Tag: Iran v. Barakat Galleries Ltd.

Will US Attorneys Appeal after latest Ka Nefer Nefer setback?

A judge has dismissed the federal government’s request to reconsider an earlier ruling dismissing the government’s forfeiture request for the Ka Nefer Nefer mask currently on display at the St. Louis Art Museum. Rick St. Hilaire notes the U.S. Attorney must now make the decision whether to appeal the ruling on to the 8th Circuit. 


The problem with the government’s initial case—at least in the district court’s view—was the government failed to allege the particular circumstances under which a crime took place as the mask left Egypt. This problem can be examined by referencing recent case law broadening the principle that looted and smuggled objects are considered tainted when they leave their country of origin, even in the absence of direct evidence of wrongdoing. I’m thinking for example of the Barakat ruling in the English High Court which offered claimant nations a broader platform of potential laws with which a nation of origin can claim theft. 


But in this case the federal prosecutors had a difficult prospect as Egypt was unable to offer enough evidence establishing a crime had been committed. So despite the research the SLAM conducted when it acquired the mask in 1998, the government was unable to offer enough to convince a judge to forfeit the object and force SLAM to make its case. It is an open question whether the district court would have taken such rulings on board, likely not. But an appeals court is in a more favorable position to make broader inquiries in the law based on policy and foreign authority. 

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

"It’s about emotion, not airtight logic and consistent policy."

So argues Michael Kimmelman in the New York Times in describing the recent calls for repatriation of works of art.  He takes as examples the recent repatriation claims made by Egypt against Germany and France.  He makes two points that I’d like to draw out of the article.

First, he claims that globalization has intensified “cultural differences” between nations.  This allows nationalism to “exploit culture”.  He may be correct in some cases, but he fails to note that the frescoes returned by the Louvre had been purchased recently, with little history.  Given what we know about the antiquities trade, this means they were likely illegally exported or looted. 

Second, he argues these claims are often based on emotion.  That is certainly true in some cases, because after all works of art are often designed to convey emotion.  One example of this would be Scotland’s desire for the return of the Lewis Chessmen.  But not all of these claims are without merit.  Moreover, why is it that only claimant nations are “emotional”.  Are not museums and other groups “emotional” when they make arguments that works of art should stay where they are currently situated?  Kimmelman makes the argument that justice has shifted.  But I think that is a good thing.  We are closer to better justice for all nations, not merely the wealthier market nations via International treaties like the 1970 UNESCO Convention, and important decisions like the Schultz and Barakat decisions in the United States and the United Kingdom.   

Michael Kimmelman, When Ancient Artifacts Become Political Pawns, The New York Times, October 24, 2009.

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

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

Iran Wins Barakat Appeal


The judgment in Republic of Iran v. Barakat Galleries [2007] EWCA Civ 1374 has been released today. At the High Court, Gray J decided in favor of the gallery because, first and foremost, the ownership declarations Iran relied on were in his eyes insufficient. The Court of Appeal reached the opposite result by holding that a claim for conversion is tenable so long as the various rights granted to Iran amount to an ownership interest under English law. Pictured here is a chlorite vase on the Barakat Gallery website, of the “intercultural style” similar to the objects now recovered by Iran.

At issue were “eighteen carved jars, bowls and cups made from chlorite. Iran alleges that they date from the period 3000 BC to 2000 BC and originate from recent excavations in the Jiroft region of Iran which were unlicensed and unlawful under the law of Iran.”

Two preliminary issues were raised:

i) Whether under the provisions of Iranian law pleaded in the Amended Particulars of Claim, the claimant can show that it has obtained title to the Objects as a matter of Iranian law and if so by what means, and

ii) If the claimant can show that it has obtained such title under Iranian law, whether this court should recognise and/or enforce that title.

The Court of Appeal answered both in favor of Iran.

In a startling rebuke to Gray J, the Court of Appeal noted that the lower court had concluded the relevant Iranian law was “both penal and public in character” and as a result it “could not be enforced in this country”. As the Court of Appeal noted

This also was a conclusion which the judge described (para 100) as “a regrettable one”, and added (presumably not having been informed that the United Kingdom had ratified the UNESCO Convention) that the answer might be the one given by Lord Denning MR in the Ortiz case, namely an international convention on the subject.

Emphasis added.

