Urice and Adler on the "Disjunction between Cultural Property Policy and Law"

Stephen Urice and Andrew Adler have posted a working paper titled “Resolving the Disjunction between Cultural Property Policy and Law: A Call for Reform“. In the piece they continue to point out what they call the “increasingly lawless” cultural property policy in the United States.

Here is the abstract:

Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the Executive Branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the Executive Branch’s current cultural property policies and the existing legal framework established by Congress and the Judiciary. We document that disjunction in this Article.
We explain, for example, how the Executive Branch has recently repatriated an Egyptian sarcophagus and an antique French automobile to their respective countries of origin, but disregarded well-established judicial authority in the process. We explain how the Executive Branch has similarly sought to repatriate cultural objects to Italy, Peru, and Southeast Asia by relying on statutory authority that Congress plainly never designed for such a purpose. And we explain how the Executive Branch has imposed comprehensive import restrictions on cultural property from around the world without satisfying all of the statutory requirements mandated by Congress.
In addition to documenting this disjunction between policy and law, we situate it in its broader context. We submit that the disjunction reflects that the legal framework is outdated. That framework is the product of the 1970s, when the cultural property field was still forming, and it has not incorporated the dramatic political and normative developments of the last three decades. We further explain how the Executive’s willingness to disregard statutory constraints raises serious and unresolved separation of powers concerns. This precarious constitutional dynamic undermines the democratic process and invites arbitrary policymaking. We therefore argue that statutory reform is necessary to resolve the disjunction, modernize the legal framework, and restore the rule of law. We conclude by offering suggestions for reform.
Questions or Comments? Email me at derek.fincham@gmail.com

Seventh Circuit Rules Terrorist Victims Attachment Request Against Iran was Overbroad

Clay Tablets from Persepolis, Similar to the Objects at Issue

David Grann reports for the Chronicle of Education on the Seventh Circuit decision which will make it exceedingly difficult for victims of a 1997 bombing in Jerusalem to secure Persian antiquities to satisfy their default $90 million judgment against Iran. The underlying dispute involved the plaintiffs successful action against Iran for supporting Hamas. Iran did not appear at the civil trial.

Today’s ruling dealt with the more limited question of whether the plaintiffs can use pieces of cultural heritage currently situated in the United States to satisfy the judgment against Iran. As a result you have the unlikely combination of Iran, the Field Museum, the University of Chicago and the Oriental Institute all arguing that these objects are immune from suit.

I was quoted in the story, and as I wrote Grann this afternoon, Museums holding objects from other nations are breathing easier. The long-standing principle in U.S. law is that property of foreign nations is immune from suit in the United States. Courts were given some guidance in 1976 when Congress passed the Foreign Sovereign Immunities Act which outlined the circumstances under which this immunity could be lifted. Yet as the three-judge panel held today, the orders by the Magistrate and the District court both conflicted sharply with the FSIA, as they ordered what the court called a sweeping discovery request. That request would have forced Iran to detail all of its assets in the United States.

The opinion is a big win for Iran and the museums which currently hold the Persian antiquities. The Seventh Circuit—which agreed with a prior holding in 2006 in Rubin v. Islamic Republic of Iran—has said these objects are presumed to be immune, and even if Iran decides not to challenge the attachment, a court even on its own must look for a good exception to the Foreign Sovereign Immunity Act. Courts are going to be very cautious when attaching the property of foreign nations, as that really falls squarely under the foreign policy authority of the Executive Branch.

Other courts have been similarly disposed to claims of domestic plaintiffs seeking attachment of Iranian cultural heritage in the United States. (Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass. 2006). 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.

