Alderman on Cultural Property Law and Indigenous Peoples

Kimberley Alderman of the The Cultural Property & Archaeology Law Blog has posted a working paper “Ethical Issues in Cultural Property Law Pertaining to Indigenous Peoples“.  From the Introduction:

The purpose of this paper is to identify ethical challenges in cultural property law pertaining to indigenous peoples. Doing so is a necessary step in promoting a meaningful discourse over key crises in the cultural property trade.  By addressing ethical concerns in a discrete manner, we can cut through rhetoric, facilitate communication, and propose solutions that more precisely target harms born of the illicit trade in cultural property and repatriation disputes. I focus on indigenous peoples because they have an ethical stake in cultural property disposition, and they are the least represented in the international cultural property debates.
 

. . .  In Part II, I provide the background and context within which this discussion arises, answering the question, “Why define the ethical issues?” I describe a model of ethical decision-making originally developed for use in business, called the 5Ps Method. I explain that we are starting at the base of the 5Ps pyramid with “Problem,” which requires identifying the ethical problem. In surveying the surrounding facts, I describe the ongoing crisis in the cultural property trade, including divisiveness in scholarly debates and lack of clarity as to legal versus ethical concerns. I also note the recent passage of the UN Declaration of the Rights of Indigenous Peoples, which functions as an excellent backdrop to highlight indigenous concerns as independent from those of other stakeholders, including source nations.

In Part III, I parse several ethical concerns pertaining to indigenous peoples that emerge from the cultural property debates:

(1) Indigenous descendants of creator cultures are underrepresented in the cultural property debates;
(2) In cultural property law, control/possession and beneficial interest are inextricably linked, and indigenous peoples are not given adequate beneficial interest in their artifacts due to arguments against their getting control; and 

(3) Unsolicited representation of indigenous peoples constitutes a reinforcement of the idea that they are in need of custodial care, inherently undermining arguments that they are competent tocontrol cultural property.
 

In Part IV, I conclude with several recommendations. First, I suggest a more pragmatic approach to cultural property disputes, urging stakeholders to more clearly distinguish between legal considerations and ethical ones. Second, I urge indigenous peoples to assert themselves on the international cultural property front, independently from source nations, since ethical debates so often focus on the interests of indigenous groups. Recognizing this is not always possible, I encourage source nations to better involve indigenous peoples in repatriation initiatives. Finally, consistent with the purpose of this paper, I suggest that all stakeholders participate in pragmatic, meaningful discourse as to how these ethical issues might be creatively and categorically addressed.

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

Adler on Moral Rights

Amy Adler, NYU School of Law, has an essay in the most recent California Law Review, Against Moral Rights. From the introduction:

Moral rights scholarship is startling in its uniformity. Scholars take it as gospel that moral rights are crucial for art to flourish and that, if anything, we need a more robust moral rights doctrine. Commentators routinely lament the gap between our modest American moral rights laws and the more expansive European ones. In contrast to copyright law, which has produced a vibrantbody of scholarship critical of the law’s excesses, the main scholarly criticism of moral rights is that they do not reach far enough. Wading through the largely repetitive law review literature, it doesn’t take long to get the implicit message: if you don’t support moral rights, you’re a philistine who doesn’t understand the sanctity of art.

This essay seeks to undermine the foundations of moral rights scholarship, law, and theory. My argument is that moral rights laws endanger art in the name of protecting it. Drawing on contemporary art theory and practice, I focus on the moral right of “integrity,” called “the heart of the moral rights doctrine.” This right allows an artist to prevent modification and, in some cases, destruction of his art work. As I show, the right of integrity threatens art because it fails to recognize the profound artistic importance of modifying, even destroying, works of art, and of freeing art from the control of the artist. Ultimately, I question the most basic premise of moral rights law: that law should treat visual art as a uniquely prized category that merits exceptions from the normal rules of property and contract.

To put it mildly, this is not a popular argument. Indeed, it challenges the key assumptions of virtually all moral rights scholarship. But moral rights scholars have overlooked a surprising problem: the conception of “art” embedded in moral rights law has become obsolete. As a result, the law is on a collision course with the very art it seeks to defend. In fact, as I will show, moral rights are premised on the precise conception of “art” that artists have been rebelling against for the last forty years. Moral rights law thus purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. It protects and reifies a notion of art that is dead. In this Essay I ask the question: does moral rights law make sense in an era in which “art,” at least as we have known it for centuries, is over?