Importantly, the Court of Appeal noted that “it is important to bear in mind that it is not the label which foreign law gives to the legal relationship, but its substance, which is relevant. If the rights given by Iranian law are equivalent to ownership in English law, then English law would treat that as ownership for the purposes of the conflict of laws.” At issue was whether Iran’s rights were sufficient to give it a claim for conversion under English law. The distinction from the lower court turns not on the legal significance of a proclamation such as “Iran declares itself the owner of all undiscovered antiquities”; but rather in the individual rights which Iran has given itself in these objects. If the sum of these rights amounts to ownership under English law, then Iran has a viable legal claim. As the Court of appeal noted in para. 80:

We consider that this is an arid issue. Given our conclusion that the finder did not own the antiquities (and the fact, as was common ground, that the owner of the land from which they came had no claim to them), there are only two possibilities. Either they were “bona vacantia” to which Iran had an immediate right of possession and which would become Iran’s property once Iran obtained possession and which could not become the property of anyone else or they belonged to Iran from, at least, the moment that they were found. We consider that the former alternative is artificial. Iran’s personal rights in relation to antiquities found were so extensive and exclusive that Iran was properly to be considered the owner of the properties found.

The question then became, under English law does the Iranian interest in the objects support a claim in conversion, and if so is the claim founded on a penal or public law? The relevant 1979 Legal Bill was not penal with respect to ownership of antiquities, though other segments dealing with criminal penalties for unlawfully excavating or dealing with antiquities may have been. The court, distinguishing between export restrictions and asserting ownership. The former is clearly a public law and unenforceable ablsent another treaty obligation while the latter is justiciable. When a state owns property in the same way as a private citizen “there is no impediment to recovery.” King of Italy v de Medici (1918) 34 TLR 623.

Though the court did recognize difficulty in enforcing Iran’s sovereign authority, the Court of Appeal classified the claim as a “patrimonial claim”. In distinguishing this claim reference was made to US precedent, United States v Schultz, 333 F 3d 393 (2d Cir. 2003) in which the Second Circuit recognized an Egyptian patrimony law even though Egypt had never reduced the objects at issue to possession. Importantly, the Court of Appeal reasoned that even if it was wrong in not characterizing the claim as the enforcement of foreign public law, the claim would still not be barred because there exists no “general principle that this country will not entertain an action whose object is to enforce the public law of another State.” In supporting this principle reference was made to the UNESCO Convention, the UNIDROIT Convention, the Commonwealth Scheme (which has not apparently been fully implemented), as well as the relevant EU directives.

The appeal is a tremendous gain for source nations, and establishes English courts will in fact recognize foreign ownership declarations even when they are not explicit, so long as they grant rights to the source nation similar in nature to ownership requirements under English law. In the initial AP news story Fayez Barakat the owner of the gallery indicated “This means that the Iranian government could claim every Persian item at a British Museum, and that doesn’t make any sense”. He’s right that it doesn’t make any sense, because its patently ridiculous, and indicative of the ridiculous exaggerations which often occur after a ruling like this. The British Museum will not be emptied of its Persian collection because of this decision; rather antiquities dealers are unable to sell new and illegally excavated objects from Iran.

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

Lex Situs Conference last Friday


Last Friday in London I had the great pleasure to present a bit of my own work at the Lex Situs seminar organized by the Institute of Art and Law and sponsored by Withers LLP. Incidentally there is another seminar tomorrow which looks to be interesting as well, on the consideration of anti-seizure legislation.

It was an enjoyable afternoon, and a lot of fun for me to hear what people like Prof. Norman Palmer, Kevin Chamberlain, and Marc-André Renold had to say on the topic, as I’ve read and relied on their work a great deal in the last few years.

The highlight for me was hearing from Jeremy Scott, of Withers LLP who represented Iran in the recent high court case with Barakat galleries. It may be useful for people to know a bit about what the speakers had to say on this rule. For the non-law readers, apologies if this post is a bit lawyerly, but some of these private legal concepts are a bit involved.

The lex situs rule essentially dictates that when a stolen piece of cultural property crosses national boundaries, and laws conflict, the law of the jurisdiction where the sale took place (i.e. lex situs) will apply. This is a nearly unanimous rule which applies to movable objects. Two speakers gave particularly good insights.

Dr. Janeen Carruthers, a reader at the University of Glasgow gave a very informative overview of the whole scope of the lex situs rule. It was great to hear her thoughts, as an expert on Private International Law. She had some interesting things to say, especially arguing clandestine removal may have many things in common with the clandestine removal of antiquities, and this similarity may be a useful tool for arguing the lex situs rule should not perhaps hold the prominent position it does today.

I also particularly enjoyed hearing Professor Johan Erauw of the University of Ghent in Belgium talk about Talk about a new Belgian amendment to the Code of Private International Law in 2004 which provided for a lex originis choice-of-law rule in certain limited circumstances. It was an interesting amendment of the general rule, but he argued persuasively that the rule was substantially weakened, and the reasons may be tied to certain Belgian museums, who were concerned about losing some or all of their collection with a new more generous rule for source nations.

Given such a distinguished panel, I set the bar pretty low for myself. My main argument, and perhaps its one that’s more common sense than anything, is that the lex situs rule is ill-equipped to regulating and limiting the illicit trade in art an antiquities. I do think a convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations, and in fact this is the approach taken by Belgium.

