Tag: United Kingdom

My Article on the Portable Antiquities Scheme

I’ve posted on SSRN my article from the August edition of the International Journal of Cultural Property, A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin 15 Int’l. J. Cult. Prop. 347 (2008). Here’s the abstract:

Blanket ownership laws, export restrictions, and the criminal law of market nations are the default legal strategies currently used by nations of origin to prevent the looting of archaeological sites. Although they have been remarkably successful at achieving the return of looted objects, they may not be the best strategies to maximize the recording and preservation of archaeological context. In England and Wales a more permissive legal regime broadly applied and adopted by the public at large has produced dramatically better results than the strong prescriptive regime of Scotland, which can be easily ignored.

This article attempts to clear up any misconceptions of the cultural policy framework in England and Wales. It accounts for the legal position accorded undiscovered portable antiquities, and describes how this legal framework is perfected by a voluntary program called the Portable Antiquities Scheme (PAS). This approach stands in stark contrast to Scotland, which has used a legal strategy adopted by most other nations of origin.

The domestic legal framework for portable antiquities in England and Wales is unique and differs from the typical approach. Coupled with the PAS, this legal structure has resulted in a better cultural policy, which leads to less looting of important archaeological sites, allows for a tailored cultural policy, and has produced more data and contextual information with which to conduct historical and archaeological research on an unprecedented scale. Compensating finders of antiquities may even preclude an illicit market in antiquities so long as this compensation is substantially similar to the market price of the object and effectively excludes looters from this reward system. Although the precise number of found versus looted objects that appear on the market is open to much speculation, an effective recording system is essential to ensure that individuals who find objects are encouraged to report them.

I wanted to write what I hope is a thoughtful piece which describes in an objective way what the PAS does, and how it creates a pragmatic compromise. Many of the very best heritage scholars are still seemingly under a misimpression about what it does and does not do. It’s not a perfect system, but it has produced some dramatic results, and may change the way we conceptualize heritage and context. I hope those interested in the scheme and archaeology will do me and the employees of the PAS the courtesy of reading the piece before dismissing my position. Sadly I’m afraid some already have reacted, without even reading the piece.

I have no doubt that some of my assertions may prove controversial, and I’m happy to have a vigorous debate, but I think everyone interested in heritage issues needs to work harder to make sure they are leaving room for meaningful discourse and disagreement and that we’re respectful of differing views and positions.

Pictured here are a horse and rider found in Cambridgeshire which appeared in the 2007 PAS annual report, via the PAS flickr page.

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

UK Enforces Italy’s Export Restrictions


European Council Directive 93/7/EEC creates a regime for the return of cultural property within the Community for cultural objects belonging to the national artistic, historical, or archaeological heritage which has been illegally exported from a member state.

Martin Bailey of the Art Newspaper has an example of this in practice. Two works by Francesco Guardi have been seized by Scotland yard in London. The paintings, The Departure of the Bucintoro to San Nicolo on the Lido and The Return of the Bucintoro to the Palaxxo Ducale (picture here) were owned by Lord Shuttleworth, and were later bought by an Italian, Mario Crespi in 1952. The paintings were purchased three years ago by an Italian art dealer, but it appears an export licence was made in Milan but the works were perhaps intentionally misattributed to an “anonymous artist” thereby allowing for their export. When a UK art dealer sought to re-export the works from the UK, he correctly labeled the works. The works may be worth “€6m ($9.4m) in Italy, but over £10m ($20m)” elsewhere.

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

Should Cultural Property be used to satisfy judgments?


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

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

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

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

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

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

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

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

Export Problems


Martin Bailey of the Art Newspaper has an excellent story on the apparent export-bungling by Christie’s and UK authorities of this £3m Rubens masterpiece. The Hunt of Meleager and Atalanta was granted a temporary export permit for 5 days to allow it to be displayed in New York. The work sold in London on December 2005 for £3,144,000 to an anonymous New York buyer. It was then re-exported after the sale.

In a statement to the Art Newspaper Christie’s said:

Our policy is to adhere strictly to all applicable laws and standard processes for the international transport of works of art. In the exceptional case of The Hunt of Meleager and Atalanta, a human error led to the accidental shipping of the picture to a client without completion of the appropriate export licensing process. Christie’s regrets the error and are co-operating fully on this matter with all relevant authorities to rectify this situation.

Some error. One would think a work of this magnitude would be double checked. Christie’s is subject to criminal penalties, and the New York buyer must be upset as well. Incredibly the Export Reviewing Committee flew to New York to examine the work and has deemed it of Waverley quality. A fundraising effort may now begin.

