Derek Fincham

Vanishing Heritage in the Cradle of Civilization

Things are looking increasingly grim in Iraq these days, with the US considering arming Sunni groups that once attacked coalition forces. Soon after the invasion of Iraq in 2003, western journalists visited the Iraqi Museum in Baghdad and reported incorrectly that 170,000 objects were stolen from the museum. More careful reporting soon accurately placed that number far lower, and current estimates seem to indicate that a still alarming 3,000 objects are still missing, with about 47 main exhibition artifacts missing.

Thus I always maintain a healthy bit of skepticism when articles come out detailing the loss of archaeological context and heritage in Iraq. The article last Friday by Simon Jenkins in the Guardian titled “In Iraq’s four-year looting frenzy, the allies have become the vandals”even viewed skeptically reveals some very troubling things about the way archaeological sites are treated by coalition forces.

The catalyst for the discussion was a presentation by Abbas al-Hussaini, the head of Iraq’s board of antiquities and heritage to the British Museum. He detailed a number of disturbing things. The former head of the antiquities board in Iraq, Donny George, left for a teaching position in New York, fearing for his life. Today the national museum “is not open but shut… Its doors are bricked up, it is surrounded by concrete walls and its exhibits are sandbagged. Even the staff cannot get inside.” A 10th century caravenserai of Khan al-Raba was used to explode captured weapons. Looters are better armed than the Iraqi forces seeking to protect the ancient monuments. Two 4,000 year-old cities, Isin and Shurnpak, have been demolished by looting pits. The 11 teams Hussaini has organized travel the countryside attempting to retrieve any artifacts the looters have left behind. Even muslim sites are subject to destruction, with a number of bombings of mosques from the 10th and 11th centuries

When I was in Istanbul in May, I saw some of the glazed bricks from the Ishtar gate leading to Babylon, and they are stunning. The lion image above was very impressive. For me then perhaps the most disturbing claims detail the destruction taking place at the ancient city of Babylon:

Hussaini confirmed a report… on America’s conversion of Nebuchadnezzar’s great city of Babylon into the hanging gardens of Halliburton. This meant a 150-hectare camp for 2,000 troops. In the process the 2,500-year-old brick pavement to the Ishtar Gate was smashed by tanks and the gate itself damaged. The archaeology-rich subsoil was bulldozed to fill sandbags, and large areas covered in compacted gravel for helipads and car parks. Babylon is being rendered archaeologically barren.

Despite some unnecessary snarking by Jenkins here, the destruction at Babylon is a grave tragedy. He does conveniently overlook some facts though. The coalition forces only seem to be continuing the destruction and disdain Saddam Hussein had for the site when he was in power. This slide show taken by US Marine Gunnery Sergeant Daniel O’Connell in 2003 shows the ancient city, the unfortunate modern reconstruction by Hussein on top of the archaeological site, and the modern palace he built where marines first stayed. The colonel in charge of the site apologized last year, and UNESCO officials are even considering developing the place into a tourist attraction at some point.

It seems very unfortunate that coalition forces, in the face of the looting of so many sites, should have blundered so badly at Babylon, which is in one of the most secure regions of Iraq. The Geneva Convention dictates that forces should treat opposing cultural heritage with care. Also, though the US and UK have failed to implement the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict(because it might restrict their ability to use nuclear arms), they notionally abide by its tenets.

The US is doing a good job of policing its antiquities market, as a Fox News cameraman was arrested for smuggling Iraqi antiquities into the country recently. The UK also has legislation preventing the import of Iraqi antiquities. Jenkins gets a final jab in at the Department of Culture Media and Sport which seems far more concerned with the upcoming London Olympics than the illicit cultural property market. I wonder if the £400,000 recently spent on the unfortunate mascot would have been better served policing the antiquities market. The Met’s Art and Antiquities squad has only 3 full time investigators, and is in jeopardy of further budget cuts. But only so much can be done when provenance or a title history is not routinely given during transactions. As long as the market is hidden from view, looters will continue to find purchasers for their ill-gotten gains.

