Earlier this week I had the great pleasure to give a presentation to the University of Aberdeen Legal research Society. I discussed the very public dispute between Italy and the Getty museum regarding the “Bronze Statue of a Victorious Youth”. The discussion which ensued was furthered greatly by the presence of Neil Curtis, Senior Curator of the Marischal Museum, as well as a couple of Italian colleagues. We had a very interesting discussion, and much of the credit for that goes to them. I would like to outline here my general comments on the dispute. I have posted on many of these ideas before, but if nothing else the dispute over the Bronze allows a timely and interesting introduction to cultural policy and repatriation.
As the LA Times put it last fall, “To whom does a statue made in ancient Greece, stolen by Romans and found in the Adriatic by Italian fishermen 2,000 years later, rightfully belong?”
First, what is the Getty trust, and why has it gotten itself into trouble in recent decades? J. Paul Getty was an American Industrialist, and the founder of the Getty Oil company. He started the Getty Trust in 1953. Today, the Trust may be the richest art institution in the world, boasting assets of close to $9 billion dollars. In recent decades, the Getty pursued a very aggressive antiquities-buying campaign, which by itself may be an innocent activity. However we now know that many of those antiquities were illicitly excavated or exported illegally.
Italy has a large amount of discovered and undiscovered antiquities. It is also an industrialized nation. Many of the nations which are considered source nations (i.e. those that export more cultural objects than they import) are underdeveloped. So Italy is in a unique position. Historically, Italian antiquities have been exported to the rest of Europe, and other parts of the world. Increasingly, Italy has sought to prevent the loss of these cultural objects. The last 18 months has seen the Italian Culture Ministry lead a very aggressive repatriation campaign with three components
1. Criminal Investigations and Prosecutions,
2. Raised repatriation claims with Museums and Private collectors,
3. A Public Relations Campaign.
There have been a number of high-profile repatriations by American museums in recent months. The Museum of Fine Arts in Boston, and the Metropolitan Museum (Euphronios Krater) in New York have both agreed to return antiquities.
A former curator at the Getty, Marion True is on trial in Rome for conspiring to deal in Italian antiquities. This has had a very unpleasant public relations consequences for the Getty. Italy has demanded the return of 52 Antiquities from the Getty. The two parties have been negotiating a return of many of the objects for many months. However this fall, Italy abruptly broke of talks with the Getty, and said no agreement could be reached unless the Getty returned the Bronze. If the Getty did not agree to these terms, the Italians threatened the Getty with a “cultural embargo”.
Francesco Rutelli, Deputy Prime Minister, Minister for Culture and Heritage sent an Op-Ed to the Wall Street Journal saying:
Italy has been trying for over six months to conclude an agreement with Los Angeles’s Getty Museum on 46 ancient works of art that were illicitly removed from our country. I still hope to succeed. But on one point, I am unable to understand the museum’s position. How can they think that the Italian government will accept an agreement that contemplates renouncing possession of those works of art?
The 46 works that we are waiting for include the Venus illicitly removed from Morgantina in Sicily , and the bronze Athlete that was hauled up in a fishing net from the waters of the Adriatic sea and later secretly smuggled out of Italy in total violation of its laws.
What then of the statue itself? To better evaluate Italy’s claims, we need to look at the circumstances under which it was found. “The Bronze Statue of a Victorious Youth” is an almost life-size figure of an athlete wearing a victory wreath. The Statue was created in Greece, possibly by Alexander the Great’s Court Sculptor Lysippos, but it may have been sculpted by another. It was created sometime between the 4th and 2nd Century B.C. Now my Italian colleagues rightly pointed out that a number of Greek settlements were founded in what we today think of as Italy.
In June, 1964 the Statue was recovered in modern times, by complete accident, off the northern Adriatic coast by fisherman from the Italian city of Fano. They pulled up a heavy object covered in barnacles. The most likely explanation for the find in the Adriatic is that it was taken from Greece in Roman times, and the vessel was lost at sea. A number of Greek objects were taken by invading Roman armies, the most noteworthy instance was during the fall of Syracuse. When the fisherman returned to Fano, they decided to sell the statue. The statue changed hands a number of times.
