Personal Note


I am pleased to announce that my PhD thesis has been completed, successfully defended, corrected and printed. It’s titled “Preventing and Repairing These Losses: The Legal Response of the United States and the United Kingdom to the Illicit Trade in Cultural Property”. I think I should have perhaps chosen a more succinct title.

It feels great to be finished, and it was a lot of hard work with some tough decisions, but it wouldn’t have been possible without a lot of help and support from my colleagues here in Aberdeen and Joni (aka “my funder”). I’m sorry to say much of that support was undermined by our French Spaniel and serial abuser pictured here.

I’ve included the table of contents below. I’m still not sure if I want to try and publish it, which would mean a lot more work, and I suppose part of that will depend on where I land in the coming months. I started this little blog as a way to stay productive, even when I couldn’t quite get things going on the thesis. I’ve found it invaluable, and for anyone who writes I think a blog is a great way to keep in the habit of writing.

I’m not sure where we will end up at this point, I plan to continue research into cultural heritage issues, or at least a related field which will allow me to continue the work I’ve been doing. I had what I thought was a good shot at a couple of postdoctoral funding opportunities which would have allowed me to look in some real depth at repatriation, but unfortunately those fell through. On a happier note I am involved with a really exciting project with some people which will create a really great cultural heritage resource, which I’ll talk about in much more depth here in the coming months.

Posting will likely be very light for the next few weeks, as we’re heading back to the States to catch up with family and friends.

