Author: Derek Fincham

Student Comment on Repatriation of Flemish art in French Museums

Paige Goodwin has a Student Comment in the recent Pennsylvania Law Review, Mapping The Limits Of Repatriable Cultural Heritage: A Case Study Of Stolen Flemish Art In French Museums, 157 Penn. L. Rev. 157 673 (2008). 

On June 20, 1939, Adolf Hitler called upon Hans Posse, one of his chief advisors, to establish the Sonderauftrag Linz (“Special Project Linz”)—a cultural complex in the Führer’s hometown. The showpiece of the propagandistic cultural center would be the Führermuseum, a grand museum housing the most revered European artwork from every century. By the end of the war, the Nazis had stolen more than 21,000 paintings, sculptures, and other art pieces for Hitler’s museum. Upon discovering the large-scale pillaging when the war ended, the Allies mounted a well-publicized campaign to return the stolen art to its rightful owners. For essentially the first time in history, the international art community launched a coordinated campaign to repatriate stolen art and revise museum acquisition policies. Beyond returning many of the stolen works, the postwar movement resulted in the 1954 Hague Convention, which conceived the art world’s newest buzzword: “cultural property.”

Nearly two centuries before Hitler’s art campaign, revolutionary and postrevolutionary French governments, particularly under Napoleon Bonaparte, oversaw many national political changes that implicated concepts of cultural property. Chief among these was the nationalization of the royal art collection at the Luxembourg Palace, later renamed the Musée Napoléon (and now known as the Louvre). Like Hitler, Napoleon envisioned a spectacular art museum bearing his name and charged French troops with confiscating art at home and in foreign conquests. Between 1794 and 1813, art shipments arrived in France nearly every year from Italy, Belgium, Austria, the Netherlands, and Spain. When the Musée Napoléon became too cramped with the spoils of war, Napoleon transferred art to regional museums throughout the country. Although the 1815 Treaty of Paris ended the war in Europe, most works stolen by the Napoleonic armies remain in the Louvre or in French regional museums today.

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

Alderman on Cultural Property Law and Indigenous Peoples

Kimberley Alderman of the The Cultural Property & Archaeology Law Blog has posted a working paper “Ethical Issues in Cultural Property Law Pertaining to Indigenous Peoples“.  From the Introduction:

The purpose of this paper is to identify ethical challenges in cultural property law pertaining to indigenous peoples. Doing so is a necessary step in promoting a meaningful discourse over key crises in the cultural property trade.  By addressing ethical concerns in a discrete manner, we can cut through rhetoric, facilitate communication, and propose solutions that more precisely target harms born of the illicit trade in cultural property and repatriation disputes. I focus on indigenous peoples because they have an ethical stake in cultural property disposition, and they are the least represented in the international cultural property debates.
 
. . .  In Part II, I provide the background and context within which this discussion arises, answering the question, “Why define the ethical issues?” I describe a model of ethical decision-making originally developed for use in business, called the 5Ps Method. I explain that we are starting at the base of the 5Ps pyramid with “Problem,” which requires identifying the ethical problem. In surveying the surrounding facts, I describe the ongoing crisis in the cultural property trade, including divisiveness in scholarly debates and lack of clarity as to legal versus ethical concerns. I also note the recent passage of the UN Declaration of the Rights of Indigenous Peoples, which functions as an excellent backdrop to highlight indigenous concerns as independent from those of other stakeholders, including source nations.

In Part III, I parse several ethical concerns pertaining to indigenous peoples that emerge from the cultural property debates:
(1) Indigenous descendants of creator cultures are underrepresented in the cultural property debates;
(2) In cultural property law, control/possession and beneficial interest are inextricably linked, and indigenous peoples are not given adequate beneficial interest in their artifacts due to arguments against their getting control; and 
(3) Unsolicited representation of indigenous peoples constitutes a reinforcement of the idea that they are in need of custodial care, inherently undermining arguments that they are competent tocontrol cultural property.
 
