"Statue of a Victorious Youth"

·Ea Earlier this week I had the great pleasure in giving a presentation to the University of Aberdeen Legal research Society. I discussed the very public dispute between Italy and the Getty museum regarding the “Bronze Statue of a Victorious Youth”. The discussion which ensued was furthered greatly by the presence of Neil Curtis, of the Marischal Museum, as well as a couple of Italian colleagues. We had a very interesting discussion, and much of the credit for that goes to them. I would like to outline here my general comments on the dispute. I have posted on many of these ideas before, but if nothing else the dispute over the Bronze allows a timely and interesting introduciton to cultural policy and repatriation in general.

To As the LA Times put it last fall, “To whom does a statue made in ancient Greece, stolen by Romans and found in the Adriatic by Italian fishermen 2,000 years later, rightfully belong?”

· · First, what is the Getty trust, and why has it gotten itself into trouble in recent decades? J. Paul Getty was an American Industrialist, and the founder of the Getty Oil company. He started the Getty Trust in 1953. Today, the Trust may be the richest art institution in the world, boasting assets of close to $9 billion dollars. In the 1980’s Italy pursued a very aggressive antiquities-buying campaign.

· Italy has a large amount of discovered and undiscovered antiquities. It is also an industrialized nation. Many of the nations which are considered source nations (i.e. those that export more cultural objects than they import) are underdeveloped. So Italy is in a unique position. Historically, Italian antiquities have been exported to the rest of Europe, and other parts of the world. Increasingly, Italy has sought to prevent the loss of these cultural objects. The last 18 months has seen the Italian Culture Ministry lead a very aggressive repatriation campaign with three components 1. Criminal Investigations and Prosecutions, 2. Raised repatriation claims with Museums and Private collectors, 3. An Increasingly Vitriolic Public Relations Campaign.

· Also, There have been a number of high-profile repatriations by American museums in recent months. The Museum of Fine Arts in Boston, and the Metropolitan Museum (Euphronios Krater) in New York have both agreed to return antiquities.

· A former curator at the Getty, Marion True is on trial in Rome for conspiring to deal in Italian antiquities. This has had a very unpleasant public relations consequences for the Getty

· Italy has demanded the return of 52 Antiquities from the Getty. The two parties have been negotiating a return of many of the objects for many months. However this fall, Italy abruptly broke of talks with the Getty, and said no deal could be done unless the Getty returned the Bronze statue. If the Getty did not agree to these terms, the Italians threatened the Getty with a “cultural embargo”.

· Also last year, the California State Attorney General investigated possible misconduct at the Getty.

· Francesco Rutelli, Deputy Prime Minister, Minister for Culture and Heritage

· On Jan. 17, 2007 Rutelli sent an Op-Ed to the Wall Street Journal.

· Italy has been trying for over six months to conclude an agreement with Los Angeles’s Getty Museum on 46 ancient works of art that were illicitly removed from our country. I still hope to succeed. But on one point, I am unable to understand the museum’s position. How can they think that the Italian government will accept an agreement that contemplates renouncing possession of those works of art?

· The 46 works that we are waiting for include the Venus illicitly removed from Morgantina in Sicily , and the bronze Athlete that was hauled up in a fishing net from the waters of the Adriatic sea and later secretly smuggled out of Italy in total violation of its laws.

· The Bronze Statue of a Victorious Youth is an almost life-size figure of an athlete wearing a victory wreath. The Statue was created in Greece, possibly by Alexander the Great’s Court Sculptor Lysippos, but it may have been sculpted by another. It was created sometime between the 4th and 2nd Century B.C.

· Factual Background

· Recovery in the Adriatic

· In June, 1964 the Statue was recovered in modern times, by complete accident, off the northern Adriatic coast by fisherman from the Italian city of Fano.

· They pulled up a heavy object covered in barnacles. The most likely explanation for the find in the Adriatic is that it was taken from Greece in Roman times, and the vessel was lost at sea. A number of Greek objects were taken by invading Roman armies, the most noteworthy instance was during the fall of Syracuse

· Subsequent Sale

· When the fisherman returned to Fano, they decided to sell the statue.

· The statue changed hands a number of times. The best record of these transactions came in 1965 when the Italian police (Carabinieri) investigated the statue.

· Giacomo Barbetti purchased the statue from the fisherman. For a time, Barbetti and his two brothers stored the statue at the home of Father Giovanni Nagni. Barbetti then sold the statue to another man for 4,000,000 lire, the equivalent of about 2,000 pounds.

· Prosecutions

· In 1966, the 3 Barbettis and Father Nagni were charged with purchasing and concealing stolen property under Italy’s 1939 Antiquities Law. It dictates that protected antiquities, found by chance, belong to the Italian State, and one who takes possession of these objects commits theft.

· Magistrate Court of Perugia: Insufficient evidence for a conviction for 2 reasons. First, the prosecution had not established that the statue was of historic and artistic value (one of the elements for the offense). Second, the Italian prosecutors were unable to prove that the statue was found in Italian national waters.

· The Court of Appeals of Perugia reversed the lower court, holding the elements of the crime were satisfied, as the statue had been purchased in Italian territory, and the defendants had behaved as if they had something to hide.

· The Supreme Court of Cassation annulled the Court of appeals of Perugia decision, arguing it had used inadequate reasoning.

