Author: Derek Fincham

International Red Tape, $500 Translation

International red tape often hampers the investigation of the illicit trade in antiquities, this example involves Leonardo Patterson (discussed earlier here) and the difficulty in acquiring a decent Spanish-German translation. From AFP a couple days ago:

SAN JOSE (AFP) — The price of a translation is keeping the Costa Rican government from retrieving a collection of pre-Columbian objects it claims were stolen by a private collector now living in Germany.

In August 2007, Costa Rica first learned about Leonardo Patterson’s collection stored in Spain since 1997. Its more than 1,700 pre-Columbian pieces originate from Costa Rica, Mexico, Guatemala, Nicaragua, Panama, Ecuador, Bolivia and Peru.

Costa Rica is seeking the recovery of 457 of those objects it says are part of its national heritage.

Patterson’s collection is of incalculable value, said Marlin Calvo, head of the Cultural Heritage Protection department at Costa Rica’s National Museum.

The objects are “very beautiful, very diverse, and in very good condition,” said Calvo.

Patterson, a former Costa Rican diplomat and renowned art collector, was questioned and part of his collection seized by Munich police in April this year, after he took it out of storage in Spain and had it shipped to Germany.

Investigators valued the objects at more than 100 million dollars.

Costa Rica, along with Mexico and Peru, say some of the pieces were stolen and are attempting to recover them, even as Patterson maintains he obtained them in Europe, legally.

Since May, Costa Rican authorities have tried, without success, to reclaim the pieces. Their main problem: the price of a translation.

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

Student Comment on the 1970 UNESCO Convention

Janene Marie Podesta has written an article in the Cardozo Journal of International and Comparative Law, SAVING CULTURE, BUT PASSING THE BUCK: HOW THE 1970 UNESCO CONVENTION UNDERMINES ITS GOALS BY UNDULY TARGETING MARKET NATIONS. I haven’t found a free copy available on the net, so you’ll have to rely on the usual scholarly databases if you’re keen to get your hands on a copy.

I continue to be surprised at the tremendous popularity of this topic, particularly the frequency with which cultural heritage issues are used as Note and Comment topics for law students. I think this is a good thing, though unfortunately they tend to rely a bit too much on the same staple of core topics and concepts.

From the Introduction:

This Note argues that UNESCO’s current policy, which makes a minority number of market nations almost universally responsible for the protection of source nations’ cultural property, is contrary to the international public good and cannot succeed in its current form. While well intentioned, placing all responsibility on the receivers of illicit goods will not curb the flow of these goods; it will only send the market further underground. It may also result in criminal prosecution for those who were simply ignorant rather than those who purposefully decimated their own countries’ heritage. UNESCO requires almost nothing from some nations (generally, those who gain the most from the system) and burdens others with disproportionate accountability.
Part II of this Note will focus on the various international conventions on the subject of cultural property, predominately the 1970 UNESCO Convention. It will look at the context in which the 1970 UNESCO Convention was convened, the conflicting theories on the concept of “cultural property” underlying the drafting, and the resulting bias against internationalist nations within the 1970 UNESCO Convention. These factors make the system ultimately unsustainable.
Part III traces the development of the current situation by exploring the various interpretations countries have had of the UNESCO decree to “carry out the necessary concrete measures” to protect the state’s own “cultural patrimony.” It will focus on the three main types of ownership laws that have been enacted by various countries, and will also reflect on the success that each such method has shown.
Part IV will, conversely, look at those steps taken by market countries, particularly the United States, to “prevent museums and similar institutions . . .from acquiring cultural property,” and “to recover and return” any such property. This part will highlight not only laws specifically enacted in reaction to UNESCO, but also laws that have substituted for such laws in cases of cultural property “theft.” It will then analyze the effects that various rulings have had on the cultural patrimony arena, and forecast the dangers likely to result from such holdings.
Part V suggests alternate possibilities that would more evenly balance the responsibility between those nations that wish to protect their own cultural heritage, and those that wish to help in this quest without sacrificing their own belief systems and citizens’ rights.
Questions or Comments? Email me at derek.fincham@gmail.com

New Heritage Legislation in the UK?

Jaspar Copping has a very interesting, though perhaps misleading, article in the Telegraph on Saturday detailing potential new heritage legislation in the UK. He writes initially that UK museums are prevented by law from giving works of art back to the families that once owned them. That is true, but that does not mean these families are denied compensation (which he points out further down in the piece). The Spoliation Advisory Panel has the power to award compensation to the claimant.

It seems there is a campaign by a Labour MP, Andrew Dinsmore:

“The owner of an artwork identified as stolen by the Nazis ought to have the right to decide whether they wish for the artwork to be returned,” he said.

“Some people may be happy for work to stay in public collections, but they should have the option. At the moment, they are not given that choice.