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

How to Repatriate?

I got a very interesting email yesterday from someone wondering how they should return a piece of marble to Greece. Apparently the object was given as a gift sometime in the 1960s. She has contacted the Greek embassy but they have not been very helpful it seems. Perhaps she was not speaking to the right people, I don’t know. But in a time when Greece is becoming increasingly vocal about repatriation, shouldn’t it make it easier for individuals who want to do the right thing and send objects back? Also, should she make sure to get some kind of immunity for potential charges? Might a good Samaritan be possibly opening the door for criminal charges by the Greeks, even though that would seem to be a horrible blunder on their part?

I’m afraid I didn’t have any good advice for her. I suggested contacting some museums in her area, who perhaps have some better contacts in the Greek Culture Ministry. Does anyone have any practical suggestions for someone who wants to return a piece of cultural property to a source nation?

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

Showdown on the Strait of Gibraltar

The dispute between Spain and Odyssey Marine has taken an interesting turn. A Spanish court has ordered the interception of two of Odyssey’s vessels if they decide to leave Gibraltar. The two ships are currently moored in Gibraltar. The Spanish Culture Minister Carmen Calvo said “International laws are behind us and if anything outside the law occurred it will have an answer, and what is ours will return to Spain.”

Odyssey has been secretive about where exactly they discovered the record shipwreck. Some have speculated that the wreck was in international waters off the coast of England. However Spain apparently feels otherwise, especially as Odyssey vessels were doing marine research in Spanish waters recently.

Over at Opinio Juris, Julian Ku has some interesting things to say, as does Anton Zeilinger in the comments. It seems the international boundaries of the territorial waters are very unclear. The maritime boundary between Spain and Gibraltar and between Spain and Morocco is unresolved. Even if Odyssey wanted to send its ships through the Suez canal, its not clear when they would be passing through Spanish waters.

The upshot is, states need to resolve their maritime boundaries. For a very interesting example of that problem, in the Adriatic, you can see an article my colleague Jernej Letnar Cernic has co-authored with Matej Avbelj, The Conundrum of the Piran Bay: Slovenia V. Croatia – The Case of Maritime Delimitation, forthcoming in the Journal of International Law & Policy, available on SSRN.

Spain is taking a very aggressive line with Odyssey marine. Perhaps they are attempting to get Odyssey to reveal the location of the wreck. Spain wants to be real sure the wreck was in international waters, or it may want to send its own salvage and archaeological teams to study the wreck. The dispute will certainly continue, and the forthcoming federal admiralty case in Florida is going to be very interesting.

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

Spain and Odyssey Marine

Cultural Property Internationalism: A Raw Deal for Afghanistan? (UPDATE)

Cultural property internationalism is the idea that cultural objects have a value for all mankind. Unfortunately, sometimes taking that position can produce unsatisfactory results for source nations.

Robin Pogrebin has an interesting article in today’s New York Times on the traveling exhibition of Afghanistan’s Bactrian Gold. The National Geographic Society has reached a deal which pays $1million to Afghanistan for display of the hoard, plus 40% of all profits. Sounds like a great deal for Afghanistan to generate revenue and engender some international appreciation for its heritage.

That’s not the case apparently:

Lynne Munson, the former deputy chairwoman of the National Endowment for the Humanities, which helped finance the cataloging of the Afghan treasures, said the arrangement would leave Afghanistan with “40 percent of absolutely nothing,” because expenses would be significant.

“This is a travesty,” she said in a telephone interview from Washington. “The Bactrian hoard is simply the most valuable possession of the poorest people on earth. To ask them to lend it and give so little in return is unconscionable.”

She said she had ceased working for the endowment in 2005 because of internal conflicts within the agency over arrangements for the show.

The protocol accord signed over the weekend says that the exhibition revenue going to the Afghans will be derived from the fees paid by the museums as hosts of the show and from corporate sponsorships. It does not guarantee them proceeds from ticket, catalog or merchandise sales.

