Tag: UNESCO

A Cultural Property Registry?

On Thursday Donn Zaretsky at the always-enjoyable art law blog continued his discussion of the fake Gaugin Faun statue. Specifically, he wondered what kind of international registry might have prevented this kind of fraud, and asked me how I would envision a registry. I have a few thoughts on the subject, but they’re still in an early stage.

I had originally intended to put discussions of a potential registry and some concrete reforms of the market which are needed in the thesis. It’s not in there though because I simply ran out of space, and I’ll have to save those ideas for some future work I suppose. I don’t have a definitive answer for how an international registry might be constructed. Ideally an international body such as UNESCO would step forwards and create one, however that is far too ambitious an undertaking for that organization given its current state of funding. The industry itself could choose to regulate itself more closely, but it gains more profit by not revealing information information. In the end, the art market needs a registry like MLB, the NFL and other sports leagues need a test for Human Growth Hormone. But neither is likely to arise soon.

It’s a difficult potential issue because there a number of serious obstacles to creating a registry. The Art Loss Register and other databases exist, but they aren’t the answer to the whole problem. The current market structure earns more money without a registry. Here’s how: if I have a painting and want to sell it I can take it to an auction house. Now I’m a lowly PhD student, and that’s certainly not a lucrative career choice. If someone were to purchase the painting from me directly they would have a great deal of bargaining power if they knew my relative financial position. The painting might be worth $20,000; however the purchaser may realize my financial position and negotiate the deal lower. Auctions take place anonymously and avoid this. In many if not most transactions, we are unaware who the buyer and seller are. For the fake Faun, the consignor was Mrs. Greenhalgh using her maiden name. Had the buyer known she was living in council housing, might they have been less inclined to purchase the object, or even have more cause to doubt its authenticity? I think so certainly.

A good recent article in the Florida Law Review proposes a torrens registration scheme for works of art. Bruce W. Burton, IN SEARCH OF JOHN CONSTABLE’S THE WHITE HORSE: A CASE STUDY IN TORTURED PROVENANCE AND PROPOSAL FOR A TORRENS-LIKE SYSTEM OF TITLE REGISTRATION FOR ARTWORK, 59 Fla. L. Rev. 531 (2007). The introduction lays out the main argument:

At least forty percent of valuable artwork circulating in the marketplace is either forged or misattributed. Apart from this significant problem of art authenticity, the chains of title showing current ownership of many genuine and properly attributed objects are defective. These defects are due to incompleteness of the historical records, innocent error, lapse of time, fraudulent manipulation, or theft. This Article explores the dual complexities of properly establishing a valuable art object’s correct provenance-that is to say, determining both the authenticity as well as the chain of legal ownership of the work. This Article also examines the six principal legal doctrines that human society has designed to resolve competing ownership claims and the significant moral shortcomings of each doctrine. Most significantly, this Article presents a proposal for a much-needed reform in the law of art provenance.
The proposed reform is modeled on the Torrens land-title registration system in effect in Australia, parts of the United Kingdom, and a handful of states in the United States. The reform would offer the following: (1) a legal system for conclusively registering both the ownership and authenticity of any valuable piece of artwork; (2) fundamental fairness to all parties claiming an interest in the artwork; (3) assured financial compensation to any innocent party whose claim to the artwork has been injured or lost by operation of the Torrens-like system; (4) permanent and visible public records of art ownership; and (5) enhanced market stability because of the certitude and transparency afforded to art consumers by such a title registration system.

Burton makes a good case, but it would rely on individual states to implement the system, creating a patchwork of coverage. That would be better than nothing I suppose. In the end buyers of art, and even authenticators get excited by the prospect of rediscovering “lost” art or works which have gone missing. It can happen in legitimate ways as evidenced by the trash-rescue earlier this year. However, such a system leaves open the possibility of forgers, and also creates havoc in the antiquities trade for source nations and sites. The best advantage of a registration system would not necessarily be that it prevents these kinds of fraudulent transactions today, but that it builds up a body of knowledge about an object’s provenance so as to prevent such mistakes in the future. As it stands now, we still aren’t certain how many more forgeries by Greenhalgh may have been sold.

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

Rare Good News in Iraq


There appears to be some rare good news in Baghdad of late. There are indications that attacks in Iraq are way down. Also, John Swain of the Sunday Times reports today on the likely reopening of the Baghdad Museum next month, according to Amira Emiran the acting director.