“No one knows how many artworks this will relate to but we shouldn’t think that just because the war was 60 years ago that this has all finished.”

Under the current legislation, all national museums and galleries are prevented from disposing of any of their works. They can only offer compensation to the owners, although private museums are able to return artworks and artefacts.

I’m not sure if this is an essential change. I think the UK policy which avoids costly litigation is a useful model. In the US, where nazi-era restitutions suits are the most common, claimants often get title to the disputed works. However in nearly all cases they sell the works anyway to satisfy the enormous legal fees often required to bring these successful claims.

Then in a response, the Department of Culture Media and Sport said, “The Government are committed to introducing legislation as soon as possible to allow all national museums, that are currently prevented from doing so by the acts of parliament under which they are founded, to return works of art spoliated during the Nazi era.” It seems this legislation will be a component of the prospective Heritage Protection Bill.

One thing to watch closely will be how the legislation may permit institutions to return the work to claimants, a potential move which may signal a shift in the obstacles the British Museum may have in electing to return antiquities to their nation of origin. The debate over that question will likely feature in the consideration, as the Parthenon Marbles always seem to be overshadowing UK heritage policy.

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

Antiquities as Natural Resources

Andrew P. Morriss (University of Illinois College of Law) has posted Politics & Property in Natural Resources on SSRN. Assuming Natural Resources are analogous to antiquities, he makes some interesting arguments. Here is the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public’s share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

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

A History of Spoliation

Wayne Sandholtz has written a historical account of plunder and the norms which aim to prevent it over the last 200 years, Prohibiting Plunder. I have not had a chance to read it, but it looks promising. Here’s the description:

For much of history, the rules of war decreed that “to the victor go the spoils.” The winners in warfare routinely seized for themselves the artistic and cultural treasures of the defeated; plunder constituted a marker of triumph. By the twentieth century, international norms declared the opposite, that cultural monuments should be shielded from destruction or seizure. Prohibiting Plunder traces and explains the emergence of international rules against wartime looting of cultural treasures, and explores how anti-plunder norms have developed over the past 200 years. The book covers highly topical events including the looting of thousands of antiquities from the Iraqi National Museum in Baghdad, and the return of “Holocaust Art” by prominent museums, including the highly publicized return of five Klimt paintings from the Austrian Gallery to a Holocaust survivor.

The historical narrative includes first-hand reports, official documents, and archival records. Equally important, the book uncovers the debates and negotiations that produced increasingly clear and well-defined anti-plunder norms. The historical accounts in Prohibiting Plunder serve as confirming examples of an important dynamic of international norm change. Rules evolve in cycles; in each cycle, specific actions trigger arguments about the meaning and application of rules, and those arguments in turn modify the rules. International norms evolve through a succession of such cycles, each one drawing on previous developments and each one reshaping the normative context for subsequent actions and disputes. Prohibiting Plunder shows how historical episodes interlinked to produce modern, treaty-based rules against wartime plunder of cultural treasures.

Ingo Venzke has a review in 19 European Journal of International Law 866 (2008).

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

Bonham’s Withdraws Antiquities From Today’s Auction

ANSA is reporting that Bonhams London has withdrawn 10 antiquities worth an estimated 250,000 Euros from a scheduled sale today after concerns were raised by the Italian government, seemingly at the last minute. There are indications these objects were illegally excavated or illegally exported from Italy, perhaps in the 1970s. It seems likely that it was Francesco Rutelli’s “urgent” question to his successor, Sandro Bondi about this sale perhaps forced Bondi to act, particularly given the 11th hour nature of the actions. The Chairman of the auction house, Robert Brooks said in a statement:

We are always happy to cooperate with any action that limits the chance of items being sold that should not be sold. Having said that we would welcome a greater openness on the part of the Italian Government, which would allow us far more advance warning and information about concerns they have. Responsible institutions need to work together and not to keep information hidden, for whatever reason, until the very last minute.

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

Fatamid ewer sells for 3 million pounds


The fatamid ewer (discussed back in January) has now sold for 3.2 million pounds at a Christie’s auction earlier this month.

From the Reuters report:

The ewer is the same one that came up for auction in Britain in January this year, when it was catalogued as a 19th century French claret jug and valued at 100-200 pounds.

In fact experts now believe it is an extremely rare ewer from the Fatimid dynasty which ruled parts of northern Africa and the Middle East in the 10th-12th centuries.

Reflecting its importance it sold in January for 220,000 pounds, although auction house sources said that transaction was later “annulled by agreement”. They gave no further details.

Christie’s said the ewer, which sold to an anonymous client in the saleroom, was made for the court of the Fatimid rulers of Cairo in the late 10th or early 11th century. It was embellished in enamelled gold mounts made in 1854 by a French silversmith.

