Category: Antiquities

Antiquities as Natural Resources

Andrew P. Morriss (University of Illinois College of Law) has posted Politics & Property in Natural Resources on SSRN. Assuming Natural Resources are analogous to antiquities, he makes some interesting arguments. Here is the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public’s share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

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

A History of Spoliation

Wayne Sandholtz has written a historical account of plunder and the norms which aim to prevent it over the last 200 years, Prohibiting Plunder. I have not had a chance to read it, but it looks promising. Here’s the description:

For much of history, the rules of war decreed that “to the victor go the spoils.” The winners in warfare routinely seized for themselves the artistic and cultural treasures of the defeated; plunder constituted a marker of triumph. By the twentieth century, international norms declared the opposite, that cultural monuments should be shielded from destruction or seizure. Prohibiting Plunder traces and explains the emergence of international rules against wartime looting of cultural treasures, and explores how anti-plunder norms have developed over the past 200 years. The book covers highly topical events including the looting of thousands of antiquities from the Iraqi National Museum in Baghdad, and the return of “Holocaust Art” by prominent museums, including the highly publicized return of five Klimt paintings from the Austrian Gallery to a Holocaust survivor.

The historical narrative includes first-hand reports, official documents, and archival records. Equally important, the book uncovers the debates and negotiations that produced increasingly clear and well-defined anti-plunder norms. The historical accounts in Prohibiting Plunder serve as confirming examples of an important dynamic of international norm change. Rules evolve in cycles; in each cycle, specific actions trigger arguments about the meaning and application of rules, and those arguments in turn modify the rules. International norms evolve through a succession of such cycles, each one drawing on previous developments and each one reshaping the normative context for subsequent actions and disputes. Prohibiting Plunder shows how historical episodes interlinked to produce modern, treaty-based rules against wartime plunder of cultural treasures.

Ingo Venzke has a review in 19 European Journal of International Law 866 (2008).

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

Bonham’s Withdraws Antiquities From Today’s Auction

ANSA is reporting that Bonhams London has withdrawn 10 antiquities worth an estimated 250,000 Euros from a scheduled sale today after concerns were raised by the Italian government, seemingly at the last minute. There are indications these objects were illegally excavated or illegally exported from Italy, perhaps in the 1970s. It seems likely that it was Francesco Rutelli’s “urgent” question to his successor, Sandro Bondi about this sale perhaps forced Bondi to act, particularly given the 11th hour nature of the actions. The Chairman of the auction house, Robert Brooks said in a statement:

We are always happy to cooperate with any action that limits the chance of items being sold that should not be sold. Having said that we would welcome a greater openness on the part of the Italian Government, which would allow us far more advance warning and information about concerns they have. Responsible institutions need to work together and not to keep information hidden, for whatever reason, until the very last minute.

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

Brent Benjamin Appointed to CPAC


The White House announced back in September that President Bush will nominate Brent R. Benjamin to serve on the Cultural Property Advisory Committee for three years. David Gill commented on the appointment, as did Wayne Sayles. Earlier in July, Robert O’Brien, a Los Angeles attorney was nominated as well, though his appointment attracted little notice.

Ton Cremers, an administrator on the invaluable Museum Security Network argues this was an “outrageous” appointment. The reason for the concern is this antiquity, the Ka-Nefer-Nefer mask which I discussed at length last year.

It was stolen from a storehouse in Saqqara sometime between its excavation in an archaeological dig in 1952, and its acquisition by the St. Louis Art Museum in 1998. It may be worth examining this acquisition in more detail. The best summary of the dispute I have found is this 2006 article in the Riverfront Times.

As always, the antiquities trade presents a number of questions. Was Benjamin at the museum in 1998 when it acquired this object? No, he came a year after the mask was acquired. Do his actions with respect to this mask disqualify him automatically from serving on the committee? I’m not sure they do. Does this ongoing dispute between Egypt and the St. Louis Art Museum automatically disqualify Benjamin from serving on the committee? Not according to President Bush, but did the Museum really have clean hands when they acquired the mask? The answer I think is not really.

They purchased it from Hichaam Aboutaam, who has been linked with looted antiquities. The work had been displayed at a Museum in Geneva when the SLAM was considering purchasing the work. However, the museum sent Mohammed Saleh, a retired director of the Cairo Museum a letter asking:

“[We have] been offered a mummy mask of the 19th dynasty and I was wondering if you know of any parallels to this object. I have never seen anything quite like it with a reddish copper-like face probably owing to the oxidation of the gold surface. It is currently on exhibition in the Egyptian exhibition at the Museum of Art and History in Geneva. I would greatly appreciate your thoughts on any parallels you might know of this piece and hope that I might have the opportunity to speak with you in several weeks by telephone about this opportunity.”

