Good Faith Acquisition of Antiquities?


Lee Rosenbaum at CultureGrrl has more on the Italy/Princeton agreement. At the right is a “Apulian red figure loutrophos from South Italy, ca. 335-325 B.C.” This object will remain at Princeton but Italy will gain title.

Importantly, Rosenbaum tells us Princeton’s spokesperson, Cass Cliatt maintains the University had acquired the objects in good faith. Also, further details will not be forthcoming because of a “confidentiality agreement” between the two parties. Also, Princeton is “anticipating posting our acquisition policies, but they are still in the revision stage and will be made available at the appropriate time.” Rosenbaum rightly expresses some skepticism at this reticence.

It seems to me that Princeton will not be the last museum to deal with Italian claims, as Rutelli has indicated it will pursue similar arrangements with the Cleveland Museum of Art, the New Carlsberg Glyptotek in Copenhagen, and the Miho Museum in Japan. These restitutions are a welcome sign, but they will mean very little in the long run if these institutions do not erect appropriate safeguards. At present we are relying on institutions to police themselves. I’m beginning to reach the admittedly pessimistic conclusion that a good-faith acquisition of antiquities may not be possible given the way the market currently operates.

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

Catching Up

Apologies for the light posting the last couple of weeks. I’ve returned from the US and the AALS hiring conference. It seemed to go well, and I was pleased with the response I got from the handful of interviews I had. I am cautiously optimistic about my chances of further interest from the schools I spoke with, but I’m also glad to be back here so I can concentrate on finishing up my thesis.

Enough about me, there was a lot of exciting news while I was away, including:

  • This Morning’s news that a private investigator has been charged in the theft and recovery of da Vinci’s Madonna of the Yarnwinder. That brings the total to five now.
  • Iran’s Cultural Heritage News Agency reports on last Thursday’s auction of the Achaeminid limestone relief from the city of Persepolis, in present-day Iran. It’s a slanted view of the dispute, which ignores Iran’s difficult legal footing. But the unpleasant outcome is the acquisition by an anonymous buyer for $1.2 million USD.
  • Three paintings worth an estimated $100,000 were stolen from a San Antonio gallery on Sunday.
  • Germany has finally returned 100 objects to Greece, many of which date back 8,000 years. The objects were stolen in 1985, and recovered in a raid last year. They were seemingly forgotten until a German court ruled in August that they should be returned.
  • A number of news outlets have coverage of the antiquities playing cards now issued to US soldiers in the middle east, urging them to take care of the archaeological heritage there.
  • And most importantly, Princeton has reached a repatriation agreement with Italy. The deal is similar to those reached with the Getty, the Met, and the MFA Boston.
Questions or Comments? Email me at derek.fincham@gmail.com

Upcoming Events in the UK

The Institute of Art and Law is organizing two upcoming events in the UK in November. The first is on forgeries; while the second looks at the role of lex situs in cultural property disputes. This has had a lot of impact in recent months with the Iranian claims at the High Court.

I am pleased to be able to present a bit of my own work at the second conference. I’ll focus on the approach the US has taken to the lex situs rule. I’m excited to present my work, but perhaps more interested in hearing what Norman Palmer and Kevin Chamberlain have to say on the topic, two of the very best cultural heritage lawyers in the UK. Here are the details:

Fakes and Forgeries: International efforts to maintain the integrity of art and antiquities in association with Devonshires Solicitors on 23rd November in
central London.

Subjects to be examined include:
• the liability of auction houses in the sale of fake or forged artworks
• the criminal investigation and prosecution of those responsible for fakes and forged works
• liability in English civil law for fakes and forgeries
• the continued expansion of the criminal market for fakes and forgeries with emphasis on Russian and Aboriginal cases
• liability in French law for fakes and forgeries

Location, Location, Location: the role of the lex situs principle in modern claims for the return of cultural objects in association with Withers LLP on 30th
November in central London.

Recent cases emphasise that the role of private law in determining claims for art and antiquities is vital. This seminar will examine the workings of the ordinary law of title in a cross-border setting and ask whether private title claims are more effective than claims based on international treaties or other legal devices.