Visits will be confined to just two galleries on the ground floor containing Assyrian and Islamic treasures that are too large and heavy to be easily removed. The remaining 16 galleries will remain empty and closed and security will be tight. Nevertheless, Iraqi and American officials are keen to portray the opening as a sign that security in Baghdad has improved after the chaos of the past few years…

The Assyrian Hall has monumental sculptures, including stone panels from the royal palace at Khorsabad and two winged bulls. The other large gallery that is opening, the Islamic Hall, has the eighth century mihrab from the Al-Mansur mosque in Baghdad. It is also hoped to display 10 monumental Parthian sculptures from Hatra in the courtyard which links the two galleries and through which visitors will pass.

The decision was welcomed by Matthew Bogdanos, a colonel in the US Marine Corps reserves, who investigated the theft and destruction of thousands of artefacts from the museum and from thousands of Iraq’s poorly protected historic sites where looting has been conducted “on an industrial scale” since the war.

Bogdanos, a New York prosecutor, said: “I don’t know if there is any such thing as a right or wrong moment to open the museum. But great things are won by great risk and the museum should open and it should stay open. If it means doubling security, then double security.”

Estimates of the number of missing objects vary, but about 10,000 objects are probably still missing, out of a total of 15,000 objects taken. One piece still missing is the ivory plaque pictured above, Lioness Attacking a Nubian, 8th c. BC. News of the reopening is welcome news, especially given it was seldom open to the public in the two decades preceding the invasion of Iraq in 2003. The announcement was made last week at the meeting of UNESCO’s International Coordination Committee for the Safeguarding of Iraqi Cultural heritage.

The news from Iraq is not all good however. The Bush administration is tempering its goals in Iraq, as military progress has been gained but the US will begin its major drawdown of troops following the “surge”, (i.e. escalation). US Officials are lowering their expectations, dropping plans for an oil-sharing plan and regional elections. The increase has yielded some important military successes, reflected in the decrease in attacks, but this military presence is not sustainable. One wonders if the decision to reopen the museum was made by Iraqi’s or if it was encouraged by their American counterparts. Even if it were the latter, the fact that Iraqis may now be able to view some objects safely is perhaps cause for cautious optimism.

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

UNESCO Condemnation of the Black Swan Recovery

Koichiro Matsuura has an interesting editorial in yesterday’s Miami Herald on Odyssey Marine, underwater archaeology and the Black Swan wreck. He is exactly right about the number of wrecks under the sea, how important they are, and what a resource they could be if excavated scientifically. I agree that commercial exploitation certainly damages underwater archaeological sites, but UNESCO needs to do a better job of bridging the gap between archaeology and commerce.

Rather than attempting to ban all commercial use of underwater sites, why not move forward and show how commercial exploitation can be sensitive to the archaeological context when done properly? Instead of taking a combative approach, why not co-opt these salvage operations as archaeological efforts?

Admiralty law is one of the oldest branches of the law, dating back thousands of years. The presumption has long been that the salvor will be entitled to a portion of what they find on the ocean because they have risked their equipment, or their lives in some cases to salvage underwater sites. That general position will not change any time soon. The 2001 UNESCO Underwater Heritage Convention takes an aggressive line, and prohibits all commercial exploitation of underwater cultural heritage. This is a step many nations will refuse to take. Only 15 nations have signed on, and the convention requires 20 before it enters into force. In this case, by arguing too vehemently, I think UNESCO has left itself with no say on the disposition of underwater sites found in international waters.

Here is the full text of Matsuura’s editorial:

By KOICHIRO MATSUURA

www.unesco.org

It may be the richest treasure ever discovered in a shipwreck — hundreds of thousands of gold and silver coins. A private firm announced it had recovered them from a colonial-era vessel, dubbed the ”Black Swan.” The story came out last May and attracted worldwide attention. But the Black Swan isn’t a unique case. A few months ago, important finds were made of sunken ships, and at least one of them, off the coast of Cirebon, in Java, was destroyed. Many other such wrecks have been found and looted in recent years, in locations ranging from the northern Atlantic to the South China Sea.

Underwater cultural heritage is as precious as heritage on land. It comprises archaeological sites of great significance such as the ruins of the Alexandria lighthouse, one of the ancient world’s seven wonders; the Carthage of antiquity in North Africa; the fabulous Mahabalipuram and Dwarka temples in India; and numerous Neolithic villages that remain submerged in the Black Sea.

It also includes the remains of King Philip II of Spain’s invincible Armada and Kublai Khan’s fleet, as well as an estimated three million sunken ships scattered on the ocean floors. These underwater archaeological sites are often better preserved than sites on dry land because cultural heritage is protected by a slow rate of deterioration and the lack of oxygen. Their inaccessibility further shields them from looting. They can therefore teach us a great deal about the origins and history of civilization.