Chapter 1: Introduction.. 1

I. The Aims. 1

II. Foundational Issues and Terminology. 3

A. Illicit Cultural Property. 3

B. Source and Market Nations. 3

C. Provenance. 4

III. The Nature and Extent of the Illicit Trade. 6

A. Art 8

B. Antiquities. 9

IV. Laying the Theoretical Framework. 10

A. Values Inherent in Cultural Property Policy. 10

1. Preserving the Object 11

2. Preserving Archaeological Context 12

3. Preserving the National Patrimony. 13

4. International Movement 14

5. Accessibility. 15

B. Cultural Heritage or Cultural Property?. 16

C. How Sympathetic Facts Distort Cultural Property Law.. 17

V. The Scope of this Work. 21

Chapter 2: Regulating Cultural Property at the Source.. 22

I. Introduction: How to Prevent the Illicit Trade at Its Source?. 22

II. Regulation in Source Nations. 23

A. The Typical Approach: Guatemala. 24

B. Other Examples. 27

1. Peru. 27

2. Mexico. 28

3. Nigeria. 29

C. China. 30

D. Italy. 36

E. Cultural Property Strategies in Developing Nations. 39

1. Nationalizing Cultural Property. 39

2. Efficacy of Export Restrictions. 42

3. What can a Source Nation do when an Object has been Exported?. 46

4. Combating the Illicit Trade v. Bare Retentionism47

III. Domestic Regulation of Cultural Property in Market States. 50

A. Domestic Regulation in the United States. 52

1. Initial Federal Efforts. 53

2. The Archaeological Resources Protection Act of 1979. 54

3. The National Historic Preservation Act 56

4. Native American Graves Protection and Repatriation Act 58

5. The Law of Finds. 60

B. Domestic Regulation in the United Kingdom63

1. Scheduled Ancient Monuments. 63

2. Treasure Trove and the Portable Antiquities Scheme. 65

3. Scotland. 69

4. Limited Export Restrictions: The Waverley Criteria. 74

IV. Summary: What are the Key Components to Effective Domestic Regulation?. 78

Chapter 3: Public International Law and Cultural Property.. 80

I. Introduction: Public International Law and Cultural Property. 80

A. Origins of the Protection of Cultural Property. 81

II. Attempts to Forge a Workable International Framework. 84

A. 1954 Hague Convention. 84

1. Defining Cultural Property in the Convention. 86

2. Shortcomings of the Convention. 87

3. The First Protocol 88

4. The Second Protocol 89

III. The 1970 UNESCO Convention. 92

A. Individual Articles. 93

1. Problems with Interpretation: Articles 3 and 6. 93

2. The “Heart” of the Convention: Article 7. 95

3. Defining the Scope of Protection. 97

B. Impact of the Convention. 97

C. Implementation and Bilateral Agreements. 100

1. Implementation of the UNESCO Convention in the US. 100

2. Switzerland. 105

3. Implementation in the UK.. 106

IV. A Case for the Reform of UNESCO.. 108

A. The Perceived Bias in UNESCO Undermines its Efforts. 109

B. The 1995 UNIDROIT Convention. 113

C. The 2001 UNESCO Convention For the Protection of the Underwater Cultural Heritage. 114

V. Summary. 115

Chapter 4: Conflict of Laws in Cultural Property Disputes. 117

I. Introduction: The Problem When the Claims of Two Relative Innocents Collide. 117

II. Manifestations of the Conflict 120

A. Entrustment v. Theft or Wrongful Dispossession. 121

B. When the Conflict Involves Statutes of Limitations. 123

C. When Tort Rules Conflict 127

D. When Movable Property Rules Conflict 129

E. The Consequences of the Choice of Law Challenge in Art and Antiquities Litigation. 131

III. The 1995 UNIDROIT Convention. 135

A. What UNIDROIT Got Right 136

1. Compensation for the Diligent 136

2. Highlighting Due Diligence. 137

3. Limited Right of Return. 139

B. Two Weaknesses Prohibit Widespread Implementation. 140

IV. The General Choice of Law Inquiry and Alternatives. 141

A. The General Rule: Lex Rei Sitae. 141

B. Renvoi 142

C. Lex Originis. 147

V. Summary. 149

Chapter 5: Market Regulation of Cultural Property in the UK.. 151

I. Introduction. 151

II. Recent Reform in the UK.. 151

A. The Select Committee Inquiry. 152

B. The Illicit Trade Advisory Panel 153

C. After Five Years, What Result?. 155

III. UK Restrictions on the International Movement of Cultural Property. 156

A. Customs Powers. 157

B. EU Legislation Governing Cultural Property. 158

C. Accession to the 1970 UNESCO Convention. 161

D. Public Laws of Foreign States. 161

1. Nationalization and Export Restrictions. 162

2. Stigmatizing Illegally Exported Objects. 163

3. The Recent Iranian Claims: Unpacking Public Laws and Unclear Nationalization. 164

4. Why Not Enforce Public Laws?. 168

IV. The Treatment of Cultural Property in the Law of England and Wales. 170

A. Criminal Law.. 170

1. Theft Act (1968) 170

2. Dealing in Cultural Objects (Offences) Act 2003. 172

B. Private Litigation. 176

1. Contract 177

2. Tort 180

3. Restitution. 182

4. Limitations Rules. 183

V. The Scots Law Treatment of Cultural Property. 186

A. Criminal Law.. 188

1. Common Law Theft 188

2. Reset and Criminal Activity Outside the UK.. 190

3. The Draft Culture (Scotland) Bill 194

B. Private Claims. 194

1. Ownership and Possession. 195

2. Restitution. 196

3. Spuilzie. 200

4. How Might Restitution and Spuilzie Apply. 202

5. Contract and Delict 203

6. Limitations Periods. 204

VI. Summary. 206

Chapter 6: Market Regulation of Cultural Property in the United States. 207

I. Introduction. 207

II. Federal Criminal Regulation. 208

A. National Stolen Property Act Prosecutions under the McClain Doctrine. 209

1. The McClain Cases. 211

2. United States v. Schultz. 214

B. Federal Criminal Forfeitures. 217

1. A History of Forfeiture. 218

2. The Litigation Surrounding Egon Schiele’s Portrait of Wally. 222

3. One Oil Painting Entitled Femme En Blanc by Pablo Picasso. 224

