Derek Fincham

Iraq Troops Recover Antiquities

Iraqi commandos smashed a smuggling ring, recovering 235 looted Babylonian and Sumerian artifacts that they turned over to the Tourism and Antiquities Ministry.

The soldiers arrested a gang of seven thieves who were preparing to smuggle the objects outside of Iraq, according to a statement e-mailed today by the U.S. military in Baghdad. They were tipped off by residents in the southern Iraqi towns of Abu al-Kahsib, Bab al-Tawael and al-Amir.

Among the artifacts presented to the ministry in a ceremony this week were gold jewelry, ceramics and stone figurines, the military said. They weren’t marked with museum serial numbers, suggesting they were illegally dug up from one of Iraq’s estimated 40,000 archeological sites.

“The Iraqi Army is putting extraordinary pressure on smuggling gangs that steal Iraq’s history to finance terrorist operations,” Defense Minister Abd al-Qadir said in the statement. “The recovery of the artifacts was a joyous occasion because they could not be replaced with money and represented 5,000 years of Iraqi history.”

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

"Appropriating the Past: the uses and abuses of cultural heritage"

To inaugurate the new Durham University Centre for the Ethics of Cultural Heritage, there will be a “multi-disciplinary conference” to be held at Durham University, UK from the 6th-8th of July. Here is the description:

This two-day conference should be of wide appeal to archaeologists, anthropologists, philosophers, lawyers and others with an interest in the ethical principles and problems associated with the concept of cultural heritage. The meeting will open with four invited lectures to introduce the conference theme and relate it to the specific aims and methods of the new Centre.

In recent years, the right of archaeologists to erect ‘Keep Out’ signs around what they conceive of as the archaeological record has come under increasing challenge from other interest groups which may assert equal or superior rights to access, utilise and manage those remains, or to determine their significance. So a decorated bronze vessel which for an archaeologist is primarily a source of information to be extracted by academically approved methods may be, to other eyes, a sacred or tabooed object, an anchor of social or cultural identity, a work of art, or a legitimate source of hard cash. These different perceptions correspond to different forms of appropriating the past, and they can give rise to sharp practical conflicts.

This conference will explore some of the key ethical issues raised by the competing modes in which archaeologists and others appropriate the past. These include: rights to interpret the past and tell stories about it; handling the sacred; the concept and ethics of birthright; local versus national versus international rights over sites, antiquities and artefacts; roles and responsibilities of museums; duties/rights of international intervention to defend antiquities; study and custodianship of human remains; looting and the antiquities trade; the economic exploitation of sites and resources; duties of preservation for future generations; the use of destructive research techniques; the roles of codes of ethics and of legal frameworks.

Keynote Speakers

Professor James O. Young (Philosophy, University of Victoria, Canada)
Professor Robert Layton (Anthropology, Durham University, UK)
Dr John Curtis OBE (Keeper, Dept. of Middle East, British Museum, UK)

Ms Janet Ulph (Law, Durham University, UK).

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

Hugh Eakin Sums up Cuno’s Recent Writings

In the upcoming issue of the New York Review of Books Hugh Eakin discusses the recent work of Jame Cuno. As Eakin makes clear, a number of Cuno’s arguments are controversial, perhaps even wrong-headed. But we should still grapple with many of the arguments, including:

Cuno’s Manichaean view of cultural property—with national laws facing off against cosmopolitan museums—draws on several sources. From the Stanford legal scholar John Henry Merryman he appropriates the idea that archaeological countries tend to be “retentionist”—they aim to retain antiquities within their borders—whereas art-market countries like the United States are “internationalist”—supporting maximum dispersal. He also cites the work of the philosopher K. Anthony Appiah, whose recent book Cosmopolitanism: Ethics in a World of Strangers (2006) makes a forceful ethical argument for gathering together the art of different cultures in world museums, so that it can be more widely studied and enjoyed. A third influence comes from various studies of nationalism, including The Myth of Nations (2002), Patrick J. Geary’s eviscerating account of the pseudohistorical claims on which national identities in many European countries are based.

