"European Environmental Human Rights and Environmental Rights: A Long Time Coming?"

Ole W. Pedersen, a colleague of mine here in Aberdeen has posted European Environmental Human Rights and Environmental Rights: A Long Time Coming?, forthcoming in the Georgetown International Environmental Law Review.

There is an interesting connection between on the one hand antiquities and material remains of our past and also the natural environment which gave rise to ancient cultures and civilizations. As such, there is a largely-untapped body of environmental jurisprudence which may prove of use for cultural heritage scholars. One approach may be to look to a kind of “right to culture”, however the difficulty scholars have had in creating a substantive right to the environment may pose some potential obstacles to such an approach.

Here is the abstract:

This paper deals with the area of rights and environmental law focusing on procedural environmental rights and substantive human rights to the environment in a European context. The paper asserts that while international developments in this area have generally ceased, two strong trends are emerging in Europe. First, a strong focus on procedural environmental rights (a right to access to environmental information, a right to public participation and a right to access to justice) is in place in Europe. This part of the paper is based on an analysis of a number of European legal instruments and regimes, including the European Convention on Human Rights and the case law from the European Court of Human Rights, the 1998 UNECE Aarhus Convention as well as environmental law and policy from the European Community. It is argued that the strong focus on these procedural rights in Europe have led to such norms reaching a level regional customary law with the potential to influence international legal developments. In relation to a substantive human right to the environment, which the paper argues is currently lacking on the international level, it is argued that recent tentative approaches on a European regional level to a substantive right may further add to the precarious status of a substantive right under international law. Here, European developments have the potential to add to other regional instruments in, for instance, Africa and Latin and Southern America. In addition, recent constitutional changes in domestic European law has led to a wide range of national constitutions containing provisions on a right to the environment, which again have the potential to add further weight to the development of an international right.


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

Spain Claims "Black Swan" is the Nuestra Senora de las Mercedes

Yesterday, Spain filed papers before US Magistrate Judge Mark Pizzo in the Federal District Court for the Central District of Florida. They argued the evidence provided to them by Odyssey Marine has been evaluated by Spanish archaeologists and that “with complete certainty” these objects came from the colonial galleon Nuestra SeƱora de las Mercedes, sunk by the British in 1804.

In March, judge Pizzo ordered Odyssey to share information with the Spanish, Odyssey Marine Exploration Inc. v. The Unidentified Shipwrecked Vessel, 2008 WL 691686 M.D.Fla.,2008. (March 12, 2008). Spain’s announcement yesterday appears to be is response and evaluation fo this evidence provided by Odyssey. Despite attempting to with hold the location of the wreck, and even code-naming the find the Black Swan, Spain has seemingly established the identity of the vessel. James Goold, counsel for Spain argued “The mystery is over … [the treasure] belongs to the Spanish Armada.” Certainly, Spain is staking its claim to the moral high ground, as it apparently argued yesterday that it never authorized Odyssey to molest the “gravesite of hundreds of Spanish sailors and their family members.”

Yesterday’s filings don’t yet appear to be available on Westlaw, but as I understand, Spain is arguing the Kingdom of Spain has not abandoned ownership rights in the vessel or the cargo. Further, Spain argues it has not permitted the salvage of its vessels without authorization. Spain is asserting its rights under sovereign immunity. As I’ve stated before,
under the Foreign Sovereign Immunities Act, of 1976, Spain may be able to claim the coins, so long as the vessel was not engaged in commercial operations. This may lead to the strange situation where a determinative issue may involve Spain and Odyssey Marine arguing over the primary motive of a vessel and her crew which may have sank over two-hundred years ago.

None of this controversy seems to be helping Odyssey’s stock price, which is down 22% this year. The finds may be worth as much as $500 million US, but its beginning to look increasingly likely that Spain is gaining the upper hand, and Odyssey may be in jeopardy of earning any salvage award.

Related Posts.

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

South American Antiquities Seized in Europe


There have been two major seizures of South American pre-Columbian antiquities in recent days.

On Tuesday, Spanish police announced they had seized more than 700 objects (pictured here), which included gold objects, masks, vessels, pendants, and maces. The objects may have been taken from Peru, Ecuador and Columbia. The objects were in the possession of a Spanish man and his Columbian wife, who it seems has been selling them mainly in France for many years, according to the Spanish Interior Ministry.

This follows on the major unrelated recovery in Germany of over 1,000 objects, including masks, necklaces and statues which may be worth as much as $100 million USD. This collection had been exhibited in 1997 in Santiago de Compostela, Spain and were taken out of Spain in violation of Spain’s export restrictions. This group of objects may be more difficult to ascertain ownership, as Mexico, Peru, Colombia, Panama, Costa Rica, Guatemala and El Salvador all may have claim to them. This may be the classic case of an orphaned object, stripped of its provenience (the place where it was unearthed).

