Author: Derek Fincham

700 Antiquities Returned to Iraq


Syria returned 700 antiquities to Iraq on Wednesday, undoing in some small measure the theft and looting which has taken place since the invasion of Iraq in 2003. Here’s an excerpt of the AP story:

The head of the Syrian Antiquities Department, Bassam Jamous, said some of the objects were from the Bronze Age and early Islamic era.

The treasures were returned during a ceremony at the Syrian National Museum attended by senior Syrian officials and the Iraqi state minister for tourism and antiquities affairs, Mohammad Abbas al-Oraibi.

Jamous did not specify the value of the artifacts or single out the most important pieces, but clay jars, coins, daggers and what appeared to be a large trunk were displayed at the ceremony.

Syrian Culture Minister Riyadh Nassan Agha also said a “priceless Iraqi piece” of important historical value had been seized two weeks ago by Syrian customs officers. He gave no details, saying only that it would be returned to Iraq later after experts examined it.

AFP has a wire story as well, estimating that 32,000 objects were looted from 12,000 archaeological sites. Those numbers, though they are just estimates, speak for themselves. Given that Syria has returned 700 objects, this begs the question: how many more objects have been transported out of Iraq and have not been seized or recovered. I imagine many objects, especially the most valuable ones, are being hidden in anticipation of sales in the distant future, much as art seized or confiscated by the Nazis is still appearing.

As an indication of how serious the Iraq government considers those who are convicted of smuggling antiquities, despite overcrowding in Iraqi prisons, individuals detained for antiquities-related offenses were not released along with a number of other detainees under a law passed in February by the Iraqi government to ease prison populations. Many may remember that last month Marine Col. Matthew Bogdanos argued insurgents may be using the antiquities trade to fund their activities.

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

"The Holocaust, Museum Ethics, and Legalism"

Jennifer Anglim Kreder has posted her forthcoming article The Holocaust, Museum Ethics, and Legalism, forthcoming from the Southern California Review of Law and Social Justice, Vol 18, 2008 on SSRN:

The Holocaust art movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims to recover a suitcase stolen from a murdered man and watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. Both claims are asserted against the Auschwitz-Birkenau State Museum in Poland, and the museum has refused to return the objects. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes. Drawing from a number of disciplines, this article demonstrates the inadequacy of the dominant frameworks influencing the cultural property field, which are grounded in property law, morality and utilitarianism, for evaluating the Holocaust-related claims. This article also demonstrates that the International Council of Museums (ICOM) Code of Ethics provides a useful construct for evaluating the claims. ICOM Principle 6.7, which calls on museums to promote well-being, should be the guiding light for museums deciding whether to return Holocaust-related objects. The article concludes that the Auschwitz-Birkenau State Museum’s refusal to return the objects is faulty ethically, counter to its mission, and reflective of the inadequacy of Poland’s approach to post-war restitution.

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

James Cuno on Nationalism and Antiquities


James Cuno is developing an interesting line of argument with respect to the intersection of antiquities policy and nationalism. He has a book forthcoming called Who Owns Antiquity?, but he has a number of other smaller pieces currently available, including a section in a work I’m currently reading called The Acquisition and Exhibition of Classical Antiquities: Professional, Legal, and Ethical Perspectives (Robin F. Rhodes ed.).

Cuno also has a short article at YaleGlobal titled Who Owns the Past?

Here’s the abstract:

It’s a myth that cultural-property laws protect ancient antiquities or archaeological finds. Instead, the nationalist retentionist cultural-property laws are a dividing force, inhibiting regard for the world’s culture as a common legacy, argues James Cuno, president and director of the Art Institute of Chicago. Nations often use cultural artifacts for political claims, as tools to express a specific identity. Some governments even deny excavation permits or display requests for artifacts that reveal values that don’t reinforce a self-selected national image, and thus deny to the rest of the world the history of our common past. Worse, some nationalistic governments pervert the cultural record to spur racial, religious or ethnic violence. Culture is not a pure force, yet its power extends beyond national boundaries. As Cuno says, “An understanding that ancient and living cultures belong to all of us could contribute to greater respect for the differences among us and serve as a counterargument to the call for cultural purity that flames sectarian violence.”