We know that Giacomo Barbetti purchased the statue from the fisherman. For a time, Barbetti and his two brothers stored the statue at the home of Father Giovanni Nagni. Barbetti then sold the statue to another man for 4,000,000 lire, not a great sum of money. It would have amounted to about $4,000. In 1966, the 3 Barbettis and Father Nagni were charged with purchasing and concealing stolen property under Italy’s 1939 Antiquities Law. The prosecution reached the Court of Appeals of Rome, however it overturned the convictions for 2 reasons (1) The prosecutors did not establish the statue came from Italian waters, and (2) there was insufficient evidence demonstrating that the statue was of “artistic and archaeological interest”. After the Barbetti’s sold the statue, the Provenance (chain of title) of the statue is a bit vague, and open to some speculation. Most likely it went through a series of owners, in an attempt to achieve a bona fide purchase at some point. It went from a Brazilian Monastery to England, and later to Munich.
In 1977, the Getty Trust purchased the Bronze for $3.95 million. It has been publicly displayed since 1978. Until 2006, Italy made no more formal requests for the Bronze, though they did ask the Getty to evaluate the possibility of returning the statue to Italy in 1989.
Legal Analysis of the Dispute
Even if the statue was found in Italian national waters, it’s nearly impossible to prove at this point. The criminal trials of the 3 Barbetti’s and Father Nagni loom large here. Italian prosecutors were not able to establish in 1968 that the Bronze was discovered in Italian territorial waters. To attempt to prove it nearly 40 years on is nearly impossible.
If the statue had been found in Italian national waters, both US and Italian law would dictate that Italy owns the Bronze. The 1939 Italian Patrimony law requires that the object was declared within the territory of Italy to apply. To be sure, if Italy was able establish the statue had been discovered in Italian national waters they would have brought a legal action long ago in US federal court, or even had Federal prosecutors seize the statue.
Illegal Export from Italy Does Not Dictate It should be handed over to Italy
Logically, the Bronze came ashore in Italy after it was discovered. Italian law requires that antiquities deemed of interest by the State, even those owned by private individuals cannot be exported without a license. US law does not enforce foreign export regulations. This goes back to the general rule that Public laws of another nation will not be enforced. US v. Schultz, 333 F.3d 393 (2d Cir. 2003), US v. McClain,545 F.2d 988 (5th Cir. 1977). Also, there are a lot of different kinds of export restrictions, and they are not always working well in limiting illicit trade. The reasons for this are beyond our present concern, but it is well settled that most nations will not enforce the export restrictions of another nation.
Italy has argued that international treaties dictate the Bronze should be returned. What they are referencing is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and transfer of Ownership of Cultural Property.
This does impose on states an obligation to prevent the illicit export of cultural property. However, it contains no provisions mandating the return or permitting the seizure of objects, except those that have been stolen.
The Convention is by its own terms, not in force unless enacted into domestic law. However, when the statue was imported into the US, neither Italy nor the US had ratified the Convention.
Ethical Analysis of the Dispute
Finally, what are the values we should look at in evaluating cultural property controversies?
- Archaeological Context
- Preservation of the Object
- Access by the Public
- International Movement
- Preserving a National Patrimony of Works
Italy’s position relies on the creation of some kind of nexus between Italy’s cultural heritage and the Bronze based on the time it was brought ashore by the fishermen at Fano. This is a very difficult argument for the Italians to win in my view. What’s more, the Italian authorities are ignoring the economic value of the Bronze: Maurizio Fiorilli: Italy’s Chief Antiquities Prosecutor has said “The economic value is of little consequence. What is important is the gain Getty will derive on the ethical plane. Moral gain is the reward. Also, the monetary value of the objects is not Italy’s problem. It is the problem of those who spend good money for objects that are without clear title and are illicitly removed from their place of cultural origin. It is up to the authorities in the USA who are responsible for controlling the Getty to investigate how the money was spent. Culture predisposes honesty and transparency.”
Part of the problem here is the two different ways Italy and the Getty seem to be evaluating the claim. Italy is asserting an ethical claim to the statue based on its ties to Greek culture. However, the US has a very strong sense of Greek and Roman culture as well. After all, the Supreme Court is a copy of classical architecture.
None of the 5 core values come down on Italy’s side in my view. Destruction of archaeological context is a huge problem, and one of the worst aspects of the illicit trade. However, this was a chance find, the fishermen weren’t doing anything wrong. Other objects in the Getty’s collection should certainly be returned, and the Getty has in fact agreed to return 26 objects of the contested objects. The question becomes, why is Italy insisting on the Bronze? Why are they preventing a good faith compromise here by insisting on a tenuous claim to the bronze?