It’s worth noting perhaps that this German seizure was made possible because of the EU regulations, which require one Member State enforce the export restrictions of other member states. In this way, objects have to pass multiple checks ideally before they can be sold. However this collection of objects has been missing for 11 years, since 1997.

These massive seizures seem to occur with more regularity now than they have in the past, which is certainly a good thing. We may perhaps speculate about how many objects escape regulation.

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

Comic Books, Myth and Cultural Policy


I’ve been thinking about what may seem a curious intersection in recent days. Namely the creation of modern myth and the connection between comic books and antiquities. I’ll first argue that comic books are nothing more than today’s modern myths, and then show how this relates to the summer Met exhibition, as well as dispute the claim that we are “losing” our connection to ancient mythology.

If you’re paying attention, comic books have a lot to teach us. Sure, they’re fun, and they for kids in many cases, but they also reveal deeper truths. As David Edelstein pointed out in his review of Iron Man, every age gets the super hero which will assuage its fears. Superman was a midwest farmboy, which was a product of major migration from “heartland to city”; similarly, Batman gained popularity in the 70’s with the “surge in urban crime”.

In Iron Man, Edelstein worries we might be glossing over the unpleasantness of our Military-Industrial complex, and its actions in Afghanistan. Iron man first appeared, in 1968, when the US was in the midst of the Vietnam War. He says “But at a time when America is viewed around the world as arrogant, will the picture be seen as another in that long line of Hollywood superhero movies aimed at making Americans feel better about themselves?” That’s a pointed question, as America is in fact the weapons maker to the world. But we don’t get to that deeper question if we can’t at least see the value in these myths, which are slick, and certainly very accessible.

There are other examples of course. Godzilla is a product of Japanese unease in the 1950’s following the dropping of the atomic bomb. Spider Man is the first superhero whose skin we can’t see in his costume, because in the 1960s Stan Lee wanted to create a superhero for all races. It’s hard not to see the struggle of World War II in Tolkien’s work. Now, perhaps I’m just an aging fanboy whose read too much Joseph Campbell, but is the story of the Odyssey really that different from a comic book? The point, I think, is not to choose ancient myths over modern pop culture, but to see how the two inform each other. David Simon has openly acknowledged that the Wire is nothing more than Greek tragedy, save instead of gods and goddesses he substitutes in their place modern institutions like police departments, the media, and the school system. If you’re paying attention, I think this nexus between Simon’s depiction of the Baltimore drug trade with ancient tragedy can inform both our understanding of urban cities, and realize that many similar struggles existed thousands of years ago.

Through September, the Met will be showing Superheroes: Fashion and Fantasy.

C-MONSTER has photos, and Lee Rosenbaum is not a fan. Though she admits some of her complaints may be sour grapes, she expresses frustration at the fact that Philippe de Montebello, the “dean of American art museum directors” has tarnished his reputation by writing a Forward for the Met’s catalogue. Now, I’m out of my league if I attempt to unpack Rosenbaum’s argument from a scholarly curatorial perspective. However, she seems to strongly insinuate that comic books are for the uneducated, and beneath the lofty de Montebello. I couldn’t disagree more. I haven’t seen the the exhibition, and can’t speak to it’s merit, but the idea on its face strikes me as a good one. Why can’t we take comic books and superheroes seriously? The pop artists played with comic book forms and style to great effect didn’t they? Granted, the Met is trying to please its audience, perhaps blatantly so, but that doesn’t mean we can’t take this stuff seriously right?

This brings us to the comments of Charles K. Williams II in the recent The Acquisition and Exhibition of Classical Antiquities, edited by Robin F. Rhodes. Williams argues “Note that modern mythology is being manufactured at such a rate and in such quantity in the United States and norther Europe that it appears, at least to me, to be wiping out the need or desire to know, even less to understand, ancient epics, myths, and fables.” I don’t think the creation of modern myth is necessarily a bad thing. Williams, an esteemed field archaeologist argues we should ensure people can continue to view these objects around the world to maintain our connection with ancient myth. He argues we need more responsible international loans and a responsible international movement of objects. I agree.

To the unreasonable skeptic, both the labors of Hercules and the efforts of Tony Stark may seem childish, but if we are paying attention, putting the two side by side can teach us a lot about the darker side of powerful civilizations, the US and ancient Greece (and later the Roman empire).

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

More on Who Owns What

Amid the continued discussion of who should own antiquities (or even if ownership is the wrong paradigm) James Cuno, President of the Art Institute in Chicago continues to be a strong voice which cuts against the current of popular opinion.