Included in the article is a version of the same picture I have here, of the destruction of the Buddhas at Bamiyan on March 21, 2001. That of course is an example of the negative consequences which leaving heritage regulation to individual nations can perhaps produce. However it should be noted that the case was a rare occurrence. We don’t often see nations intentionally destroying their heritage in such a public way. Also, merely because some nations use over-restrictive policies should not perhaps dictate that all regulation is counterproductive.

Cuno is developing an extension of the line of reasoning which has been employed by Paul Bator, John Merryman and others. They have argued, quite persuasively in many cases, that over-restrictive regulation has actually proved counterproductive and has only served to further incentivize the illicit trade.

David Gill has an interesting response as well, and argues the failure has not been with the legal regime in place, but rather in the ethical standards and acquisition policies which allow Museums to evade these rules. I think he makes an excellent point.

Given the expense and difficulty of prosecution of these cases, the focus now really should be first and foremost to ensure institutions are being careful with what they acquire, and this seems to have worked. To my knowledge it doesn’t appear as if the major institutions in North America are purchasing antiquities, though some are in fact accepting donations from benefactors, and it is this acquisition by donation which is perhaps the weak link in the chain for many institutions.

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

Africa, Repatriation, and Universal Museums

There have been some very interesting exchanges in recent days between Dr. Kwame Opoku and Phillipe de Montebello of the Metropolitan Museum of Art. Dr. Opoku wrote an interesting and provocative letter to museum directors entitled Is legality a viable concept for European and American museum directors.

I have been quite familiar with Dr. Opoku’s scholarly work for some time, and it’s refreshing to see him continue to use the internet to broadcast his arguments; especially as he is a powerful voice for African repatriations, which often receive short shrift when compared to similar arguments for the Mediterranean or Central and South America.

De Montebello responded to the open letter with the following:


I read with interest Dr. Kwame Opoku’s article EUROPEAN AND AMERICAN MUSEUM DIRECTORS AND THE LEGALITY CONCEPT? and glanced at the photo that accompanied it.

What a haunting, strange-looking object. There is no caption accompanying
the photograph so I looked in books and found that this was a product of
ancient Nigeria, the Nok culture. I also discovered that more than 2,000
years ago as well an Ife culture in Nigeria produced sculpture that I found
simply divine. As beautiful as anything produced at any time in the West.

Then I went to our African galleries and found — as must our audience of
some 4.5 million visitors a year — that Nigeria seemed to have produced no
art before the much later Benin period, well represented at the Metropolitan
Museum. Why is that? Simply because the Metropolitan Museum does not own
either a Nok or an Ife object. Their export and acquisition are strictly
forbidden, therefore the Metropolitan Museum has refrained from their
acquisition.

We have tried for years to convince the Nigerian authorities to place one
object from each of these great cultures on loan to the Metropolitan for the
benefit of our audiences, but unfortunately, to no avail.

Dr. Opoku believes all Nok, Ife, and Benin pieces outside of Nigeria should
be returned to Nigeria; that all works produced on its territory should
remain there.

How this advances broad knowledge of the rich cultural history of Nigeria is
a mystery to me.

He’s advancing a kind of internationalist perspective here. It strikes me as a bit unfair to say that if wrongfully acquired objects are returned, then all objects would have to be returned. However, some policies certainly do have as a consequence, the possibility of restricting the movement of objects. The difficulty here stems from his argument. He’s taking a grain of truth and extrapolating it to an almost illogical extreme. This happens all the time in policy and political debates, not just with respect to cultural heritage. Unfortunately much of the international law-making apparatus on the international level is incapable of successfully bridging these kinds of differences of opinions. As a result, partisans tend to push toward the margins rather than forge workable compromise.

Dr. Opoku responded with a letter which he forwarded to me, and probably others, including the Museum Security Network.

If the Metropolitan Museum has not been able to convince the Government of Nigeria to loan one object of each of the great cultures of Nigeria, there must be some reason which must have been explained by the Nigerian authorities. One cannot comment on this point without first studying the relevant correspondence.

