Derek Fincham

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

Internet Radio

One of the best things about the internet is the way we can listen to any musical genre . Net radio allows us to enjoy and discover new music in a way that corporate-controlled radio never will.

However, the Copyright Royalty Board, in its infinite wisdom, has decided to dramatically increase the royalties net radio sites must pay to SoundExchange. The net result will be more use of peer-to-peer networks, and less “legal” access to new music. Though this increase purports to help compensate artists, that is simply not the case.

In March, the CRB increased the royalty rates to 7/100 of a penny per user who listened to each song. Bafflingly, these rate increases are retroactive to 2006.

This is a dramatic increase from the small hourly rate required previously. Setting aside how exactly we can determine listenership, this increase is sure to shut down many streaming radio stations. It seems that the increase money which will make it to artist will only be hundreds of dollars per year, hardly worth the price of shutting down the streaming stations.

Congress can still step in and prevent or amend the increase. To learn more visit savenetradio.org.

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

The Cultural Property Advisory Committee

The Museum Security Network mailing list today circulated a really fascinating blog entry by Gary Vikan from last month. Vikan was discussing a NY Times article on the Cultural Property Advisory Committee. It’s a State Department body which recommends whether the US should adopt import restrictions on certain classes of objects. It’s the way the US chose to implement the 1970 UNESCO Convention.

Here’s a link to the NY Times article, Is the US Protecting Foreign Artifacts? Don’t Ask. You can access it via the timesselect service, which is free to academics and students. `

Here’s a link to Gary Vikan’s post. Of particular interest are some of the comments after the post.

Here’s an excerpt of what Vikan had to say:

The work of CPAC, which was created in 1983 by legislation intended to give effect to ratification of the UNESCO Convention on cultural property (1970), is to make recommendations to the State Department on applications from foreign nations asking, in effect, that their export laws governing cultural property become our import laws. From its inception, the committee’s activities have been highly secretive; in recent years, its internal deliberations have become increasingly contentious, as the archaeologists’ voice has come to dominate the collectors and dealers on the committee.

The hot issue now is whether the State Department will accept, on CPAC’s recommendation, a sweeping ban on the import of Chinese art and artifacts predating 1911. (The often-repeated counterarguments are that the Chinese have yet to clean up their own art-dealing house and that the share of the Chinese trade is relatively small, and will simply go elsewhere.)

The points made by Kahn, and through him, by his many sources on and off the committee, including its present chair, Jay Kislak, are right on the mark. The archaeologists’ voice and values are disproportionately strong among the CPAC membership, and its activities are overly secretive and exclusionary.

Vikan’s perspective is very enlightening, as he served on the CPAC from 2000-2003, and resigned after the looting of the National Museum of Iraq. Both links are essential reading if you are interested in cultural policy or the protection of antiquities.

Much of this controversy centers around China. China may be one of the most important source nations for antiquities. Two aspects make it unique. First, as John Henry Merryman says “China, with its many centuries of high civilization and its vast area and large population, may be the richest source of cultural property of all.” Second, China has used some unique regulatory techniques, including a ratings system for antiquities and a state right of purchase, which might both prove useful if implemented properly. Unfortunately, China’s current legal framework does a poor job of preserving antiquities and their accompanying archaeological context, as antiquities may be the single most valuable commodity smuggled out of the country.

Without regard to the reasons given for the panel’s secrecy, from an academics perspective it is indeed frustrating that we can’t have a clearer picture of how the advisory committee reaches its decisions. However, all 11 requests for import restrictions have been granted. Whether that will continue for China and Cypress remains to be seen. The importance of the committee internationally should not be underestimated, as the US by most accounts is considered the largest importer of art and antiquities.

