Another recent attempt by Iran to use the courts of England and Wales has come up short. However this time Iran makes a much stronger case than it did in the Berend decision, and may reveal some very troubling shortcomings in the way Anglo-Welsh law responds to foreign claimants.
In Republic of Iran v. Barakat Galleries Ltd. [2007] EWHC 705 (QB), Iran sought to recover antiquities it claimed were from the Jiroft region, but were in the possession of Barakat galleries in England. The opinion was kindly forwarded to my by Gary Nurkin via LexisNexis.
Jiroft is located on the Halil river in Southeast Iran. If the antiquities were indeed from the Jiroft region, than they were almost certainly discovered in the last few years. Counsel for Iran claimed the takings were recent, as Jiroft experienced flooding in 2001 which washed away soil and revealed a large number of antiquities. Iran argued it is the lawful owner of all antiquities excavated from the Jiroft region based on a number of provisions of Iranian law. Justice Gray assumed the antiquities had been illegally excavated between 2000 and 2004, and yet Iran still has no title to them. Barakat argued that Iranian law does not give a possessory interest to Iran, and Iran never became owners of the objects under Iranian law. The ultimate issue, and the one that proved fatal to Iran’s case here is whether Iran has declared itself the owner of all undiscovered antiquities. Unfortunately for Iran, there is no specific nationalization provision, but rather a number of other provisions. Professor Taleghany, the Iranian law expert for the claimant said:
Since time immemorial Iran was ruled by absolute monarchs. The kingdom of Iran was the king’s domain, i.e. his estate. It was as such that the kings acquired further territories, ceded territories and exchanged part of their kingdom with the neighbouring kings. The last evidence of the exercise of such power was exhibited in 1893. However, a short while after this date there was a Constitutional Movement in Iran and the king’s domain became the Crown’s, or government property. When the Iranian main laws were codified in the Civil Code of Iran (section 1 of which was approved in 1928) the internal ‘government properties’ legally replaced the king’s domain.
Curiously, Justice Gray concedes there “would have been at some stage and by some means a transfer to the state or government of Iran of property rights previously owned by the king, these constitutional provisions form no part of Iran’s case in these proceedings. Accordingly I will pay no regard to them.” It seems then that Iran should have attempted to clear up what precise rights the monarchy gave over to the new state. It seems Gray J did not feel the need to look into the matter himself, as apparently the parties own experts seem to be the final experts of any foreign law, especially in this case as Iranian law is quite foreign to an English Judge.
Iran argued its own Civil Code, Section 3 Article 26 states “Government properties which are capable of public service or utilisation, such as fortifications, fortresses, moats, military earthworks, arsenals, weapons stored, warships and also government furniture, mansions and buildings, government telegraphs, public museums and libraries, historical monuments and similar properties, and in brief, any movable or immovable properties which may be in the possession of the government of public expediency and national interest, may not privately be owned.
That provision could be clearer I suppose, but clearly suggests Iran has vested antiquities in the state. However Gray J stated that the words “‘and similar properties’ in Article 26 are not apt to extend the scope of that Article so as to embrace movable antiquities. I see no similarity between antiquities on the one hand and fortresses and the other specified properties on the other hand.” I strongly disagree on this point, as historical monuments can mean specially designated areas, and I don’t think are exclusive to large architectural remains or the like.
Also, the 1930 Iranian National Heritage Protection Act provides “all artefacts, Buildings and places having been established before the end of the Zandieh Dynasty in Iran [late 19th Century], either movable or immovable, may be considered as national heritage of Iran and shall be protected under the State control.”
Also, a 1979 law provides “Considering the necessity of protection of relics belonging to Islamic and cultural heritage, and the need for protection and guarding these heritages from the point of view of sociology and scientific, cultural and historical research and considering the need for prevention of plundering these relics and their export abroad, which are prohibited by national and international rules, the following Single Article is approved.”