The statement that “Dr. Opoku believes all Nok, Ife, and Benin pieces outside of Nigeria should be returned to Nigeria; that all works produced on its territory should remain there“ is surely incorrect and the maker of the statement knows it. As a person of culture who has spent a considerable part of my life visiting various museums all over the world, I reject very strongly this statement. It is an attempt to attribute to me an extreme position which can be easily dismissed instead of dealing with the serious arguments presented in detail (some would even say too much detail) in my various articles which are freely available on the internet.

Finally, Tom Flynn noted these exchanges and provided the following pointed analysis:

The problem here is the nature of the dialogue, which is not really a dialogue at all, but a series of embittered volleys that merely consolidates the entrenched positions of both parties. Dr Opoku continues to write uncompromising attacks on museum directors. One can understand his growing impatience, given the unwillingness of most museum directors to address what are clearly very serious issues passionately articulated. Moreover, when he does get a response, as was the case here, he is treated with the sort of patrician disdain that has become the lingua franca of leading museum directors across Europe and North America.

I regret I’m pressed for time today and don’t have time to dive into the substance of these arguments, however all these links are highly recommended.

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

Upcoming Event: Protection of Works of Art During Conflict


There appears to be a very interesting event taking place in London on May 8:

PROTECTION OF WORKS OF ART IN AND AFTER CONFLICT

Speakers
Kevin Chamberlain CMG, barrister
Anne-Marie Carstens, Oxford University

Thursday 8 May 2008
13.00-14.30 (With lunch reception 12.30-13.00)

Sponsored jointly by Clifford Chance and the British Red Cross

The meeting will discuss whether existing protection is adequate and the
proposals for new legal protection.
This is a free seminar. All members are welcome to attend but
registration is essential. The seminar will take place at
Chatham House, 10 St James’s Square, London, SW1Y 4LE.
Please contact Alis Martin to register stating your name, affiliation
and phone number: amartin@chathamhouse.org.uk

CHATHAM HOUSE – INDEPENDENT THINKING ON INTERNATIONAL AFFAIRS

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

Another Major Theft in Switzerland (UPDATE)

A work by Swiss artist Ferdinand Hodler has “gone missing” on its way to an exhibition in Bern. The work had been collected by a transportation company but never made it to the exhibition at the Bern Museum of Fine Art. It was to be included in an exhibition entitled “A Symbolic Vision,” a collection of Hodler’s works.

Swiss police are treating the matter as a major art theft, after two other high profile robberies occurred in the past few months: Two Monets and two Degas‘s, worth a combined 180 million francs ($163 million), were stolen from the Emil Buehrle private art collection in Zurich in February, and a few days before that, two Picassos on loan from Germany, worth an estimated 4 million francs, were stolen from an exhibition near Zurich. No further details have been released on the Hodler incident.

UPDATE:

"…no more archeology than…collecting Indian arrowheads"


So says George Bass, a nautical archaeologist at Texas A&M University in an excellent article by John Colapinto in the most recent edition of the New Yorker on Odyssey Marine, titled “Secrets of the Deep”.

In May of 2007 the company announced it had discovered a large colonial-era wreck which may perhaps be the largest underwater treasure recovery in history. Before the announcement the company “had transferred the gold to fife hundred and fifty-one plastic buckets, loaded them onto a chartered jet, and flown them to the United States from Gibraltar.” The company has termed the wreck a code name, the Black Swan, and refused to divulge its location. At present, Spain has brought suit in Federal District Court in Tampa, Florida seeking recovery of the coins under the doctrine of sovereign immunity. Presiding over the case is U.S. District Court Judge Mark Pizzo, who incidentally presided over a Securities and Exchange Commission trial of many of the managers of a company called Seahawk for insider trading. The defendants there were acquitted, but went on to found Odyssey Marine.

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 issue of Spain and Odyssey Marine arguing over the primary motive of a vessel and her crew which may have sank over two-hundred years ago.

There have been no shortage of critics of Odyssey Marine and its endeavors. UNESCO Director General Koichiro Matsuura strongly condemned the efforts in an editorial in the Miami Herald, and Peru has even stated its ethical claim for the gold.

