United Kingdom – Page 2 – Illicit Cultural Property

More on the Parthenon Marbles

With the opening of the Parthenon Museum coming soon, there was bound to be a great deal of discussion of the proper place for the sculptures, which always seems to return to the question of whether Lord Elgin’s taking of the sculptures 200 years ago was rightful, wrongful, illegal, unethical, or a combination of the above. Part of this has taken the form of a back and forth over whether some kind of loan arrangement could be arranged between the Greeks and the British Museum. The Guardian reports that the dispute has “indirectly dragged in the Queen, the Greek-born Duke of Edinburgh, and Gordon Brown.” It also quotes Antonis Samaras, who rejected the very tentative loan proposals because they would somehow legitimize Elgin’s taking of the marbles. That is unfortunate I think, because focusing on the circumstances surrounding the taking are almost certainly going to prevent any kind of resolution to the dispute.

Three months won’t be enough to take them out of their boxes . . . . As a time frame, it’s bizarre. And agreeing to the condition [of ownership] would be like sanctifying Elgin’s deeds and legitimising the theft of the marbles and the break-up of the monument 207 years ago. No Greek government could accept that. For the first time, they are opening a window. They see they have to do something, now that the new museum is here.

Hannah Boulton, the British Museum spokeswoman clarified her earlie comments and responded to Samaras saying “It’s not the case that an offer to lend the Parthenon Sculptures was specifically made … It is clear from Mr Samaras’s statement that he does not recognise the British Museum’s legal ownership of the sculptures in our collection, which makes any meaningful discussion on loans virtually impossible.”

I inadvertently caused a minor stir among some commenters earlier this week, including Kwame Opoku when I argued that Greece has no tenable legal claim to the marbles. By that I mean, if Greece were to bring suit againt the British Museum, its trustees, or even the Government, it would have absolutely no chance of succeeding in court, because far too much time has elapsed, and it is not clear I don’t think that the taking of the marbles was illegal under early 19th century legal principles. I do not think any court would recognize the takign of the objects as theft, nor am I aware of any international agreements that would consider the removal of the sculptures as theft. If they were taken today, sure, of course they would be theft because they would be owned by the Greek government; but that was not the legal situation 200 years ago. As Damjan Krsmanovic points out at the Assemblage, such an examination leads to one obvious conclusion—that the ethics of the time were wrongheaded when viewed from today’s perspective, but that merely critcizing those actions does not get us any closer to where the marbles belong now.

[I]n order to remove the marbles, Elgin needed to obtain a firman (a permit) from the Ottoman authority, which permitted him to remove any sculptures, inscriptions and the like as he saw fit. Because of the unwieldy size of some pieces, a number were sawn into sections for easier transportation. The use of contemporary ethics, which are a product of a particular context and time, is merely going to result in a biased perspective that nullifies the Ottoman law and Elgin’s actions, which are a product of a different social, cultural, and political context.

We are left with a very heated, very emotional argument which seems unlikely to be resolved so long as both teh Greeks and the British Museum insist on a kind of public battle for popular opinion. I think—and perhaps it is naive—that a better solution could be reached far sooner by a collaborative relationship, in which some or all of the marbles or even some other objects of antiquity are shared back and forth among the two nations.

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

Greece Not Interested in Sharing the Marbles

Greek Culture Minister Antonis Samaras has said his nation is not interested in working out a loan arrangement for the Parthenon Marbles.

I can certainly understand that point of view, but at some point don’t we need to move beyond the question of whether that taking in 1801-2 was wrongful; and start asking what is best for the marbles and those who want to learn from them today? I don’t want to belabor the point, but isn’t the fact that the marbles are still on display at the British Museum a pretty strong indication that their removal was legal, or if not, not subject to current judicial scrutiny? We can argue about whether their continued display in London is ethical, but not I do not think a legal question any longer.