At the heart of Cuno’s analysis, however, are some broad assumptions about Western museums and their relation to the nations from whose territory their collections are formed. Taken together, they form an underlying story that goes something like this:

In the modern era, the discovery and circulation of antiquities have been guided by the rise of large collecting museums, on the one hand, and the emergence of nation-states, on the other. The idea of the museum as repository of world heritage can be traced to the eighteenth-century Enlightenment; the idea of modern nation-states as defined by self-identifying populations in particular territories derives largely from the spread of nationalism in the nineteenth century.

Through the early twentieth century, these two developments were able to coexist to mutual benefit: Western museums were given permits to engage in archaeology in the new nation-states of the Mediterranean and the Middle East; in return, governments in those countries often stipulated a division of finds, known as partage. As a result, the museums made pioneering discoveries and amassed stupendous holdings from around the world; while archaeological countries established important collections of antiquities found in their own territory.

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

Cleveland Museum of Art Returns 14 Objects to Italy

Today the Cleveland Museum of Art will hand over 14 looted works of art to Italy, including this Donkey-Head Rhyton, (c. 475 BC). Steven Litt has an account for the Cleveland Plain Dealer. These works were likely looted between 1975 and 1996, and were the subject of an agreement reached last November. In exchange for the return, Italy will lend 13 other objects of comparable quality for renewable 25-year periods.

Timothy Rub, the CMA Director says in Litt’s piece that the agreement was “open and fair and equitable to all parties. I was pleased then, and still am, that we reached a conclusion that was just that . . . My focus going forward, and the principal point of contact with the Italian government, has been on what we intend to do in the future . . . We have some work to do in terms of finalizing requests to a number of museums with the blessing and concurrence of the [Italian] cultural ministry.”

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

"What fools the curator also fools the collector"

Charles Stanish, Anthropology professor at UCLA makes some great arguments in the May/June issue of Archaeology magazine about the intersection of eBay and antiquities manufacturing. The piece, “Forging Ahead: Or how I learned to stop worrying and love eBay” argues the popular auction site is not as big a problem for the looting of ancient sites as many of us might believe. Instead, a number of forgeries have begun to flood the market. It is a terrific, and frightening article. It echoes an argument I’ve been trying to make in recent months: that the lack of transparency in the antiquities trade is defrauding our cultural heritage. Without an accurate and impartial accounting of an object’s history, how can we know for sure if an object is forged?

Pictured here is an image from the piece of a forged Moche portrait vessel. What about other potentially forged antiquities? Stanish argues in the piece:

The wealthier collector who up to now has been laughing about the naive folks who buy on eBay is in for a surprise, too: those dealers that provide private sales are some of the forgers’ best customers, knowingly or otherwise. In fact, the workshops reserve their “finest” pieces for collectors using the same backdoor channels as before, but now with a much higher profit margin because they are selling fakes. As a former curator myself, I know that an embarrassingly high percentage of objects in our museums are forgeries. What fools the curator also fools the collector.

From the professional’s point of view, there are really three kinds of “antiquities” on eBay. About 30 percent are obvious fakes or tourist art that can be detected by looking at the pictures, even the fuzzy ones. These are easy to pick out because they are not intentional reproductions, but simple pieces manufactured for tourists and sold as such. The creators of these pieces mix up iconography and choose colors and shapes for visual effect. Such objects are clearly not ancient. Another five percent or so are probably real, while the rest are in the ambiguous category of “I would have to hold it in my hand to be able to make an informed decision.” This latter category has grown fast.

This isn’t an isolated problem. Consider the Getty Kouros, the Bolton forgers, and the others we do not yet know about.

