"The Holocaust, Museum Ethics, and Legalism"

Jennifer Anglim Kreder has posted her forthcoming article The Holocaust, Museum Ethics, and Legalism, forthcoming from the Southern California Review of Law and Social Justice, Vol 18, 2008 on SSRN:

The Holocaust art movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims to recover a suitcase stolen from a murdered man and watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. Both claims are asserted against the Auschwitz-Birkenau State Museum in Poland, and the museum has refused to return the objects. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes. Drawing from a number of disciplines, this article demonstrates the inadequacy of the dominant frameworks influencing the cultural property field, which are grounded in property law, morality and utilitarianism, for evaluating the Holocaust-related claims. This article also demonstrates that the International Council of Museums (ICOM) Code of Ethics provides a useful construct for evaluating the claims. ICOM Principle 6.7, which calls on museums to promote well-being, should be the guiding light for museums deciding whether to return Holocaust-related objects. The article concludes that the Auschwitz-Birkenau State Museum’s refusal to return the objects is faulty ethically, counter to its mission, and reflective of the inadequacy of Poland’s approach to post-war restitution.

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

Have American Museums Initiated "Real Change"?

Lee Rosenbaum has a very interesting post detailing her thoughts of the “Return of Cultural Objects” conference held in Athens this week. She participated in the panel titled “Museums, Sites and Cultural Context”, and described her own presentation as follows:

[I] lampooned (and occasionally praised) strategies used in labeling and installing antiquities by American museums, which often have scant information about the archaeological context of objects in their collections. I was struck by the contrast between American labels and those at Athens’ National Archaeological Museum, where almost every object is accompanied by information on where it was found.

I ended by championing the view that I share in common with my hosts, singling out two examples from U.S. museums that fit the Parthenon marbles theme—ancient objects that had been fragmented and should be reassembled through the amicable cooperation of the different owners.

However she expressed a more unpopular view when she argued, in sharp contrast to Ricardo Elia, that “there had been substantial recent changes in American museums’ antiquities-collecting policies, which had been implemented to varying degrees.” It’s great to get this kind of quick reaction to the discussion. As to the substance of the claim, whether there has been real change, I think Rosenbaum is probably right, but only for a limited number of museums. A couple institutions, the Getty and the Indianapolis Museum of Art have very strict acquisition policies that are the gold-standard. However these kinds of policies are still voluntary, and there are a number of other institutions who are still dragging their feet. Look to the recent raids in California of LACMA and other institutions for evidence of a failure to reform. Ultimately, both Elia and Rosenbaum are correct, depending on which institutions they might be discussing.

This calls to mind the recent string of repatriations from North American institutions, which can be seen as responses to earlier acquisition policies which may have been lacking. Stacey Falkoff, a third-year law student at Brooklyn Law School has published an interesting student note, Mutually-Beneficial Repatriation Agreements: Returning Cultural Patrimony, Perpetuating the Illicit Antiquities Market in 16 Brooklyn Journal of Law and Policy 265 (2007). She does a great job of describing and compiling the recent string of repatriations, and draws some conclusions. She argues two things essentially, that these Mutually Beneficial Repatriation Agreements (MBRAs) actually perpetuate the illicit trade by mitigating the damage which these institutions suffer when a repatriation takes place, thereby making it easier for museums to acquire potentially-looted objects, and second they hamper the formation of judicial precedent utilizing international conventions.

Certain aspects of these MBRAs may be questioned, however she doesn’t do a good enough job showing how the judicial interpretation may be needed, and she falls into the trap many student notes have of relying too much on secondary sources and other articles. I would give the piece high marks for thoroughly analyzing these recent agreements, and its well-researched as far as many of these secondary sources.

I’d argue the law may be complex in this area, but more judicial interpretation is not necessarily needed. I would come to a different conclusion. I think these repatriation agreements are a good thing, and I certainly think the Met will think twice before acquiring another “orphan” such as the Euphronios Krater, which was seen as suspicious when it was acquired.

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

US Criminal Penalties and Antiquities


To a casual observer, the recent searches in California would perhaps indicate that American criminal prosecutions and investigations can have a substantial impact on the illicit trade in antiquities. I certainly think they are a welcome sign, and hope that more of them will be supported by investigators and prosecutors. However, that investigation took five years to materialize, and there is still no indication if there will be any arrests. It certainly seems likely, but even this dramatic show of force and investigative might will not, I think, end or even put a substantial dent in the illicit trade. The current regulatory framework in both nations of origin and in market states puts far too much pressure on customs agents, prosecutors, and investigators.

At least that’s what I argue in my now-available article in the Cardozo Arts and Entertainment Law Journal, WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE. 25 Cardozo Arts & Ent. L. J. 597-695 (2007)

The pragmatic alternative is the approach in England and Wales with its Treasure Act, Portable Antiquities Scheme, and limited export restrictions. This legal framework and attendant cultural policy is unique, in that it effectively incentivizes obeying the relevant cultural heritage laws. It adopts a carrot and stick approach, while many nations use too much of the stick. I argue that the criminal penalties can be brought to bear in cases of clear and egregious violations, or where there are a great deal of investigative resources available. Such was the case in the California searches, in which an undercover agent posed as a buyer. However, it took five years of investigations, and it’s still not clear what the result of these investigations are.