Full details of these seminars are available at www.ial.uk.com or tel: 01982 560 666

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

The Semiotics of Cultural Discourse


Alan Audi has an interesting Feature Article titled A Semiotics of Cultural Property Argument in the latest issue of the International Journal of Cultural Property. The article is here, but I’m afraid is free only for University folks and those with institutional access. Here’s the abstract:

This article applies the tools of legal semiotics to examine the terms, modalities, and conventions of legal argument in the cultural property context. In a first instance, the author re-enacts Duncan Kennedy’s study of recurrent patterns within legal argument to illustrate the highly structured nature of most cultural property argument. This mapping exercise shows how legal concepts draw their meaning in part from their place within a broader linguistic system, and as a result cannot by themselves form an adequate basis for ethical positions. Following this, the pervasive Elgin Marbles controversy is shown to resemble a myth (in Roland Barthes’s sense of the term) behind which a series of value judgments and support systems are embedded into cultural property argument. The conclusion presents a number of observations sketching a framework centered on restitution as a starting point for resolution of cultural property disputes.

There are then responses from some of the best cultural property writers around, including Patty Gerstenblith, Daniel Shapiro, Yannis Hamilakis and perhaps the best response was from Barton Beebe. In a final rejoinder Audi engages in an entertaining, if perhaps unhelpful scholarly kerfluffle with Prof. Gerstenblith’s critiques.

I’m a newcomer to the field of semiotics. If I understand Audi’s arguments correctly, he believes many cultural property scholars have unwittingly used canned responses to a number of the same recurring debates. This dialectic does not promote a better legal framework and renders many arguments stagnant. I think this may be exactly right in some cases. The problem is Audi does not define what he means by a cultural property debate. It seems he is speaking in the main about restitutions of objects such as the Elgin Marbles. Some of his more general arguments about the law are perhaps diminished by his failure to discuss the current state of the law, as Prof. Gerstenblith rightly points out.

I think he is exactly right about the arguments being made about these kinds of objects, but there is settled law for other classes of objects; for example for newly and illicitly excavated antiquities. For these objects there is not a problem of discourse, but rather a problem with implementing the law because the market effectively evades regulation.

I think perhaps one of the most insightful comment on the cultural property trade was made by Kurt Siehr,

If pieces of visual arts were treated like other commodities traded in international commerce, we would have to talk about letters of credit, charter parties, import and export regulations, embargoes, dumping, most-favoured-nation clauses, GATT and arbitration. It is interesting to observe that none of these terms are in fact used in the field of international art trade, except for … import and export restrictions.

There are gaps in the regulation, and strong conflicts in the ongoing debate. Audi I think does show how many legal arguments can be classified as maxims and countermaxims. However good legal analysis should get to the root of that tension, and show the policy at play on both sides, and effectively evaluate the state of the law. Unfortunately he doesn’t incorporate enough of the cultural policy-making scholarship into his analysis on “cultural property debates” as he calls it; which he seems to only believe can encompass the intractable dilemmas posed when the law has nothing to say for claimants in situations like the Parthenon marbles.

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

Antiquities Telethon

Even in Italy, where cultural policy plays a bigger role in politics than perhaps any other nation, funds for preserving and protecting objects and sites are hard to come by. As such Italy and Culture Minister Francesco Rutelli have resorted to a 3-day telethon to publicize the return of works from the Getty and to raise much-needed funds. One wonders how much of this is needed to raise funds and how much is political posturing. From Tom Kington’s report in today’s Guardian:

To soaring music by Ennio Morricone, seven sites featured in rotating TV spots, including Augustus’s villa where the frescos and flooring are decaying, the Sulky Punic necropolis in Sardinia, dating back to the fourth century BC, and an abandoned Norman fort near Cosenza.

Organisers also made room for more recent sites such as the Racconigi Royal Park in Cuneo, where a restoration project is needed for the 19th-century greenhouse in which the first Italian pineapples were grown. Also to benefit is Cremona’s centre for the restoration of antique musical instruments, as well as a rusty 19th-century railway line which connects the Sicilian baroque towns of Syracuse, Modica and Ragusa. If viewers cough up, the train will be turned into a museum on wheels for visitors.