One intriguing idea which struck me as I read the piece is how perhaps the demand for antiquities can be appropriately shifted to purchasing modern recreations. Rather than insist on buying an authentic “antiquity” a better model perhaps would be if buyers purchase modern recreations—which might be considered unique works of art in their own right. Many of these forgeries are similar in many respects to the “real” thing. As Stanish argues “I know . . . of one fellow who makes grass-tempered reproductions of a 2,000-year-old pottery style. Having worked on archaeological projects for years, he learned to get the grass for his fakes from ancient middens near his house. If fired properly, and if the organic residue in one of his pots were carbon dated, it would appear to be a very old piece indeed.”

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

ICE Agents Seize Old Master

Immigrations and Customs Enforcement Agents seized this work by an “unknown Utrecht master” dating from 1632. It will be returned to the Max Stern estate. In a piece by Catherine Hickley for Bloomberg, it is reported that the work was seized from Larry Steigrad on April 2nd.

The precedent for the seizure was set late last year by the First Circuit Federal Court of Appeals in Vineberg v. Bissonnette. It affirmed summary judgment for successors of an art dealer—Max Stern who was forced into selling works under the Nazi regime. The sale took place at a 1937 auction; the First Circuit held in that case that the forced sales of works belonging to the Stern estate were a “de facto conficcation”, providing the precedent for this seizure.

Thomas Kline, an attorney for the Stern estate is quoted in the piece “With that decision, all artworks Stern sold under orders at the Lempertz sale are now considered stolen property, [and the estate] “hopes to receive further assistance from law enforcement authorities in the U.S. and elsewhere”.

Lawrence Steigrad, the owner of the gallery in Manhattan where the work was seized says in the piece ““I was in my warehouse in New Jersey when Philip Mould [the London dealer who sold him the work] called me on my cell phone . . . I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.” It seems a bit curious perhaps that this call came only a couple of days before an undercover agent walked into the gallery to look at the work.

“I was in my warehouse in New Jersey when Philip Mould called me on my cell phone,” Steigrad said in an e-mailed response to written questions. “I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.”

The London dealer Philip Mould purchased the work at the Kunsthaus Lempertz auction house in November 2007; the same auction house which sold Stern’s works 70 years earlier. That auction house blames the Art Loss Register for “missing” this work. Luisa Loringhoven describes how this work was not caught by the company’s database:

“The Lempertz catalog from 2007 describes the painting as a portrait of a musician aged 57, while our database describes the painting as a portrait of a bagpipe player,” Loringhoven said. “Though the picture was searched by description and title, it was missed because of these differences.”

Loringhoven said London-based Art Loss Register carries out about 300,000 searches a year. “While we endeavor to be as thorough and as accurate as possible, we may miss a handful of items”.

It seems then Mould is left footing the bill for this restitution at present; though he may choose to proceed perhaps against the Kunsthaus Lempertz or even the art loss register based on the details in the piece. The Department of Justice and Homeland Security will return the work to the Max Stern Estate today in a ceremony in New York today which is also Holocaust Remembrance Day.

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

"they forgot about culture"

David Glenn, who is doing some very good writing on the antiquities trade for the Chronichle of Higher Education has a Q & A with Larry Rothfield discussing the invasion of Iraq and the looting of sites and museums there ($) (cross-posted at Safe-Corner). Here is an excerpt:

Q. Why did the United States do such a bad job of protecting the museum in 2003?
Before the war, nobody except archaeologists was worried about civilians looting the archaeological sites and the museum. And that includes the Iraqi exiles who were advising the State Department’s Future of Iraq Project, which was supposed to develop plans for the postwar period. They set up working groups on all sectors of society — but they forgot about culture.

Q. But would it have made a difference if the Future of Iraq Project had paid attention to culture?
No, it wouldn’t have made any difference at all, given that the military threw all of their plans in the garbage can anyway.

Now, the military itself was very interested in doing its job in terms of protecting cultural sites and museums. But under international law, its job is defined as not destroying or looting cultural sites itself — not as preventing civilians from destroying sites.

