Category: Writing

Gerstenblith on Schultz and Barakat

Patty Gerstenblith has posted a recent article, Schultz and Barakat:  Universal Recognition of National Ownership of Antiquities, which appeared in the recent issue of Art, Antiquity and Law, Vol. 14, No. 1, Apr. 2009.  She discusses the two recent cases in the United States and United Kingdom which lay out the requirements for how courts in these two nations view national ownership declarations of art and antiquities by other nations of origin.  Here is the abstract:

Two decisions, one in the United Kingdom and one in the United States, decided just about five years apart, are significant for universalising the principle that vesting laws – laws that vest ownership of antiquities in a nation – create ownership rights that are recognized even when such antiquities are removed from their country of discovery and are traded in foreign nations. This basic principle has proven to be very controversial in the United States and has been subjected to bitter criticism; yet virtually the same legal principle, when decided in a British court, received little comment or criticism. Compounding the interest of these two decisions is that, although both decisions came to virtually the identical conclusion, they did so utilizing different methods of analysis.

Although laws regulating cultural heritage have a long history, nations have enacted national ownership laws since the nineteenth century for the dual purposes of preventing unfettered export of antiquities and of protecting archaeological sites in which antiquities are buried. When ownership of an antiquity is vested in a nation, one who removes the antiquity without permission is a thief and the antiquities are stolen property. This enables both punishment of the looter and recovery of possession of the antiquities from subsequent purchasers. By making looted antiquities unmarketable, these laws reduce their economic value. National ownership laws thereby deter the initial theft and the looting of archaeological sites that causes destruction to the historical record and inhibits our ability to reconstruct and understand the human past. While reinforcing these goals, the Schultz and Barakat decisions also bring uniformity to the national treatment of this central legal principle.

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

Asif Efrat on International Antiquities Law


In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern of US policymakers about looting abroad resulted from a series of scandals which exposed the involvement of American museums and collectors with looted material. Advocacy efforts of American archaeologists also played a key role in educating policymakers about the loss of historical knowledge caused by looting and the necessity of regulation. The article further analyzes how antiquities dealers and certain museums lobbied Congress against implementing the UNESCO Convention and why Congress decided in favor of implementation as an act of international moral leadership. Following the analysis of the Congressional battle, I examine how the US debate over looted antiquities has evolved to the present. The article concludes with implications for the role of values versus interests in international law.

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

Threedy on the Role of Storytelling in NAGPRA Repatriation

Debora L. Threedy, University of Utah College of Law, has a piece in the Journal of Land, Resources and Environmental Law, Vol 29 No 1 (2009), CLAIMING THE SHIELDS: LAW, ANTHROPOLOGY, AND THE ROLE OF STORYTELLING IN A NAGPRA REPATRIATION CASE STUDY.  Here is the abstract:

  After some odd twists and turns by the end of the twentieth century the shields were in the possession of Capitol Reef National Park. At that point, three claims were filed for repatriation of the shields under the auspices of the Native American Graves Protection and Repatriation Act (NAGPRA or the Act). 

In this paper, I use the controversy surrounding the repatriation of the three shields as the basis for examining the question of who owns the past. In particular, I examine how the repatriation process under NAGPRA addresses that question. I do this through the methodology of a case study. Because of the fact-intensive inquiry required under NAGPRA, and because NAGPRA repatriation cases are not typically resolved through court litigation, a case study seems an appropriate way to proceed with this examination.

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

Byrne on Preserving Gettysburg

J. Peter Byrne, Georgetown, has posted Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law 22 Tul. Envtl. L.J. 203 (2009) on SSRN.  Here is the abstract:

