Khan Trust. As the radio piece argues, “the Jewish community is long gone from Afghanistan but the beauty of the building is undeniable. It’s also a beautiful metaphor for tolerance: a Western and a Muslim [organization] collaborating with primarily Muslim workers together to rebuild a Jewish synagogue in a Muslim country where the Jews are gone – so that their history may remain.”

These kinds of rebuilding efforts are symbolic and a powerful symbol. One wonders if the US and other coalition forces would have had a better result in Iraq and Afghanistan had they spent more time and effort on this kind of cultural aid, rather than what one Iraqi predicted for his nation after the invasion “Democracy! Whiskey! Sexy!“.

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

Update on the Baghdad Museum

Martin Bailey has a very interesting interview with John Curtis, the Keeper of the Middle East at the British Museum on the current state of protection of archaeological sites in Iraq, now that we are approaching the five-year anniversary of the invasion, and the looting of the museum which soon followed. Here’s an excerpt:

TAN: How serious is looting of archaeological sites?

JC: The situation has been very bad, particularly in the south, at sites such as Isin, Tell Jokha (ancient Umma) and Bismaya (ancient Adab). However, recently there seems to have been an improvement. Professor Elizabeth Stone of Stony Brook University in New York State is monitoring satellite images of sites for evidence of digging. There now seems to be quite a falling off in the digging.

TAN: Why the improvement?

JC: Dr Abbas al-Hussainy, until recently the head of antiquities, had good contacts with tribal groups in the south and he stressed to them the importance of preserving sites. Another reason is that the market seems to have dried up, and there is no point in digging if you cannot realise quick profits. There may have been an improvement in policing of sites, but this is very recent, only in the past few months.

TAN: Are looted Iraqi antiquities turning up in western markets?

JC: There doesn’t seem to have been much Iraqi material appearing in London or western markets, and very little on eBay. There may be collectors buying in the Gulf states and the Far East, but this is speculation. Probably a lot of the looted material has remained in Iraq.

TAN: How much damage has been caused to sites by Coalition troops?

JC: Iraq is a vast archaeological site. You cannot have military manoeuvres without causing a great deal of damage.

I expect a number of new five-year what now retrospectives on the looting of the Baghdad museum, and the ongoing looting in Iraq. It seems to me that this issue is still under-reported, particularly by American journalists. What are American and Iraqi officials doing to safeguard sites? Sadly, I think they are doing very little, because the security situation in the country remains unstable.

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

Should Cultural Property be used to satisfy judgments?


There has been increasing attention paid lately to the use of art and antiquities to satisfy unrelated judgments against nations. In 2005, Russia had a $1 billion shipment of 54 paintings from Moscow’s Pushkin Fine Arts Museum seized at the Swiss border to satisfy Russian debts owed to Noga.

Similarly, in 2003 a group of American plaintiffs won a $90 million judgment against the Islamic Republic of Iran for a suicide bombing which took place in Jerusalem in 1997. James Wawrzniak Jr., a recent Harvard Law graduate has posted an excellent working paper on bepress titled Rubin v. The Islamic Republic of Iran: A Struggle for control of Persian Antiquities in America. It is likely to be published next fall.

Hamas claimed responsibility for the bombing in question, and the Rubin plaintiffs brought civil actions against Hamas, and also to Iran for providing material support and finance for the bombing. Experts testified that Iran provided both economic assistance from between $20 and $50 million dollars, and also terrorist training. Now I’m sure many readers would be quick to point out the US has given similar aid to similar groups, perhaps even during this Sunni awakening in Iraq, in which the US is essentially paying Sunnis to stop attacking coalition forces. I imagine Iran would have had a vigorous potential defense, however a default judgment was entered, whereby Iran essentially ignored the suit. Iran has since changed their stance after the Rubin plaintiffs decided to execute the $90 million judgment by claiming Persian antiquities in museum collections across the country. I’ll defer to Wawrzniak’s analysis as to what has transpired, but this litigation seems destined to last a number of more years.

One one level I can sympathize with plaintiffs who attempt to satisfy their judgments in this way. However, such a strategy, if taken to its logical conclusion would have troubling consequences for the cross-border movement of works of art. This was an issue in the recent dispute over the Royal Academy display of “From Russia: French and Russian Master Paintings 1870-1925 From Moscow and St. Petersburg”. Russia nearly backed out of the deal, eager to avoid a replay of the Portriat of Wally litigation.

The display required an act of Parliament to grant special immunity to prevent the works from being claimed by descendants of the original owners from whom many of the works were summarily seized during the Bolshevik revolution.

The question is, are the cultural benefits Great Britain and Russia share by viewing these masterworks, many never seen in London before? I think there is, and this cross-border movement of art is an important ideal which should be preserved, the recent string of nazi spoliation, and terrorist and other claims are important, and those victims deserve their day in court. However it should not be at the expense of our collective cultural heritage.

(Photo: Wassily Kandinsky Composition VII, 1913 on loan to the Royal Academy)

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

The Doctrine of Discovery, the US and New Zealand

The Doctrine of Discovery is an international legal principle which justifies property rights over new-found territories. The doctrine is still very much alive today. Russia evoked it when it placed its flag on the Arctic Ocean floor in 2007 to claim the potential oil and gas reserves there.

Robert J. Miller, of Lewis & Clark, and Jacinta Ruru, of the University of Otago, have posted a new comparative law working paper on SSRN, An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand.

