Student Comment on American Cultural Heritage Law

Katherine D. Vitale has posted on SSRN her Student Comment, The War on Antiquities: United States Law and Foreign Cultural Property, 84 Notre Dame L. R. 101 (2009). 

She criticizes the general trend of American cultural heritage policy, and is far too kind I think to museums and antiquities dealers generally.  She has some very interesting things to say about the AAMD Guidelines, and does a very good job putting the recent California searches in context, perhaps helping to explain why a year has elapsed with little apparent progress.  

From the Abstract:

The use of the National Stolen Property Act and Archaeological Resources Protection Act as mechanisms to protect cultural property taken from a foreign state through prosecution of individuals who buy, sell, and otherwise deal in such property is in direct tension with the Convention on Cultural Property Implementation Act (“CPIA”), a statute enacted in accordance with an international treaty to which the United States is a party. This Note explores how criminal liability under United States law for museum officials and others who acquire art, archaeological materials, and especially antiquities, originating in foreign nations conflicts with CPIA’s treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 UNESCO Convention”). Part II examines the 1970 UNESCO Convention’s influence on United States civil law and policy regarding foreign cultural property, and on the acquisitions policies of international and domestic museums. Part III discusses criminal penalties under both the National Stolen Property Act and the Archaeological Resources Protection Act for those who knowingly acquire stolen foreign cultural property. Part IV analyzes the conflict between policies on foreign cultural property followed by the United States and domestic museums and the application of criminal penalties in art-trafficking cases. In addition, this Part explores the consequences of the conflict for both the United States and individuals, and suggests resolutions to the conflict through law. Finally, Part V concludes that in order for the United States to fulfill its obligation under the 1970 UNESCO Convention, it must stop conducting a war on antiquities-and those who acquire them.

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

Preserving Babylon

Christopher Torchia and Ammar Al-Musawi have an interesting article for the AP on UNESCO efforts to rescue the ancient city of Babylon.

Now, for the first time, global institutions led by the U.N. are thoroughly documenting the damage and how to fix it. A UNESCO report due out early next year will cite Saddam’s construction but focus, at the Iraqi government’s request, on damage done by U.S. forces from April to September 2003, and the Polish troops deployed there for more than a year afterward.

The U.S., which turned Babylon into a military base, says the looting would have been worse but for the troops’ presence. The U.S. also says it will help rehabilitate Babylon, funding an effort by the World Monuments Fund and Iraq’s State Board of Antiquities and Heritage, but has yet to release precise funding figures.

Archaeologists hope the effort will lead someday to new digging to follow up on the excavations done by a German team in the early 1900s.

“The site is tremendously important,” said Gaetano Palumbo of the New York City-based World Monuments Fund. Yet in its present state, Babylon is “hardly understandable, as a place where so much happened in history.”

The damage at Babylon is a tragedy, but hopefully the damage done can be reversed and the site can be protected and preserved for enjoyment and study. Perhaps the slew of Babylon-centered exhibits and books detailed by the Art Newspaper will help to raise awareness.

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

Meaningful Discourse

There is a core of agreement even among the most diametrically opposed heritage advocates.

For example on Wednesday of this week the BBC program Today featured a brief piece with James Cuno and Colin Renfrew debating some of the foundational issues of heritage policy. What I find striking, is how to the casual observer much of what Cuno and Renfrew are discussing would appear to not be too far apart. They’ll both agree I think that the looting of sites is a problem, and museums should not acquire stolen or looted antiquities and works of art. They will disagree vigorously on what exactly constitutes ‘stolen’ or ‘looted’.

I’d argue that the disagreement, and much of the petty argument which takes place on the nets and at conferences actually makes the task of all sides more difficult, and is counterproductive. I’d like to see some real meaningful discourse, and a lot less sniping and unproductive exaggerations on both sides. Sadly all too often the disagreements make the american electoral process look sane and measured in comparison, not an easy task. The end result is a situation where the public often does not know how or why these issues matter.

Take for example the recent Interpol Symposium on the Theft of and Illicit Traffic in Works of Art,Cultural Property and Antiques in which a “lack of awareness among the general public of the importance of cultural heritage and the need for it to be protected,” and recommend that “INTERPOL, UNESCO and ICOM: Jointly seek ways of raising awareness among law-enforcement services, those responsible for safeguarding religious heritage, the major players in the art market and the conservation world, and the general public, with regard to protecting cultural property and combating illegal trafficking.” (via).

