UNESCO Director General Bokova on Protecting Cultural Heritage during conflict

Damage in Aleppo, Syria

In an op-ed for the IHT UNESCO Director General Irina Bokova discusses the damage done to cultural sites in northern Mali, Syria and elsewhere. She argues that “Culture stands on the frontline of conflicts, deliberately targeted to fuel hatred and block reconciliation.” That’s exactly right I think. The challenge will be what the rest of the world can do to prevent and repair this destruction.

She outlines the concrete steps UNESCO is taking: crafting an international legal framework, building stronger culture coalitions, and use culture to prevent conflicts:

Unesco works across the globe to harness the power of culture to bring people together and foster reconciliation. I saw this personally when Unesco helped restore the Old Bridge in Mostar, Bosnia Herzegovina, destroyed during the war in the 1990s. We saw the same power during the restoration of the Koguryio Tombs complex in North Korea, undertaken with the financial support of South Korea. This might sound high-minded compared to the terrible news we hear every day from conflict zones. And it is true that culture alone is not enough to build peace. But without culture, peace cannot be lasting. The world thought big when the convention was adopted in 1972. We need to think big once again, to protect culture under attack. We often hear that protecting culture is a luxury better left for another day, that people must come first. The fact is, protecting culture is protecting people — it is about protecting their way of life and providing them with essential resources to rebuild when war ends. This is why, for culture also, there is a responsibility to protect.

  1. Irina Bokova, Culture in the Cross Hairs, The New York Times, December 2, 2012, http://www.nytimes.com/2012/12/03/opinion/03iht-edbokova03.html (last visited Dec 3, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Provenance and the 1970 UNESCO Convention

17 of the 21 objects at the Phoenix Ancient Art
Exhibition lack pre-1970 documentation

In a lengthy recent piece in Art & Auction, Souren Melikian argued that fewer and fewer antiquities without histories which pre-date 1970 are appearing at auction. The main argument for the piece, that the 1970 Convention is slowly encouraging a reformed antiquities market, rests on the idea that higher prices are paid for objects with documented and reliable evidence showing the object was either legally exported or removed from the probable country of origin before 1970.

Yet just because higher prices are paid for licit objects (or at least objects which were only illicit before 1970) does not necessarily mean that other looted or illicit objects are appearing on the market. Nord Wennerstrom makes this point, detailing four examples of antiquities up for sale which lack provenance information predating 1970. Of course the fact that an object does not come with this history does not mean automatically that it has been looted or stolen. But it is a very very big red flag.

Nord concludes by arguing:

All of the works discussed in this blog post may well have secure provenance dating before the November 14, 1970 UNESCO accord (or other corroborating evidence) – but if that’s the case, why isn’t it being provided? Melikian is right – caveat emptor – buyers need to demand secure provenance that dates before the UNESCO accord for any antiquities they contemplate buying. However, sellers – including auction houses and private galleries – also have a responsibility. And, it would be helpful if the media, when covering the sales, also mention the number of lots lacking that all important pre-1970 provenance. Melikian writes that we should “give it another 10 years” – that’s not a long time, but it could mean a lot of looting.

Yes it does.

  1. Souren Melikian, How UNESCO’s 1970 Convention Is Weeding Looted Artifacts Out of the Antiquities Market, ARTINFO (2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Public Comment on the U.S.-Italy Memorandum of Understanding

The State Department Cultural Heritage Center has announced it wants public comments on the potential renewal of the Memorandum of Understanding (MOU) between the United States and Italy.  

There will be a meeting of the Cultural Property Advisory Committee on Thursday, May 6, 2010, from 9 a.m. to approximately 5 p.m., and on Friday, May 7, 2010, from 9:00 a.m. to approximately 3 p.m., at the Department of State, Annex 5, 2200 C Street, NW., Washington, DC. During its meeting the Committee will review a proposal to extend the“Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy” signed in Washington, DC on January19, 2001 and amended and extended in 2006 through an exchange of diplomatic notes.

 There is also an opportunity to write a letter and express your opinion on the MOU, the deadline is April 22, 2010.  The Archaeological Institute of America has information on the letter-writing process here.  Note that you should either fax (202-632-6300) or email (culprop@state.gov) your letter due to security delays with traditional mail. 

This is one of the ways in which the United States has chosen to implement the 1970 UNESCO Convention.  The MOU does a number of things.  It restricts the import of certain classes of undocumented objects from Italy.  But if those objects carry the appropriate documentation, importation is allowed.  It also calls for long-term loans of Italian objects, and collaboration between the United States and Italy. 