Saleh of course was not perhaps the best person in Egypt to contact about the mask. Shouldn’t someone on the Supreme Council on Antiquities have been better positioned to handle this request? Unfortunately this is the shady kind of enquiry which can pass for thorough provenance research in the antiquities trade. I think its likely perhaps that the SLAM was not too eager to look to deeply into the history of this object, for fear they would be unable to acquire it. The museum was told by the seller that the mask was seen at an antiquities dealer in 1952, and it remained in the ubiquitous “Swiss Collection” for the next 40 years. An expert hired by the museum, Peter Lacovara, reasoned that the mask was probably awarded to the excavator after the 1952 excavation. This would account for its appearance at a market in Brussels soon after, though refuting that fact is nearly impossible at this point.

Egypt has a tenable claim perhaps, but this is a close case. I’m not aware of the specific steps Egypt has taken in response. They have seemingly argued that the mask was stolen at some point from an antiquities storehouse. Now, its their cultural heritage and they’re free to do with it what they please, but Egypt can be criticized on two accounts. First, is it really the best idea to have a unique piece like this mask just sitting in a warehouse for fifty years? Second, had Egypt documented its collection and its holdings more completely, they would have had a much stronger legal and ethical claim.

In any event, nobody looks really good in this dispute. Not the museum, the Phoenix gallery, nor Egypt. But I’m not sure Benjamin, by merely refusing to return the mask outright to Egypt has disqualified himself from serving on the CPAC, which it should be mentioned is comprised of individuals from all the disparate heritage interest groups, including archaeologists. Also, the CPAC has never refused a request made by a nation of origin.

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

Profile of an Antiquities Dealer


The Associated Press has an extended profile of Leonardo Patterson. An antiquities dealer from Costa Rica who is currently being investigated by German and Spanish authorities. In April, police in Munich seized more than 1,000 objects from his warehouse.

Pictured here is Peruvian archaeologist Walter Alva. He received a catalog of Patterson’s antiquities in 1997:

[H]e saw more than 250 ancient Peruvian pieces, mostly from tombs raided in the late 1980s. There were necklaces made of gold and lapis lazuli from la Mina in northern Peru. There were copper masks and a necklace made of 30 gold spiral-shaped ornaments from Sipan, the center of the Mochica culture dating to 200 A.D.

Alva was not surprised that many of the pieces had ended up in private European collections.

“There is a very active market in the United States and Europe,” said Alva. “We have to eliminate this idea that those who collect archaeological artifacts are cultivated people.”

He asked Interpol in Lima to investigate. Interpol in turn asked a Lima court for an international arrest warrant for Patterson in 2004. Four years later, there has been no ruling, according to Interpol officials in Lima.

Patterson is accused of selling fakes and forgeries as well as looted antiquities. It seems Patterson may have been connected in some way to the looted Peruvian gold headdress which was recovered from Patterson’s lawyer’s office in 2006.

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

Liquidating an Antiquities Dealer’s Stock

Francesco Rutelli is making headlines again, this time in the Times, telling the Italian Parliament yesterday he had an “urgent question” for Sandro Bondi, his successor as Italian Culture Minister:

“Since the summer of 2007 the Ministry of Culture has undertaken extra-judicial negotiations with the commission of liquidators of the Symes collection nominated by a London court, with the aim of verifying the possibility of recuperating archaeological artefacts belonging to the heritage of Italy.”

The question involves antiquities which may be sold to satisfy the debts of Robyn Symes, who served prison time for bankruptcy. As an aside, my understanding of UK bankruptcy law is very limited, but I understand that seving jail time is a pretty extreme measure, and is given generally when a debtor won’t pay their debts, though they may be able to.

The difficulty is that Symes had a great deal of antiquities, which are now in the process of being liquidated to satisfy his debts. The Italian authorities and other nations of origin are of course very interested in the disposition of these objects, given that they most likely were illegally excavated or illegally exported. Some of them are slated for sale at an auction held by Bonham’s to be held on October 15th. One of the objects for sale is this Apulian 4th-century BCE red krater vase.

David Gill points to an Italian report in Il Messaggero which indicates that 17,000 objects worth 160 million Euros were recovered. An astonishingly high figure if accurate. It seems he also asked the Department of Culture Media and Sport about the liquidation but they stated “arrangement involving the Italian Authorities and other parties … was facilitated by this Department [sc. DCMS], which is specific to an individual case.” That’s not particularly helpful of course. This is a sale which needs to be made public, and the DCMS and the Italian Culture Ministry needs to put their cards on the table and be accountable and tell us what and how they are resolving this dispute.

