Persepolis Relief seized from New York Art Fair

A fragment of a bas-relief from the city of Persepolis, dating from the 5th Century B.C.E.

On Friday afternoon New York prosecutors and police officers seized a limestone relief which once decorated a building from the ancient Persian city of Persepolis. The New York Times reported that “cursing could be heard” from the booth. The seized bas-relief, valued at an estimated $1.2 million dollars was being offered for sale by Rupert Wace, a London-based antiquities dealer. In a statement, Wace argued that the stone fragment “has been well known to scholars and has a history that spans almost 70 years.”

According to Wace, the relief was donated to a Canadian museum in the early 1950s. It was on regular display until it was stolen from the Montreal Museum of Fine Arts in 2011. It was recovered by Canadian authorities, but rather than seek the return of the object, the museum decided to keep the insurance payout given by AXA Insurance Company. AXA then had title to the object, which sold it to Wace.

What then is the crime committed which would lead to a seizure? I have not had a look at the warrant, so I’m speculating here, but reportedly it alleges the bas-relief was stolen. Likely because it was removed from Iran after the enactment of an ownership declaration. That argument has not been helpful on its own for material from Iran when Iran initiated an unsuccessful civil lawsuit against Denyse Berend for another bas-relief removed from Persepolis before the Revolution.

This case may be different though, as this is a criminal seizure, not a private suite. Iran declared ownership of objects like this one in 1930. Adding to the claim is the immovable nature of this bas-relief. It had been affixed to the wall for 25 centuries before it was removed.

The Apadana Palace at Persepolis.

This object may have been transported in the modern era, but had been designed and crafted to stay on a wall as part of a monument. This seizure pushes up against some of the oldest successful seizure of illicit material, and has as one obstacle the passage of time. On the other hand though is the reality that this object was part of a monument, Persepolis, which was granted World Heritage Status in 1979.

The Antiquities Trade Gazette reported that the Art Loss Register was responsible for vetting objects at the fair. James Ratcliffe, the director of recoveries and general counsel at the Art Loss Register stated:

We understand this piece was seized and although we’ve not seen an official explanation for this we gather it relates to the possibility that it was taken from Persepolis unlawfully. Given that it was on public display in a museum for over 60 years it will be interesting to see how the claim develops.

Indeed it will. What claims Wace will offer to defend his possession of the object, and what claims he may have against AXA or other predecessors up the chain of possession will be interesting to watch. One thing is certain though, the Manhattan District Attorney’s office is vigorously policing the antiquities trade at a level not seen in the United States or elsewhere. Dealers of illicit cultural property are on notice.

  1. Laura Chesters, Persian limestone sculpture seized by police from antiquities dealer at TEFAF New York Antiquities Trade Gazette (2017), https://www.antiquestradegazette.com/news/2017/persian-limestone-sculpture-seized-by-police-from-antiquities-dealer-at-tefaf-new-york/ (last visited Oct 30, 2017).
  2. James C. McKinley Jr, Ancient Limestone Relief Is Seized at European Art Fair, The New York Times, October 29, 2017, https://www.nytimes.com/2017/10/29/arts/design/ancient-limestone-relief-seized-european-fine-art-fair.html (last visited Oct 30, 2017).
  3. Stolen artifact from Montreal museum recovered in Edmonton, CBC News (2014), http://www.cbc.ca/news/canada/montreal/stolen-artifact-from-montreal-museum-recovered-in-edmonton-1.2535754 (last visited Oct 30, 2017).

Seventh Circuit Rules Terrorist Victims Attachment Request Against Iran was Overbroad

Clay Tablets from Persepolis, Similar to the Objects at Issue

David Grann reports for the Chronicle of Education on the Seventh Circuit decision which will make it exceedingly difficult for victims of a 1997 bombing in Jerusalem to secure Persian antiquities to satisfy their default $90 million judgment against Iran. The underlying dispute involved the plaintiffs successful action against Iran for supporting Hamas. Iran did not appear at the civil trial.

Today’s ruling dealt with the more limited question of whether the plaintiffs can use pieces of cultural heritage currently situated in the United States to satisfy the judgment against Iran. As a result you have the unlikely combination of Iran, the Field Museum, the University of Chicago and the Oriental Institute all arguing that these objects are immune from suit.