Those interested in the MOU and the practical impact it has or has not had should look to the recent edited volume, Criminology and Archaeology (Simon Mackenzie and Penny Green, 2009). I review the volume in the Spring issue of the Journal of Art Crime. Of particular interest is Gordon Lobay’s contribution, which looks empirically at how the U.S.-Italy MOU has made an impact on the antiquities market—at least the observable licit market.  I encourage interested readers to check out the volume, as his conclusion has been that the volume of objects sold, and their prices have increased over time.  The most profound impact has been that auction houses have begun to “pay more attention to provenance.”  Though typically this is not the findspot or complete history but rather reference to an earlier sale of an object. 

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

Piecing Together the Origin of Ancient Gold

Interesting story on some ancient gold jewelry currently held by the University of Pennsylvania.  Twenty of the gold objects are on display at the Bowers Museum.  The Bowers website touts these objects as Trojan gold excavated by Heinrich Schliemann.  However the history of the objects is unknown: 

George Allen of Hesperia Art, a few blocks from Rittenhouse Square, approached the museum with a rare opportunity: the chance to purchase 24 gold pieces that he said were from ancient Troy.
Allen had no evidence to back up his claim that the gold was of Trojan origin, other than what the museum’s curators could see with their own eyes. The earrings and other baubles were in the same style as the famous objects found by Schliemann.

The pieces were so similar that initially the curators thought they might be from the Schliemann collection – which was still missing, its loss mourned by art historians worldwide.

In addition, the objects for sale bore tantalizing similarities to golden artifacts from another ancient stronghold: the royal Mesopotamian city of Ur, in what is now Iraq. Scholars already had theorized the existence of a trade network between the two civilizations. The new items, though they lacked a paper trail, seemed to support that theory.

“The purchase of this collection is urgently recommended,” Penn curator Rodney Young wrote in a March 1966 memo to the museum’s board.

Young also acknowledged that the items had an unsavory aspect, probably having been “looted by peasants and dealers.”

Museum officials decided to buy the pieces, for $10,000. But evidently they had misgivings.
Four years later, in 1970, the museum announced it would no longer acquire undocumented objects, arguing that such acquisitions encouraged the “wholesale destruction of archaeological sites.”

  1. Tom Avril, Tracing ancient roots of Penn Museum’s gold, PHILADELPHIA ENQ., January 31, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com

Ratifications

In July the Netherlands accepted the 1970 UNESCO Convention and it will enter into force on the 17th of October, 2009.

Also, Italy has ratified the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. 

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

Asif Efrat on International Antiquities Law


In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern of US policymakers about looting abroad resulted from a series of scandals which exposed the involvement of American museums and collectors with looted material. Advocacy efforts of American archaeologists also played a key role in educating policymakers about the loss of historical knowledge caused by looting and the necessity of regulation. The article further analyzes how antiquities dealers and certain museums lobbied Congress against implementing the UNESCO Convention and why Congress decided in favor of implementation as an act of international moral leadership. Following the analysis of the Congressional battle, I examine how the US debate over looted antiquities has evolved to the present. The article concludes with implications for the role of values versus interests in international law.

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

My Article on Conflict of Laws and Cultural Property

I have posted on SSRN the final version of my paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Columbia Journal of Law and the Arts 111.

Pictured here is a Byzantine mosaic from the Hagia Sophia in Istanbul, similar to the mosaics taken from Northern Cyprus which gave rise to the Goldberg suit. The Seventh Circuit Federal Court of Appeals upheld the default—and problematic for cultural property disputes—lex situs rule in holding “Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.” The trial court had noted that although Switzerland was the location of the wrongful activity, it bore little connection to the cause of action. None of the parties or important actors was Swiss; the mosaics had never been in the stream of commerce in Switzerland; and they had only been on Swiss soil for four days. The jurisdiction with the closest connection to the objects was Cyprus, not Indiana. After all, the mosaics had been firmly fixed to the church for over 1400 years. Although it would therefore make sense to give concessions in the law to jurisdictions such as Cyprus, courts have shown a hesitancy to apply the law of the source nation, or lex originis.

Here is the abstract:


The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

Keywords: art, antiquities, private international law, conflict of laws, international law, lex originis, lex situs, renvoi, art theft, antiquities, cultural heritage, cultural property

I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.

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