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

Brodie on the Market in Iraqi Antiquities

Neil Brodie, now at the Stanford University Archaeology Center, has posted a work in progress “
The market in Iraqi antiquities 1980-2008“. I highly recommend giving the text a read, but here are a few highlights:

  • It is clear that during the period in question [1990 to 2003] and despite UNSCR 661 the quantities of unprovenanced artefacts being offered for sale did not diminish; in fact if anything they increased over the years running up to 2003.
  • Since April 2003, the sale of unprovenanced Iraqi artifacts at public auction in New York and London has stopped entirely, perhaps because of the widespread negative publicity that followed on from the break-in at the National Museum, or because of UNSCR 1483.
  • After 2003, outside the auction market, Iraqi artifacts continued to be openly traded on the Internet. On one day – 5 December 2006 – there were at least 55 websites offering antiquities for sale and that might have been expected to sell Iraqi objects.
  • Circular saws are not the tools of archaeologists, and traces of their use are clear evidence that the “bricks” were removed destructively from their architectural context and cut down in size to facilitate their illegal transport from Iraq.

I think the final point is most damning of all, describing pretty clearly that many of the “bricks” appearing on the internet have been cut with circular saws, surely not the tool of an archaeologists, if there was any doubt that these objects were removed from their context by legitimate, legal means.

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

An Unkind Response to my PAS Article (LATE UPDATE)

I have just noticed that Paul Barford has produced a very long response to my article on the Portable Antiquities Scheme. Initially I was pleased that my article had gained some notice. Imagine my dismay then when Barford accuses me of producing, ‘glib spin’, bad writing, claims I’m ignorant, and even hints that I’ve committed plagiarism. And he didn’t even do me the courtesy of sending an email.

I hope there might be a serious scholarly response to the article at some point, and I look forward to reading it. At present I’m not aware of any thoughtful scholarly work (peer-reviewed for example) which criticizes the PAS. Perhaps Barford would be inclined to produce something like this? Given the tenor of his blog though, I wonder if he is capable of passing peer-review.

I don’t really have a lot to say about the points he raises, because there aren’t any intellectually honest arguments. Rather he’s displayed an unfortunate tendency to produce Rovian and Hannity-style discourse. He takes my arguments out of context, wilfully twisting them in a way which indicates an inability to conduct any kind of meaningful discourse.

To take one example, he writes:

[T]he PAS allegedly represents a policy that: “sharply contrasts with the context-focused narrative found in most culture heritage scholarship”. This gives a totally false impression of the PAS and its aims… It is all about context of the finds in its database.

Right, well here’s what the article states:

The PAS is the voluntary system created to record and document objects that are not encompassed by the Treasure Act and are unearthed legally. The PAS is a novel approach to undiscovered antiquities, which rests on a legal framework that essentially allows amateur and unprofessional digging. This policy cuts against the overriding policy choices of most nations of origin and sharply contrasts with the context-focused narrative found in most cultural heritage scholarship.

He also accuses me of stating the PAS pays finders and detectorists. No. I state very clearly “If the object is deemed treasure, the finder is entitled to a reward based on the market price of the object.” One of the main reasons I wrote the piece was to make clear that the PAS does not pay finders of non-treasure objects! Finders of treasure recieve a reward, and have since the 19th century; the PAS works in conjunction with this legal framework to encourage voluntary reporting of objects the Crown has no legal claim to.

I don’t expect everyone will agree with my perspective, but at the very least an individual who claims to be an academic would be able to respond in an honest and thoughtful way. I’d encourage Barford to adopt the perspective of Kimberley Alderman, who has recently started a very nice blog:

Here are the things I think would promote more meaningful discourse:

1. Less polarization between what have been characterized as competing “sides” of the argument.

2. Less emphasis on doctrinal positions (on both sides) and more emphasis on solving the mutual goal of cultural preservation.

3. More emphasis on what is working as opposed to what is not.

4. Less emphasis on what positions people have espoused in the past (too often used as a means to unproductively attack).

5. More precision in language used …

That’s very good advice I think. It’s a brief statement of a similar kind of argument made by Alexander Bauer recently. A. A. Bauer (2008). “New Ways of Thinking About Cultural Property,” Fordham International Law Journal 31:690-724.

