Personal Note


I am pleased to announce that my PhD thesis has been completed, successfully defended, corrected and printed. It’s titled “Preventing and Repairing These Losses: The Legal Response of the United States and the United Kingdom to the Illicit Trade in Cultural Property”. I think I should have perhaps chosen a more succinct title.

It feels great to be finished, and it was a lot of hard work with some tough decisions, but it wouldn’t have been possible without a lot of help and support from my colleagues here in Aberdeen and Joni (aka “my funder”). I’m sorry to say much of that support was undermined by our French Spaniel and serial abuser pictured here.

I’ve included the table of contents below. I’m still not sure if I want to try and publish it, which would mean a lot more work, and I suppose part of that will depend on where I land in the coming months. I started this little blog as a way to stay productive, even when I couldn’t quite get things going on the thesis. I’ve found it invaluable, and for anyone who writes I think a blog is a great way to keep in the habit of writing.

I’m not sure where we will end up at this point, I plan to continue research into cultural heritage issues, or at least a related field which will allow me to continue the work I’ve been doing. I had what I thought was a good shot at a couple of postdoctoral funding opportunities which would have allowed me to look in some real depth at repatriation, but unfortunately those fell through. On a happier note I am involved with a really exciting project with some people which will create a really great cultural heritage resource, which I’ll talk about in much more depth here in the coming months.

Posting will likely be very light for the next few weeks, as we’re heading back to the States to catch up with family and friends.