In Part IV, I conclude with several recommendations. First, I suggest a more pragmatic approach to cultural property disputes, urging stakeholders to more clearly distinguish between legal considerations and ethical ones. Second, I urge indigenous peoples to assert themselves on the international cultural property front, independently from source nations, since ethical debates so often focus on the interests of indigenous groups. Recognizing this is not always possible, I encourage source nations to better involve indigenous peoples in repatriation initiatives. Finally, consistent with the purpose of this paper, I suggest that all stakeholders participate in pragmatic, meaningful discourse as to how these ethical issues might be creatively and categorically addressed.

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

Tyler Green on the $50 Million "Arts Stimulus"

He’s not a fan, and I agree.  It is yet another sign of the lowly position given to federal arts policy.  He offers what I think is a very good suggestion:

. . . The arts community should take a lesson from how policy is made in Washington, from the policy-driven infrastructure of the city. The first step: The arts should join Washington’s think-tank culture. Arts philanthropists should fund arts policy fellows at major think tanks, places such as the Center for American Progress and the Center for Strategic and International Studies. Smart arts thinkers would have the opportunity to be involved in policy debates, to develop new ideas about how government should be involved in the arts (and not just in one little agency, but across the federal apparatus).

Joining the Washington policy-making set wouldn’t result in immediate, FY 2010 policy changes, but over time it would lead to new ideas and new ways that the federal government could engage with and support the nation’s cultural vitality. Just as importantly: It would burrow cultural thinkers and backers into the culture of Washington influence, building a baseline of support for the arts amongst policy-makers who work in a range of fields. Perhaps, finally, a great nation would have the federal involvement in the arts that it deserves.

 

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

Adler on Moral Rights

Amy Adler, NYU School of Law, has an essay in the most recent California Law Review, Against Moral Rights. From the introduction:

Moral rights scholarship is startling in its uniformity. Scholars take it as gospel that moral rights are crucial for art to flourish and that, if anything, we need a more robust moral rights doctrine. Commentators routinely lament the gap between our modest American moral rights laws and the more expansive European ones. In contrast to copyright law, which has produced a vibrantbody of scholarship critical of the law’s excesses, the main scholarly criticism of moral rights is that they do not reach far enough. Wading through the largely repetitive law review literature, it doesn’t take long to get the implicit message: if you don’t support moral rights, you’re a philistine who doesn’t understand the sanctity of art.

This essay seeks to undermine the foundations of moral rights scholarship, law, and theory. My argument is that moral rights laws endanger art in the name of protecting it. Drawing on contemporary art theory and practice, I focus on the moral right of “integrity,” called “the heart of the moral rights doctrine.” This right allows an artist to prevent modification and, in some cases, destruction of his art work. As I show, the right of integrity threatens art because it fails to recognize the profound artistic importance of modifying, even destroying, works of art, and of freeing art from the control of the artist. Ultimately, I question the most basic premise of moral rights law: that law should treat visual art as a uniquely prized category that merits exceptions from the normal rules of property and contract.

To put it mildly, this is not a popular argument. Indeed, it challenges the key assumptions of virtually all moral rights scholarship. But moral rights scholars have overlooked a surprising problem: the conception of “art” embedded in moral rights law has become obsolete. As a result, the law is on a collision course with the very art it seeks to defend. In fact, as I will show, moral rights are premised on the precise conception of “art” that artists have been rebelling against for the last forty years. Moral rights law thus purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. It protects and reifies a notion of art that is dead. In this Essay I ask the question: does moral rights law make sense in an era in which “art,” at least as we have known it for centuries, is over?