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

Brent Benjamin Appointed to CPAC


The White House announced back in September that President Bush will nominate Brent R. Benjamin to serve on the Cultural Property Advisory Committee for three years. David Gill commented on the appointment, as did Wayne Sayles. Earlier in July, Robert O’Brien, a Los Angeles attorney was nominated as well, though his appointment attracted little notice.

Ton Cremers, an administrator on the invaluable Museum Security Network argues this was an “outrageous” appointment. The reason for the concern is this antiquity, the Ka-Nefer-Nefer mask which I discussed at length last year.

It was stolen from a storehouse in Saqqara sometime between its excavation in an archaeological dig in 1952, and its acquisition by the St. Louis Art Museum in 1998. It may be worth examining this acquisition in more detail. The best summary of the dispute I have found is this 2006 article in the Riverfront Times.

As always, the antiquities trade presents a number of questions. Was Benjamin at the museum in 1998 when it acquired this object? No, he came a year after the mask was acquired. Do his actions with respect to this mask disqualify him automatically from serving on the committee? I’m not sure they do. Does this ongoing dispute between Egypt and the St. Louis Art Museum automatically disqualify Benjamin from serving on the committee? Not according to President Bush, but did the Museum really have clean hands when they acquired the mask? The answer I think is not really.

They purchased it from Hichaam Aboutaam, who has been linked with looted antiquities. The work had been displayed at a Museum in Geneva when the SLAM was considering purchasing the work. However, the museum sent Mohammed Saleh, a retired director of the Cairo Museum a letter asking:

“[We have] been offered a mummy mask of the 19th dynasty and I was wondering if you know of any parallels to this object. I have never seen anything quite like it with a reddish copper-like face probably owing to the oxidation of the gold surface. It is currently on exhibition in the Egyptian exhibition at the Museum of Art and History in Geneva. I would greatly appreciate your thoughts on any parallels you might know of this piece and hope that I might have the opportunity to speak with you in several weeks by telephone about this opportunity.”

Saleh of course was not perhaps the best person in Egypt to contact about the mask. Shouldn’t someone on the Supreme Council on Antiquities have been better positioned to handle this request? Unfortunately this is the shady kind of enquiry which can pass for thorough provenance research in the antiquities trade. I think its likely perhaps that the SLAM was not too eager to look to deeply into the history of this object, for fear they would be unable to acquire it. The museum was told by the seller that the mask was seen at an antiquities dealer in 1952, and it remained in the ubiquitous “Swiss Collection” for the next 40 years. An expert hired by the museum, Peter Lacovara, reasoned that the mask was probably awarded to the excavator after the 1952 excavation. This would account for its appearance at a market in Brussels soon after, though refuting that fact is nearly impossible at this point.

Egypt has a tenable claim perhaps, but this is a close case. I’m not aware of the specific steps Egypt has taken in response. They have seemingly argued that the mask was stolen at some point from an antiquities storehouse. Now, its their cultural heritage and they’re free to do with it what they please, but Egypt can be criticized on two accounts. First, is it really the best idea to have a unique piece like this mask just sitting in a warehouse for fifty years? Second, had Egypt documented its collection and its holdings more completely, they would have had a much stronger legal and ethical claim.

In any event, nobody looks really good in this dispute. Not the museum, the Phoenix gallery, nor Egypt. But I’m not sure Benjamin, by merely refusing to return the mask outright to Egypt has disqualified himself from serving on the CPAC, which it should be mentioned is comprised of individuals from all the disparate heritage interest groups, including archaeologists. Also, the CPAC has never refused a request made by a nation of origin.

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

Profile of an Antiquities Dealer


The Associated Press has an extended profile of Leonardo Patterson. An antiquities dealer from Costa Rica who is currently being investigated by German and Spanish authorities. In April, police in Munich seized more than 1,000 objects from his warehouse.

Pictured here is Peruvian archaeologist Walter Alva. He received a catalog of Patterson’s antiquities in 1997:

[H]e saw more than 250 ancient Peruvian pieces, mostly from tombs raided in the late 1980s. There were necklaces made of gold and lapis lazuli from la Mina in northern Peru. There were copper masks and a necklace made of 30 gold spiral-shaped ornaments from Sipan, the center of the Mochica culture dating to 200 A.D.

Alva was not surprised that many of the pieces had ended up in private European collections.

“There is a very active market in the United States and Europe,” said Alva. “We have to eliminate this idea that those who collect archaeological artifacts are cultivated people.”

He asked Interpol in Lima to investigate. Interpol in turn asked a Lima court for an international arrest warrant for Patterson in 2004. Four years later, there has been no ruling, according to Interpol officials in Lima.

Patterson is accused of selling fakes and forgeries as well as looted antiquities. It seems Patterson may have been connected in some way to the looted Peruvian gold headdress which was recovered from Patterson’s lawyer’s office in 2006.

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