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

UNESCO Takes UK to Task

Severin Carrell has an interesting story in the Guardian on UNESCO’s concerns over how the UK is protecting and preserving these ancient sites:

Edinburgh
Site The “remarkable” medieval Old Town and Georgian New Town of central Edinburgh [Pictured Above] were listed in 1995.
Problem Unesco fears several building projects in the city centre and Leith docks will damage the site’s architectural heritage. It “deeply regrets” the city has approved a hotel, office and housing complex by the Royal Mile, and is sending inspectors to visit.

Stonehenge and Avebury
Site The neolithic stone circle and avenues, and the associated megalith circles at Avebury, were listed in 1986.
Problem A cause of anxiety for 22 years, Unesco is angry that plans to reroute the A344 with a tunnel and build an offsite visitors’ centre have again been scrapped. It “regrets” the continued delays and “urges” ministers to act quickly.

Neolithic ruins, Orkney
Site Skara Brae, Maeshowe and the Ring of Brodgar were among the ancient sites listed in 1999.
Problem Three planned wind turbines will be visible and Unesco wants the project stopped. Historic Scotland agrees they will damage it. A public inquiry will report soon. 

Bath
Site The city’s grand neo-classical Georgian crescents, terraces and squares were listed in 1987.
Problem Unesco fears plans to build 2,000 flats in buildings up to nine storeys, and an engineering school sponsored by James Dyson, will damage the site’s setting. It is sending inspectors and wants the schemes blocked until its committee has studied the plans.

Liverpool
Site Its maritime mercantile city, with its churches and Georgian warehouses, was listed in 2004.
Problem Unesco is happy the city swiftly acted on concerns that a new museum, a 24-storey tower and a new conference centre threatened the site’s setting and integrity. Unesco wants further action to protect it.

Westminster, London
Site The Palace of Westminster, Westminster Abbey and St Margaret’s Church were listed in 1987.
Problem Unesco believes several new tower blocks, including the 170-metre Beetham tower in Southwark and a 144m tower at Doon Street, will affect the site. It is annoyed its demands for a buffer zone and a detailed study of the skyline have been ignored.

Tower of London
Site The Norman tower and its 13th-century walls were listed in 1988.
Problem New buildings, such as the 66-storey “shard of glass” tower and a 39-floor tower at Fenchurch Street, will dominate the skyline. Unesco “regrets” the UK has failed to implement a robust buffer zone or an effective local plan. It is threatening to put the tower on its “world heritage in danger” list.

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

Can the West do More to Protect Iraqi Antiquities?


Dr. Bahaa Mayah, a special adviser to Iraq’a Minister of Tourism and Antiquities, has strongly criticized the response of the West to the trade in looted or stolen antiquities originating from Iraq. Dr. Mayah held a press conference yesterday at the British Museum, and argued it was the occupying forces’ responsibility to retrieve the valuable objects taken since 2003. He also urged a global ban on Iraqi antiquities via a UN Security Council resolution. He said “Our antiquities are scattered everywhere from America to Europe. This problem is not new but it has intensified since 2oo3 and is now becoming a bigger problem.”

Speaking of America specifically, he argued “America is co-operating and not co-operating at the same time. We were grateful when they returned the Statue of Entemena (from 2,430BC) but at the same time, you see auctioneers all over the country trading in our antiquities. No action is being taken”. This statement, curiously, comes on the same day the Department of State published a notice of an import Restriction to Protect the Cultural Heritage of Iraq.

You can also hear his comments on BBC Radio 4’s Front Row program here, his interview starts at about 18 minutes in, which David Gill has noted this morning as well.

There at three separate issues here, first is what can be done to prevent looting in Iraq and how to regulate the illicit trade in Iraqi antiquities. Second, is the damage done by occupying forces to important sites at Babylon and elsewhere. Finally, there is the claim for restitution for objects which have long in the British Museum collection. The first two, it seems to me are related. The final question, which speaks to the notion of Universal Museums, must be separated. Every time this kind of discussion spins off into a discussion of the Parthenon Marbles and other restitutions, I think we lose site of the present ongoing issue: the looting of sites, and the illicit trade.

