Cultural Justice

Houston's Fourth Ward/Freedmen's Town

I have posted on SSRN a working paper "Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes" which attempts to make connections between the environment and culture.

The piece introduces the concept of cultural justice. It uses the recent scholarship examining environmental justice to apply critical scrutiny to the calls for repatriation of cultural heritage (including art and antiquities). The paper applies Rawls’s theory of justice to cultural heritage and presents a taxonomy of cultural justice examining in detail the distributive, procedural, corrective and social aspects.

The environmental justice movement has been an important grassroots effort which allows minority and underpriviliged communities to challenge environmental harms. It has its roots in Houston. I use as a starting point the cultural harm which has taken place here in Houston to a neighborhood called the Fourth Ward, at one time referred to as the "Harlem of the South", which has fallen victim to cultural loss and over-development. In the piece I work to make broader observations about culture, the environment, and justice, focusing specifically on antiquities law and policy. It is my hope that by using justice we can begin to move beyond the source/market entrenchment and craft real solutions. I would of course welcome any comments or criticisms, and if there are any student editors looking for an art law piece for the journal, I'd be delighted to speak with you (derek.fincham 'at' gmail.com).

Realkulturpolitik: Turkey Requests 18 Objects from the Met

One of the contested objects, a Hittite silver cup (1400 BCE)

Jason Felch reports on the Chasing Aphrodite blog that Turkey is actively seeking 18 objects from the Met. Earlier this month Martin Bailey reported that Turkey would stop lending objects to the United States and United Kingdom, and this dispute with the Met may be one of the motivators for that cultural embargo. This seems a curious collection of objects for return, one that does not share many characteristics with the other kinds of objects requested by nations of origin in recent years. The objects were part of the Norbert Schimmel Collection. Schimmel was a former Met trustee and the collection itself was published in a 1974 volume edited by none other than outspoken looting critic Oscar White Muscarella.

I sometimes call these kinds of requests for return realkulturpolitik, in that there does not appear to be a direct legal mechanism for the return of these objects at this late date. In order to pursue a legal claim here Turkey would have to justify its reasons for not bringing a claim in 1974. Reasons for that delay may be new evidence  which has come to light which shows that these objects were illegally removed from their context or from Turkey. Yet we do not yet know of any of the specifics justifying the return. And if a legal claim was brought for these objects, Turkey would have to show the Met is not prejudiced by the delay under a laches defense. This could prove difficult. After all, Schimmel and others who would have acquired these objects are deceased and cannot provide evidence about how these objects were acquired.

And from the Met's perspective, we do not yet have any of the histories of these objects before their acquisition by Schimmel. The absence of detailed information foreclosing their potential looting or acquisition of these objects makes them questionable objects perhaps, but does not give Turkey a legal right to them. The law requires Turkey to establish that they came from Turkey, which might be difficult. Schimmel appears to have acquired these objects before 1974, at a time when the heritage community was first beginning to pay attention to the looting of sites, after the 1970 UNESCO Convention.

What Turkey does have though is a potential ethical claim which the Met may respond to. And if the Met does not, Turkey is imposing a damaging cultural embargo, and pressure will likely mount on the Met to justify their continued possession of these objects.

ARTHattack! Interview

Vanja Stojanovic, a terrific student at the University of Guelph put together this short interview after the ARTHattack! conference where I talk a bit about ARCA, the current situation in Greece and the art market:

Many Thanks to ARTHattack!

I want to give a big thank-you to the folks at the University of Guelph and Dr. Susan Douglas. Last Friday I was fortunate to have been asked to give a keynote address to the  ARTHattack! symposium at the University of Guelph. I've attended my share of conferences, and I can certainly say this was one of the very best, well run, with terrific papers. This year the topics included:

• Lucina Pinto - Appearance Versus Reality in Jean Rhys’s After Leaving Mr. Mackenzie: Ekphrastic Encounters and Postcolonial Discourse 
• Jennifer Graham A Life Seen of Obscenity: Robert Mapplethorpe and The Public's Perception 
• Jocelyn Burke Sublime (re)Visions Sarah Carter Interpretation is the revenge of the intellect upon art: Titian's Sacred and Profane Love 
• Angel Callander Postmodern Pastiche: the Internet and Dadaism 
• Vanessa Tignanelli Courtesans in Sixteenth-Century Venice: Exploring Ambiguity in Titian's Female Portraits

And these were all undergraduates! They set a very high standard. 

Earlier this week I also got to sit in on Dr. Susan Douglas' seminar course examining art crimes. There were some very thoughtful conversations, and a lot of interesting ideas to cover from the broad perspective of art history. Too often the cultural heritage debates are boiled down to museums v. archaeologists or source v. market. 

But art history gives us a number of useful tools for examining forged art, to take one example. How can art historians create an aura for objects with good histories, or modern recreations of ancient art? Grappling with these issues offers a fresh perspective, and it was refreshing to think about the wonderful tools art historians can bring in examining the abstract ideas connecting this material with culture. Thank you!