This article seeks to deepen legal analysis of historic preservation law by analyzing how contemporary presuppositions and legal tools shape changing preservation approaches. It is organized around legal disputes concerning the Gettysburg battlefield, a site of great national significance, which has been preserved in different forms for nearly 150 years. The paper describes the history of preservation at Gettysburg. It argues that the Supreme Court’s constitutional approval of federal acquisition of battlefield land in 1896 reflected contemporary conservative nationalism. It also analyzes how legal tools for preservation of land surrounding the battlefield have evolved from simple ownership to coordinated regulation and contract, breaking down the traditional stark division between protected and commercial land. Finally, the article examines how the National Historic Preservation Act governs government choices about what to preserve and how to interpret it. Because preservation of a site associated with a significant event inevitably will reflect contemporary interpretative biases, the law should mandate inclusive processes for making preservation choices and encourage the presentation of multiple perspectives.
Questions or Comments? Email me at derek.fincham@gmail.com

Paper On Underwater Cultural Heritage and Investment Law

Valentina Sara Vadi, a Ph.D candidate at the European University Institute has an article in the recent edition of the Vanderbilt Journal of Transnational Law, Investing in Culture:  Underwater Cultural Heritage and International Investment Law.  Here is the abstract:

Underwater cultural heritage (UCH), which includes evidence of past cultures preserved in shipwrecks, enables the relevant epistemic communities to open a window to the unknown past and enrich their understanding of history. Recent technologies have allowed the recovery of more and more shipwrecks by private actors who often retrieve materials from shipwrecks to sell them. Not all salvors conduct proper scientific inquiry, conserve artifacts, and publish the results of the research; more often, much of the salvaged material is sold and its cultural capital dispersed. Because states rarely have adequate funds to recover ancient shipwrecks and manage this material, however, commercial actors seem to be necessary components of every regulatory framework governing UCH.  In this context, this Article aims to reconcile private interests with the public interest in cultural heritage protection. Such reconciliation requires that international law be reinterpreted and reshaped in order to better protect and preserve UCH and that preservation of cultural heritage be recognized as a key component of economic, social, and cultural development. 
Questions or Comments? Email me at derek.fincham@gmail.com

Student Note on Restricting the Import of Cypriot Coins

Derek Kelly has written a note Illegal Tender: Antiquities Protection and U.S. Import Restrictions on Cypriot Coinage, 34 Brooklyn Journal of International Law (2009).  He argues one of the reasons the United States protects antiquities is because they may be used as a kind of “political” bargaining chip, particularly on the international stage.  The author does a nice job discussing the imposition of restrictions on Cypriot coins, and he even digs deeply into many related blogs and other sources highlighting the competing views. 
 
It is a thought provoking piece, and a nice student note.  Here’s an extract from the introduction. 

In one of the Bush administration’s final acts before leaving office, the United States concluded an agreement with China that banned the import of Chinese antiquities into the United States. This agreement, known as a Memorandum of Understanding (“MOU”), was the most recent of fourteen bilateral accords the United States has signed with other countries for the avowed purpose of protecting cultural heritage.  One important aspect of the new agreement with China is the inclusion of a number of ancient coin-types among the protected materials. This is significant because it is only the second time that an MOU has included coins and demonstrates the increasing breadth of these agreements as the United States attempts to use cultural heritage protection for politicalgain.

The author makes some interesting points, and I think he is certainly right in a sense that many nations use antiquities and heritage policy as a political issue, but of course we could say that about every issue confronting every representative form of government.  He takes up James Cuno’s argument that these objects “have political meaning.”  I think one aspect of the argument which I would have liked to have seen expanded perhaps is the idea that the U.S. does not really unilaterally impose these restrictions.  A nation makes a request, and they have always been granted. 

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

Intellectual Property and Traditional Knowledge

Stephen R. Munzer and Kal Raustiala have posted The Uneasy Case for Intellectual Property Rights in Traditional Knowledge (Cardozo Arts & Entertainment Law Journal, Vol. 27, pp. 37-97, 2009) on SSRN. Here is the abstract:

    Should traditional knowledge – -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes – receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.
Questions or Comments? Email me at derek.fincham@gmail.com

Harding on "Perpetual Property"

Sarah Harding has posted her paper “Perpetual Property” 61 Florida Law Review (2009) on SSRN.  Many of these ideas speak to the importance of limitations rules for claimants, particularly in the Nazi spoliation context.  These rules have been expanded to accommodate these past injustices, which may be a very good thing for redressing the wrongs of the past, but might alos have some undesirable consequences for other areas.