I am sympathetic to Dr. Mayar, as he must find it difficult dealing with a myriad of different agencies in Europe, and he feels the burden is on the source nation to give evidence of of an object’s illicit nature. Unfortunately this is the regime which the 1970 UNESCO Convention has produced, and efforts to create an effective multilateral agreement in this arena have been notoriously difficult. I think that must surely be tied to the disagreement and acrimonious nature the debates often engender.

Prof. Patty Gerstenblith has noted before that a lot of the reporting and discussion of the law as it pertains to the antiquities trade is wrong, and misses the point completely. I have to agree. Dr. Mayar talks about the incomplete response of the West to the trade in Iraqi antiquities, but I think the US and the UK have taken the necessary steps to attach criminal penalties to this trade. International law already bans the trade in Iraqi antiquities, under UN Security Council Resolution 1483:

Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph;

In the United Kingdom, the Theft Act 1968, the Proceeds of Crime Act 2002, and the Iraq (UN Sanctions) Order 2003 creates a criminal offence for merely being in possession of Iraqi Antiquities.

The United States has banned the import of Iraqi antiquities, and the National Stolen Property Act, as well as the powerful Civil Forfeiture mechanisms available to Federal Prosecutors strongly regulate the criminal aspects of the trade.

The difficulty of course, and its one that Dr. Mayar speaks to, is the difficulty in establishing evidence of the fact that an object originated in Iraq, when it could have originated from any one of a number of countries. Are there Iraqi antiquities currently being sold in the United States and United Kingdom? I’ll confess I don’t know. His comments strongly indicate they are, but I’m unaware of such sales, or any reports indicating this is the case.

Ultimately, I think the US and the UK in particular have taken nearly all the steps they can to regulate the criminal aspects of the trade. To shift burdens any further would, without being overly dramatic here, require Constitutional-level reworking, to allow fewer rights for criminal defendants. That is a step no thinking person can responsibly advocate. That’s at the core of my arguments about the utility of the criminal response to the illicit trade. The solution, as I see it, is to introduce a way for cultural property transactions to require title history, provenance and findspot information for antiquities. This would give real effect to the law. Without such information, the antiquities trade will continue to evade effective regulation. Think about the California searches from earlier this year, despite a dramatic raid, we have yet to see any charges filed. Though this is heresy to even suggest for many in the archaeological community, this will in my view require compromise and will almost certainly require a liberalization of the trade in some respects.

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

Have American Museums Initiated "Real Change"?

Lee Rosenbaum has a very interesting post detailing her thoughts of the “Return of Cultural Objects” conference held in Athens this week. She participated in the panel titled “Museums, Sites and Cultural Context”, and described her own presentation as follows:

[I] lampooned (and occasionally praised) strategies used in labeling and installing antiquities by American museums, which often have scant information about the archaeological context of objects in their collections. I was struck by the contrast between American labels and those at Athens’ National Archaeological Museum, where almost every object is accompanied by information on where it was found.

I ended by championing the view that I share in common with my hosts, singling out two examples from U.S. museums that fit the Parthenon marbles theme—ancient objects that had been fragmented and should be reassembled through the amicable cooperation of the different owners.

However she expressed a more unpopular view when she argued, in sharp contrast to Ricardo Elia, that “there had been substantial recent changes in American museums’ antiquities-collecting policies, which had been implemented to varying degrees.” It’s great to get this kind of quick reaction to the discussion. As to the substance of the claim, whether there has been real change, I think Rosenbaum is probably right, but only for a limited number of museums. A couple institutions, the Getty and the Indianapolis Museum of Art have very strict acquisition policies that are the gold-standard. However these kinds of policies are still voluntary, and there are a number of other institutions who are still dragging their feet. Look to the recent raids in California of LACMA and other institutions for evidence of a failure to reform. Ultimately, both Elia and Rosenbaum are correct, depending on which institutions they might be discussing.

This calls to mind the recent string of repatriations from North American institutions, which can be seen as responses to earlier acquisition policies which may have been lacking. Stacey Falkoff, a third-year law student at Brooklyn Law School has published an interesting student note, Mutually-Beneficial Repatriation Agreements: Returning Cultural Patrimony, Perpetuating the Illicit Antiquities Market in 16 Brooklyn Journal of Law and Policy 265 (2007). She does a great job of describing and compiling the recent string of repatriations, and draws some conclusions. She argues two things essentially, that these Mutually Beneficial Repatriation Agreements (MBRAs) actually perpetuate the illicit trade by mitigating the damage which these institutions suffer when a repatriation takes place, thereby making it easier for museums to acquire potentially-looted objects, and second they hamper the formation of judicial precedent utilizing international conventions.