It’s uncertain whether the funds can be raised (as there are other works which need to be matched) or even if the New York buyer would consider selling the work. If she does not, the work will have certainly lost value, and I’d anticipate Christie’s would be subject to a civil suit brought by the buyer. Though the work cannot be recovered because the US does not enforce the UK export restrictions, it will not be able to be sold or even travel to Europe in all likelihood. Both Christie’s and HMS Customs have come out looking

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

Metal Detectors Discover Important Viking Hoard in Yorkshire


A father and son metal detecting in a field near Harrogate discovered what could be the most important Viking hoard discovered in Great Britain in 150 years. The hoard was likely buried some time in the 10th century.

The two detectors, David and Andrew Whelan, found 617 silver coins, a gold arm-ring and a gilt silver vessel. The objects come from Afghanistan, Russia, Scandinavia and Ireland among others.

To qualify as treasure, generally speaking a find must be composed of valuable materials like silver or gold. Such was the case here, and as a result the finder and the landowner will receive an award based on the value of the find. In this way, the treasure act encourages finders to report their discovery. Of course they will also receive a great deal of publicity for this important discovery.

There are problems, because its application hinges on the composition of the find. But it does an excellent job of forming a good compromise between treasure hunters and archaeologists. These metal detectors are compensated; while if there was simply a national ownership declaration, finders might be tempted to hide their discovery and sell it on the black market.

One of the local treasure Coroners, Geoff Fell stated at the treasure trove inquest in Harrogate that “Treasure cases are always interesting, but this is one of the most exciting cases that I have ever had to rule on. I’m delighted that such an important Viking hoard has been discovered in North Yorkshire.”

Michael Lewis, the deputy head of the British Museum Treasure Scheme praised the finders because “[they] resisted the temptation to tip the hoard … That gave the museum the opportunity to investigate the hoard.”

This find seems to have produced great results for everybody. Metal detecting cuts both ways. Responsible detectors like the Whelan’s can really add to the body of historical knowledge, but there are irresponsible detectors as well, as the forthcoming nighthawking (detecting at night) study to be conducted by the British Museum will reveal.

The BBC has an account here, with pictures and video. There is more detail here from 24dash. Hat tip to Cronaca.

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

Scotland Yard Halves Art and Antique Squad Funding

Grim news for the London Metropolitan Police Art and Antiques Squad. Saturday’s edition of the Guardian had the following:

The dramatic scaling down of Scotland Yard’s once renowned arts and antique squad has left organised criminals free to plunder the nation’s heritage, according to a leading fine art insurer.

Police have sought private money to finance the squad after its annual budget of some £300,000 was halved earlier this year. But the Guardian has learned that Scotland Yard has failed to secure a penny from insurers or auction houses, after months of discussions.

Britain’s art market is second only to the US and experts claim up to £200m worth of stolen art and antiques are sold in the UK each year. Interpol estimates that art theft is the fourth largest organised crime after drugs, people trafficking and arms.

Annabel Fell-Clark, chief executive of Axa Art UK, which pays out tens of millions of pounds a year to reimburse victims of art theft, condemned the slashing of the unit’s budget. She warned that scaling down the unit was already having an impact on pursuing art thieves who target Britain’s stately homes and museums.

“We have seen that they [the team] are increasingly overstretched and being treated as a very low priority. At the moment we have very good information which we are wanting to pass on, which would bring arrests, if not convictions. But we are not being treated particularly seriously, let’s put it that way.

“We want to see criminal gangs brought to justice, and in some instances lack of interest from the squad has stopped us being able to pursue further recovery. We want and need to work with the police.”

She said Axa was aware the government was seeking funding for the squad but the company had decided it would not consider paying directly for the unit, adding that attempts by the Home Office and the Metropolitan Police to find private sponsors in the art world were shortsighted.

“It would be a conflict of interest for us to get involved,” she said. “We have slightly different agendas. As insurers, we are interested in recovering the pieces however we can, and are not that bothered about finding and prosecuting the perpetrators. We are concerned that this aspect of law enforcement is not taken particularly seriously right now.

“Very often when you are investigating art theft connections are uncovered with organised crime in relation to drugs and arms dealing, so it doesn’t make sense to ignore this aspect of criminal activity.”

The London based “arts squad” was formed in 1969 to pursue and prosecute criminals who operate in the second biggest art market in the world. In the past the unit, which is called in to investigate 120 cases a year, was involved in recovery of art works across the world.

(continue reading)

This is a troubling development. 150,000 is not a very large sum, and a drop in the bucket compared to the amounts of money which changes hands in the UK art and antiquities market. If the United Kingdom is serious about combating the illicit trade in arts and antiquities, it needs to maintain a well-funded art-theft unit. To expect the arts and antiquities unit to solicit funding from those they are supposed to regulate and police also strikes me as ridiculous.



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