I strongly suspect that there is not much which can be done. Without sufficient evidence that these object were illegally excavated in Italy, or that they were illegally exported, Italy does not have much legal traction to challenge this sale. I suspect the DCMS may know that, but won’t state that publicly because it would reveal the deep-rooted problems in the antiquities trade.

This may indirectly reveal the drawbacks with the recent Italian repatriation strategy. They have secured the return of many objects in recent years, but have done so in large measure without using courts, and without setting legal precedents, broadly defined (the interminable ongoing prosecution of Marion True is one exception). Some potential buyers, who want to work with Italy in the future may avoid this sale, though others, particularly private collectors may not be so constrained. Though the potential purchase price may decrease, I’m not sure there’s any legal basis (absent solid evidence) for blocking this sale. We have strong suspicions of course, but I’m not sure the Italians have enough to withstand the evidentiary burdens of a legal proceeding. We’re left with objects which “probably” originated from Italy, with only a limited universe of potential buyers. Such a state of affairs is not helping anyone.

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

Commemorating Italy’s 1909 Antiquity Law


Elisabetta Povoledo has an overview of an Italian exhibition celebrating its 1909 Antiquities Law in Tuesday’s New York Times. The proposed message is clear, were it not for Italy’s strong cultural heritage laws, we would have lost a great deal of contextual and other information. One object from the exhibition is this bust of Augustas purchased in “an antiquarian market in 1938”.

As the piece notes:

The exhibition is part of a broader scholarly program to study and celebrate the 1909 cultural-heritage legislation, which laid the groundwork for protective laws adopted in subsequent decades. “That early law consolidated principles that are still active today,” said Adriano La Regina, one of Rome’s leading archaeologists and the chief curator of the exhibition.

These laws have set an important precedent, and resahped the art and antiquities trade. They remain an imperfect instrument though. There are potential drawbacks to such an aggressive legal regime. One example is an unsuccessful attempt by Italy –characterized by John Henry Merryman as retention– to secure the return of a French work by Matisse which was illegally exported to the United States, Jeanneret v. Vichy 693 F.2d 259 (2d Cir. 1982). The regime may also present difficulties for contemporary Italian artists, which often have a difficult time selling their work abroad:

Domenico Piva, president of the Italian federation of art dealers, said it was “preposterous” that a release form must be obtained from the Culture Ministry each time a 50-year-old art object is exported, “even if it’s an industrial object by an architect.”

He said the laws had “led to the creation of an entirely internal and provincial art market” and restricted the profile of modern Italian artists abroad. “We complain that the Impressionists have a great international market, and our own artists are ignored, but it’s because our artists only circulate in Italy,” he said.

These are the two sides of the cultural heritage debate. In a sense I suppose its a difficulty with art and culture generally when art and cultural output is commodified.

It’s also interesting that this exhibition comes close on the heels of the resolution of the Oetzi “Iceman” dispute, in which a court ruled the North Italian province of Bolzano had to pay a finders’ fee of 150,000 Euros. This after the finders — who were on a hike in 1991 — were offered 5,200 euros initially. Italian law provides a finders’ fee of 25% of a discovery’s value. The difficulty can be settling on a real value of an object which has no licit market. But the council finally agreed to pay the larger amount in recognition of the tremendous tourist dollars the find attracts.

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

My Article on the Portable Antiquities Scheme

I’ve posted on SSRN my article from the August edition of the International Journal of Cultural Property, A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin 15 Int’l. J. Cult. Prop. 347 (2008). Here’s the abstract:

Blanket ownership laws, export restrictions, and the criminal law of market nations are the default legal strategies currently used by nations of origin to prevent the looting of archaeological sites. Although they have been remarkably successful at achieving the return of looted objects, they may not be the best strategies to maximize the recording and preservation of archaeological context. In England and Wales a more permissive legal regime broadly applied and adopted by the public at large has produced dramatically better results than the strong prescriptive regime of Scotland, which can be easily ignored.

This article attempts to clear up any misconceptions of the cultural policy framework in England and Wales. It accounts for the legal position accorded undiscovered portable antiquities, and describes how this legal framework is perfected by a voluntary program called the Portable Antiquities Scheme (PAS). This approach stands in stark contrast to Scotland, which has used a legal strategy adopted by most other nations of origin.