From the BBC:

The government, as any other Greek government would have done in its place, is obliged to turn down the offer,” Mr Samaras said, in a statement.

“This is because accepting it would legalise the snatching of the Marbles and the monument’s carving-up 207 years ago.”

He added that he was prepared to discuss lending Greek antiquities to the British Museum “to fill the gap left when the (Parthenon) Marbles finally return to the place they belong”.

Mr Samaras was responding to comments made by British Museum spokeswoman, Hannah Boulton, on Greek radio.

She said under existing British Museum policy the museum would consider loan requests by any foreign government, including Greece.

But all requests would be considered on a case-to-case basis, taking many factors into consideration, including fitness of the item or items to travel.

Greece would also have to recognise the museum’s ownership rights to the sculptures, which is a loan condition.

Ms Boulton told the BBC that the British Museum had not received a request from Greece, nor had it offered the marbles for loan.

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

Looted Objects Returned to Afghanistan

The BBC reports on the return of 1,500 objects which were seized by customs agents at Heathrow airport. A great deal of attention was given to the looting of the Baghdad Museum and other sites in Iraq. But are we ignoring the problems in Afghanistan? This may be only a fraction of the objects which are escaping its borders.

More than 1,500 artefacts were recovered in an 11-day operation. Many are priceless objects of Islamic art looted in illegal excavations.

They include a magnificent tall bronze bird. Nine-hundred years ago, its owner would have burned incense in the drawer that slots into its puffed chest.

“We are really happy to have our objects back,” says Mohammad Fahim Rahimi, who has been preparing descriptions of the recovered treasures in the Dari language for the display cabinets.

There are prehistoric tools – up to 6,000 years old – and ancient coins, as well as more recent Islamic tiles, inscribed basins and bronze candlesticks.

“We wish all the countries around the world – if they have our collections – would transfer them back to our country too,” Mr Rahimi says.

During Afghanistan’s civil war, Kabul museum was on the front line. Used as a base by the Mujahedin, the building was badly damaged. But most devastating of all – 70% of its rich collection was systematically looted and smuggled abroad.

Much of what survived was then smashed to bits by the Taliban.

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

UK May Revise Nazi-looted Art Policies

The UK is considering new legislation that would revise the restitution process to more easily allow national museums to return works of art looted during World War II. The Holocaust (stolen art) restitution bill would allow these institutions to return objects from their collections. Andrew Dismore, the Labour MP for Hendon is quoted in the Guardian: “I hope it will close another chapter from the Holocaust . . . It means recognising a right that has been denied for decades. I suspect many people would be prepared to allow their artwork to stay in public collections but it’s their right to decide what happens to it.”

The change is needed because of cases like this one:

When the Germans invaded Czechoslovakia in 1939, the Feldmanns were evicted from their home, leaving a collection of Old Master drawings in Gestapo hands. Arthur died after being tortured by the Nazis in the Spilberk Castle prison in his home city of Brno. Gisela died in Auschwitz.

With the help of the London-based Commission for Looted Art in Europe, Feldmann’s descendants proved that four of his drawings had ended up in the British Museum. The museum was prepared to return them to the family but was blocked by a high court judge. Instead the family negotiated a deal, including an ex-gratia payment of £175,000, that allows the drawings to remain in London.

Feldmann’s grandson Uri Peled, 66, who lives in Israel, said that although he did not wish to have the items returned, the principle of the bill – allowing the rightful owner to make the decision about what to do with their art – was important.

The change will open speculation for claims for other works in UK institutions that may have been taken under less-than-appropriate circumstances—like the Parthenon marbles, the Benin bronzes, the Rosetta stone, or the Lewis chessmen. As such the legislation is limited to “objects stolen between 1933 and 1945 by the Nazi regime”. Though the legislation is sharply focused on a narrow historical period, one wonders why only those objects are left open for restitutions when the others are not. The Second World War was a special circumstance perhaps, but its not clear how that historical period is different from other conflicts.