There is an urgent need to protect this underwater cultural heritage, which for the last several years has come increasingly under threat. Technical progress in detection and diving and escalating prices on the international market for objects snatched from the deep have led to the loss of many particularly valuable archaeological sites and seen their precious cultural objects dispersed. The problem is further aggravated by the overly prevalent view of such archaeological sites as ”treasures” that can be discovered and appropriated. They should in fact be considered essential elements of a common cultural heritage, as communal property to be preserved.

The perspective must change. UNESCO has been fighting for years to change it. In November 2001, its General Conference adopted the Convention on the Protection of the Underwater Cultural Heritage. This international treaty, which now counts 15 states parties, will enter into force when 20 countries have ratified it.

The UNESCO text defines underwater cultural heritage as ”all traces of human existence having a cultural, historical or archaeological character that have been partially or totally under water, periodically or continuously, for at least 100 years.” It promotes in situ preservation, given the importance of the historical context of the submerged cultural objects as well as the favorable conditions for conserving these objects, namely the lack of oxygen and slow deterioration as long as they remain underwater.

Condemn looting

Without presuming to resolve the sensitive issue of property of cultural objects that may be disputed between several states — generally the state of the ship’s flag and the coastal state — and without prohibiting professional archaeology or preventing recovery activities by explorers working in responsible ways, the text establishes the principle that “Underwater cultural heritage shall not be commercially exploited.”

The international community must mobilize to ratify the Convention on the Protection of the Underwater Cultural Heritage. If we condemn acts of looting in which archaeological sites are gutted with bulldozers or Mayan steles and Khmer sculptures torn out with chain-saws, then we must also sanction underwater looting that deprives future generations of the context surrounding artifacts. The international community must have means at its disposal that are commensurate with its ambitions to protect the integrity of its underwater cultural heritage.

Koichiro Matsuura is director-general of UNESCO.

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

Vanishing Heritage in the Cradle of Civilization


Things are looking increasingly grim in Iraq these days, with the US considering arming Sunni groups that once attacked coalition forces. Soon after the invasion of Iraq in 2003, western journalists visited the Iraqi Museum in Baghdad and reported incorrectly that 170,000 objects were stolen from the museum. More careful reporting soon accurately placed that number far lower, and current estimates seem to indicate that a still alarming 3,000 objects are still missing, with about 47 main exhibition artifacts missing.

Thus I always maintain a healthy bit of skepticism when articles come out detailing the loss of archaeological context and heritage in Iraq. The article last Friday by Simon Jenkins in the Guardian titled “In Iraq’s four-year looting frenzy, the allies have become the vandals”even viewed skeptically reveals some very troubling things about the way archaeological sites are treated by coalition forces.

The catalyst for the discussion was a presentation by Abbas al-Hussaini, the head of Iraq’s board of antiquities and heritage to the British Museum. He detailed a number of disturbing things. The former head of the antiquities board in Iraq, Donny George, left for a teaching position in New York, fearing for his life. Today the national museum “is not open but shut… Its doors are bricked up, it is surrounded by concrete walls and its exhibits are sandbagged. Even the staff cannot get inside.” A 10th century caravenserai of Khan al-Raba was used to explode captured weapons. Looters are better armed than the Iraqi forces seeking to protect the ancient monuments. Two 4,000 year-old cities, Isin and Shurnpak, have been demolished by looting pits. The 11 teams Hussaini has organized travel the countryside attempting to retrieve any artifacts the looters have left behind. Even muslim sites are subject to destruction, with a number of bombings of mosques from the 10th and 11th centuries

When I was in Istanbul in May, I saw some of the glazed bricks from the Ishtar gate leading to Babylon, and they are stunning. The lion image above was very impressive. For me then perhaps the most disturbing claims detail the destruction taking place at the ancient city of Babylon:

Hussaini confirmed a report… on America’s conversion of Nebuchadnezzar’s great city of Babylon into the hanging gardens of Halliburton. This meant a 150-hectare camp for 2,000 troops. In the process the 2,500-year-old brick pavement to the Ishtar Gate was smashed by tanks and the gate itself damaged. The archaeology-rich subsoil was bulldozed to fill sandbags, and large areas covered in compacted gravel for helipads and car parks. Babylon is being rendered archaeologically barren.

Despite some unnecessary snarking by Jenkins here, the destruction at Babylon is a grave tragedy. He does conveniently overlook some facts though. The coalition forces only seem to be continuing the destruction and disdain Saddam Hussein had for the site when he was in power. This slide show taken by US Marine Gunnery Sergeant Daniel O’Connell in 2003 shows the ancient city, the unfortunate modern reconstruction by Hussein on top of the archaeological site, and the modern palace he built where marines first stayed. The colonel in charge of the site apologized last year, and UNESCO officials are even considering developing the place into a tourist attraction at some point.

