Antiquities – Page 20 – Illicit Cultural Property

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

"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

"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

Palestinian PM Makes Claim for Dead Sea Scrolls

The Toronto Star has a nice piece on the demand by the Palestinian Authority to cancel an exhibition of Dead Sea Scrolls. Palestinian officials claim the objects were stolen by Israel from Palestinian territories. It is an indication of the increasingly prominent role antiquities are playing in national politics and notions of national heritage and even past wrongdoing. The calls share similarities with other nations who have urged repatriation of objects, from Scotland to Peru and others. Hamdan Taha, the director-general of the archaeological department of the Palestinian Ministry of Tourism and Antiquities, “The exhibition would entail exhibiting or displaying artifacts removed from the Palestinian territories . . . I think it is important that Canadian institutions would be responsible and act in accordance with Canada’s obligations.”

The Royal Ontario Museum will host a six-month long exhibit of the scrolls, operated in conjunction with the Israel Antiquities Authority. The Dead Sea Scrolls are a collection of about 900 manuscripts, dating to 70 AD. The caves in which the scrolls were found were located near Qumran (see map below), in what is now the Palestinian West Bank. From the piece in the Toronto Star:

Beginning in 1947, and for nearly a decade, experts from the Rockefeller Museum in East Jerusalem, the Jordanian Department of Antiquities, and the École biblique et archéologique française excavated the caves and salvaged the scrolls, only a few of which were found whole. The rest were scattered into thousands of fragments.

Written mainly in Hebrew, and partly in Aramaic and Greek, the scrolls include about 200 copies of portions of the Jewish Bible.

At first, the scrolls were housed in the Rockefeller Museum in East Jerusalem, which was under Jordanian control at the time.

After the 1967 Six Day War, however, Israel unilaterally absorbed the eastern sections of the city, an act most Western nations – including Canada – regard as illegal under international law. The Israelis removed the scrolls from East Jerusalem and took them to the western city, where they remain.

According to Shor at the Israel Antiquities Authority, portions of the scrolls frequently have been put on display in other countries – including the United States, Britain, Switzerland, Germany, and Australia – over the past 10 years or so.

This raises the question, should nations use these antiquities as instruments of foreign policy? Will the end result be more difficulty in holding international loans and travelling exhibitions?

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

Treasure Hunting in South Texas

The Houston Chronicle has the story of a dispute before the U.S. District Court over who has title to a ‘barkentine’ which was sunk in 1822 when it was hit with a hurricane:

The Texas Historical Commission this week filed notice that it will ask the 5th U.S. Circuit Court of Appeals to let it into a lawsuit over who has legal claim to what might be a shipwreck buried 160 miles southwest of Houston, near the Mission River in Refugio County.

“It’s like highway robbery,” Internet treasure hunter Nathan Smith complained Wednesday of the state trying to take away his possible $3 billion claim two years after he filed the lawsuit.

Inspired by the National Treasure movies, Smith read up on lost loot and used the Internet to look for a barkentine that got lost on a South Texas creek in an 1822 hurricane that killed half the crew, leaving the other half to a local cannibal tribe.

Once he spotted something and checked it in person with a metal detector, Smith filed a lawsuit in early 2007. The case was tried last December in a Houston federal court, where he was opposed by landowners who say Smith’s shoeprint-shaped vision is on their land, which they say sometimes floods with the tides.

One issue here is how the court views the findspot. Smith or the state of Texas will have a claim only if the area is determined to be “navigable waters”. If not, the landowners would have title perhaps. Another issue are the heritage laws of Texas:

Steve Hoyt, a marine archeologist for the historical commission, said he cannot comment on the case but that “our intervention is to seek a determination that, if the vessel (if it exists) is in a navigable waterway, it is the property of the state of Texas.”

According to the Antiquities Code of Texas, Hoyt said, historic shipwrecks on submerged lands are the property of Texas, including all parts and contents of the vessel. Hoyt said such wrecks cannot be disturbed without a permit issued by the commission, and those are only for scientific and historic research.

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

The True/Hecht Trial Continues

The ongoing trial of Marion True and Robert Hecht continued last week in Rome. It is worth remembering perhaps that this prosecution began in 2005 and alleges True and Hecht conspired to traffic in illegal antiquities. One of the important pieces of evidence are the pictures seized in a 1995 raid of a Geneva warehouse.

A number of arguments and defenses still need to be presented, and as Elisabetta Povoledo reported on Friday in the NY Times, True and her lawyers intend to defend the acquisition and challenge the prosecution’s evidence on each object. At the trial True said “If ever there was an indication of proof of an object coming from a certain place, we would deaccession it and return the object, regardless of the statute of limitations”. The difficulty is the two very different views of what this “proof” may entail. True will argue that there was no direct evidence for many of these objects that would indicate they were looted; however the prosecution will surely counter that there must have been some indication that these objects could not have just appeared out of thin air, and these masterpieces were certainly looted. The trade itself capitalizes on these different views by hiding and shielding from view the history of an object.

There are no indications the trial will conclude any time soon, however when it does, one wonders if there is a possibility that the defendants may earn a not-guilty verdict. What consequences might that not-guilty verdict mean? I think to avoid the possibility of other kinds of acquisitions and prosecutions in the future, we should hold institutions to a higher standard of good faith, and the requirements for this should be made plain for museums, dealers and judges to evaluate future acquisitions.

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

"Like water on a leaky roof"

That’s how James Cuno describes the 1970 UNESCO Convention in a Q&A with Science News. He makes some correct criticisms I think, but I differ with him on the ultimate remedy for these difficulties. I think we need to start with an open antiquities trade in which the history of objects is published, open to the public, and even enlists 3rd parties evaluate the propriety of acquisitions.

What was the effect of the UNESCO 1970 treaty on looting of archaeological sites?

It hasn’t stopped looting. In fact, from what we hear, looting is increasing. Looting is not a leisure pastime. People don’t decide to become a looter rather than being a lawyer. They are desperate people doing desperate things. In situations of a failed economy, a failed government, the absence of civil society, internecine warfare, sectarian violence, drought — whatever — conditions emerge that can create pressures for looting. Simply criminalizing the illegal acquisition of goods won’t stop looting. It hasn’t stopped the trade in drugs or trade in stolen materials of any kind.

So an important artifact with dubious provenance for sale on the open market, available for anyone else to buy, isn’t available to foreign researchers?

Right. So fewer and fewer things are entering into the public domain. These export constraints are creating black markets. And like water on a leaky roof, looted artifacts are finding the path of least resistance to a buyer somewhere. I’ve heard they’re going to the Arab Emirates and Asia. What I can tell you is that they’re not coming to museums in the United States and Europe [which adhere to UNESCO 1970].

Just because other nations and buyers may be buying looted objects does not I think justify their purchase by North American institutions. There are flaws with the Convention, but it has produced some important changes in heritage law and policy. It has helped elevate the importance of national ownership declarations, and it has raised the general profile of heritage policy. It has not yet produced a perfect regulatory framework, and though the convention has some drawbacks, we could also point to lackluster implementation or enforcement by many nations at the market end.

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