C. US Customs Regulations. 226

D. The Cultural Property Implementation Act 231

III. Civil Remedies. 232

A. The Substantive Claims. 233

B. Limitations Rules. 236

1. Adverse Possession. 237

2. Demand and Refusal 239

3. The Discovery Rule. 241

4. Laches. 243

C. Cultural Property and the UCC.. 244

IV. Summary. 246

Chapter 7: In Conclusion: A Way Forward.. 247

I. In Summary. 247

Appendix I: The 1970 UNESCO Convention.. 250

Appendix II: 1995 UNIDROIT Convention.. 256

Appendix III: The Dealing in Cultural Objects (Offences) Act 2003. 262

Appendix IV: The National Stolen Property Act.. 264

Appendix V: The Cultural Property Implementation Act.. 266

Bibliography.. 279

Cases Cited.. 286

Table of Legislation


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

Book Review

I have a short book review of Robin F. Rhodes’ edited volume The acquisition and exhibition of classical antiquities: professional, legal, and ethical perspectives (2007) over at the Bryn Mawr Classical Review. It’s well worth a read, as it’s a lively and accessible summary of some of the important positions in cultural heritage policy.

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

China and the CPIA

Kevin Bogardus has an interesting article in The Hill on the State Department and its Cultural Property Advisory Committee taking its sweet time in deciding on whether to impose import restrictions on Chinese antiquities.

China made the request in 2004, and both proponents and critics of the restrictions are eager for a decision. Members of the Ancient Coin Collector’s Guild and others have even brought suit to elicit more information from the State Department about the deliberations with respect to the requests of China and Cyprus. It seems they have started to receive “heavily redacted” documents. Given the administration’s adamant refusal to disclose what it deems privileged information, even on the most mundane matters, it should be a long and difficult task. This is regrettable. Though I don’t share their criticism of the restriction, I do think we would all be better served in knowing how these decisions are made.

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

Achaemenid Gold Cup Found Under Bed?


On June 5th, Duke’s of Dorchester is set to auction this 2,500 year-old gold cup. It was rediscovered by its seller, John Webber, under a bed while he was in the process of moving. The cup was given to him by his “rag-and-bone” grandfather who had apparently acquired it in the 1930s. The cup may fetch between £100,000-500,000 at auction next week. A number of papers have jumped on the story, as its the kind of treasure-in-the-attic which makes the antiquities trade so interesting to many people. The Times Simon de Bruxelles notes:

Mr Webber, 70, has no idea how his grandfather came to acquire the cup or what it was doing in Taunton, Somerset, where he had his business before and during the Second World War. “My grandfather was originally a proper rag-and-bone man from Romany stock and lived in a caravan. He formed a scrap metal company in the 1930s and made enough to have his own house built.

“My father died in the war and afterwards my grandfather gave me some things shortly before he died. One of the things was the cup, which I remember playing with. I put it in a box and forgot about it. Then last year I moved house and took it out to have a look and I realised it wasn’t bronze or brass.”

Some find. I don’t mean to put an unhappy face on what appears to be a heartwarming story, but is it possible that this cup may not have spent 60 years under a bed? Experts from the British Museum have examined the cup, and dated it at the 3rd or 4th century BCE, and dates from the Achaemenid Empire. I suppose they or the auction house would have looked into the truth of Webber’s story, but given what we know about the antiquities trade and faked provenance this seems a bit suspicious, though that is mere speculation on my part. I have no real reason to doubt Webber’s honesty. If nothing else I would like to know how the cup got from the former Achaemenid Empire to Somerset.

Tom Flynn has found this story interesting as well, and takes it as a heartening reminder of a kind of antique shop experience that seldom exists anymore. I’d argue it doesn’t exist because of a better more responsible body of domestic and international regulation, which though badly flawed in many cases values professional and systematic excavation over this kind of chance “treasure” discovery which leaves us with many more questions than answers.

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

Bad Connections

The New York Times‘ Edward Rothstein has an odd article today entitled “Antiquities, the World Is Your Homeland“, in which he essentially repackages James Cuno’s arguments, and makes some questionable assertions. Rothstein is the critic-at-large for the NYT, and he may be very good at what he does, but his foray into cultural policy today is not very thoughtful, and presents an unhelpfully biased view. Perhaps some of his other writing is very good, I’ll confess I don’t read classical music or his other reviews very often, but this appears to be an article he was in a hurry to get in before a deadline.

First, he makes a major blunder by confusing cultural property with cultural heritage. He mistakenly argues that nations of origin view antiquities as cultural property. Not so, in fact most would use the term heritage, or an approximation of that in their native language. I think cultural property is a narrower subset of a larger body of what can be called cultural heritage.