A similar exhibition by the Egyptians in 1994 earned that country over $10 million in every city visited. Some of the pieces were displayed in Paris and Turin, but the details of that exhibition were not made known.

I don’t know very much about how much a source nation like Afghanistan should expect to clear in an exhibition like this. Thomas Hoving and Lynne Munson certainly feel Afghanistan got slighted.

Though the Egyptian exhibitions seem to indicate that Afghanistan should have held out for more money, this may also serve a very important cultural mission for Afghans. Many foreigners view that nation as a hostile place with mountains and terrorists, or the source for much of the heroin trade. In reality it was once a very important stop on the silk road and the home to some very advanced ancient civilizations. Everyone knows that Egypt has a great archaeological heritage, perhaps this exhibitions will change the perception of Afghanistan and allow other exhibitions in the future to garner more funds for Afghanistan in the future.

UPDATE:

I missed Lee Rosenbaum’s excellent criticism of the Pogrebin article. I’ve come to increasingly rely on RSS feeds, and that site doesn’t have one. Here’s an excerpt:

There are so many problematic aspects surrounding Robin Pogrebin‘s story in yesterday’s NY Times about the allegedly “unconscionable” financial arrangements between the National Geographic Society and the government of Afghanistan, for a proposed tour of that country’s Bactrian hoard, that it’s hard to know where to begin. Critics cited in the article charge that Afghanistan is being shortchanged in the deal although, from the Times account, it’s difficult to ascertain exactly what the financial parameters of the arrangement are.

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

Spain Sues Odyssey Marine

A couple weeks ago I discussed Odyssey Marine’s discovery of what may have been the largest-ever shipwreck recovery. It seems now that Spain has decided to challenge Odyssey Marine’s title to the salvaged treasure. Julian Ku over at Opinio Juris has some thoughts, speculating that “Spain would either have to pay salvage costs if they retain title, or if the wreck is deemed abandoned, then its ‘finders/keepers.'”Here is an excerpt of the AP Story:

TAMPA, Fla. (AP) — The Spanish government has filed claims in U.S. federal court over a shipwreck that a Florida firm found laden with Colonial-era treasure, an attorney said Thursday.

If the vessel was Spanish or was removed from that country’s waters, any treasure would belong to Spain, said James Goold, an attorney representing the government.

“It’s a very well established principle under Spanish, U.S. and international law that a government such as the kingdom of Spain has not abandoned its sunken ships or sunken property, and that a company like Odyssey Marine Exploration may not conduct recovery operations without authorization by the government,” he said.

“The kingdom of Spain has not authorized any such operations by Odyssey, and by these legal actions it will see the return of any Spanish property Odyssey has recovered,” Goold said of the claims filed Wednesday.

Odyssey Marine Exploration Inc. CEO John Morris said in a statement Thursday that “such a move was anticipated by Odyssey and is considered normal in Admiralty cases.”

The company has previously said Odyssey would notify all claimants once it conclusively determined the ship’s identity. Odyssey said it was not found in Spanish territorial waters.

“If there is anything Spanish involved, they want to work with the Spanish government and be certain the Spanish government is completely satisfied with the result,” said Allen Von Spiegelfeld, Odyssey’s attorney in Tampa. “I don’t think the rights of the Spanish government would have been threatened.”

The company announced two weeks ago that it had discovered a shipwreck containing 500,000 gold and silver coins somewhere in the Atlantic Ocean. The Tampa-based company said the site was outside any country’s territorial waters but would not give the exact location or name of the ship.

Odyssey has said that the ship was not in Spanish territorial waters and was not the HMS Sussex, a shipwreck that Odyssey recently got permission from the Spanish government to search for in the Strait of Gibraltar.

But Spain has called the new discovery suspicious and said the booty may have come from a wrecked Spanish galleon.

In Britain, the find generated press reports that Odyssey had salvaged the wreck of the long-sought British vessel Merchant Royal, which sank in bad weather off England in 1641. Odyssey has not confirmed or denied these reports.