Unfortunately these and a myriad of other Iranian provisions do not clearly state “Iran is the owner of all undiscovered antiquities”; rather Iran argued that the spirit of all of these various provisions must surely have given itself title to these antiquities. Iran was essentially asking the court to “infer title”.
Gray J also has some rather curious things to say about the 1930 act. Here is the excerpt from the judgment:
46. It is true that, as Professor Taleghany points out, Articles 13, 16 and 17 of the 1930 Act (see paragraph 22 above) provide (according to Professor Taleghany’s translation) for the “seizure” of movable assets or (according to the other translation included in the papers) for their “confiscation”. The word in Farsi is “zabt”. The dictionary definition of “zabt” includes both “seize” and “confiscate”. I do not find it necessary to decide which definition is preferable in the present context. It seems to me that the provision for seizure/confiscation is designed to spell out penal consequences of illegal excavation and attempted export respectively. According to Professor Taleghany’s thesis, these provisions are otiose [i.e. useless] since the State is already the owner. Confiscation/seizure does not happen unless objects are discovered in the course of illegal excavation or an unlawful export of antiquity by a dealer is attempted. In that sense Articles 13, 16 and 17 are inconsistent with a pre-existing state ownership of antiquities. Of course, by virtue of those provisions of the 1930 Act, ownership of antiquities may be transferred to and become vested in the State but only in consequence of the sentence of a criminal court.
47. I accept the evidence of Mr Sabi that the 1930 Act primarily regulates the listing of the national heritage and makes provision for measures to be taken to protect and preserve items of the National Heritage, for example by restricting excavations and export. Mr Shepherd is in my view right to stress that the obligations created by the Act are in personam obligations, including the obligations on the accidental or chance finder to inform the Ministry, which will decide whether the particular item is worthy of being listed in the National Heritage List. I cannot accept that the 1930 Act is concerned with property rights.
I frankly do not understand why a seizure provision cuts against Iran’s ownership declaration. In the US, some very aggressive seizures have taken place premised on the idea that foreign states have title to the objects. Indeed, US courts are much more receptive to these kinds of claims brought by foreign claimants. The upshot of this ruling is that courts in England and Wales may not adequately enforce foreign nationalization declarations. Granted, Iran’s declaration was hardly clear in this case, but I think there was ample ground for the court to infer title in this case. The decision continues, but clearly the Iranian vesting problem was the salient issue in the case.
The appeal will certainly be much anticipated, and I’ll post information here when I know more. Gray J has authorized the case for appeal. In the UK, appeal is not automatic as it often is in the US. So the Appellate decision should be fascinating reading, and I would expect this judgment to be overturned.
We can take a number of broader points away from this decision nonetheless. First, the UNESCO Convention has proved completely ineffectual for undiscovered antiquities. That convention, unless coupled with an effective bilateral agreement does very little. Also, Barakat galleries purchased these objects via France, Switzerland and Germany; which means dealers continue to launder objects through various jurisdictions. Finally, where was the potential criminal prosecution? This shows once again that the Dealing in Cultural Objects (Offences) Act 2003 allows far too many illicit transactions to be effectual. Finally, if this case were to appear in US courts, it is likely that federal prosecutors would have stepped forward and initiated a seizure proceeding to protect the rights of the source nation, even to the extent that many federal prosecutors have been accused of being overzealous. However no such seizure or assistance appears to be forthcoming in this case. I wonder to what extent Iran’s position on the international stage and by extension treatment in this case may be different from other friendlier source nations such as Egypt or Greece? If Iran’s appeal is unsuccessful, I would expect it to clearly state its intention to nationalize all antiquities.
In my view the relevant issue should be whether Iran has done enough to put looters on notice that what they are doing is illegal. Are they enforcing their laws domestically? Here it seems that they are. This highlights the need, once again, for the UK to adopt the recommendation of the Illicit Trade Advisory Panel and produce a database of source nation legislation, that would allow source nations to know when their domestic nationalization provisions are insufficient to be enforced at the market end, and would also prevent dealers from claiming they did not know an object could not be exported.