Greg Stemm is the current CEO of Odyssey Marine, who was acquitted in the earlier SEC prosecution, argues in the New Yorker that “by publicizing the shipwrecks it finds–on TV specials, in books, and on its Web site–the company does more to educate people about our seafaring past than academics do.” As Stemm says “If I were an archeologist today, I’d be saying, ‘Why aren’t we out there working with [them]?”

Colapinto has helpfully solicited the opinions of some archaeologists, and they are not positive. George Bass of Texas A&M says “Finding, raising, and conserving artifacts is no more archeology than my aunt’s careful collecting of Indian arrowheads on her South Carolina farm.” I’m hardly an expert on marine archaeology, but there seems to be a very big gap between Odyssey’s activities and Bass’ efforts in excavating an 11th-century wreck off Turkey. He and the team of researchers spent three decades “piec[ing] together nearly a million fragments of glass retrieved from the wreck. These yielded beakers, cups, bowls, and bottles, and, for the first time, information about medieval Islamic glassware.” Careful excavation of underwater sites can reveal important historical information. The Titanic may not have been sunk by an iceberg, but by cheap rivets (it was this tragic disaster that spawned perhaps the worst movie of the last 20 years).

I find myself becoming more concerned with Odyssey Marine and its methods the more I learn about them. Their purpose in the Black Swan case has been all about the coins, and there are even indications they have manipulated news reports and discoveries to time with selling shares in the company. In this case, the more they know about the wreck, the harder it may be to keep the coins. They do not seem to interested in serious archaeological study, but rather want a kind of superficial appearance of archaeological study to sell more of the objects they find. Odyssey, nor the predecessor company Seahawk has never published any of its research in a peer-reviewed journal. I think there is a lot to criticize about Odyssey’s approach. However I do not think the UK and Spain are entirely blameless either. They have hired the company to search their waters, and it strikes me as a bit odd that Spain has reacted in this way when they had hired Odyssey Marine to search Spanish waters.

The presumption has long been that the salvor will be entitled to a portion of what they find on the ocean because they have risked their equipment, or their lives in some cases to salvage underwater sites. That general position will not change any time soon. The 2001 UNESCO Underwater Heritage Convention takes an aggressive line, and prohibits all commercial exploitation of underwater cultural heritage. This is a step many nations will refuse to take. Only 15 nations have signed on, and the convention requires 20 before it enters into force. In this case, by arguing too vehemently, I think UNESCO has left itself with no say on the disposition of underwater sites found in international waters.

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

More on Yale and Peru


On Sunday, Peru’s state news agency reported that Peruvian researchers have said Yale University researchers (i.e. Hiram Bingham) took more than 40,000 objects from Machu Picchu in the early part of the last century. This, the Peruvian news agency claimed, is 10 times more than the original estimate. Reuters has a summary in English.

Hernan Garrido Lecca released the inventory results to the state news agency. A team from Peru’s National Institute of Culture traveled to Yale in March to take an inventory of the objects at the University. Part of the discrepancy here may involve how these objects are accounted. If a ceramic object is in 15 pieces for example, does it qualify as 1 object or 15? I’m not sure of the answer to that question, perhaps there is a standard in the museum community? This may account for the discrepancy, rather than any bad faith on Yale’s part.

Some may remember Yale and Peru had a tentative agreement to settle the disposition of these objects, which resulted in a Memorandum of understanding back in September. That agreement appears to have been a good bargain for both parties.

Peru would receive title to the objects, many of the research pieces would remain in Connecticut under a 99-year lease, there would be an international traveling exhibitions, and finally Yale would help build a museum and research center in Cuzco. Such an institution would seem to be badly needed, as there are indications the current museum near the Aguas Calientes train station is not fit for purpose:

The doors were open to the air, which was moist from the nearby river, and the sole official was a caretaker who sold tickets and then exited the building. On display in the attractive (if unguarded) museum are the finds that Peruvian archaeologists have made at Machu Picchu in the years since Bingham’s excavations.

In February, former first lady of Peru Eliane Karp-Toledo had harsh words for the Memorandum of Understanding and for Yale University. Despite what would seem to be a very good agreement for both sides, Karp-Toledo was very critical of Yale University, and indeed Hiram Bingham III who discovered the objects. She argued the objects were only to be taken from Peru for 12 months, and that legal title to all the objects must be returned to Peru. She claimed “Yale continues to deny Peru the right to its cultural patrimony, something Peru has demanded since 1920.”