The most modern candidate was championed by opera singer Andrea Bocelli: a museum for visually impaired people in Ancona lets visitors run their hands along reproductions of sculptures and archaeological finds.

Italy’s culture ministry pointed out that Italians only donated €42m in 2006 to protect their cultural heritage, compared with the €350m handed over by the French.

As the weekend drew to a close, donations were nearing the target, albeit with €300,000 of that coming from a US foundation.

The telethon comes amid rising resentment in Italy at the perceived free-spending habits of privileged politicians.

In an attempt to give an example of honest toil by politicians, Mr Rutelli displayed some of the artworks Italy claims were stolen and smuggled from its shores and has won back through the courts from the Getty Museum in Los Angeles.

Mr Rutelli said the works would go on free display at the Quirinale in Rome, the sprawling presidential palace which has taken centre stage in the row over politicians’ spending after it was revealed that the cost of maintaining the president and his army of guardsmen, gardeners and silver polishers was higher than that of Buckingham Palace.

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

"A Silly Thing to Steal"


So said my cab driver on the way down to the BBC’s Aberdeen studios bright and early this morning to talk about the recovery of the Da Vinci yesterday. A stream of the interview is available here.

I’m not sure I was able to offer much more insight. Details on this recovery are still sketchy. The FBI estimates the size of the illicit trade in art and antiquities at $6 billion, which is quite a sum. A better estimate may be the idea put forth by Simon Houpt in the excellent Museum of the Missing that if we were able to collect all the stolen works in one single museum, it would be the world’s greatest by a good measure.

Why then was the work stolen? This question will surely be answered in the coming months, but there are three reasons usually given. First it may have been a theft to order. This seems the least likely. If you have a masterpiece you want to show it off and put it on display. Second, the thieves may have been unaware how hard this kind of work might have been to sell. Finally, and most likely I think is the thieves may have wanted to ransom the work back to the Duke of Buccleuch or to the insurance company. This is just idle speculation, but I wonder if the passing of the Duke last month may have encouraged the thieves to think they could dispose of the work.

In any event this is a fantastic recovery. Police recovered the work yesterday from the law offices of HBJ Gateley Wareing; and arrested a partner in the firm and three other men. At this point there are far more questions than answers. An interesting issue may be whether the lawyer committed any wrongdoing, or if he in fact alerted the authorities to the location of the work. I’ll confess to a total ignorance of the professional rules of conduct for lawyers in Scotland, but I would venture a guess that assisting a client in committing a crime is frowned upon. Various news reports have speculated that the lawyer may have been assisting in repatriation, or looking at how to draft a contract under Scots law to allow the return of the painting.

There are other initial questions I have. For starters has the work been damaged? Will the work return to Drumlanrig Castle? What is the insurance agreement regarding the work? If an insurance policy has been paid out, the insurer now may have title to the work, but the Duke’s estate may be able to trade the money paid for the work, depending on the agreement.

The four men will appear at Dumfries Sheriff Court this morning, so more details should be forthcoming this afternoon.

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

Measuring the Size of the Illicit Antiquities Trade

There is more and more good empirical work being done to measure the size of the illicit trade in antiquities. The latest is a super paper by Raymond Fishman and Shang-Jin Wei, both of Columbia University (some users may need to pay to download if they don’t have an .edu or .gov ip).

They came up with a great idea to measure illicit antiquities entering the United States. They capitalize on the odd way the trade works. An object may be illegally exported from a source nation, but be imported and sold in a perfectly legal manner in the United States. The historic justification for this is the idea that nations will not enforce the public laws of another nation. However this policy has disastrous consequences for the antiquities trade. By focusing on this paperwork gap, they can estimate the nations with the biggest loss of antiquities. The biggest reporting gaps are in Syria, Iran, Egypt, Greece, Vietnam and Russia. As one would expect Canada, New Zealand, Britain and Hong Kong have low reporting gaps. Both Canada and Britain of course have limited export restrictions.