  1. David Glenn, U. of Chicago and Museums Win Key Ruling in Legal Battle Over Iranian Antiquities, The Chronicle of Higher Education, March 29, 2011, http://chronicle.com/article/U-of-ChicagoMuseums-Win/126923/ (last visited Mar 29, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

The Getty Returns a Work to Goudstikker Heir Marei von Saher

The Getty has voluntarily agreed to return a work it purchased—in good faith they claim—in 1972. According to  Mike Boehm’s report in the L.A. Times, the Getty stands as the first North American Museum to voluntarily return a work to the Heir of Jacques Goudstikker. The work, Landscape With Cottage and Figures, by Mieter Molijn, dates to the 1640s. It is unclear how the disputed painting came to light, but the return of this work stands in contrast to the ongoing dispute between von Saher and the Norton Simon:

The Norton Simon Museum’s “Adam and Eve” also were among the Goudstikker-owned works the Allies repatriated to Holland after the war. But the Dutch government subsequently sold them to an heir of Russian nobility who claimed that his family, the Stroganoffs, had a prior claim on them, having owned them before they were seized by the Bolsheviks during the Russian Revolution. Goudstikker bought them at an auction in 1931, then lost them to the Nazis. Whether “Adam and Eve” had belonged to the Stroganoffs during the early 1900s is part of the dispute between Von Saher and the Norton Simon Museum. The museum’s founder and namesake bought them from the Stroganoff heir for $800,000 in 1971; the museum has had them appraised at $24 million. 

In the “Adam and Eve” case, a federal judge in Los Angeles ruled in 2007 that Von Saher had filed her claim too late to meet the three-year statute of limitations for suing to recover allegedly stolen art, and that a 2002 California law suspending the statute of limitations for Holocaust-era art-restitution claims filed through the end of 2010 was unconstitutional because it intruded on the federal government’s sole prerogative to set foreign policy and war policy. 

The U.S. 9th Circuit Court of Appeals agreed in 2009 that the California law was unconstitutional, although it directed the trial judge to reconsider whether Von Saher nevertheless has a legitimate claim under the regular statute of limitations. 

Von Saher has appealed to the U.S. Supreme Court in hopes of reinstating the voided state law. The high court indicated in October that it is considering whether to take up the case, but first it asked the U.S. solicitor general to file a brief giving the federal government’s view. Kaye, the Von Saher attorney, said the brief hasn’t been filed yet.

So the Getty has voluntarily returned the work to the dispossessed heir, and should be praised for doing the right things. Yet that decision surely was much easier given that the painting was never displayed. The Norton Simon has decided to fight to retain possession of its disputed works—which are more valuable, and have a much more complex history, touching both the Bolshevik revolution and World War II.

  1. Mike Boehm, Getty Museum: Getty Museum agrees to return painting looted by Nazis, L.A. Times, March 29, 2011, http://www.latimes.com/entertainment/news/la-et-getty-painting-20110329,0,2892909.story (last visited Mar 29, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Asking (politely) for the Fano Athlete

The Bronze Athlete

Governor Gian Mario Spacca, president of the region of Marche where this bronze athelete was brought ashore in 1964, visited Los Angeles to seek the return of the object. Catherine Sezgin reports on the visit for ARCA here and here.

The context for the visit is an ongoing seizure action in Italy which the Getty is appealing. Even if the appeals process runs its course, and the object is ordered returned, it appears unlikely that a U.S. court will enforce the seizure order.

And so into that context comes a friendly visit from Spacca saying, as reported by Jason Felch in the L.A. Times:

“We are not here to declare war on the Getty,” Spacca said in a statement to The Times. “We are here to resolve the dispute in a way that will benefit the museum, the people of Italy, and most important, art lovers around the world.” 

Getty spokesman Ron Hartwig described the meeting as “a good discussion” but said serious talks would be possible only after the court case ends and would need to involve the Italian Ministry of Culture. 

“We were clear at the start of our conversation that the statue of a “Victorious Youth,” known as the “Getty Bronze,” was not a matter for discussion since legal issues regarding this object are ongoing in Italy.”

  1. Jason Felch, Antiquities: Italian official seeks return of ‘Getty Bronze’, L.A. Times, March 27, 2011, http://www.latimes.com/entertainment/news/la-et-getty-bronze-20110328,0,7566636.story (last visited Mar 29, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes

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    Protecting Giza from Looters

    Giza

    “We are paying the price for a greedy, insatiable and unregulated market.”