When public international law offers no remedy, claimants are often forced to seek redress through private law. Of course all nations forbid theft; and every jurisdiction recognizes that a thief cannot possess superior title to the original owner. The classic dispute in cultural property litigation does not involve the original owner and the thief, but rather the original owner and a subsequent purchaser. Both of these parties are relative innocents. The difficulty in private international law disputes hinges on the ways in which different states have chosen to allocate burdens, rights and responsibilities between these two relative innocents.

States could take the Belgian approach and use another choice of law principle. There could be a call to reform good faith purchaser rules in Civilian jurisdictions. We might decide that art and antiquities should be registered when they are bought and sold. These all strike me as plausible and sensible reforms, however we must start from the position that the current default legal framework does not effectively distinguish illicit objects. The problem, and its one that’s been noted by many cultural heritage scholars, is that nations and lawmakers too often respond to the illicit trade rather than create a workable legal regime to prevent problems before they occur. The Belgian example strikes me as an important and noteworthy exception to this rule.

Should there be an antiquities market in some form? If the answer is yes, as it currently stands there is not a workable system to ensure antiquities are licit. To erect such a system will require substantial compromise on the part of source nations and the antiquities market. The market will have to radically shift the way it conducts itself to provide adequate safeguards that antiquities are legally excavated or from older collections. In turn, it seems likely that source nations will have to find a way to provide licit antiquities to meet market demand. Until such a compromise is brokered, courts in market nations will continue to be faced with difficult issues.

It was a really enjoyable seminar, and I’d like to thank the organizers and the Institute of Art and Law for being kind enough to allow a PhD candidate to present alongside such an impressive panel.

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

Troubling Decision at the High Court

Another recent attempt by Iran to use the courts of England and Wales has come up short. However this time Iran makes a much stronger case than it did in the Berend decision, and may reveal some very troubling shortcomings in the way Anglo-Welsh law responds to foreign claimants.

In Republic of Iran v. Barakat Galleries Ltd. [2007] EWHC 705 (QB), Iran sought to recover antiquities it claimed were from the Jiroft region, but were in the possession of Barakat galleries in England. The opinion was kindly forwarded to my by Gary Nurkin via LexisNexis.

Jiroft is located on the Halil river in Southeast Iran. If the antiquities were indeed from the Jiroft region, than they were almost certainly discovered in the last few years. Counsel for Iran claimed the takings were recent, as Jiroft experienced flooding in 2001 which washed away soil and revealed a large number of antiquities. Iran argued it is the lawful owner of all antiquities excavated from the Jiroft region based on a number of provisions of Iranian law. Justice Gray assumed the antiquities had been illegally excavated between 2000 and 2004, and yet Iran still has no title to them. Barakat argued that Iranian law does not give a possessory interest to Iran, and Iran never became owners of the objects under Iranian law. The ultimate issue, and the one that proved fatal to Iran’s case here is whether Iran has declared itself the owner of all undiscovered antiquities. Unfortunately for Iran, there is no specific nationalization provision, but rather a number of other provisions. Professor Taleghany, the Iranian law expert for the claimant said:


Since time immemorial Iran was ruled by absolute monarchs. The kingdom of Iran was the king’s domain, i.e. his estate. It was as such that the kings acquired further territories, ceded territories and exchanged part of their kingdom with the neighbouring kings. The last evidence of the exercise of such power was exhibited in 1893. However, a short while after this date there was a Constitutional Movement in Iran and the king’s domain became the Crown’s, or government property. When the Iranian main laws were codified in the Civil Code of Iran (section 1 of which was approved in 1928) the internal ‘government properties’ legally replaced the king’s domain.

Curiously, Justice Gray concedes there “would have been at some stage and by some means a transfer to the state or government of Iran of property rights previously owned by the king, these constitutional provisions form no part of Iran’s case in these proceedings. Accordingly I will pay no regard to them.” It seems then that Iran should have attempted to clear up what precise rights the monarchy gave over to the new state. It seems Gray J did not feel the need to look into the matter himself, as apparently the parties own experts seem to be the final experts of any foreign law, especially in this case as Iranian law is quite foreign to an English Judge.

Iran argued its own Civil Code, Section 3 Article 26 states “Government properties which are capable of public service or utilisation, such as fortifications, fortresses, moats, military earthworks, arsenals, weapons stored, warships and also government furniture, mansions and buildings, government telegraphs, public museums and libraries, historical monuments and similar properties, and in brief, any movable or immovable properties which may be in the possession of the government of public expediency and national interest, may not privately be owned.