The repatriation claims are often tied to colonial mistreatment, and are often closely aligned with Indigenous-rights movements. Those may be good things, however in this case I am not sure what the current leaders of Peru would want to do differently or would seek. Yale has, it would appear, a very secure interest in the objects; and they are certainly not under any obligation to return them any time soon. By increasing the claims that Yale University has mistreated Peruvian heritage, I wonder if perhaps Peru may risk losing the bargaining chips which were gained in the 2007 MoU.

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

The Limited Effectiveness of the Art Loss Register


Georgina Adam has a very interesting article in the Art Newspaper on the dispute between Michael Marks and Aziz Kurtha over two works by Indian artist Francis Newton Souza. Pictured here is an unrelated work by Souza, Still Life, which was purchased in 1967 for a mere 50 pounds but was sold recently for 173,000 pounds. This increase in value now makes it more profitable for individual’s to bring claims for works by Souza which may have been stolen in the past.

As Adam states:

Mr Marks says he bought the two paintings, Head of a Portuguese Navigator, 1961, and Chalice with Host, 1953, in good faith in 2006. He had conducted a check against the Art Loss Register’s (ALR) stolen art database and was not alerted that there were doubts about the works’ ownership despite the fact that they had been registered with the ALR as missing.

Dr Kurtha, who owns a collection of over 200 works by Souza, said that, at some point in the 1990s, some of these were stolen…

The two paintings in the present dispute were registered by Dr Kurtha as missing with the ALR in 2005… Mr Marks, who was then unknown to the ALR, telephoned the organisation to check the provenance of the paintings and paid the ALR search fee with a credit card. Julian Radcliffe, ALR’s chairman, admitted in court that he deliberately misled Mr Marks by telling him there was no claim on the Souzas. Mr Radcliffe said that it was sometimes necessary to mislead people who make enquiries about the database in order to establish identity and bank details, which he did in this case; Dr Kurtha then took Mr Marks to court to recover the paintings.

Speaking to The Art Newspaper, Milton Silverman, the solicitor for Mr Marks, described this as a “potentially nightmare scenario for a dealer. He could buy works of art, certain in his own mind that they are free of any problems, only to find himself landed with a dispute on their title.” Mr Radcliffe told us that the circumstances were exceptional in that Mr Marks was unknown to them. ALR would not act in the same way with a known dealer, collector or auction house, he says.

The emphasis is mine. Marks now has a potential claim against whoever he purchased the works from in 2006, whoever that may be. One would assume such a claim would probably still leave Marks in a difficult position, as works by Souza have been increasing dramatically in value in recent years.

The priority for the ALR would seem to be to return paintings to their original owners, but not necessarily to guarantee the legitimacy of current transactions, as indicated by Radcliffe’s admission that the ALR misleads some. Add to that the fact that the ALR sometimes takes commissions for facilitating the return of works of art to original owners, and we are left with what appears to be a troubling state of affairs.

As an aside, I’m not sure what the ALR guarantees when one does ask for a search of the ALR, and I’d imagine they have done their best to disclaim liability in this situation, but I wonder if Marks may have some kind of claim against the ALR itself. Though in this case the paintings have been returned to their original owner, I wonder if perhaps this kind of misleading information would give dealers pause when they are considering whether to consult the database.

The ALR is the most widely-used and cited cultural property database, however it makes no claims to being a cure-all for the problems with the cultural property trade. Though the ALR is in some cases useful, it should not be mistaken for a check on cultural property transactions generally, and it should be pointed out that Julian Radcliffe and the ALR are quick to point out that they do not attempt to police the whole market. What they do, they do well, but there are limitations to its effectiveness. David Gill and Tom Flynn have both pointed out the dubious usefulness of the ALR with respect to recently unearthed antiquities and export restrictions. As the ALR counsel, Christopher A. Marinello has recently indicated via the Museum Security Newwork, “the database does not contain information on illegally exported artefacts unless they have been reported to us as stolen.”

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