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

Nighthawking Report Published: Illegal Metal Detecting Has Decreased

The long-awaited report upon the impact of illegal metal detecting (“nighthawking”) conducted by Oxford Archaeology on behalf of English Heritage, is now available from the Historic Environment Local Management website. It appears that illegal metal detecting in England has declined since 1995, ~~the point at which~~ soon after, in 1997, the Portable Antiquities Scheme first began its efforts.

Ownership declaration is an important legal strategy undergirding the protection of heritage; but this declaration in isolation does not necessarily create the best cultural heritage policy. Effectively guarding every archaeological site is impossible given limited resources. The looting of corresponding sites elsewhere in the World, particularly in North and South America is a travesty and presents a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. That’s not to say that these states should encourage metal-detecting, but the efforts of the PAS have appeared to substantially decreased looting and illegal activity. Education and outreach, even if it means compromise, are essential. Outreach and education is badly needed.

The PAS works in conjunction with the law, which was of course a compromise postion between heritage advocates and landowners. A very strong legal regime may in a perfect world be the best policy. But what good are they if they aren’t meaningfully enforced? In the heritage context, the PAS and metal detectorists are producing contextual information. It’s a different kind of information, which we can characterize as shallow but extremely broad; rather than a thorough documentation of sites which might be narrow but very deep.

The most interesting revelation of the report is the suggestion that metal detecting has substantially decreased since the PAS began. In 1995, 188 scheduled monuments were reported damaged; in 2008, that number was 70. In 1995, 74% of archaeological units reported their sites had been molested; in 2008 that number is 28%. I take that as pretty strong support for the proposition I argued for in my recent piece on the Portable Antiquities Scheme, A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin, IJCP (2008).

Despite the overall decrease, the report still argues the criminal penalties remain insufficient, and the local enforcement officers and the Crown Prosecution Service need to do more to ensure individuals caught violating the law receive suitable punishment. At present the maximum penalty is three months in prison and a £1,000 fine.

The report provides a number of other key points:

Provide clear guidance to the police, Crown Prosecution Service and Magistrates on the impact of Nighthawking, how to combat it, levels of evidence and possible penalties.
Provide more information for landowners on identifying Nighthawking and what to do when they encounter it.
Develop better ways to find out what is going on and establish and promote a central database of reported incidents of Nighthawking.
Publicise the positive effects of responsible metal detecting and the negative effects of Nighthawking.
Ensure the PAS is fully funded, so links between archaeologists and metal detectorists are further strengthened.
Integrate metal detecting into the archaeological process, including development control briefs.
Implement changes recently introduced in Europe which increase the obligation on sellers of antiquities to provide provenances and establish legal title, and urge eBay to introduce more stringent monitoring of antiquities with a UK origin offered for sale on their website.

Media Coverage:
Bloomberg, Telegraph, AFP, BBC, Guardian, Times

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

Greek Icon Returned

This 14th century icon was returned to Greece this week, 30 years after it was stolen from a monastary in Serres, Northern Greece. The work was recovered by the Art and Antiques Squad in 2002.

From Helena Smith’s piece in the Guardian:

It emerged in London in 1980 when a British Byzantinist, Professor Robin Cormack, spotted it in a suitcase in a restorer’s atelier. It had been touched up by the looters to make it more saleable in the underground art market.

“It had been cut in two by the looters. Seeing what it was, Robin realised it must have been stolen and advised them to return it to Greece,” said the cultural attache at the Greek embassy in London, Victoria Solomonides, who travelled with the icon to Greece.

“That did not happen and 10 years later the plot thickened when he was called by the British Museum to value an icon. It was the same one.”

On the advice of Cormack, curator of the Byzantium exhibition currently on at the Royal Academy of Arts, the British Museum decided not to buy the icon.

