art, heritage, & law
Syria sent 40 objects stolen from the National Museum back to Iraq last month, and now Jordan will return 2,466 objects, including gold coins and jewelry back to Iraq, the AFP is reporting.
That’s a staggering number of objects, most of which were seemingly seized by Jordanian customs officials. One wonders how many objects slipped through these checkpoints and will soon be sold as “intercultural” style objects?
While I was on my blogging holiday in recent weeks, the Association of Art Museum Directors (AAMD) set a new ethics policy for how art museums should collect antiquities. The AAMD issued a policy which stated essentially that in most cases a museum should not acquire an object unless evidence exists that the object was outside its “country of probable modern discovery bofeore 1970, or was legally exported from its probably country of modern discovery after 1970.”
Much of this is old news to many of you, but I found Randy Kennedy’s NYT article to be a very good summary of the new guidelines, with reactions from Prof. Patty Gerstenblith. I also saw that Mark Feldman, a negotiator of the original 1970 Convention had a very interesting Letter to the Editor, in which he welcomed the new measures, but cautioned that they “may not solve the problem”.
The debate has shifted now to encompass the date of 1970 as a cutoff, though these ethical guidelines are not hard and fast rules. They are guidelines, and art museums can derogate from them freely, though they do so at their own peril. They of course run grave public relations and financial risks when they do so, but this was already the case in recent years, as evidenced by the oft-mentioned repatriations to Italy from the MFA Boston, the Met, the Getty, Princeton, and elsewhere.
Souren Melikian has a follow-up article for the International Herald Tribune, and ties these new guidelines to the shifting antiquities market, though I don’t think this shift has much to do with the new guidelines.
At Christie’s, a sale of antiquities held on June 4 opened with sundry sculptures and other works of art from Ancient Egypt collected by the Swiss Egyptologist Gustave Jéquier, who died in 1946. Extraordinary prices were achieved for the greatest rarities from a collection that did not raise provenance questions.
The auction was only into its second lot when a limestone carving of a coiled snake, 19 centimeters, or 7½ inches, across, shot up to $338,500. This was more than 15 times the high estimate. Executed in the late 3rd to mid-2nd millennium B.C., the sculpture carries a royal dedication inscription to the god Osiris that enhanced its importance, and the Jéquier provenance guaranteed that any institution could acquire it without fear of being faced one day with a restitution lawsuit.
The phenomenon repeated itself as a fragmentary bas-relief carved in the second half of the 14th century B.C. came up. Christie’s thought that the limestone slab, which only preserves the upper part of two character’s heads, might sell for $15,000 to $20,000 plus the 25 percent sale charge. It ended up at $182,000…
A day later at Sotheby’s, bidders were even more willing to pay enormous prices for desirable antiquities that could irrefutably be proved to have reached the West well before 1970.
An elongated alabaster vessel from 6th century B.C. Etruria, reportedly dug up at Vulci, was unusual rather than breathtakingly beautiful with its four female masks carved on the base and the bust of a goggle-eyed woman ghoulishly smiling at the top. But it had been illustrated in 1963 in the magazine Antike Kunst. The alabastron, as containers of this type are called, nimbly climbed to $40,625, more than triple the estimate
I think it is certainly right that reliable provenance information which can establish a solid ethical basis for acquisition will certainly drive up the price of objects. This was already the case though, before the new guidelines, as the sale of objects from the Albright-Knox museum already has shown.
However, it is worth noting that some of this provenance evidence can be manufactured aor forged, and has often been done in the past. Continued scrutiny of the antiquities trade is needed, despite these new ethical guidelines. I’m not sure much has really changed. There is still no definitive account of which objects had been discovered or unearthed before 1970.
Len Wells of the Evansville Courier Press had an interesting article Sunday on the looting of Native American burial grounds in Southern Illinois.
“We noticed a trail going out through a wheat field and followed it,” said John Schwegman of Metropolis, Ill., who works with the Kincaid Mounds Support Organization. “We found they had dug a hole about 6 feet long, 4 feet deep and 3 to 4 feet wide.”
Schwegman said the same site had been looted last summer. The hole was filled in then, but it was targeted again this spring.
“We believe there are at least two, and maybe more looters working, since they were working two holes at the same time,” Schwegman said. “They’re pretty bold, since they parked their vehicles in our own parking lot.”
Investigators said the looters have dug three holes in the Pope County ground and a fourth one a short distance away in Massac County. Pieces of broken flint and stones were discovered near the holes after looters abandoned the sites. The first holes were discovered about six weeks ago.
The Kincaid Mounds Historic Site consists of 105 acres in the heart of the Kincaid Mounds Archaeological Site. Portions of the site extend to private property north and east of the site. The state property has been designated a National Historic Landmark and is on the National Register of Historic Places.
Portions of the site had been excavated, but not the area targeted by the looters. The $2,000 reward is a good incentive, but the odds appear slim that these objects will be found or the culprits caught. This kind of theft carries criminal penalties under the National Stolen Property Act, as well as the Archaeological Resources Protection Act. However these criminal measures will likely not assist in bringing these looters to justice, and the huge land area makes patrolling this and other Native American sites – which would allow officials to catch the looter in the act – difficult and impracticable.
Can we consider eliminating the market in these objects? Yes, but for many objects found on private land in the United States, not associated with burial grounds or religious practices, it is legal for individuals to excavate. I’m not aware of how many native American objects are purportedly found on private land, I’d expect most objects come from National Historic Places, or Federal or State parks which have been set aside, and are protected de jure, but this may not always result in de facto protection.
There is a tendency perhaps to get too focused on looting which just occurs in Italy or the Mediterranean. The reality is it takes place everywhere, and the current legal and policy measures aimed at stopping it are having some effect, but much more can and should be done. Perhaps more scrutiny of the Portable Antiquities Scheme in England and Wales could help alleviate some of these problems…
ABC News has some more on the thefts last week of Picasso’s Minotaur, Drinker and Women (1933), pictured here, and The Painter and the Model (1963). Also taken were works by two Brazilian artists, Women at the Window (1926) by Emiliano Augusto Cavalanti de Albuquerque Melo, and Couple (1919) by Lasar Segall. All four works were stolen from the Pinacoteca Museum by 3 men who paid their entrance fee, took the elevator to the second floor, drew their weapons and forced the guards to tell them where the four works were located.
Marcelo Araujo told the Folha De Sao Paulo newspaper that the security was appropriate, “In cases of armed robbery we can’t run the risk of resisting, because there could be unforeseeable consequences for the employees and for the public.” That is probably correct, and there is an inherent tension between keeping galleries an open space for the public versus protecting against armed robbery. Such robberies seem to be taking place with regularity in Sao Paulo though, which may make displaying art to the public more difficult there.
For those of you in the UK in July, there are a couple of promising seminars taking place which the Institute of Art and Law has alerted me to:
3rd July (afternoon) in London: Good faith, Due Diligence and Ethical Imperatives in Art and Antiquities Dealing.
17th and 18th July in London State Immunity, Anti-Seizure and Customary International Law. Day One of this seminar will consider International Law and cross-border claims to cultural objects, whilst Day Two will focus more particularly on Anti-seizure statutes and safe conduct for itinerant art. Whilst the discussions on the two days will clearly interconnect and complement each other, a limited number of one-day places will be available on each day.
Further information on these seminars, together with online booking facilities, can be found at www.ial.uk.com. Alternatively, you can contact us directly on info@ial.uk.com or +44 (0)1982 560666.
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 Retentionism… 47
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 Kingdom… 63
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
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.
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.
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.
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