It seems very unfortunate that coalition forces, in the face of the looting of so many sites, should have blundered so badly at Babylon, which is in one of the most secure regions of Iraq. The Geneva Convention dictates that forces should treat opposing cultural heritage with care. Also, though the US and UK have failed to implement the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict(because it might restrict their ability to use nuclear arms), they notionally abide by its tenets.

The US is doing a good job of policing its antiquities market, as a Fox News cameraman was arrested for smuggling Iraqi antiquities into the country recently. The UK also has legislation preventing the import of Iraqi antiquities. Jenkins gets a final jab in at the Department of Culture Media and Sport which seems far more concerned with the upcoming London Olympics than the illicit cultural property market. I wonder if the £400,000 recently spent on the unfortunate mascot would have been better served policing the antiquities market. The Met’s Art and Antiquities squad has only 3 full time investigators, and is in jeopardy of further budget cuts. But only so much can be done when provenance or a title history is not routinely given during transactions. As long as the market is hidden from view, looters will continue to find purchasers for their ill-gotten gains.

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

Largest Historical Shipwreck


Recently, Odyssey Marine Exploration announced they had recovered 500,000 silver and gold coins from a shipwreck which may have been 40 miles from Land’s End in Cornwall. It may be a record for the The BBC has a story here and video here. The Daily Mail has a story here. Odyssey have not released the location of the wreck for security and legal reasons. The treasure has been stored in an “undisclosed location” in the US. The value of the coins recovered could approach half a billion dollars.

Odyssey stresses it is the legal owner of the coins, and that it conducted the salvage by “diligently follow[ing] archaeological protocols using advanced robotic technology, and the artifacts are now undergoing a meticulous conservation process”. I’ll confess a profound ignorance of how much archaeologists can learn from shipwrecks. However Will Anderson over at the assemblage expresses some well-founded skepticism about the archaeological merits of the salvage, “Whether what Odyssey Marine Exploration does can be termed archaeology is debatable”. And in response to claims that the archaeological protocols were followed, “So we shall soon be seeing a full and thorough excavation report published, the site will be assessed and managed, and the loot will not be flogged over the internet”? Chances of that seem unlikely, as Odyssey has already sold coal from another shipwreck, the SS Republic.

Peter Spiro over at Opinio Juris summarizes the current state of shipwreck recovery law in International waters, and ties in the difficulties with regulation of underwater cultural heritage to a new book by Dan Drezner. Drezner postulates a “club standards” situation where there is low conflict among great powers and high conflict between the great powers and other actors. Spiro says “that seems to be what has emerged in the context of treasure hunting, with the great powers reaching ad hoc agreements on particular finds (as was the case with the Titanic), at the same time as they also handle the issue through domestic law. The universalizing option of an open-to-all multilateral treaty gets left by the wayside”.

That brings us to the UNESCO Convention on the Protection of Underwater Cultural Heritage. JH Merryman has been a very vocal critic of the Convention, because it completely precludes commercial exploitation, as was the case here. 14 Nations have signed on. The convention has received little support from most European nations and the United States. Here is an excellent overview of the Convention from Robert Blumberg, who led the US delegation to the UNESCO negotiations. As it stands now, there is no comprehensive law regulating wrecks found in International waters, which begins 24 miles out to sea. Regulation which does exist comes about through multilateral agreements for individual wrecks and bilateral agreements, or domestic legislation.

Clearly, this record recovery will anger some nations, and may provide some new impetus towards forming a workable convention for maritime states, perhaps by amending the UNESCO UCH convention.

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

Iraq Challenges a German Auction


Iraqi authorities have challenged an auction of two Sumerian artifacts which took place on Tuesday. One item was a limestone statue of a Sumerian (similar to the one pictured here), which dates to 2500 BC. The other was a nail made of clay bearing an inscription which puts its age between 2097 – 2095 BC. Iraq’s culture ministry appealed to UNESCO to intervene, but there is not much the organization can do in this case, other than publicize the problem and force German authorities to take action. There isn’t much information available on Iraq’s claim, so it’s very difficult to gauge the strength of their claim. Perhaps more information will come to light, but at this point, the German authorities are claiming that domestic law does not allow them to take any action. If this had occurred in the US, federal prosecutors may have been able to bring a forfeiture claim, if they were convinced the object was indeed stolen or illicitly excavated. I am not sure if Germany has a similar legal mechanism.

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