The image above is an Egyptian antiquity which Jonathan Tokeley-Parry bought and sold to Frederick Schultz, who later sold it for $1.2 million in 1993. It’s an image of 18th Dynasty pharaoh Amenhotep III (ca. 1403-1354 B.C.). Tokeley dipped the sculpture in clear plastic and painted it to resemble a cheap tourist souvenir. I discuss prosecutions of both men, which took place in England and the US respectively in the article. A lot of articles discuss the Schultz prosecution, but surprisingly no articles have discussed in any real detail the corresponding prosecution of Tokeley-Parry in England, which I think is key to understanding the international nature of the illicit trade, and the kind of complex multinational criminal investigation which is difficult where criminal investigation and prosecution are time-consuming and expensive. Not to mention the substantial pressures of other and often more-pressing matters such as drugs, violent crime, terrorism and the like.

I would be quite eager to hear any comments or reactions to the piece at derek.fincham “@” gmail.com.

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

A Call for Antiquities Leasing

Peter Wendel, a Law Professor at Perpperdine University has written an interesting new article in the most recent edition of the Fordham Law Review, Protecting Newly Discovered Antiquities: Thinking Outside the “Fee Simple” Box, 76 Ford. L. Rev. 1016 (2007). A .pdf version is available here. Here’s the abstract:

Newly discovered antiquities are “mixed goods.” They have a physical component (the object itself) and an intangible component (the archeological and historical information associated with the discovery). This dual nature justifies government intervention into the market, not to capture the positive externalities associated with the antiquity, but to minimize the negative externalities associated with the law of finders. When the typical finder excavates an antiquity, its historical and archeological information is severely damaged, if not destroyed. In response to this problem, source countries have enacted state ownership/retention statutes. These laws, however, have their own negative externalities. They create incentives for finders to turn to the black market to secure financial compensation and to destroy the historical and archeological information to make it more difficult to catch them. This raises the issue of which is worse: market failure or government intervention failure?

Source countries need to create a stronger incentive for finders to report their finds. In theory, this is easy: Pay the finders more. In practice, this is difficult because source countries tend to be antiquities-rich but revenue-poor. A possible solution is a “possessory estate and future interest approach” to newly discovered antiquities. If the finder reports the find, he receives a transferable term of years and the source country receives the future interest. A transferable term of years creates an incentive for the finder to go public with the find—the finder can profit from his or her discovery. The source country receives ultimate ownership of all newly discovered antiquities at minimal cost (Western museums will be the likely purchasers; they will pay for the cost of creating the incentive). A possessory estate and future interest approach could help end the current feud between source countries and Western museums, two entities that should work together to secure and protect newly discovered antiquities, not waste resources fighting each other.

It’s an interesting approach. Wendel justifies his claim by using a law and economics rationale. What he’s advocating is a kind of antiquities leasing, similar in concept to the practice in both England and Wales, and Scotland of rewarding finders. He starts from the position that the strong source regulation of nationalizing antiquities and prohibiting their export does not work. I think most can agree the current legal regime is not working. He then advocates giving finders a kind of limited temporary right, known in the Anglo-American legal system as a “possessory estate” and a “future estate” or ultimate vesting right would go to the source nation. That would allow finders of antiquities to profit off their discoveries, while allowing the source nation to ultimately receive ownership of the object.

In essence he’s making an interesting claim for the use of antiquities leasing and a renewal of the idea of partage, the traditional practice whereby foreign archaeologists would get to take a portion of the discovered objects back to their European or N. American institutions. It’s a pragmatic compromise, and one that may work well in practice. I envision substantial hesitation on the part of source nations to enacting such a system though.

I would welcome a discussion of the merits of this idea in the comments section.

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

Forthcoming Article on Federal Criminal Penalties for Dealing in Illicit Cultural Property


I have posted my new manuscript on SSRN: Why Federal Criminal Penalties for Dealing in Illicit Cultural Property are Ineffective, and a Pragmatic Alternative. It will be published in the Cardozo Arts & Entertainment Law Journal this fall. Pictured at right is Egon Schiele’s Portrait of Wally which has been locked away in storage for 8 years due to a protracted forfeiture dispute. Here is the abstract:

There have been many articles on this subject in recent years, and I add to the discourse in two important ways. First, I attempt to unpack the values at work in US federal criminal penalties for buying and selling illicit cultural property. The illicit trade in cultural property may be the third largest behind narcotics and weapons. I look at the various stakeholders which formulate cultural property policy and look at why their fundamental differences of opinion are producing an ineffective regulatory framework. A number of recent articles have dealt with this subject, however the discussion about what the law should be doing has prevented a discussion of the practical effect of the status quo. I hope my analysis will further the debate by showing that the current criminal penalties are not producing satisfactory results. Second, I show how a pragmatic approach to cultural property has worked well in the United Kingdom and how such an approach could be adopted in the US. This would give real effect to the federal criminal regulation of cultural property. The art and antiquities market lacks transparency at present. Until this trade begins to effectively distinguish between licit and illicit cultural objects, the theft, looting and destruction of historical sites will surely continue. I hope my discussion of the UK experience can bring attention to the illicit trade in cultural property and the criminal response in the US.

I would be delighted to hear any comments or reactions to the piece.

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