So before the war, they reached out to archaeologists, and they did a perfect job of identifying sites to put on a no-strike list. None of those sites was destroyed in active combat operations.

Unfortunately, they ignored warnings from the same archaeologists they were working with that the museums and sites might be looted by Iraqis. The Pentagon should have known about that issue. Nine museums were looted after the 1991 Gulf War. The military did not learn its lesson from that experience.

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

More on the Conservation of the two Italian Bronzes

Reader Francesca Tronchin has much more to offer on the conservation work being done at the Getty to the two bronzes from Italy which I mentioned last Friday:

First off: I am an employee of the Getty and every time I enter or leave my building, I see these two statues, trussed up in a conservation lab.

Nevertheless, I am NOT an official mouthpiece of the Getty and these are my own thoughts on the matter.

Moreover, I am an archaeologist and an Italian citizen, which makes my position even more complicated! 🙂

Although it might be easy to be very cynical and suspicious of the Getty’s involvement in the conservation of these statues, given the Museum’s appalling past practices, I hope that people come to realize that this is in fact a great gift to Italy. (The ‘collaboration agreement’ notwithstanding.)

The two bronzes have been the subject of some pretty terrible conservation practices in the past. I am not a conservator myself, but one of the Getty conservators gave me a tour of the shocking methods of restoration, etc. on the two statues. Neither of these works have been on display for at least ten years, as they both were languishing in Italian conservation labs, partway through various phases of restoration work. (One, if not both of the bronzes were in Florence, far from their home in Pompeii.)

The Getty is treating these two statues with state-of-the-art methods and materials of conservation, practices that are unfortunately out of reach for most Italian (European, even) labs.

These two works of ancient Roman sculpture–while not of tremendously high quality as far as ancient art goes–will be conserved for generations because of Getty’s interventions. All at no cost to Italy at all. The statues will be displayed here after their conservation for a period of a couple of months, and then returned to Italy in a state better than when they left their homeland.

As far as I know, none of the other American museums previously under fire for their illegal/immoral acquisition practices (e.g. the Met, the MFA) have offered this kind of service to the Italians. Those agreements seem to be simply traditional loans rather than including the costly, time-consuming, but ultimately invaluable work of conservation.

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

The "Collaboration" Begins at the Getty Villa

These are the first two works from Italy to arrive at the Getty Villa as a part of the agreement reached in 2007. These bronzes, Ephebe as a lampbearer and Apollo as an archer will be loaned for two years. The Ephebe will go on display at the end of April, and the other will be displayed in a year after study and conservation. Karol Wight, the Getty’s curator of antiquities says in the LA Times’ art blog “We want the partnership to be mutually beneficial . . . But of course our concerns are highly aesthetic.”

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

My Article on Conflict of Laws and Cultural Property

I have posted on SSRN the final version of my paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Columbia Journal of Law and the Arts 111.

Pictured here is a Byzantine mosaic from the Hagia Sophia in Istanbul, similar to the mosaics taken from Northern Cyprus which gave rise to the Goldberg suit. The Seventh Circuit Federal Court of Appeals upheld the default—and problematic for cultural property disputes—lex situs rule in holding “Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.” The trial court had noted that although Switzerland was the location of the wrongful activity, it bore little connection to the cause of action. None of the parties or important actors was Swiss; the mosaics had never been in the stream of commerce in Switzerland; and they had only been on Swiss soil for four days. The jurisdiction with the closest connection to the objects was Cyprus, not Indiana. After all, the mosaics had been firmly fixed to the church for over 1400 years. Although it would therefore make sense to give concessions in the law to jurisdictions such as Cyprus, courts have shown a hesitancy to apply the law of the source nation, or lex originis.

Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

Keywords: art, antiquities, private international law, conflict of laws, international law, lex originis, lex situs, renvoi, art theft, antiquities, cultural heritage, cultural property

I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.

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