Certain aspects of these MBRAs may be questioned, however she doesn’t do a good enough job showing how the judicial interpretation may be needed, and she falls into the trap many student notes have of relying too much on secondary sources and other articles. I would give the piece high marks for thoroughly analyzing these recent agreements, and its well-researched as far as many of these secondary sources.

I’d argue the law may be complex in this area, but more judicial interpretation is not necessarily needed. I would come to a different conclusion. I think these repatriation agreements are a good thing, and I certainly think the Met will think twice before acquiring another “orphan” such as the Euphronios Krater, which was seen as suspicious when it was acquired.

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

Insurgents Selling Antiquities in Iraq

The AP is reporting on the views of Marine Colonel Matthew Bogdanos, a participant in this weeks conference in Athens. Bogdanos is a New York assistant DA, and was instrumental in the efforts by US forces to undo much of the damage and looting which occurred when the invasion began.

He argued it was “undeniable” that extremist groups were using antiquities smuggling to gain funds. As he said, “the Taliban are using opium to finance their activities in Afghanistan… Well, they don’t have opium in Iraq, what they have is an almost limitless supply of is antiquities. And so they’re using antiquities.” He even has heard from sources that Hezbollah is taxing antiquities.

The claim is open to speculation of course, because so much of the trade is hidden. However Bogdanos is a passionate and thoughtful advocate for the protection of Iraq’s national heritage, and as such the Pentagon and World leaders would be wise to listen. The more attention the looting problem in Iraq receives the better. Unfortunately, the US and Europe are doing very little to prevent this smuggling or to protect archaeological sites in Iraq.

Sadly, I think antiquities from this region will be appearing on the market for decades to come, and as such buyers, who should perhaps know better, will be confronted with the same embarrassing legal and ethical questions which have plagued North American institutions in recent years in their acquisitions of antiquities from Southern Italy. Of course they can avoid this controversy by refusing to purchase potentially tainted objects.

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

The Long Shadow of the Parthenon


Michael Liapis, Greek Minister of Culture, gave the opening remarks at the conference on “Return of Cultural Property to its Country of Origin”. He managed to get a good deal of press coverage, including a Reuters story.

Unfortunately I found his comments unhelpful, as did David Gill. He attempts to link the Greek quest for the return of the Parthenon marbles from the British Museum and elsewhere with the decisions by the Getty, the Met, and the MFA in Boston to return relatively recent and looted antiquities. The two claims could not be more different. One can be characterized as a historical dispute, while the others are examples of clear wrongful conduct, many of which involved criminal wrongdoing.

Liapis argues “More and more museums are adopting tighter ethics codes and governments promote bilateral and international cooperation (for the return of ancient objects)… So an ideal momentum is being created … for clear solutions on this issue.”

Gill responds, quite rightly, that the major difference between these two claims is context. We know where the Parthenon Marbles came from, we have their context. In fact one can see the context from the new Parthenon Museum, pictured here. However we don’t know for sure where many of the looted antiquities which were returned in recent years came from. Their context is lost to us. He follows this up by asking a pointed question in return, will Greece take steps to return Bulgarian silver from the Pazardzhik Byzantine Silver Hoard?

Others have perhaps said this more persuasively than I, but I think cultural policymakers only make the situation worse when they link historical events such as Lord Elgin’s removal of the marbles with recent criminal activity on a widespread scale. There may be a persuasive claim for the return of the marbles to Athens, however such a claim is not likely to succeed by making such unhelpful comparisons.

The closer link is with the Bulgarian silver, which it seems Greek’s legal system is unable to adequately return to Bulgaria.

On an unrelated note, the Acropolis museum, where this event is being held was reviewed by Richard Lacayo.

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

Conference: Return of Cultural Property to its Country of Origin.