    So argues Sarah Marei, an antiquities inspector in Egypt. She describes firsthand the attempts to protect sites in   Egypt:

    Under normal circumstances the tourist police are responsible for guarding Egypt’s rich ancient history, from monasteries to temples, synagogues to mosques. But the police presence vanished in the revolution and has yet to return to the sites. The individual initiatives on the part of site inspectors and the townspeople from the remote areas is often the only current protection afforded to some of the world’s most unique and magnificent monuments. 

    We continue to work everyday on the makeshift salvage operation in Giza. Volunteers regularly turn up and, as we work, stories are exchanged about the looting where gangs of armed men attacked and shot the guards and plundered the site. 

    The work we are conducting is not only physically draining but also emotionally exhausting. My anger is initially directed at the looters and my thoughts keep returning to the same question: why are these criminals, who are Egyptians, looting their own history and their nation’s pride in order to sell it? Only if they stand to gain substantially would they go as far, feeding a market that is standing ready and prepared to amply reward them for their troubles; the better the object, the bigger the reward. 

    No indication of the market for antiquities is clearer than in the selection of the sites targeted by the looters in the past few months in Egypt. The overwhelming majority is Pharaonic, followed by Islamic, with Coptic and Jewish so far remaining untouched. We are struggling to protect our sites, facing armed men while we have nothing but sticks, because of a demand from personal collections (both inside and outside Egypt) and from rival institutions seeking a competitive edge.

    There’s justifiable anger and frustration in the account, and familiar groups to blame: the looters and an unregulated market.

    1. Sarah Marei, Tales from the Egyptian revolution | The Art Newspaper, The Art Newspaper, March 24, 2011, http://www.theartnewspaper.com/articles/Tales+from+the+Egyptian+revolution/23394 (last visited Mar 24, 2011).
    Questions or Comments? Email me at derek.fincham@gmail.com

    The Morgantina Goddess Returns to Aidone

    Greeted by the Carabinieri, townspeople and a brass band:

    Jason Felch reports for the LA Times:

    When the Getty bought the Aphrodite for $18 million in 1988, the statue’s importance outweighed the signs of its illicit origins. “The proposed statue of Aphrodite would not only become the single greatest piece of ancient art in our collection; it would be the greatest piece of Classical sculpture in this country and any country outside of Greece and Great Britain,” wrote former antiquities curator Marion True in proposing the acquisition. 

    For years, the museum clung to the implausible story that the statue had been in the family of a former Swiss policeman, Renzo Canavesi, for more than 50 years after being purchased by his father in Paris in the 1930s. 

    It took dramatic evidence of the statue’s illicit origins — and an alleged link to organized crime — to destroy the credibility of that cover story and persuade the Getty’s board to return the statue.
    In 2006, private detectives hired by the Getty uncovered more than a dozen photos of the statue. One shows fragments of the goddess scattered in a pile of dirt on a brown tile floor. In another, pieces of varying sizes were lined up in rows on a large, thick plastic sheet. Another photo showed the statue’s marble face still encrusted with grime. 

    It is not clear who took the photos or where they were taken. But the fact that the statue had been in fragments and covered in dirt as recently as the early 1980s — the date on the photographs — was seen as clear evidence that it had been illegally excavated not long before the Getty bought it. 

    The investigators’ discovery of the photos is described in a forthcoming book about the dispute. “Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum” was written by this reporter and former Times staff writer Ralph Frammolino, and will be published May 24 by Houghton Mifflin Harcourt.

    Should be a fascinating work.

    1. Jason Felch, Getty’s Aphrodite is returned to Sicily, L.A. Times, March 23, 2011, http://www.latimes.com/entertainment/news/la-et-return-of-aphrodite-20110323,0,6998689.story (last visited Mar 23, 2011).
    Questions or Comments? Email me at derek.fincham@gmail.com