Assuming the wreck was found in international waters, I’m not sure Spain has a tenable claim here. This may just be a perfunctory admiralty action by the Spanish to make Odyssey prove that the wreck was outside Spanish waters, and that it was not a Spanish ship. It is an interesting case, and I’ll continue to post information here as it becomes available.

Another interesting theme to all this is that it will be the colonial powers that have a potential claim here, either England or Spain if the wreck were discovered in their territorial waters. The new world civilizations who were stripped of the precious metal before it was sent back to Europe would of course have no claim whatsoever. On a moral sliding scale, this would seem to render Spain’s claim a bit less sympathetic in my view.

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

$2 to $6 Billion Worldwide

All Things Considered featured an interesting story on art theft last week by Frank Browning. It gets to the heart of the intrigue behind art theft. Does it support terrorism, drugs or organized crime? Is there a modern Dr. No? Here’s part of the story:

May 31, 2007 · Art theft has turned into a global industry that experts believe now fuels everything from terrorism to drug-running. At least one art sleuth puts art crime, including stolen antiquities and traffic in forgeries, behind only drug and arms trafficking as the third-most lucrative criminal activity in the world, at $2 to $6 billion a year.

Late one night last winter, thieves broke into the Paris apartment of Pablo Picasso’s daughter and granddaughter. When the granddaughter went downstairs, she found two of the painter’s best-known works missing.

And several years ago, thieves made off with Edvard Munch’s globally famous “The Scream” from an Oslo museum; before that, thieves carted off a dozen masterpieces from a Boston museum.

There are almost as many theories about what happens to the booty from these capers as there are stolen art works.

The most romantic ideas posit an enigmatic “Dr. No” character who commissions thieves to snatch particular works to adorn a secret hideout on a remote island.

But most art sleuths think this is hogwash. Another intriguing theory has stolen art functioning almost as commodities – traded over and over again on the black market, at less than 10 percent of its auction value, for guns or drugs. This theory has almost all art theft perpetrated by organized crime syndicates.

Listen to the radio segment here. The comments by Dick Ellis, that the resources devoted to the problem by Scotland Yard are inadequate are right on point. I also think the notion that stolen art and antiquities are used as collateral is interesting, and quite plausible. Unfortunately there just isn’t a lot of good evidence to support the hypothesis.

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

NPR Story on the Antiquities Trade (UPDATE)

Morning Edition on NPR has what looks to be a promising story on the antiquities trade. It will be available later today here.

UPDATE:

The first of the two part stories which aired on Monday was excellent. It does a great job of laying out the issues with the antiquities trade in ~8 minutes. The view was expressed that Guatemala needs to enact stricter laws to protect their antiquities. That is often the first response someone gets when presented with the theft and destruction of archaeological sites. However Guatemala has some very aggressive legislation. The problem isn’t the laws, its the enforcement. Today’s second part should be excellent as well, as it will detail the art market, the other side of the coin.

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

Largest Historical Shipwreck

Recently, Odyssey Marine Exploration announced they had recovered 500,000 silver and gold coins from a shipwreck which may have been 40 miles from Land’s End in Cornwall. It may be a record for the The BBC has a story here and video here. The Daily Mail has a story here. Odyssey have not released the location of the wreck for security and legal reasons. The treasure has been stored in an “undisclosed location” in the US. The value of the coins recovered could approach half a billion dollars.

Odyssey stresses it is the legal owner of the coins, and that it conducted the salvage by “diligently follow[ing] archaeological protocols using advanced robotic technology, and the artifacts are now undergoing a meticulous conservation process”. I’ll confess a profound ignorance of how much archaeologists can learn from shipwrecks. However Will Anderson over at the assemblage expresses some well-founded skepticism about the archaeological merits of the salvage, “Whether what Odyssey Marine Exploration does can be termed archaeology is debatable”. And in response to claims that the archaeological protocols were followed, “So we shall soon be seeing a full and thorough excavation report published, the site will be assessed and managed, and the loot will not be flogged over the internet”? Chances of that seem unlikely, as Odyssey has already sold coal from another shipwreck, the SS Republic.