Germany's Master Art Forger

A forgery of a work by Molzahn

German art forger Wolfgang Beltracchi was sentenced to six years in prison for counterfeiting 14 paintings by Fernand Leger, Max Ernst and Heinrich Campendonk. But there may be many more forgeries:

Beltracchi and three accomplices were sentenced after just nine days at the Cologne District Court, with the defendants receiving shorter sentences in exchange for full confessions. But in a SPIEGEL interview the 61-year-old has now admitted to creating phoney works by "about 50" different artists. Speaking to the media for the first time since he was sentenced, Beltracchi refused to name the exact number of paintings he forged throughout his career, which he began in the 1970s by creating "unpainted works by old masters, and later Jugendstil and Expressionists" and selling them at flea markets. But during the interview with SPIEGEL, Beltracchi said that due to high demand, he could have easily put "1,000 or 2,000" forgeries on the art market.

1. Ringleader Reveals He Faked Many More Works, Spiegel Online, March 5, 2012, http://www.spiegel.de/international/germany/0,1518,819409,00.html (last visited Mar 8, 2012).

Turkey Imposes Cultural Embargo on Museums with Contested Objects

The Art Newspaper reports that Turkey has refused to lend objects to museums in the US and UK until issues over disputed objects are resolved.

The British Museum had asked for 35 items for the exhibition “Hajj: Journey to the Heart of Islam” (until 15 April). Although Turkish museums were agreeable to the loans, the ministry of culture blocked them, leaving the British Museum to find alternative artefacts at short notice. As part of the growing Turkish campaign, loans have been blocked to museums with disputed objects in their collections. The Met has confirmed that a dozen antiquities are now being claimed by Turkey, but would not identify the individual items. A museum spokeswoman says: “The matter is under discussion with the Turkish authorities.” This month, the Met is due to open “Byzantium and Islam” (14 March-8 July). Many loans are coming from the Benaki Museum in Athens, with none requested of Turkish museums.

1. Martin Bailey, Turkey blocks loans to US and UK, The Art Newspaper, March 1, 2012, http://www.theartnewspaper.com/articles/Turkey-blocks-loans-to-US-and-UK/25869 (last visited Mar 1, 2012).

Cambodia Disputing a Koh Ker statue up for auction at Sotheby's

The disputed limestone Koh Ker statue

Cambodia is asking for assistance from the U.S. government in repatriating a limestone statue which was likely looted during the Vietnam War/Khmer Rouge era. Jane Levine, compliance director for Sotheby's argues that "there are widely divergent views on how to resolve conflicts involving cultural heritage objects". Here is mine.

The statue has considerable value, its pre-sale auction price was estimated at between $2-3 million. That estimate will likely be considerably less after the report in the New York times, detailing the dubious history of the object. Sotheby's claims the object was acquired by a "noble European lady" in 1975. Hardly a complete history of the object, and hardly enough to invoke the protections of good faith. The absence of information should not confer the benefits of a good faith purchase. Sotheby's argues the burden should be placed on Cambodia. I wonder though if the blunt reality of two feet without a body might lead a thinking person to a different conclusion. No museum can ethically acquire this object. Though the Norton Simon has a similar statue, also without feet, no word yet on whether Cambodia may seek the repatriation of that statue as well.

I would expect if a resolution between Sotheby's and Cambodia cannot be reached that the government consider using its forfeiture powers on the grounds the statue was the ownership of Cambodia after a 1925 French colonial law declaring objects in Cambodia to be the exclusive property of the state.
Should the forfeiture proceeding be declined, I would urge Cambodia or its lawyers to consider using a civil action using as a precedent the English case, Bumper Development Corp. v Commissioner of Police for the Metropolis [1991] 1 WLR 1362. That case successfully achieved the repatriation of an object taken from an Indian temple, but it was the temple itself was given legal rights as a party. Perhaps there is a legal personality in Cambodia which might offer a similar connection to this statue.

A Pedestal in Cambodia, which might be the base

1. Tom Mashberg & Ralph Blumenthal, Sotheby’s Caught in Dispute Over Prized Cambodian Statue, The New York Times, February 28, 2012, http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html (last visited Feb 28, 2012).

Thank You

Calder's Flamingo in front of the Dirkson Federal Building

I just want to thank everyone who had a hand in organizing the Cultural Heritage Moot Court Competition in Chicago last weekend, especially the folks at DePaul and the Lawyers Committee for Cultural Heritage Protection.

I heard a lot of strong arguments all weekend, with a very strong team from Chicago-Kent edging out a South Texas team of Adriana Lopez, Joe Bramanti and Joel Glover in a well-argued final round.

I especially want to thank the two teams from South Texas who competed at a very high level, with Brian Evans earning a tie for best orallist—and along with his teammate Chris McKinney earning the runner up for best brief. The best-argued round of the weekend came when the two South Texas teams were paired up in the quarterfinals, and in a close round Adriana and Joel won. Both teams knew each other's arguments so well—it was a shame they were paired up so early in the competition.

These guys were awful fun to coach.