It seems then in 2002 a Greek art dealer offered to sell the work to the Benakis Museum in Athens for £500,000. It seems the High Court has ordered the return of the work in a proceeding “Six weeks ago”. I’ve attempted to track donw the ruling this morning on baili.org, but I suspect the ruling is unpublished. If any of my kind UK readers could confirm this, I would be most grateful.

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

Portable Antiquities Scheme Review and Treasure Report

A flurry of new information on the Portable Antiquities Scheme has been released today. The PAS is the voluntary program which records objects found by members of the public in England and Wales, some of these objects may qualify as treasure as defined under the Treasure Act, in which case finders are entitled to the full market price of the object while the Crown holds title.

First, the Review of the Portable Antiquities Scheme was released today (commissioned by the Museums Library and Archives Council with the British Museum and the Department for Culture, Media and Sport). The very positive review notes the PAS is under-resourced and yet “still well-liked, delivering genuine partnership and good value for money. Having reviewed budgets and operations, it is clear that with no increase in resources, posts must be cut and the scheme will not deliver regional equity.” The report recommends an increase in funding of just over 9% next year. This appears to be very good news for the scheme in the short-term as the cuts made this year can be reversed.

Second, the Treasure Annual Report was released today. A few highlights:

“Treasure” reporting increased again, with 749 objects qualifying as treasure reported, up from 665 in 2006. One of which was this Iron Age torc, made of gold and silver and found near Newark in 2005.
In 2007, 77,606 objects were recorded on the PAS database, now totaling 360,000 objects.
Since 2003, the date at which the PAS was extended throughout England and Wales, treasure reporting has increased nearly 200%.

The release is featured in a brief BBC story today “Treasure Hunters Boost Gold Finds“. To read my thoughts on the PAS, and what it means for other nations of origin, see here; Kimberley Alderman has a kind summary of it today. The biggest success of the PAS has been its inclusion of a variety of disparate interests from coin collectors to archaeologists. Such compromise is exceedingly rare in heritage policy.

It has also included social groups which aren’t always typical museum-visitors — a very good thing in my view. This happens in two ways. First, finders are encouraged to report and record the objects they find. Second, anyone can access the database and use the data. This may include people ranging from schoolchildren to doctoral candidates to established academics.

The images of the finds are stunning. Below is a slideshow from the PAS on flickr.

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

UK Government Loses Art

Roya Nikkhah has an article in the Telegraph which details five works of art which have gone missing from the UK Government art collection in the past year:

Details of the missing artworks came from a response to a parliamentary question from Andrew Rosindell, the shadow home affairs minister.

Originally the Government said it had lost eight works between 1 November 2007 and 31 October 2008.

The Department for Culture, Media and Sport (DCMS) said that three of the missing works, by the British artists Julian Trevelyan and John Brunsdon, had since been recovered, but that the whereabouts of five were still unknown.

Jeremy Hunt, the shadow culture secretary, said: “It looks like the Government’s inability to keep things safe is catching. We’ve had missing computer discs and missing laptops – now we’ve got missing art.

“It is staggering that eight works can go missing and that five are still lost. Given that the DCMS spends nearly £1 million a year on this collection the least they could do was keep it safe.”

This would seem to be a fairly common occurrence. Is the loss of 5 works out of a total of 13,500 a ‘good’ year? Any missing art is unfortunate, but I wonder how common these losses are, especially given a government collection partially displayed in embassies all over the world. I suppose the Government should at least get some credit for owning up to the losses. Here is a list of the missing works:

Horse Guards from the Old Entrance, Scotland Yard, 1768, print by Michael Angelo Rooker, In British Embassy, Washington DC, reported missing November 2007

Monument to Balance print by Ernest Alfred Dunn, In British Consulate-General, Sao Paulo, reported missing July 2008

The Wording of Police Charges, 1970, print by R. B. Kitaj and Plague, 1970, print by R. B. Kitaj, In British Embassy, Baku, reported missing July 2008

Yellow Square plus Quarter Blue, 1972, print by William Scott, In Foreign & Commonwealth Office, London, reported missing September 2008

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

An Unkind Response to my PAS Article (LATE UPDATE)

I have just noticed that Paul Barford has produced a very long response to my article on the Portable Antiquities Scheme. Initially I was pleased that my article had gained some notice. Imagine my dismay then when Barford accuses me of producing, ‘glib spin’, bad writing, claims I’m ignorant, and even hints that I’ve committed plagiarism. And he didn’t even do me the courtesy of sending an email.