On Sunday, Andrew Herrmann, a staff reporter for the Chicago Sun Times had an interesting article on Cuno’s views which are elaborated in his new book, Who Owns Antiquity?: Museums and the Battle Over Our Ancient Heritage. The article essentially summarizes Cuno’s views for a broader audience, with some excerpts from the book, which will be out in the US on May 28. I hope to get my hands on a copy soon, but until then here is a bit of Sunday’s article:

Today, Cuno worries that “encyclopedic” museums such as the Art Institute and the Louvre, which contain antiquities from around the planet, are endangered by nations that, simply put, want their stuff back — and don’t want any more stuff to leave their borders….

The question isn’t just the musings of a museum man. Egypt, Greece, Peru, Turkey and China are among countries pushing for the return of objects removed from their lands years ago. Italy has forced the return of dozens of pieces from American museums. Laws in host countries can now seriously restrict export of artifacts.

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

Can the West do More to Protect Iraqi Antiquities?


Dr. Bahaa Mayah, a special adviser to Iraq’a Minister of Tourism and Antiquities, has strongly criticized the response of the West to the trade in looted or stolen antiquities originating from Iraq. Dr. Mayah held a press conference yesterday at the British Museum, and argued it was the occupying forces’ responsibility to retrieve the valuable objects taken since 2003. He also urged a global ban on Iraqi antiquities via a UN Security Council resolution. He said “Our antiquities are scattered everywhere from America to Europe. This problem is not new but it has intensified since 2oo3 and is now becoming a bigger problem.”

Speaking of America specifically, he argued “America is co-operating and not co-operating at the same time. We were grateful when they returned the Statue of Entemena (from 2,430BC) but at the same time, you see auctioneers all over the country trading in our antiquities. No action is being taken”. This statement, curiously, comes on the same day the Department of State published a notice of an import Restriction to Protect the Cultural Heritage of Iraq.

You can also hear his comments on BBC Radio 4’s Front Row program here, his interview starts at about 18 minutes in, which David Gill has noted this morning as well.

There at three separate issues here, first is what can be done to prevent looting in Iraq and how to regulate the illicit trade in Iraqi antiquities. Second, is the damage done by occupying forces to important sites at Babylon and elsewhere. Finally, there is the claim for restitution for objects which have long in the British Museum collection. The first two, it seems to me are related. The final question, which speaks to the notion of Universal Museums, must be separated. Every time this kind of discussion spins off into a discussion of the Parthenon Marbles and other restitutions, I think we lose site of the present ongoing issue: the looting of sites, and the illicit trade.

I am sympathetic to Dr. Mayar, as he must find it difficult dealing with a myriad of different agencies in Europe, and he feels the burden is on the source nation to give evidence of of an object’s illicit nature. Unfortunately this is the regime which the 1970 UNESCO Convention has produced, and efforts to create an effective multilateral agreement in this arena have been notoriously difficult. I think that must surely be tied to the disagreement and acrimonious nature the debates often engender.

Prof. Patty Gerstenblith has noted before that a lot of the reporting and discussion of the law as it pertains to the antiquities trade is wrong, and misses the point completely. I have to agree. Dr. Mayar talks about the incomplete response of the West to the trade in Iraqi antiquities, but I think the US and the UK have taken the necessary steps to attach criminal penalties to this trade. International law already bans the trade in Iraqi antiquities, under UN Security Council Resolution 1483:

Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph;

In the United Kingdom, the Theft Act 1968, the Proceeds of Crime Act 2002, and the Iraq (UN Sanctions) Order 2003 creates a criminal offence for merely being in possession of Iraqi Antiquities.

The United States has banned the import of Iraqi antiquities, and the National Stolen Property Act, as well as the powerful Civil Forfeiture mechanisms available to Federal Prosecutors strongly regulate the criminal aspects of the trade.

The difficulty of course, and its one that Dr. Mayar speaks to, is the difficulty in establishing evidence of the fact that an object originated in Iraq, when it could have originated from any one of a number of countries. Are there Iraqi antiquities currently being sold in the United States and United Kingdom? I’ll confess I don’t know. His comments strongly indicate they are, but I’m unaware of such sales, or any reports indicating this is the case.

Ultimately, I think the US and the UK in particular have taken nearly all the steps they can to regulate the criminal aspects of the trade. To shift burdens any further would, without being overly dramatic here, require Constitutional-level reworking, to allow fewer rights for criminal defendants. That is a step no thinking person can responsibly advocate. That’s at the core of my arguments about the utility of the criminal response to the illicit trade. The solution, as I see it, is to introduce a way for cultural property transactions to require title history, provenance and findspot information for antiquities. This would give real effect to the law. Without such information, the antiquities trade will continue to evade effective regulation. Think about the California searches from earlier this year, despite a dramatic raid, we have yet to see any charges filed. Though this is heresy to even suggest for many in the archaeological community, this will in my view require compromise and will almost certainly require a liberalization of the trade in some respects.

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