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

Mexico Denies Odyssey’s Request

Mexico has denied a request by Odyssey Marine to explore a shipwreck located in the Gulf of Mexico(remember the UK granted similar permission recently to exploit the HMS Victory).  From the AP:

The ship in question, the galleon Our Lady of Juncal, was part of a fleet hit by a powerful storm in 1631 in “one of the greatest tragedies that has ever occurred in Mexican waters,” according to Mexico’s National Institute of Anthropology and History.


The proposal by Odyssey Marine Exploration Inc. of Tampa, Florida, “is not intended to conduct research and does not have the approval of archaeologists or an academic institution of recognized prestige,” the Institute said. It added that “treasure hunters have always had their eyes on” the wreck site.


Odyssey Marine chairman Greg Stemm said in a statement that “the proposal presented to Mexico for archaeological services is in compliance with the UNESCO Convention and would keep all cultural artifacts together in a collection.”


The United Nations Educational, Scientific and Cultural Organization says on its Web site that the convention aims to “preserve in situ all remains of human existence submerged for at least one hundred years.”

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

Ratcheting Down the Antiquities (and Drug) Wars

The NYT has an article suggesting President Obama’s choice for “drug czar” (the head of the Office of National Drug Control Policy) could substantially alter federal drug policy in positive ways (my emphasis):

The anticipated selection of Chief Kerlikowske has given hope to those who want national drug policy to shift from an emphasis on arrest and prosecution to methods more like those employed in Seattle: intervention, treatment and a reduction of problems drug use can cause, a tactic known as harm reduction. Chief Kerlikowske is not necessarily regarded as having forcefully led those efforts, but he has not gotten in the way of them.

Under John P. Walters, the drug czar during most of the administration of President George W. Bush, the drug office focused on tough enforcement of drug laws, including emphases on marijuana and drug use among youths. The agency pointed to reductions in the use of certain kinds of drugs, but it was criticized by some local law enforcement officials who said its priorities did not reflect local concerns, from the rise of methamphetamine to the fight against drug smuggling at the Mexican border.

 There has never been a “war” on antiquities looting which could approach the America’s often wrong-headed illegal drug policy.  But it’s hard not to notice the parallels between the potential shift in American policy on drugs and the efforts of the Portable Antiquities Scheme, which has achieved some notable policy successes by taking a pragmatic approach, aimed at similar kinds of “harm reduction”.  
One of the weaknesses with prohibitionism is it restricts supply, without taking account of the potential demand.  This makes the targeted trade — whether it’s drugs or guns or antiquities — this makes the illegal trade  more profitable, allowing better more sophisticated tactics to evade law enforcement.  There’s a good argument I think that some prohibition helps create and incentivize large-scale criminal operations and organized crime networks. 
Questions or Comments? Email me at derek.fincham@gmail.com

"it’s got great historical significance and ought to be returned.”

So says Patty Gerstenblith, quoted in today’s New York Times article detailing the efforts of China to prevent the sale of two bronzes taken during the burning of the imperial Summer Palace in 1860:

Liu Yang, a Beijing lawyer who is helping to organize the lawsuit threatened in France, said he had located a descendant of China’s royal family to serve as plaintiff in the case.


“The Old Summer Palace, which was plundered and burnt down by Anglo-French allied forces during the Second Opium War in 1860, is our nation’s unhealed scar, still bleeding and aching,” Mr. Lui said. “That Christie’s and Pierre Bergé would put them up for auction and refuse to return them to China deeply hurts our nation’s feelings.”


Mr. Liu also asserted that the sale would violate a 1995 United Nations convention governing the repatriation of stolen or illegally exported cultural relics.


But Patty Gerstenblith, a professor of law at DePaul University in Chicago who specializes in cultural-property issues, said that France never ratified the convention and that even if it had, the agreement does not apply retroactively to objects looted decades or centuries ago.


“My view is this was looted, but it would be difficult to get that legally back,” she said in a telephone interview on Monday. “But it’s got great historical significance and ought to be returned.”