Here’s the abstract:

We empirically analyze the illicit trade in cultural property and antiques, taking advantage of different reporting incentives between source and destination countries. We thus generate a measure of illicit trafficking in these goods based on the difference between imports recorded in United States’ customs data and the (purportedly identical) trade as recorded by customs authorities in exporting countries. We find that this reporting gap is highly correlated with the corruption level of the exporting country as measured by commonly used survey-based indicies, and that this correlation is stronger for artifact-rich countries. As a placebo test, we do not observe any such pattern for U.S. imports of toys from these same exporters. We report similar results for four other Western country markets. Our analysis provides a useful framework for studying trade in illicit goods. Further, our results provide empirical confirmation that survey-based corruption indicies are informative, as they are correlated with an objective measure of illicit activity.

(Hat tip: Jay Hancock)

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

The GAO takes the Smithsonian to Task


Many have argued that a compelling case can be made that art and antiquities should be displayed in market nations in the developed world because they are better preserved there than they might be if returned to source nations which are often underdeveloped. The GAO report which James Grimaldi highlights in today’s Washington Post seriously undermines such arguments. It reveals a troubling picture of what should be America’s proudest cultural institution. Instead a picture of staggering institutional incompetence is revealed:

  • Alarms ring and guards are unable to respond;
  • A water leak in the Sackler Gallery could have destroyed artwork worth half a billion;
  • Fossils were stolen from display cases at the Natural History Museum;
  • Plastic sheets are required to protect Native American artifacts from damage;
Questions or Comments? Email me at derek.fincham@gmail.com

Upcoming Conferences

Next week in London the American Bar Association will be holding its fall international meeting. On Thursday, from 4-5.30 there will be a panel discussion on the International Movement of Art & Cultural Property:

Customs/Trade
Public International Law

Museums around the globe confront numerous obstacles in dealing with claims made on the art works and cultural objects in their collections. In some cases, works may have been placed on loan years ago and a museum may not know the current owner or may be presented with a claim to restore the works to the lender. Museums must also safeguard the ownership rights of victims of theft, including nations whose antiquities have been illegally excavated and removed and Holocaust victims and their heirs whose art properties were stolen during World War II. Finally, works on loan may be claimed to satisfy judgments received against the owner. In the United States, the ability of museums to remove art works from their collections through deaccessioning depends on laws that vary from state to state. The problem is more complicated in countries where museums are prohibited by law to remove any works from their collections. This panel will address issues of deaccessioning, long-term loans, and return guarantees for works on international loan and consider policies that may lead to greater cooperation in this complicated area of international law.

Co-Sponsoring Committees:

Europe Committee International Commercial Transactions, Franchising, and Distribution Committee, International Intellectual Property Committee , Information Services, Technology, and Data Protection Committee, Immigration and Naturalization Law Committee, and Financial Products and Services Committee

Program Chair:
Cristian DeFrancia, Legal Adviser, Iran – United States Claims Tribunal, The Hague, Netherlands

Moderator:
Ricardo A. St. Hilaire, Chief Prosecutor, Grafton County, Concord, New Hampshire

Speakers:

Lawrence M. Shindell, Chairman and Chief Executive Officer, ARIS Corporation, Milwaukee, WI
Norman Palmer, Rowe & Maw Professor of Commercial Law, Faculty of Laws, University College, London, England
Patty Gerstenblith, Professor, DePaul University College of Law, Chicago, IL
Bonnie Czegledi, Founder, Czegledi Art Law, Toronto, Canada

A likely topic for discussion may be the new consultation paper on Draft Regulations for the Museums and Galleries of Information for the Purposes of Immunity from Seizure Under Part 6 of the Tribunals, Courts and Enforcement Act 2007.

Another conference will be taking place at the University of Illinois, Urbana-Champaign April 24-25, 2008. It looks beyond the law at how heritage is constructed, and sounds fascinating. Here are the details:

CONTESTED CULTURAL HERITAGE IN A GLOBAL WORLD

Thursday and Friday, April 24-25, 2008
University of Illinois, Urbana-Champaign
Program

Spurlock Museum and the Collaborative for Cultural Heritage and Museum Practices (CHAMP) have organized a major conference on “Contested Cultural Heritage” to be held at the Museum on Friday, April 25, 2008. Dr. Donny George Youkhanna, former Director of the Iraq National Museum and now Visiting Professor at the State University of New York-Stony Brook, will deliver the keynote address of the conference (“Mayhem in Mesopotamia” on April 24).