I’m happy to accept legitimate criticism. Petty attacks aren’t doing anyone any favors though. Barford is not a fan of the PAS. He’s entitled to that opinion, but give me some clear reasons why the current system is harmful, and provide a better legal or policy framework. If you’ve got a better ‘mousetrap’, tell us about it — if you can do so respectfully.

LATE UPDATE:

I see Barford has responded here. Regrettably the newer post is only slightly less strident.

As he rightly points out, I neglected to include a link to his extended response to the article which is here. He claims to have pointed out “serious problems” with the article. I’m afraid we will have to agree to disagree on that point. I’m happy to have a spirited debate on the PAS, but mis-characterizing my position and taking statements out of context makes such a productive discussion impossible, and he has yet to correct these errors. When my first year law students make these kind of analytical mistakes its an indication of weak analysis and insufficient research.

At its core, I argue in the article that a national ownership declaration is an important legal strategy; but this declaration in isolation does not necessarily create the best cultural heritage policy. In fact there’s legal precedent which makes this very point (see US v. Johnson 720 F.Supp. 810, 811 (C.D.Cal.1989)) and the US accession to the UNESCO Convention via the CPIA takes the efforts of nations of origin into account when the CPAC considers export restriction requests.

I assume that effectively guarding every archaeological site is impossible given limited resources. Even in the US, a wealthy nation, there is widespread looting of Native American sites. A nation like Peru has even more difficulty given its developing economy and the remote location of many sites. The looting of these sites in North and South America is a travesty. This is a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. But that’s not to say that these states should encourage metal-detecting or the like.

Rather I think outreach and education is badly needed. Barford argues this exists in many nations of origin already. Perhaps he is right, but we are merely talking speculatively. Where is the evidence? I’d be delighted to read some thoughts on this. The PAS works in conjunction with the law, which was of course a compromise postion between heritage advocates and landowners. A very strong legal regime may in a perfect world be the best policy. But what good are they if they aren’t meaningfully enforced? These laws can be compared with abstinence only sex education or America’s ill-advised “War on Drugs”. When it comes to practice, they aren’t producing the desired results — less teen pregnancy or drug abuse for example. In the heritage context, the PAS and metal detectorists are producing contextual information. It’s a different kind of information, which we can characterize as shallow but extremely broad; rather than a thorough documentation of sites which might be narrow but very deep.

This more permissive legal regime has actually produced important contextual information, which historians, researchers and archaeologists are using to write scholarship. Research is being produced with the PAS and its database, and it is including the broader public in heritage and archaeology, which will ideally bring more attention to heritage issues generally. Did Hiram Bingham include locals in his efforts to excavate Macchu Picchu? Modern-day Peruvians think not, which has led to a host of very public disagreements between Yale and Peru.

The PAS policy unquestionably sacrifices some archaeological context, but is there any nation of origin which is able to ensure all of its sites are professionally excavated or remain untouched? Is some contextual information better than none?

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

Bezanson on "Art and the Constitution"

Randall P. Bezanson has a very interesting and entertaining article (with pictures) in the most recent issue of the Iowa Law Review titled Art and the Constitution. From the introduction:

The First Amendment has been with us for 217 years. Over that long
history there have been surprisingly few Supreme Court cases involving art—
hardly more than a handful—and even fewer that are illuminating. When
forced to address the status of art under the Constitution, the Supreme
Court has simply said “of course” and “surely” the free-speech guarantee of the
First Amendment protects art. But as I tell my students in constitutional law,
when the Supreme Court explains itself by saying “of course” and “surely,” it
is a safe bet that the Justices do not really know what they are talking about.
This is the case with art. The Court does not tell us what art is, why it is
protected, or how the free-speech guarantee can be read to include it.
It turns out that the question of art and free speech is a very difficult
one, and this is the reason that art has had a troubled relationship with the
First Amendment. The law of obscenity, for example, protects only “serious”
art (whatever the Court means by that). But what about happy art? Or
humorous art? Or avocational, rather than professional, art?

And from the text:

Plato was right in at least one respect. Art is dangerous and incapable of
domestication. It rests on emotion and the senses. Art, as I use the term
here, is a representation perceived not mainly through our cognitive
faculties, but instead through our senses unconstrained by reason. An object
or performance that we call art is an instrument through which the
presented object is assimilated through the senses and becomes re-
represented as something distinct to each person—a perception or
understanding grounded in an act of imagination.