Peter Spiro over at Opinio Juris summarizes the current state of shipwreck recovery law in International waters, and ties in the difficulties with regulation of underwater cultural heritage to a new book by Dan Drezner. Drezner postulates a “club standards” situation where there is low conflict among great powers and high conflict between the great powers and other actors. Spiro says “that seems to be what has emerged in the context of treasure hunting, with the great powers reaching ad hoc agreements on particular finds (as was the case with the Titanic), at the same time as they also handle the issue through domestic law. The universalizing option of an open-to-all multilateral treaty gets left by the wayside”.

That brings us to the UNESCO Convention on the Protection of Underwater Cultural Heritage. JH Merryman has been a very vocal critic of the Convention, because it completely precludes commercial exploitation, as was the case here. 14 Nations have signed on. The convention has received little support from most European nations and the United States. Here is an excellent overview of the Convention from Robert Blumberg, who led the US delegation to the UNESCO negotiations. As it stands now, there is no comprehensive law regulating wrecks found in International waters, which begins 24 miles out to sea. Regulation which does exist comes about through multilateral agreements for individual wrecks and bilateral agreements, or domestic legislation.

Clearly, this record recovery will anger some nations, and may provide some new impetus towards forming a workable convention for maritime states, perhaps by amending the UNESCO UCH convention.

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

Orkin v. Taylor

The 9th Circuit Court of Appeals has upheld a lower-court ruling denying an attempt by the descendants of a Jewish art collector. They sought to to recover this work, Vue de l’Asile et de la Chapelle de Saint-Rémy by Vincent Van Gogh. Elizabeth Taylor bought the work at an auction in 1963 for $260,000. It may fetch up to $15 million at an auction today. The opinion is here. The San Francisco Chronicle has a summary here.

Van Gogh painted the work in 1889 after entering an asylum in Provence. This was only 1 year before he committed suicide. Margarete Mauthner purchased the work in 1907, but left the painting behind when she fled Berlin and went to South Africa in 1939. Mauthner’s four descendants claimed she sold the work under duress in 1939.

Both parties “vigorously dispute[d] the circumstances under which Mauthner parted with the painting”. This suit really highlights the phrase often uttered with respect to art litigation: a tale of two innocents. Neither party seems to be in the wrong here.

The claimants argued that Mauthner sold the painting under duress, not that the Nazis confiscated it. They brought suit against Taylor, however that claim was thrown out under a 12(b)(6) motion. The district court essentially found that the claimants did not bring a legally recognizable claim. This appeal centered on whether the Holocaust Victims Redress Act created a private right of action, and whether the action was timely.

The Holocaust Victims Redress Act did not create a right of action according to the 9th Circuit. The “Act was a limited bill, passed with an understanding of constitutional limitations on congressional power.”

With respect to the timeliness of the action, the court held the action was time-barred as well. California has adopted the “discovery rule”. An action for the recovery of art accrues when the rightful owner discovers the location of the work. However, the California Supreme Court has held that the discovery rule incorporates a requirement which accrues the action when the claimant “reasonably could have discovered” the claim. At the very least, the claim could have been discovered in 1990, when Taylor attempted to auction the painting at Sotheby’s. She was also listed as the owner of the painting in a 1970 catalogue. Thus the Federal cause of action was inapplicable, and the State claim was time-barred.

Most commentators have agreed this was the right decision. Working against the claimants was the fact that painting was not actually seized by the Nazis, even though the court was interpreting the District Court’s ruling in a light most favorable to the plaintiffs. It would have been a difficult case to win on the merits, and would have taken Nazi restitution litigation a step too far in my view. I wonder how exactly the claimants learned of the work and their possible claim. The court didn’t really analyze in much detail what the claimants should have done, but did note the various points that Taylor publicized her ownership.

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