Next week in Athens at the New Acropolis Museum, the Hellenic Ministry of Culture, in cooperation with UNESCO will sponsor a conference on “Return of Cultural Property to its Country of Origin”. Here is an excerpt of the press release by UNESCO:

The conference participants will reflect upon and exchange experiences on the issue of the return of cultural property, examining several successful return cases, including: the Axum Obelisk from Italy to Ethiopia, the return of the Stone Birds of Great Zimbabwe from Germany to Zimbabwe, the return of human remains to the Ngarrindjeri Aboriginal tribe of South Australia, the “Utimut” cooperation project for the return of cultural objects from Denmark to Greenland, the reunification of a Neo-Sumerian alabaster figure (cooperation project between the Louvre Museum and the Metropolitan Museum of New York) and the case of the ceremonial mask of the Kwakwaka’wakw people of Vancouver Island between the British Museum and Canada.

On the second day, four thematic workshops will debate:
• Ethical and Legal Aspects,
• Mediation and Cultural Diplomacy,
• Museums, Sites and Cultural Context
• International Cooperation and Research.

Discussions will also take place on ways to strengthen the action of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation.

Established by UNESCO in 1978, the Intergovernmental Committee provides a framework for discussion and negotiation on the return or restitution of cultural property. The committee, composed of 22 elected member states, remains strictly advisory, establishing forums for debate and offering non-legally binding recommendations.

Proceedings will be published and made available for the 15th session of the Intergovernmental Committee, scheduled for June 2009. The return and restitution of cultural property will also be the theme of another meeting to be held in November this year in Seoul (Republic of Korea), where an extraordinary session of the Intergovernmental Committee will be held to mark its 30th anniversary.

* The New Acropolis Museum, 2-4 Makriyanni Str, 117 42, Athens Greece

A Program of the events is here, and an impressive cast of heritage thinkers and experts have been assembled, including at least two fellow bloggers, Lee Rosenbaum and David Gill who will hopefully share their thoughts when they return.

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

Did UN Troops Violate the 1954 Hague Convention?

I am just catching up on this story, but it strikes me as particularly troubling. 6,000 year-old paintings of animal and human figures have been spray-painted over by UN peacekeepers in the Western Sahara. The UN personnel with the Minurso mission in the Western Saraha signed and dated their work, and in some cases revealed their identities. As the Times reported back in January:

One Croatian peacekeeper scrawled “Petar CroArmy” across a rock face. Extensive traces of pigment from rock painting are visible underneath. Another left behind Cyrillic graffiti, and “Evgeny” from Russia scribbled AUI, the code for the Minurso base at Aguanit. “Mahmoud” from Egypt left his mark at Rekeiz Lemgasem, and “Ibrahim” wrote his name and number over a prehistoric painting of a giraffe. “Issa”, a Kenyan major who signed his name and wrote the date, had just completed a UN course, Ethics in Peacekeeping, documents show.

The Middle East Online reported that Morocco’s director of national heritage has accused the UN forces of graffiti on ancient sites, but also the theft of cave paintings, desecrating graves, and removing engraved paving stones.

Such disregard for important heritage of course implicates the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. To add to the difficulty, the head of the UN mission in Western Sahara (Minurso), seems to have bungled an apology, and served to incite more unrest between the groups he should be monitoring.

I’d really recommend those interested to have a look at what David Nishimura has to say on this, as I picked up the story from him. He notes the parallels with the coverage of the theft of objects from the Iraqi Museum, and the part coalition forces may have played in the looting of the museum in Baghdad. However he notes “the greatest damage in Iraq has been indirect, a consequence of civil disorder, rather than the direct result of military action. The vandalism in the Sahara is particularly shocking due to its deliberateness and the identity of those responsible, along with the complete lack of mitigating circumstances.”

I think that’s exactly right, and this story has received very little media attention in the West, particularly in the United States. There was a lot of legitimate outrage at the actions of the US military on the heels of the looting of the Baghdad Museum, however the actions of these UN forces deserves an equal measure of outrage in my view, and the troops responsible should be subjected to criminal penalties for looting and vandalizing these sites. Sadly, I think this reveals just how ineffective the international legal regime has been in protecting sites during armed conflict.

I know by monitoring the url logs that this site attracts some interest of journalists, notably when some of my ideas may prove useful for a story, which is great. However rather than writing the same story about Marion True for example, why not broaden coverage to encompass the full nature and extent of the antiquities problem?

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