And from the conclusion:

Free speech—literally, textually, and by common public understanding
in the late Eighteenth Century—did not include art, but it should today.
The expansion of speech to include art reflects the evolved and evolving
habits and attitudes of society at large over a period of more than 200 years.
Today, art is a major source of expression and ideas. It is a central feature of
the creativity that our culture so prizes. Our culture has evolved from a time
when there was no broad private market in art—only patronage—to a time
when the private market in art is pervasive.

Highly recommended — Strict constructionism, Justice Scalia, Serrano’s Piss Christ, Manet, and Finley’s Return of the Chocolate-Smeared Woman all in one article.

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

Private International Law and Nations of Origin



I have posted on SSRN a working version of my forthcoming paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, to be published some time next Spring in the Columbia Journal of Law and the Arts. 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.

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

Student Comment on the 1970 UNESCO Convention

Janene Marie Podesta has written an article in the Cardozo Journal of International and Comparative Law, SAVING CULTURE, BUT PASSING THE BUCK: HOW THE 1970 UNESCO CONVENTION UNDERMINES ITS GOALS BY UNDULY TARGETING MARKET NATIONS. I haven’t found a free copy available on the net, so you’ll have to rely on the usual scholarly databases if you’re keen to get your hands on a copy.

I continue to be surprised at the tremendous popularity of this topic, particularly the frequency with which cultural heritage issues are used as Note and Comment topics for law students. I think this is a good thing, though unfortunately they tend to rely a bit too much on the same staple of core topics and concepts.

From the Introduction:

This Note argues that UNESCO’s current policy, which makes a minority number of market nations almost universally responsible for the protection of source nations’ cultural property, is contrary to the international public good and cannot succeed in its current form. While well intentioned, placing all responsibility on the receivers of illicit goods will not curb the flow of these goods; it will only send the market further underground. It may also result in criminal prosecution for those who were simply ignorant rather than those who purposefully decimated their own countries’ heritage. UNESCO requires almost nothing from some nations (generally, those who gain the most from the system) and burdens others with disproportionate accountability.
Part II of this Note will focus on the various international conventions on the subject of cultural property, predominately the 1970 UNESCO Convention. It will look at the context in which the 1970 UNESCO Convention was convened, the conflicting theories on the concept of “cultural property” underlying the drafting, and the resulting bias against internationalist nations within the 1970 UNESCO Convention. These factors make the system ultimately unsustainable.
Part III traces the development of the current situation by exploring the various interpretations countries have had of the UNESCO decree to “carry out the necessary concrete measures” to protect the state’s own “cultural patrimony.” It will focus on the three main types of ownership laws that have been enacted by various countries, and will also reflect on the success that each such method has shown.
Part IV will, conversely, look at those steps taken by market countries, particularly the United States, to “prevent museums and similar institutions . . .from acquiring cultural property,” and “to recover and return” any such property. This part will highlight not only laws specifically enacted in reaction to UNESCO, but also laws that have substituted for such laws in cases of cultural property “theft.” It will then analyze the effects that various rulings have had on the cultural patrimony arena, and forecast the dangers likely to result from such holdings.
Part V suggests alternate possibilities that would more evenly balance the responsibility between those nations that wish to protect their own cultural heritage, and those that wish to help in this quest without sacrificing their own belief systems and citizens’ rights.
Questions or Comments? Email me at derek.fincham@gmail.com

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

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

Wang on the Waverley System for Art Export in the UK

Vivian Wang has written an article “Whose Responsibility? The Waverley System, Past and Present“($) in the most recent issue of the International Journal of Cultural Property:

This article explores the history and present operation of the Waverley system, the United Kingdom’s art export policy established in 1952. A key component of the article is its attempt to illuminate the little-known story surrounding the birth of the system, which has been pieced together using treasury and Board of Trade papers held in the National Archives. The article then examines, both qualitatively and quantitatively, how responsibility for the system has evolved. The main pattern that emerges is the progressive detachment of the treasury: Although it spearheaded the formation of the Waverley system in 1952, today it is much more removed, in terms of administration and attitude, from the system.
Questions or Comments? Email me at derek.fincham@gmail.com