That provision could be clearer I suppose, but clearly suggests Iran has vested antiquities in the state. However Gray J stated that the words “‘and similar properties’ in Article 26 are not apt to extend the scope of that Article so as to embrace movable antiquities. I see no similarity between antiquities on the one hand and fortresses and the other specified properties on the other hand.” I strongly disagree on this point, as historical monuments can mean specially designated areas, and I don’t think are exclusive to large architectural remains or the like.
Also, the 1930 Iranian National Heritage Protection Act provides “all artefacts, Buildings and places having been established before the end of the Zandieh Dynasty in Iran [late 19th Century], either movable or immovable, may be considered as national heritage of Iran and shall be protected under the State control.”

Also, a 1979 law provides “Considering the necessity of protection of relics belonging to Islamic and cultural heritage, and the need for protection and guarding these heritages from the point of view of sociology and scientific, cultural and historical research and considering the need for prevention of plundering these relics and their export abroad, which are prohibited by national and international rules, the following Single Article is approved.”

Unfortunately these and a myriad of other Iranian provisions do not clearly state “Iran is the owner of all undiscovered antiquities”; rather Iran argued that the spirit of all of these various provisions must surely have given itself title to these antiquities. Iran was essentially asking the court to “infer title”.

Gray J also has some rather curious things to say about the 1930 act. Here is the excerpt from the judgment:

46. It is true that, as Professor Taleghany points out, Articles 13, 16 and 17 of the 1930 Act (see paragraph 22 above) provide (according to Professor Taleghany’s translation) for the “seizure” of movable assets or (according to the other translation included in the papers) for their “confiscation”. The word in Farsi is “zabt”. The dictionary definition of “zabt” includes both “seize” and “confiscate”. I do not find it necessary to decide which definition is preferable in the present context. It seems to me that the provision for seizure/confiscation is designed to spell out penal consequences of illegal excavation and attempted export respectively. According to Professor Taleghany’s thesis, these provisions are otiose [i.e. useless] since the State is already the owner. Confiscation/seizure does not happen unless objects are discovered in the course of illegal excavation or an unlawful export of antiquity by a dealer is attempted. In that sense Articles 13, 16 and 17 are inconsistent with a pre-existing state ownership of antiquities. Of course, by virtue of those provisions of the 1930 Act, ownership of antiquities may be transferred to and become vested in the State but only in consequence of the sentence of a criminal court.

47. I accept the evidence of Mr Sabi that the 1930 Act primarily regulates the listing of the national heritage and makes provision for measures to be taken to protect and preserve items of the National Heritage, for example by restricting excavations and export. Mr Shepherd is in my view right to stress that the obligations created by the Act are in personam obligations, including the obligations on the accidental or chance finder to inform the Ministry, which will decide whether the particular item is worthy of being listed in the National Heritage List. I cannot accept that the 1930 Act is concerned with property rights.


I frankly do not understand why a seizure provision cuts against Iran’s ownership declaration. In the US, some very aggressive seizures have taken place premised on the idea that foreign states have title to the objects. Indeed, US courts are much more receptive to these kinds of claims brought by foreign claimants. The upshot of this ruling is that courts in England and Wales may not adequately enforce foreign nationalization declarations. Granted, Iran’s declaration was hardly clear in this case, but I think there was ample ground for the court to infer title in this case. The decision continues, but clearly the Iranian vesting problem was the salient issue in the case.

The appeal will certainly be much anticipated, and I’ll post information here when I know more. Gray J has authorized the case for appeal. In the UK, appeal is not automatic as it often is in the US. So the Appellate decision should be fascinating reading, and I would expect this judgment to be overturned.

We can take a number of broader points away from this decision nonetheless. First, the UNESCO Convention has proved completely ineffectual for undiscovered antiquities. That convention, unless coupled with an effective bilateral agreement does very little. Also, Barakat galleries purchased these objects via France, Switzerland and Germany; which means dealers continue to launder objects through various jurisdictions. Finally, where was the potential criminal prosecution? This shows once again that the Dealing in Cultural Objects (Offences) Act 2003 allows far too many illicit transactions to be effectual. Finally, if this case were to appear in US courts, it is likely that federal prosecutors would have stepped forward and initiated a seizure proceeding to protect the rights of the source nation, even to the extent that many federal prosecutors have been accused of being overzealous. However no such seizure or assistance appears to be forthcoming in this case. I wonder to what extent Iran’s position on the international stage and by extension treatment in this case may be different from other friendlier source nations such as Egypt or Greece? If Iran’s appeal is unsuccessful, I would expect it to clearly state its intention to nationalize all antiquities.

In my view the relevant issue should be whether Iran has done enough to put looters on notice that what they are doing is illegal. Are they enforcing their laws domestically? Here it seems that they are. This highlights the need, once again, for the UK to adopt the recommendation of the Illicit Trade Advisory Panel and produce a database of source nation legislation, that would allow source nations to know when their domestic nationalization provisions are insufficient to be enforced at the market end, and would also prevent dealers from claiming they did not know an object could not be exported.


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