The domestic legal framework for portable antiquities in England and Wales is unique and differs from the typical approach. Coupled with the PAS, this legal structure has resulted in a better cultural policy, which leads to less looting of important archaeological sites, allows for a tailored cultural policy, and has produced more data and contextual information with which to conduct historical and archaeological research on an unprecedented scale. Compensating finders of antiquities may even preclude an illicit market in antiquities so long as this compensation is substantially similar to the market price of the object and effectively excludes looters from this reward system. Although the precise number of found versus looted objects that appear on the market is open to much speculation, an effective recording system is essential to ensure that individuals who find objects are encouraged to report them.

I wanted to write what I hope is a thoughtful piece which describes in an objective way what the PAS does, and how it creates a pragmatic compromise. Many of the very best heritage scholars are still seemingly under a misimpression about what it does and does not do. It’s not a perfect system, but it has produced some dramatic results, and may change the way we conceptualize heritage and context. I hope those interested in the scheme and archaeology will do me and the employees of the PAS the courtesy of reading the piece before dismissing my position. Sadly I’m afraid some already have reacted, without even reading the piece.

I have no doubt that some of my assertions may prove controversial, and I’m happy to have a vigorous debate, but I think everyone interested in heritage issues needs to work harder to make sure they are leaving room for meaningful discourse and disagreement and that we’re respectful of differing views and positions.

Pictured here are a horse and rider found in Cambridgeshire which appeared in the 2007 PAS annual report, via the PAS flickr page.

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

Provenance Red Flags

For those of you who don’t follow David Gill’s Looting Matters blog, you should. He’s had a great series of posts this week, but in my view his most valuable contribution to heritage policy is his tireless focus on antiquities which are offered for sale with little legitimate provenance. The latest came three days ago:

The Bonham’s sale of antiquities on October 15, 2008 will include an Apulian volute-krater from the Robin Symes collection (lot 180). No other history has been provided.

Several antiquities associated with Robin Symes have been returned to Greece and Italy in recent years. So what is the previous history of this krater? Who is the present owner?

That’s exactly the kind of pressure and pointed questioning the antiquities trade needs to account for. Where was the object unearthed? Where did Symes acquire it? He may have acquired it legitimately, but as courts have noted in other similar contexts the “red flags” should be up.

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

United States Senate Finally Ratifies the 1954 Hague Convention



On September 25th, the Senate gave its advice and consent and ratified the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. The treaty was submitted to the Senate by President Clinton in 1999. You can read the statement submitted by the Lawyers Committee for Cultural Heritage Preservation, and other heritage advocacy groups here.

Pictured here is a “Blue Shield” in Austria I pulled from Flickr. The text reads:

“Protected by the convention of The Hague, dated 14 May 1954, for the protection of cultural property in the event of armed conflict. (BGBI. No. 58 3rd April 1964).”

I’m a bit surprised the ratification has not made any papers yet. Though a Presidential election and a world banking collapse certainly are taking their share of headlines; part of the reason may be that the Hague Convention was designed to prevent the kind of theft and widescale destruction which took place in World War II, as Larry Rothfield correctly points out.

As Rothfield notes:

A new and quite distinct danger has emerged in the half-century since the 1954 Convention, however. It comes not from military action, but from military inaction in the face of looting by civilians, fueled by the global market for antiquities that has boomed over the last few decades. While Hague leads the military to [focus] on avoiding harm, it imposes no requirement to actively protect cultural sites against the harm that comes from the breakdown in law and order and the concomitant surge in market-driven looting. The obligations it imposes on occupying powers, in fact, seem designed to limit the responsibility of occupiers for securing cultural property, with such responsibility applying only to “cultural property situated in occupied territory and damaged by military operations,” only when national authorities are unable to protect it, and even then only so far as possible. Since looting by civilians is not damage inflicted by military operations, Iraq’s archaeological sites are fair game and no necessary concern of the US military, which may in fact point to Hague as putting it off the hook for whatever goes wrong.



That succinctly points out the main flaws in the Hague framework. However Rothfield notes, and I wholeheartedly agree that the flaws in the Hague Convention certainly do not make ratification meaningless.

It officially adopts what had up to now been customary international law, and may help to aid and support the efforts of organizations like Blue Shield and others. Ultimately, the difficulty international treaties and lawmakers have had in regulating the rules of conflict to prevent the looting and destruction of sites may indicate how difficult it is to regulate armed conflict — and may perhaps be a powerful reason to avoid the use of force at all cost. As the Hague Testimony endorsed by heritage advocacy groups notes, adoption of the Convention “is a crucial step toward improving our foreign relations by sending a strong signal to all nations that the United States values their cultural heritage.”


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