Second, he roundly criticizes the Native American Graves Protection and Repatriation Act (NAGPRA):

In the United States, for example, the 1990 Native American Graves Protection and Repatriation Act required every museum getting public funds to survey its collections; identify Indian remains and funerary, sacred and other objects; and consult with Indian tribes and ”repatriate” the artifacts if requested. Such objects may have been legitimately purchased a century ago from the tribes or have no issue clouding their provenance, but claims of ordinary property give way before claims of cultural property. The grievous sins of the past are now being repaid with a vengeance. And the risks of repatriation and the requirements of tribal consultation have led to promotional, uninformative and self-indulgent themes in exhibitions about American Indians.

I find it unlikely human remains were legitimately purchased, but perhaps they were. He ignores perhaps the most important aspect of NAGPRA. It facilitated a helpful dialogue between museums and tribes to create workable relationships which can help undo some of the mistreatment of the past, an important benefit Rothstein seems unaware of.

Near the end, Rothstein argues:

Seen in this light the very notion of cultural property is narrow and flawed. It is hardly, as Unesco asserted, “one of the basic elements of civilization.” It illuminates neither the particular culture involved nor its relationship to a current political entity. It may be useful as a metaphor, but it has been more commonly used to consolidate cultural bureaucracies and state control.

But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.

These Western “encyclopedic” museums are formed on the noblest of intentions. However they have been associated and party to illegal activity. Moreover, the rights these institutions often assert to these objects is based on the legal notion of property. If heritage become the exclusive paradigm, that would remove the argument justifying the current location of many of these objects in New York, Paris, London, Berlin, etc.

I suppose we have to forgive the author for an ignorance of the law, but “illicit” typically refers to illegal excavation or illegal export. Not the kind of repatriation he is describing. The key now is how these institutions can adapt and begin to work with nations of origin, not continue an acrimonious debate

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

Afghanistan’s Lost Treasures

The traveling exhibition “Afghanistan: Hidden Treasures From the National Museum, Kabul” opened at the National Gallery of Art in Washington DC yesterday. On display are objects mostly excavated between 1930 and 1980. Many objects have been destroyed or stolen during the Soviet invasion in 1979, Taliban rule, or during the recent US invasion. The exhibition brings together a number of objects which had been feared lost or destroyed.

Here’s how Neely Tucker of the Washington Post describes the exhibition:

“This is probably our best picture of how the Silk Road actually worked,” Hiebert is saying, giving a walk-through of the exhibit. He gets enthusiastic, pointing to a series of decorative plaques. They are flat and rectangular and carved of ivory. They depict women in various poses, sitting, standing, reclining. All these were part of an elaborate chair or throne, the rest of which is missing. On the adjacent wall, a flat-screen monitor shows a rotating three-dimensional re-creation of how all the pieces would have been placed together on the throne. “This is the first time in 2,000 years anyone has seen that throne,” Hiebert says.

Last year, there was criticism that this show was a bad deal for Afghanistan, and many of these objects were on previous display in Paris. Hopefully, the traveling exhibition will produce some excellent benefits for Afghanistan, as its position on the Silk Road made it one of the most interesting places in the ancient world. These kind of loans are of course often used as examples as potential solutions to ameliorate the illicit trade in antiquities.

Photo Gallery.

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

Iraqi Museum Objects Seized in Syria

The AP is reporting (via Syria’s official news agency) that Syrian customs officials have seized 40 objects stolen from the National Museum in Baghdad.

The report quotes the chief of the customs department, Nabil al-Sayyouri, as saying the pieces were seized at al-Tanaf crossing on the Syrian-Iraqi border. They were hidden in a bag in an Iraqi crossing into Syria. The artifacts include different-sized glassware and clay tools.

Al-Sayyouri said the seized pieces were “rare and would be handed back to Iraq.”

This is the third smuggling attempt aborted in less than two months by Syrian customs officials. Last month, the Syrian Cultural Ministry handed Iraq back some 700 pieces of looted priceless antiquities seized inside Syria.

Syria really seems to be taking the lead on policing its borders, with a number of important seizures in recent months.

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