I was quoted in the story, and as I wrote Grann this afternoon, Museums holding objects from other nations are breathing easier. The long-standing principle in U.S. law is that property of foreign nations is immune from suit in the United States. Courts were given some guidance in 1976 when Congress passed the Foreign Sovereign Immunities Act which outlined the circumstances under which this immunity could be lifted. Yet as the three-judge panel held today, the orders by the Magistrate and the District court both conflicted sharply with the FSIA, as they ordered what the court called a sweeping discovery request. That request would have forced Iran to detail all of its assets in the United States.

The opinion is a big win for Iran and the museums which currently hold the Persian antiquities. The Seventh Circuit—which agreed with a prior holding in 2006 in Rubin v. Islamic Republic of Iran—has said these objects are presumed to be immune, and even if Iran decides not to challenge the attachment, a court even on its own must look for a good exception to the Foreign Sovereign Immunity Act. Courts are going to be very cautious when attaching the property of foreign nations, as that really falls squarely under the foreign policy authority of the Executive Branch.

Other courts have been similarly disposed to claims of domestic plaintiffs seeking attachment of Iranian cultural heritage in the United States. (Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass. 2006). Hamas claimed responsibility for the bombing in question, and the Rubin plaintiffs brought civil actions against Hamas, and also to Iran for providing material support and finance for the bombing. Experts testified that Iran provided both economic assistance from between $20 and $50 million dollars, and also terrorist training.

  1. David Glenn, U. of Chicago and Museums Win Key Ruling in Legal Battle Over Iranian Antiquities, The Chronicle of Higher Education, March 29, 2011, http://chronicle.com/article/U-of-ChicagoMuseums-Win/126923/ (last visited Mar 29, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Should Cultural Property be used to satisfy judgments?


There has been increasing attention paid lately to the use of art and antiquities to satisfy unrelated judgments against nations. In 2005, Russia had a $1 billion shipment of 54 paintings from Moscow’s Pushkin Fine Arts Museum seized at the Swiss border to satisfy Russian debts owed to Noga.

Similarly, in 2003 a group of American plaintiffs won a $90 million judgment against the Islamic Republic of Iran for a suicide bombing which took place in Jerusalem in 1997. James Wawrzniak Jr., a recent Harvard Law graduate has posted an excellent working paper on bepress titled Rubin v. The Islamic Republic of Iran: A Struggle for control of Persian Antiquities in America. It is likely to be published next fall.

Hamas claimed responsibility for the bombing in question, and the Rubin plaintiffs brought civil actions against Hamas, and also to Iran for providing material support and finance for the bombing. Experts testified that Iran provided both economic assistance from between $20 and $50 million dollars, and also terrorist training. Now I’m sure many readers would be quick to point out the US has given similar aid to similar groups, perhaps even during this Sunni awakening in Iraq, in which the US is essentially paying Sunnis to stop attacking coalition forces. I imagine Iran would have had a vigorous potential defense, however a default judgment was entered, whereby Iran essentially ignored the suit. Iran has since changed their stance after the Rubin plaintiffs decided to execute the $90 million judgment by claiming Persian antiquities in museum collections across the country. I’ll defer to Wawrzniak’s analysis as to what has transpired, but this litigation seems destined to last a number of more years.

One one level I can sympathize with plaintiffs who attempt to satisfy their judgments in this way. However, such a strategy, if taken to its logical conclusion would have troubling consequences for the cross-border movement of works of art. This was an issue in the recent dispute over the Royal Academy display of “From Russia: French and Russian Master Paintings 1870-1925 From Moscow and St. Petersburg”. Russia nearly backed out of the deal, eager to avoid a replay of the Portriat of Wally litigation.

The display required an act of Parliament to grant special immunity to prevent the works from being claimed by descendants of the original owners from whom many of the works were summarily seized during the Bolshevik revolution.

The question is, are the cultural benefits Great Britain and Russia share by viewing these masterworks, many never seen in London before? I think there is, and this cross-border movement of art is an important ideal which should be preserved, the recent string of nazi spoliation, and terrorist and other claims are important, and those victims deserve their day in court. However it should not be at the expense of our collective cultural heritage.