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

International Law and Trade Conference in Istanbul

Last week I had the good fortune to present my work at the ILTC Conference in Istanbul. The title of my talk was “New Strategies for Source and Market Regulation of the International Trade in Cultural Property”. It went well, and we really enjoyed our time in Istanbul, the highlight of which was a dinner cruise on the Bosphorus. Here’s a quick summary of my presentation, in which I talked about the suitability of increased criminal penalties, antiquities leasing, and electronic databases as tools for decreasing the illicit trade:

Cultural property has a universal appeal. Objects of artistic, cultural, archaeological, and historical importance are rapidly escalating in price. As demand for these cultural items increases, the theft and looting of cultural property escalates as well. A number of legal measures have been created to attempt to limit the illicit market in cultural property. With notable exceptions, these restrictions have proved largely unsuccessful in limiting the trade in illicit cultural property, which has been estimated as the third largest black market behind illegal narcotics and firearms. Regulation of the illicit trade in cultural property has been difficult for two reasons. First, many of the current regulatory measures, such as export controls and national patrimony laws, have the unintended consequence of increasing demand for these objects on the black market. Second, the flow of cultural items is international. Many of the World’s most important and historic antiquities are located in the developing world. This international character requires an international regulatory framework. It requires the cooperation of authorities from the industrialized and the developed world. Regrettably, effective cooperation has not yet taken place.

Nearly every nation, especially those rich in art and antiquities, has some form of restriction on the transfer of cultural property. The restrictions at the source of these objects take various forms, and include: export restrictions, a pre-emptive right to buy some objects, or a declaration of national ownership. The United States and the UK have both recently affirmed the notion that their criminal justice system will recognize as stolen objects taken in contravention of a national ownership declaration. This stands as an important step, but only marks the very pinnacle of the regulatory framework, intended only for the most egregious transgressions.

A truly effective regulatory scheme must work in concert with the art and antiquities trade to push the movement of cultural items, and the profits derived from their sale, in beneficial directions. To accomplish this end, I advocate a strong and vibrant arts and antiquities market. However it must be closely regulated to prevent illicit transactions. To accomplish this, I propose a system of regulation and investment which would require arts and antiquities transactions to be conducted openly, with records of transactions, provenance, find-spots, and export permits. Regardless of the other intricate regulatory frameworks we might endorse, the illicit trade will almost certainly continue to flourish without a fundamental shift in the way art and antiquities are bought and sold.

In recent years, the cultural property debate has focused on the extent to which the criminal law can impact the illicit trade. This has unfortunately shifted the discussion away from cultural property policy. Museum curators are forced to acquire objects, not based on their artistic or historical value, but rather on the criminal advice of their counsel. Connoisseur ship has been displaced by other considerations. We should be looking at how best to safeguard archaeological sites, museums, and other historic sites to prevent theft and destruction. A criminal response, in isolation, can never hope to achieve success without overwhelming law enforcement resources or draconian legal measures.

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

Getty Panel Convened over the "Cult Statue of a Goddess"

The Conference at the Getty Museum which was convened to study the “Cult Statue of a Goddess”, probably of Aphrodite, took place last week. I discussed this before here. The NY Times discussed it last week here. Lee Rosenbaum gives her take here.

As I’ve said, scientific study is welcome, however the dysfunctional antiquities market gave us a situation where we have a very beautiful Greek statue but are unsure about where it came from. The Getty has already agreed to return the statute, but has taken 1 year to study it.

Sharon Waxman wrote in the NY Times: The Getty has not reached a formal conclusion based on the conference, which was convened at the museum on Wednesday and was closed to the public. But museum officials and some of the experts who attended said their discussions buttressed what the museum says are its own suspicions that the statue, acquired by the Getty in 1988, might have been illegally excavated in southern Italy.

So the panel has suspicions that the statue came from Sicily, but no clear evidence. Clearly the Getty has dramatically shifted the way it acquires antiquities. Since last October it has used 1970 and the UNESCO Convention as a starting date for new acquisitions. The Getty does not appear to be contributing to the illicit trade at present, and that may be the most welcome development. It will be interesting to guage Italy’s response in the coming months.

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