The conference brings together an international group of scholars to discuss how forces of religion and nationalism may act to heighten inter-group tension around heritage claims, even to the point of causing the destruction of ancient and historic sites. Among the cases to be considered are the destruction of the Bamiyan Buddhas in Afghanistan; Christian and Muslim conflict resolution at a major mosque in Cordoba, Spain; different views and practices toward the indigenous past among Native Americans and the archaeologists who study their ancestors; the Parthenon/Elgin Marbles debate; Egypt’s demand for the return of the Bust of Nefertiti; heritage frictions implicated in the recent Balkans War; Peru’s attempt to repatriate the Machu Picchu collections from Yale University; and the aggressive marking of Protestant and Catholic identities in Belfast, Northern Ireland through wall art. A roundtable discussion at the end of the conference seeks to chart new directions for implementing policies that lessen the negative dimensions of cultural heritage and further awareness of its value for a larger public, thereby promoting site preservation as well as social/political harmony.

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

Endangered Species and Antiquities

Ben Macintyre has an excellent article in today’s TimesOnline, Elephants: the way to beat looters. He begins by describing looting taking place in Iraq:

Iraq has become a looter’s paradise, and history’s worst nightmare. The ancient sites of Mesopotamia, the very cradle of civilisation, are subjected to daily plunder. Friezes from the walls of the Assyrian city of Hatra are sawn off using stonecutters. Entire Sumerian cities have been erased from history by organised looters armed with guns and diggers, hacking down to bedrock and extracting everything of value: pottery, sculptures, bottles, anything that can make a buck on the international market. From the air, the ancient sites look like the surface of the moon, pitted and cratered.

The destruction has been well-documented, but Macintyre ties the trend to looting which takes place elsewhere, in Cambodia, Sri Lanka, Afghanistan and elsewhere. He sees promise in comparing the looting of sites with smuggled antiquities:

[A]rchaeologists are turning to the lessons of wildlife conservation in their efforts to protect the world’s most threatened sites. The answer to the plague of looting may lie with the endangered elephant.

Looters of ancient sites are operating in precisely the same way as poachers hunting elephant, rhino or apes: ivory, rhino horn and bush meat attain their value by a combination of illegality and rarity. One solution may be to treat ancient sites as, in effect, protected wildlife preserves, which visitors pay to visit just as they pay to see rare animals in their natural surroundings.

Our attitudes towards rare animals have altered radically. Rather than capture them for zoos, or kill and mount them on our walls, we prefer to see them in game reserves, preserved as nearly as possible in a state of nature. The same should apply to the relics of history. Where once ancient relics were the preserve of museums, today we also want to see them, with others of their kind, in context.

I think that’s exactly right, and there are at least three very interesting ideas playing out here.

First, as I see it, to prevent looting in source nations requires three components: a respect for cultural heritage among the locals, an effective legal framework which encourages compliance, and sufficient enforcement resources. The absence of any one of these allows an illicit trade; and all three are lacking in Iraq.

Second, the comparison between endangered species and antiquities is interesting. The two trades are a study in contrast though. The multilateral framework regulating wild animals works on a tiered system of protection under CITES. The multilateral protection of antiquities under the relevant UNESCO and UNIDROIT Conventions does not work nearly as well. Part of the reason may be the way the public views both problems. Broadly speaking if you see an endangered animal in a zoo, I think you get a visceral reaction at seeing a wild animal penned up. I don’t think you get the same kind of reaction when you see an antiquity in a museum, because you cannot tell by looking at a vase or sculpture if it was properly excavated or looted in most cases.

Third, and most interesting is the idea of heritage tourism. This has been successful in many countries, and is a great way to encourage locals to respect and preserve their heritage. It’s benefits are potentially long-range, but there are risks and drawbacks. As Macintyre points out, this may not be an option for Iraqis if the current theft and destruction continues.

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