· Finally the Court of Appeals of Rome confirmed the convictions would not stand for 2 reasons (1) The prosecutors did not establish the statue came from Italian waters, and (2) there was insufficient evidence demonstrating that the statue was of “artistic and archaeological interest”. Remember, at the time the statue was sill covered in marine encrustation.

· The Provenance (chain of title) of the statue is a bit vague, and open to some speculation. Most likely it went through a series of owners, in an attempt to achieve a bona fide purchase at some point. It went from a Brazilian Monastery to England, and later to Munich.

· Purchase

· In 1977, the Getty Trust purchased the Bronze for $3.95 million. It has been publicly displayed since 1978.

· Investigations After the Purchase:

· 1977: Interpol requested the US Customs service investigate the legal status of the Bronze, and verify that the statue had entered the US with property entry documents, and determine whether the Getty had conducted the necessary due diligence before purchasing the statue. The investigation yielded no conclusive proof that the Getty had purchased the Bronze in bad faith, or that Italy had title. In 1984 Interpol informed Italy that no further investigations would be conducted without some demonstration of Italian ownership.

· The intervening years: Until 2006, Italy made no more formal requests for the Bronze, though they did ask the Getty to evaluate the possibility of returning the statue to Italy in 1989.

· Legal Analysis of the Dispute

· The Statue was found outside Italian Territorial Waters

· Even if the statue was found in Italian national waters, it’s nearly impossible to prove at this point. The criminal trials of the 3 Barbetti’s and Father Nagni loom large here. Italian prosecutors were not able to establish in 1968 that the Bronze was discovered in Italian territorial waters. To attempt to prove it nearly 40 years on is nearly impossible. Of 2006, the Italians brought forth a number of hearsay statements and other witnesses who argued the statue was found within the Italian territorial waters (6 nautical miles), 1942 Italian Navigation Code. However, all of the fishermen have argued the statue was found 30-40 miles from the Italian coast, far outside the territorial waters.

· If the statue had been found in Italian national waters, both US and Italian law would dictate that Italy owns the Bronze. The 1939 Italian Patrimony law requires that the object was declared within the territory of Italy to apply. Similarly, under US law, Peru v. Johnson require strong evidence that an object was, in fact, found in the territory of the country claiming it. To be sure, if Italy was able establish the statue had been discovered in Italian national waters they would have brought a legal action long ago in US federal court, or even had Federal prosecutors seize the statue.

· Illegal Export from Italy Does Not Dictate It should be handed over to Italy

· Logically, the Bronze came ashore in Italy after it was discovered. Italian law requires that antiquities deemed of interest by the State, even those owned by private individuals cannot be exported without a license. Articles 1, 35, 36 of the 1939 Italian Patrimony Law.

· US law does not enforce foreign export regulations. This goes back to the general rule that Public laws of another nation will not be enforced. US v. Schultz, 333 F.3d 393 (2d Cir. 2003), US v. McClain,545 F.2d 988 (5th Cir. 1977). Also, there are a lot of different kinds of export restrictions, and they are not always working well in limiting illicit trade. The reasons for this are beyond our present concern, but it is well settled that most nations will not enforce the export restrictions of another nation.

· International Law

· Italy has argued that international treaties dictate the Bronze should be returned. What they are referencing is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and transfer of Ownership of Cultural Property.

· This does impose on states an obligation to prevent the illicit export of cultural property. However, it contains no provisions mandating the return or permitting the seizure of objects, except those that have been stolen.

· The Convention is by its own terms, not in force unless enacted into domestic law. However, when the statue was imported into the US, neither Italy nor the US had ratified the Convention.

· Customary International law would not support the return of the Bronze either. Customary international law has “not been interpreted to render the importer or possessor of an art object subject to action solely on the ground that the object was exported in violation of another n country’s laws.” Bator, “An Essay on the International Trade in Art”.

· Ethical Analysis of the Dispute

· What are the values we should look at in evaluating cultural property controversies?

· Archaeological Context

· Preservation of the Object

· Access by the Public

· International Sharing of Culture

· Preserving a National Patrimony of Works

· Italy’s position relies on the creation of some kind of nexus between Italy’s cultural heritage and the Bronze based on the time it was brought ashore by the fishermen at Fano. This is a very difficult argument for the Italians to win in my view. What’s more, the Italian authorities are ignoring the economic value of the Bronze: Maurizio Fiorilli: Italy’s Chief Antiquities Prosecutor “The economic value is of little consequence. What is important is the gain Getty will derive on the ethical plane. Moral gain is the reward. Also, the monetary value of the objects is not Italy’s problem. It is the problem of those who spend good money for objects that are without clear title and are illicitly removed from their place of cultural origin. It is up to the authorities in the USA who are responsible for controlling the Getty to investigate how the money was spent. Culture predisposes honesty and transparency.”

· The Statue is Greek in origin, and Italy has never disputed this. Ironically, the statue was on it’s way to Italy because the Roman empire was very interested in Greek art.

· None of the 5 core values come down on Italy’s side in my view. Destruction of archaeological context is a huge problem, and one of the worst aspects of the illicit trade. However, this was a chance find, the fishermen weren’t doing anything wrong. Also, the object was found at sea, and archaeological context is not nearly as important at sea as on land.

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