I hope there might be a serious scholarly response to the article at some point, and I look forward to reading it. At present I’m not aware of any thoughtful scholarly work (peer-reviewed for example) which criticizes the PAS. Perhaps Barford would be inclined to produce something like this? Given the tenor of his blog though, I wonder if he is capable of passing peer-review.

I don’t really have a lot to say about the points he raises, because there aren’t any intellectually honest arguments. Rather he’s displayed an unfortunate tendency to produce Rovian and Hannity-style discourse. He takes my arguments out of context, wilfully twisting them in a way which indicates an inability to conduct any kind of meaningful discourse.

To take one example, he writes:

[T]he PAS allegedly represents a policy that: “sharply contrasts with the context-focused narrative found in most culture heritage scholarship”. This gives a totally false impression of the PAS and its aims… It is all about context of the finds in its database.

Right, well here’s what the article states:

The PAS is the voluntary system created to record and document objects that are not encompassed by the Treasure Act and are unearthed legally. The PAS is a novel approach to undiscovered antiquities, which rests on a legal framework that essentially allows amateur and unprofessional digging. This policy cuts against the overriding policy choices of most nations of origin and sharply contrasts with the context-focused narrative found in most cultural heritage scholarship.

He also accuses me of stating the PAS pays finders and detectorists. No. I state very clearly “If the object is deemed treasure, the finder is entitled to a reward based on the market price of the object.” One of the main reasons I wrote the piece was to make clear that the PAS does not pay finders of non-treasure objects! Finders of treasure recieve a reward, and have since the 19th century; the PAS works in conjunction with this legal framework to encourage voluntary reporting of objects the Crown has no legal claim to.

I don’t expect everyone will agree with my perspective, but at the very least an individual who claims to be an academic would be able to respond in an honest and thoughtful way. I’d encourage Barford to adopt the perspective of Kimberley Alderman, who has recently started a very nice blog:

Here are the things I think would promote more meaningful discourse:

1. Less polarization between what have been characterized as competing “sides” of the argument.

2. Less emphasis on doctrinal positions (on both sides) and more emphasis on solving the mutual goal of cultural preservation.

3. More emphasis on what is working as opposed to what is not.

4. Less emphasis on what positions people have espoused in the past (too often used as a means to unproductively attack).

5. More precision in language used …

That’s very good advice I think. It’s a brief statement of a similar kind of argument made by Alexander Bauer recently. A. A. Bauer (2008). “New Ways of Thinking About Cultural Property,” Fordham International Law Journal 31:690-724.

I’m happy to accept legitimate criticism. Petty attacks aren’t doing anyone any favors though. Barford is not a fan of the PAS. He’s entitled to that opinion, but give me some clear reasons why the current system is harmful, and provide a better legal or policy framework. If you’ve got a better ‘mousetrap’, tell us about it — if you can do so respectfully.

LATE UPDATE:

I see Barford has responded here. Regrettably the newer post is only slightly less strident.

As he rightly points out, I neglected to include a link to his extended response to the article which is here. He claims to have pointed out “serious problems” with the article. I’m afraid we will have to agree to disagree on that point. I’m happy to have a spirited debate on the PAS, but mis-characterizing my position and taking statements out of context makes such a productive discussion impossible, and he has yet to correct these errors. When my first year law students make these kind of analytical mistakes its an indication of weak analysis and insufficient research.