Professor Gerstenblith suggested that one solution might be for the Yves Saint Laurent and Pierre Bergé Foundation to negotiate with China and offer it at a reasonable price. “It would probably be in the best interest of everybody if they made a deal privately with China,” she said.

Previous posts on this dispute here and here.  

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

Nighthawking Report Published: Illegal Metal Detecting Has Decreased

The long-awaited report upon the impact of illegal metal detecting (“nighthawking”) conducted by Oxford Archaeology on behalf of English Heritage, is now available from  the Historic Environment Local Management website.  It appears that illegal metal detecting in England has declined since 1995, the point at which soon after, in 1997, the Portable Antiquities Scheme first began its efforts.

Ownership declaration is an important legal strategy undergirding the protection of heritage; but this declaration in isolation does not necessarily create the best cultural heritage policy. Effectively guarding every archaeological site is impossible given limited resources. The looting of corresponding sites elsewhere in the World, particularly in North and South America is a travesty and presents a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. That’s not to say that these states should encourage metal-detecting, but the efforts of the PAS have appeared to substantially decreased looting and illegal activity.  Education and outreach, even if it means compromise, are essential. Outreach and education is badly needed.

The PAS works in conjunction with the law, which was of course a compromise postion between heritage advocates and landowners. A very strong legal regime may in a perfect world be the best policy. But what good are they if they aren’t meaningfully enforced? In the heritage context, the PAS and metal detectorists are producing contextual information. It’s a different kind of information, which we can characterize as shallow but extremely broad; rather than a thorough documentation of sites which might be narrow but very deep.

The most interesting revelation of the report is the suggestion that metal detecting has substantially decreased since the PAS began.  In 1995, 188 scheduled monuments were reported damaged; in 2008, that number was 70.  In 1995, 74% of archaeological units reported their sites had been molested; in 2008 that number is 28%.  I take that as pretty strong support for the proposition I argued for in my recent piece on the Portable Antiquities Scheme, A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin, IJCP (2008).

Despite the overall decrease, the report still argues the criminal penalties remain insufficient, and the local enforcement officers and the Crown Prosecution Service need to do more to ensure individuals caught violating the law receive suitable punishment.  At present the maximum penalty is three months in prison and a £1,000 fine. 

The report provides a number of other key points:

  1. Provide clear guidance to the police, Crown Prosecution Service and Magistrates on the impact of Nighthawking, how to combat it, levels of evidence and possible penalties.
  2. Provide more information for landowners on identifying Nighthawking and what to do when they encounter it.
  3. Develop better ways to find out what is going on and establish and promote a central database of reported incidents of Nighthawking.
  4. Publicise the positive effects of responsible metal detecting and the negative effects of Nighthawking.
  5. Ensure the PAS is fully funded, so links between archaeologists and metal detectorists are further strengthened.
  6. Integrate metal detecting into the archaeological process, including development control briefs.
  7. Implement changes recently introduced in Europe which increase the obligation on sellers of antiquities to provide provenances and establish legal title, and urge eBay to introduce more stringent monitoring of antiquities with a UK origin offered for sale on their website.

Media Coverage:
Bloomberg, Telegraph, AFP, BBC, Guardian, Times


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

Iraq Museum to Reopen This Month

From Reuters,

Iraq will reopen later this month its renowned national museum, home to priceless artefacts plundered in the unchecked chaos following the 2003 U.S.-led invasion, an Iraqi minister said.


The long-awaited reopening marks a milestone in the government’s efforts to retrieve and preserve artefacts and archaeological sites from Iraq’s history after almost six years of theft, destruction and violence.

The country is said to be the site of the ‘cradle of civilisation’, the area between the Tigris and Euphrates rivers, and the looting of relics — some thousands of years old — was seen as a tragedy for Iraq and for the world.

Qahtan al-Jibouri, Iraq’s minister of state for tourism and antiquities, said the government had been renovating the museum in central Baghdad for several months and planned to open its doors to the public before the end of February.

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