Chapter 1: Introduction.. 1

I. The Aims. 1

II. Foundational Issues and Terminology. 3

A. Illicit Cultural Property. 3

B. Source and Market Nations. 3

C. Provenance. 4

III. The Nature and Extent of the Illicit Trade. 6

A. Art 8

B. Antiquities. 9

IV. Laying the Theoretical Framework. 10

A. Values Inherent in Cultural Property Policy. 10

1. Preserving the Object 11

2. Preserving Archaeological Context 12

3. Preserving the National Patrimony. 13

4. International Movement 14

5. Accessibility. 15

B. Cultural Heritage or Cultural Property?. 16

C. How Sympathetic Facts Distort Cultural Property Law.. 17

V. The Scope of this Work. 21

Chapter 2: Regulating Cultural Property at the Source.. 22

I. Introduction: How to Prevent the Illicit Trade at Its Source?. 22

II. Regulation in Source Nations. 23

A. The Typical Approach: Guatemala. 24

B. Other Examples. 27

1. Peru. 27

2. Mexico. 28

3. Nigeria. 29

C. China. 30

D. Italy. 36

E. Cultural Property Strategies in Developing Nations. 39

1. Nationalizing Cultural Property. 39

2. Efficacy of Export Restrictions. 42

3. What can a Source Nation do when an Object has been Exported?. 46

4. Combating the Illicit Trade v. Bare Retentionism47

III. Domestic Regulation of Cultural Property in Market States. 50

A. Domestic Regulation in the United States. 52

1. Initial Federal Efforts. 53

2. The Archaeological Resources Protection Act of 1979. 54

3. The National Historic Preservation Act 56

4. Native American Graves Protection and Repatriation Act 58

5. The Law of Finds. 60

B. Domestic Regulation in the United Kingdom63

1. Scheduled Ancient Monuments. 63

2. Treasure Trove and the Portable Antiquities Scheme. 65

3. Scotland. 69

4. Limited Export Restrictions: The Waverley Criteria. 74

IV. Summary: What are the Key Components to Effective Domestic Regulation?. 78

Chapter 3: Public International Law and Cultural Property.. 80

I. Introduction: Public International Law and Cultural Property. 80

A. Origins of the Protection of Cultural Property. 81

II. Attempts to Forge a Workable International Framework. 84

A. 1954 Hague Convention. 84

1. Defining Cultural Property in the Convention. 86

2. Shortcomings of the Convention. 87

3. The First Protocol 88

4. The Second Protocol 89

III. The 1970 UNESCO Convention. 92

A. Individual Articles. 93

1. Problems with Interpretation: Articles 3 and 6. 93

2. The “Heart” of the Convention: Article 7. 95

3. Defining the Scope of Protection. 97

B. Impact of the Convention. 97

C. Implementation and Bilateral Agreements. 100

1. Implementation of the UNESCO Convention in the US. 100

2. Switzerland. 105

3. Implementation in the UK.. 106

IV. A Case for the Reform of UNESCO.. 108

A. The Perceived Bias in UNESCO Undermines its Efforts. 109

B. The 1995 UNIDROIT Convention. 113

C. The 2001 UNESCO Convention For the Protection of the Underwater Cultural Heritage. 114

V. Summary. 115

Chapter 4: Conflict of Laws in Cultural Property Disputes. 117

I. Introduction: The Problem When the Claims of Two Relative Innocents Collide. 117

II. Manifestations of the Conflict 120

A. Entrustment v. Theft or Wrongful Dispossession. 121

B. When the Conflict Involves Statutes of Limitations. 123

C. When Tort Rules Conflict 127

D. When Movable Property Rules Conflict 129

E. The Consequences of the Choice of Law Challenge in Art and Antiquities Litigation. 131

III. The 1995 UNIDROIT Convention. 135

A. What UNIDROIT Got Right 136

1. Compensation for the Diligent 136

2. Highlighting Due Diligence. 137

3. Limited Right of Return. 139

B. Two Weaknesses Prohibit Widespread Implementation. 140

IV. The General Choice of Law Inquiry and Alternatives. 141

A. The General Rule: Lex Rei Sitae. 141

B. Renvoi 142

C. Lex Originis. 147

V. Summary. 149

Chapter 5: Market Regulation of Cultural Property in the UK.. 151

I. Introduction. 151

II. Recent Reform in the UK.. 151

A. The Select Committee Inquiry. 152

B. The Illicit Trade Advisory Panel 153

C. After Five Years, What Result?. 155

III. UK Restrictions on the International Movement of Cultural Property. 156

A. Customs Powers. 157

B. EU Legislation Governing Cultural Property. 158

C. Accession to the 1970 UNESCO Convention. 161

D. Public Laws of Foreign States. 161

1. Nationalization and Export Restrictions. 162

2. Stigmatizing Illegally Exported Objects. 163

3. The Recent Iranian Claims: Unpacking Public Laws and Unclear Nationalization. 164

4. Why Not Enforce Public Laws?. 168

IV. The Treatment of Cultural Property in the Law of England and Wales. 170

A. Criminal Law.. 170

1. Theft Act (1968) 170

2. Dealing in Cultural Objects (Offences) Act 2003. 172

B. Private Litigation. 176

1. Contract 177

2. Tort 180

3. Restitution. 182

4. Limitations Rules. 183

V. The Scots Law Treatment of Cultural Property. 186

A. Criminal Law.. 188

1. Common Law Theft 188

2. Reset and Criminal Activity Outside the UK.. 190

3. The Draft Culture (Scotland) Bill 194

B. Private Claims. 194

1. Ownership and Possession. 195

2. Restitution. 196

3. Spuilzie. 200

4. How Might Restitution and Spuilzie Apply. 202

5. Contract and Delict 203

6. Limitations Periods. 204

VI. Summary. 206

Chapter 6: Market Regulation of Cultural Property in the United States. 207

I. Introduction. 207

II. Federal Criminal Regulation. 208

A. National Stolen Property Act Prosecutions under the McClain Doctrine. 209

1. The McClain Cases. 211

2. United States v. Schultz. 214

B. Federal Criminal Forfeitures. 217

1. A History of Forfeiture. 218

2. The Litigation Surrounding Egon Schiele’s Portrait of Wally. 222

3. One Oil Painting Entitled Femme En Blanc by Pablo Picasso. 224

C. US Customs Regulations. 226

D. The Cultural Property Implementation Act 231

III. Civil Remedies. 232

A. The Substantive Claims. 233

B. Limitations Rules. 236

1. Adverse Possession. 237

2. Demand and Refusal 239

3. The Discovery Rule. 241

4. Laches. 243

C. Cultural Property and the UCC.. 244

IV. Summary. 246

Chapter 7: In Conclusion: A Way Forward.. 247

I. In Summary. 247

Appendix I: The 1970 UNESCO Convention.. 250

Appendix II: 1995 UNIDROIT Convention.. 256

Appendix III: The Dealing in Cultural Objects (Offences) Act 2003. 262

Appendix IV: The National Stolen Property Act.. 264

Appendix V: The Cultural Property Implementation Act.. 266

Bibliography.. 279

Cases Cited.. 286

Table of Legislation


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

4 thoughts on “Personal Note”

  1. i WISH TO CONGRATULATE YOU ON YOUR SUCCESS. wHATEVER HAPPENS TO YOUR THESIS,I WOULD LIKE TO HAVE A COPY,AT MY OWN COSTS. KWAME OPOKU

  2. Actually I would also be interested in reading it! It sounds like the global text that I would need for my students in the seminar! If you publish it, or there is a way to read it, just let me know. Greetings from the ‘retentionist’ Spain!

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