Here’s the abstract:

North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world. The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people. In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one’s knowledge of both countries and their Indigenous peoples.

It’s a great read, and the doctrine of discovery has a lot to do with the difficulty cultural policy makes had in formulating a cohesive national and international legal regime to handle, regulate, and restrict the trade in cultural objects. Much of the very restrictive cultural patrimony laws in many nations of origin can be directly attributed I think to the massive cultural and economic drain which took place when European colonists discovered new lands.

(Hat tip)

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

Debate on the Portable Antiquities Scheme (UPDATE)

The domestic legal and policy framework for portable antiquities in England and Wales is unique, and differs from the typical approach. Three things set it apart from most other nations of origin. First is the limited state ownership of undiscovered antiquities, the second compensation to finders of the full price of their finds if the find is acquired legally, and perhaps most importantly is the legalization of indiscriminate digging in many areas.

Metal detecting is legal in the UK, and is only prohibited in specially designated areas, known as scheduled ancient monuments.

Only limited classes of objects become the property of the crown when they are discovered. This includes objects composed of at least 10% gold or silver, multiple ancient coins, and prehistoric base-metals, which are objects such as bronze. Pottery and carved objects become the property of the finder.

All other objects become the property of the finder, and in some cases landowners and finders share the value of finds. Finders of objects encompassed under the Treasure Act are entitled to the full market value of the find, as estimated by an evaluation committee.

The PAS is a voluntary scheme which fills the gaps left by the treasure act. There exists some confusion about the scheme, as a lot of commentators incorrectly talk about the scheme as shorthand for compensating finders of antiquities. Such a measure already exists outwith the PAS. However, the PAS is a voluntary network, organized by a national network of finds liaison officers. They speak with metal detecting groups about good practice, conduct community outreach programs, and most importantly record finds. They are often based in local museums or archaeology departments. In some cases, museums approach finders and purchase these objects.

One of the most positive impacts of the scheme is its database, an impressive accumulation of information, with over 300,000 objects recorded.

The scheme has led to a dramatic increase in the number of objects being reported, and a dramatic increase in objects which finders have always been legally-required to disclaim.

This begs the question: should the approach of England and Wales to Antiquities be adapted to other nations? I think the national network of FLO’s has been tremendously successful, and setting aside the issues of cost and implementation, would ideally be implemented everywhere. In England and Wales, nearly 90% of finds take place on cultivated land, where industrial farming practices and chemicals can potentially damage objects near the surface.

The question of whether the limited state ownership of undiscovered antiquities, the compensation to finders of the full price of their finds, and the legalization of indiscriminate digging can be adapted to other nations remains in some doubt. It should be noted that the legal prohibitions on antiquities digging in England and Wales are far more lenient than in nearly every other nation. The policy sacrifices archaeological context without question.

If we compare Scotland, which has an ownership interest in all undiscovered antiquities with England and Wales the data would seem to lend support to the notion that declaring an ownership interest of only limited classes of objects, and only prohibiting digging in limited areas has produced better results. Between 1998 and 2004, Scotland reported an average of just over 300 finds. During the same period, an average of just over 300 objects which qualify as treasure were recorded, but there was an average of nearly 40,000 finds reported by the portable antiquities scheme per year.

The scheme resulted in a dramatic increase in the reporting of treasure. A small portion of this increase may be explained by the widening of scope of the treasure act. However, I think we can draw two conclusions from the scheme:

First, if individuals are compensated for finding antiquities they will look for them, and find them, in some cases this damages the archaeological context of course.

Second, as the specter of increased criminal investigation of the antiquities trade and seems increasingly likely, with massive investigations coming to light in recent days in both Italy and here in California I think certainly the trade itself will have to find ways to justify its continued existence. Should the antiquities trade continue to exist in some form, the approach in England and Wales would seem to offer an interesting, and inarguably a successful model.

It should be noted that legally sanctioning digging, or funding digging would be politically unpopular in many nations with a strong cultural identity, such as Italy. I think cultural policy makers should approach any strategy which might incentivize digging with great caution.

There’s a couple of interesting items on the Portable Antiquities Scheme blog, and I’d like to boost the signal a bit and post them here. First is a video of Peter Twinn, a metal detectorist and archaeology student at Bristol Universtiy, who was interviewed in a brief piece on the BBC.

In addition, this afternoon at 4.30 GMT, there will be a half-hour debate in Westminster Hall on “The Future of the Portable Antiquities Scheme”, and you can watch it live here on Parliament TV. I’ll be watching, and I’ll comment here later on today.

UPDATE:

Essentially the debate was a bit of a letdown. It’s available here. It extolled the virtues of the scheme, but amounted to an argument about whether freezing the funding amounted to a de facto decrease in funding its operations.

I was struck again at how universally popular the scheme appears to be (though funding does not appear to share a correlation with popularity). There were no criticisms that it was perhaps incentivizing the looting of sites, but rather that it was as the Culture Minister Margaret Hodge claimed open to everyone from a secondary school student to doctoral dissertations. That seems the be the tremendous benefit of the scheme. I wonder if such a debate were held in Italy, or Iraq, or another source nation if there would be a similar kind of support for the program, or if its popularity may be a peculiar combination of cultural pride coupled with how and where objects are found in the countryside in most of England and Wales. I’ll confess I haven’t made my mind up on that question.

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