At its core, I argue in the article that a national ownership declaration is an important legal strategy; but this declaration in isolation does not necessarily create the best cultural heritage policy. In fact there’s legal precedent which makes this very point (see US v. Johnson 720 F.Supp. 810, 811 (C.D.Cal.1989)) and the US accession to the UNESCO Convention via the CPIA takes the efforts of nations of origin into account when the CPAC considers export restriction requests.

I assume that effectively guarding every archaeological site is impossible given limited resources. Even in the US, a wealthy nation, there is widespread looting of Native American sites. A nation like Peru has even more difficulty given its developing economy and the remote location of many sites. The looting of these sites in North and South America is a travesty. This is a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. But that’s not to say that these states should encourage metal-detecting or the like.

Rather I think outreach and education is badly needed. Barford argues this exists in many nations of origin already. Perhaps he is right, but we are merely talking speculatively. Where is the evidence? I’d be delighted to read some thoughts on this. The PAS works in conjunction with the law, which was of course a compromise postion between heritage advocates and landowners. A very strong legal regime may in a perfect world be the best policy. But what good are they if they aren’t meaningfully enforced? These laws can be compared with abstinence only sex education or America’s ill-advised “War on Drugs”. When it comes to practice, they aren’t producing the desired results — less teen pregnancy or drug abuse for example. In the heritage context, the PAS and metal detectorists are producing contextual information. It’s a different kind of information, which we can characterize as shallow but extremely broad; rather than a thorough documentation of sites which might be narrow but very deep.

This more permissive legal regime has actually produced important contextual information, which historians, researchers and archaeologists are using to write scholarship. Research is being produced with the PAS and its database, and it is including the broader public in heritage and archaeology, which will ideally bring more attention to heritage issues generally. Did Hiram Bingham include locals in his efforts to excavate Macchu Picchu? Modern-day Peruvians think not, which has led to a host of very public disagreements between Yale and Peru.

The PAS policy unquestionably sacrifices some archaeological context, but is there any nation of origin which is able to ensure all of its sites are professionally excavated or remain untouched? Is some contextual information better than none?

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

New Heritage Legislation in the UK?

Jaspar Copping has a very interesting, though perhaps misleading, article in the Telegraph on Saturday detailing potential new heritage legislation in the UK. He writes initially that UK museums are prevented by law from giving works of art back to the families that once owned them. That is true, but that does not mean these families are denied compensation (which he points out further down in the piece). The Spoliation Advisory Panel has the power to award compensation to the claimant.

It seems there is a campaign by a Labour MP, Andrew Dinsmore:

“The owner of an artwork identified as stolen by the Nazis ought to have the right to decide whether they wish for the artwork to be returned,” he said.

“Some people may be happy for work to stay in public collections, but they should have the option. At the moment, they are not given that choice.

“No one knows how many artworks this will relate to but we shouldn’t think that just because the war was 60 years ago that this has all finished.”

Under the current legislation, all national museums and galleries are prevented from disposing of any of their works. They can only offer compensation to the owners, although private museums are able to return artworks and artefacts.

I’m not sure if this is an essential change. I think the UK policy which avoids costly litigation is a useful model. In the US, where nazi-era restitutions suits are the most common, claimants often get title to the disputed works. However in nearly all cases they sell the works anyway to satisfy the enormous legal fees often required to bring these successful claims.

Then in a response, the Department of Culture Media and Sport said, “The Government are committed to introducing legislation as soon as possible to allow all national museums, that are currently prevented from doing so by the acts of parliament under which they are founded, to return works of art spoliated during the Nazi era.” It seems this legislation will be a component of the prospective Heritage Protection Bill.

One thing to watch closely will be how the legislation may permit institutions to return the work to claimants, a potential move which may signal a shift in the obstacles the British Museum may have in electing to return antiquities to their nation of origin. The debate over that question will likely feature in the consideration, as the Parthenon Marbles always seem to be overshadowing UK heritage policy.

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