(Photo: Wassily Kandinsky Composition VII, 1913 on loan to the Royal Academy)

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

Persepolis Fragment on Sale


This Persepolis relief fragment owned by Denyse Berend will be up for sale at a Christie’s auction on October 25th. Iran temporarily blocked the last auction in an unsuccessful bid to reclaim the fragment. You can read about the case and my reaction to the High court decision by clicking on the label below.

All indications are that Iran will not bid on the fragment. I wonder if there was any attempt by Iran to work out a compromise with Mme. Berend?

I’m reminded of a 2004 article by Professor James Nafziger (A Blueprint for Avoiding and Resolving Cultural Heritage Disputes, 9 Art, Antiquity and Law 3 (2004)). In it he points out that cultural heritage disputes are adversarial. In this case, both parties have solid, and perhaps legitimate arguments but only one side will retain the tablet. He discusses the parable of the two sisters, each of whom wants one orange:

How should it be allocated? One solution would be to award the orange to the sister with the greater ‘rights’ to the orange. That is the strictly adversarial approach that often characterizes the formal resolution of cultural property disputes today. A second solution would be to award half of the orange to each of the sisters, an appealing compromise until it becomes apparent that one sister wants the orange only to eat its pulp whereas the other wants only the orange peel for cooking. Thus, although compromises may often be preferable to either/or solutions, they typically fail to take contending interests, as opposed to stated positions, into account. A third, better informed allocation of the disputed orange would be to encourage the sisters to express their respective interests in the orange and then to work out a mutually productive, more-than-zero-sum solution to a dispute.

Professor Nafziger and the International Law Association have proposed a more collaborative process which has a great deal of merit I think. In this case, Mme. Berend wants to sell the tablet without admitting any wrongdoing, and Iran wants the tablet returned, and perhaps a vindication that its cultural heritage has been taken. Surely there is a middle ground here? In any event the auction will be quite interesting, and I wonder if Iran’s legal challenge will have an impact on the purchase price. It could open any cultural institutions to an ethical claim for repatriation or it more likely cemented the purchaser’s title which is now beyond legal challenge.
(Hat tip to Chuck Jones for alerting me to the auction).

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

Case Note in the International Journal of Cultural Property

On SSRN I’ve just posted my case note Rejecting Renvoi for Movable Cultural Property: The Islamic Republic of Iran V. Denyse Berend 14 Int’l J. Cultural Prop. Issue 01, pp 111-120 You can download the article here. Here is the abstract:

In Iran v. Berend, the High Court in London had occasion to revisit one of the most enduring problems of private international law and cultural property. Effective regulation of the illicit market in cultural property is extremely difficult, because many measures aimed at stemming the illicit trade actually contribute to the black market. Courts in both England and the United States have shown that they are prepared to use criminal laws to convict persons involved in the illegal trade in antiquities exported in violation of foreign patrimony laws. As a result, much cultural property policy debate in recent years has focused on the extent to which the criminal law can impact the illicit trade. The extent to which national ownership declarations can be used in civil disputes remains less clear.

I would especially like to thank the Case Notes Editor Robert Paterson of the University of British Columbia for all his help editing the note. If there are any comments to the piece, I would love to hear them.

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

Another Iranian Loss in the High Court in London

Iran has lost a legal dispute involving 5,000 year-old antiquities. Here’s a story from the Daily Mail and also The Independent. Gray J. ruled against Iran because it could not establish Iranian title to the artifacts. It seems the antiquities were exposed after flooding in 2001. There may be an appeal, but it’s unclear why exactly Iran was unable to establish its ownership claim. Was the national patrimony declaration unclear? Or, could the antiquities have come from any number of nations? As Gray J. said, “but the enactments relied on by Iran fall short in my judgment of establishing its legal ownership of the antiquities.” Another frustrating example of poor legal reporting. That’s the result, but we have no idea why the court reached that decision. In any event, this is an important and interesting ruling. I’ll write more when I can track down a copy of the opinion. Sometimes the opinions take a couple of weeks to hit the internet.

It seems that 2 large antiquities shipments have been seized by Customs officials in the UK and returned to Iran. I was not aware of those seizures. This decision is a blow to source nations, and a bit of a surprising one. Courts in the US, even in the civil context usually enforce these declarations. I will be very interested to read the opinion in this case.

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