Here’s the abstract:

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, as a number of prominent sociologists have argued, that an exploration of social attitudes toward time is indispensable to an understanding of our current cultural conditions then exploring temporal limitations in property law will presumably help us better understand what Professor Radin has called the cultural commitments of property. This topic is particularly compelling when one considers that the emergence of perpetual property, with its assumption of stability and permanence, has occurred at a time when speed, flexibility and impermanence are dominant features of our current social conditions. The prevailing conditions in society, even a single generation into the future, are likely to be so different from today that long-term control of property seems anachronistic and paradoxical. So why is it that in an era of rapid technological change we are more willing to tolerate perpetual property interests?
Questions or Comments? Email me at derek.fincham@gmail.com

My Work in Progress on Increased Scrutiny of Good Faith

I’ve posted on SSRN a work in progress, Fraud on Our Heritage: Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities. I attempt to make a case for heightened standards for good faith, particularly in the context of museums and antiquities. I would be delighted to hear any thoughts/reactions to the piece. Here is the abstract:

If a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World’s leading cultural institutions, then surely the current state of the antiquities market must be badly broken. Ideally a diligent enquiry before a purchase confers good faith status, allows purchasers to acquire good title, and gives the legal right to seek compensation from an unscrupulous seller. Despite these important advantages, good faith has been used merely to promote commercial convenience and economic efficiency. This article proposes a new theoretical foundation for increased scrutiny of the antiquities trade by constructing a broad basis for the recognition of good faith as a mechanism for eliminating the illicit trade in antiquities.

Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. With increased scrutiny and a more rigorous and diligent analysis, these legal measures will become far more effective. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view. When an object is acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; harms the legitimate acquisition of antiquities; perverts the important role museums play in society; and ultimately warps the understanding of our common cultural heritage.

Consequently, this article proposes a theoretical underpinning for a new and rigorous standard for the acquisition of art and antiquities. In so doing, it develops a theory which can successfully navigate the secrecy surrounding the trade and acquisition of antiquities. It concludes by offering a critique of the recent attempts by law and economics scholars to analyze the antiquities trade and concludes that they may offer some useful policy models so long as they account for the preservation of heritage and context in their “efficiency” models.

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

Student Comment on American Cultural Heritage Law

Katherine D. Vitale has posted on SSRN her Student Comment, The War on Antiquities: United States Law and Foreign Cultural Property, 84 Notre Dame L. R. 101 (2009). 

She criticizes the general trend of American cultural heritage policy, and is far too kind I think to museums and antiquities dealers generally.  She has some very interesting things to say about the AAMD Guidelines, and does a very good job putting the recent California searches in context, perhaps helping to explain why a year has elapsed with little apparent progress.  

From the Abstract:

The use of the National Stolen Property Act and Archaeological Resources Protection Act as mechanisms to protect cultural property taken from a foreign state through prosecution of individuals who buy, sell, and otherwise deal in such property is in direct tension with the Convention on Cultural Property Implementation Act (“CPIA”), a statute enacted in accordance with an international treaty to which the United States is a party. This Note explores how criminal liability under United States law for museum officials and others who acquire art, archaeological materials, and especially antiquities, originating in foreign nations conflicts with CPIA’s treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 UNESCO Convention”). Part II examines the 1970 UNESCO Convention’s influence on United States civil law and policy regarding foreign cultural property, and on the acquisitions policies of international and domestic museums. Part III discusses criminal penalties under both the National Stolen Property Act and the Archaeological Resources Protection Act for those who knowingly acquire stolen foreign cultural property. Part IV analyzes the conflict between policies on foreign cultural property followed by the United States and domestic museums and the application of criminal penalties in art-trafficking cases. In addition, this Part explores the consequences of the conflict for both the United States and individuals, and suggests resolutions to the conflict through law. Finally, Part V concludes that in order for the United States to fulfill its obligation under the 1970 UNESCO Convention, it must stop conducting a war on antiquities-and those who acquire them.

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