UNESCO Director General Bokova on Protecting Cultural Heritage during conflict

Damage in Aleppo, Syria

In an op-ed for the IHT UNESCO Director General Irina Bokova discusses the damage done to cultural sites in northern Mali, Syria and elsewhere. She argues that "Culture stands on the frontline of conflicts, deliberately targeted to fuel hatred and block reconciliation." That's exactly right I think. The challenge will be what the rest of the world can do to prevent and repair this destruction.

She outlines the concrete steps UNESCO is taking: crafting an international legal framework, building stronger culture coalitions, and use culture to prevent conflicts:

Unesco works across the globe to harness the power of culture to bring people together and foster reconciliation. I saw this personally when Unesco helped restore the Old Bridge in Mostar, Bosnia Herzegovina, destroyed during the war in the 1990s. We saw the same power during the restoration of the Koguryio Tombs complex in North Korea, undertaken with the financial support of South Korea. This might sound high-minded compared to the terrible news we hear every day from conflict zones. And it is true that culture alone is not enough to build peace. But without culture, peace cannot be lasting. The world thought big when the convention was adopted in 1972. We need to think big once again, to protect culture under attack. We often hear that protecting culture is a luxury better left for another day, that people must come first. The fact is, protecting culture is protecting people — it is about protecting their way of life and providing them with essential resources to rebuild when war ends. This is why, for culture also, there is a responsibility to protect.

1. Irina Bokova, Culture in the Cross Hairs, The New York Times, December 2, 2012, http://www.nytimes.com/2012/12/03/opinion/03iht-edbokova03.html (last visited Dec 3, 2012).

Provenance and the 1970 UNESCO Convention

17 of the 21 objects at the Phoenix Ancient Art
Exhibition lack pre-1970 documentation

In a lengthy recent piece in Art & Auction, Souren Melikian argued that fewer and fewer antiquities without histories which pre-date 1970 are appearing at auction. The main argument for the piece, that the 1970 Convention is slowly encouraging a reformed antiquities market, rests on the idea that higher prices are paid for objects with documented and reliable evidence showing the object was either legally exported or removed from the probable country of origin before 1970.

Yet just because higher prices are paid for licit objects (or at least objects which were only illicit before 1970) does not necessarily mean that other looted or illicit objects are appearing on the market. Nord Wennerstrom makes this point, detailing four examples of antiquities up for sale which lack provenance information predating 1970. Of course the fact that an object does not come with this history does not mean automatically that it has been looted or stolen. But it is a very very big red flag.

Nord concludes by arguing:

All of the works discussed in this blog post may well have secure provenance dating before the November 14, 1970 UNESCO accord (or other corroborating evidence) - but if that’s the case, why isn’t it being provided? Melikian is right – caveat emptor – buyers need to demand secure provenance that dates before the UNESCO accord for any antiquities they contemplate buying. However, sellers – including auction houses and private galleries – also have a responsibility. And, it would be helpful if the media, when covering the sales, also mention the number of lots lacking that all important pre-1970 provenance. Melikian writes that we should “give it another 10 years” – that’s not a long time, but it could mean a lot of looting.

Yes it does.

1. Souren Melikian, How UNESCO’s 1970 Convention Is Weeding Looted Artifacts Out of the Antiquities Market, ARTINFO (2012).

Public Comment on the U.S.-Italy Memorandum of Understanding

The State Department Cultural Heritage Center has announced it wants public comments on the potential renewal of the Memorandum of Understanding (MOU) between the United States and Italy.  

There will be a meeting of the Cultural Property Advisory Committee on Thursday, May 6, 2010, from 9 a.m. to approximately 5 p.m., and on Friday, May 7, 2010, from 9:00 a.m. to approximately 3 p.m., at the Department of State, Annex 5, 2200 C Street, NW., Washington, DC. During its meeting the Committee will review a proposal to extend the``Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy'' signed in Washington, DC on January19, 2001 and amended and extended in 2006 through an exchange of diplomatic notes.

 There is also an opportunity to write a letter and express your opinion on the MOU, the deadline is April 22, 2010.  The Archaeological Institute of America has information on the letter-writing process here.  Note that you should either fax (202-632-6300) or email (culprop@state.gov) your letter due to security delays with traditional mail. 

This is one of the ways in which the United States has chosen to implement the 1970 UNESCO Convention.  The MOU does a number of things.  It restricts the import of certain classes of undocumented objects from Italy.  But if those objects carry the appropriate documentation, importation is allowed.  It also calls for long-term loans of Italian objects, and collaboration between the United States and Italy. 

Those interested in the MOU and the practical impact it has or has not had should look to the recent edited volume, Criminology and Archaeology (Simon Mackenzie and Penny Green, 2009). I review the volume in the Spring issue of the Journal of Art Crime. Of particular interest is Gordon Lobay's contribution, which looks empirically at how the U.S.-Italy MOU has made an impact on the antiquities market—at least the observable licit market.  I encourage interested readers to check out the volume, as his conclusion has been that the volume of objects sold, and their prices have increased over time.  The most profound impact has been that auction houses have begun to "pay more attention to provenance."  Though typically this is not the findspot or complete history but rather reference to an earlier sale of an object. 

Piecing Together the Origin of Ancient Gold

Interesting story on some ancient gold jewelry currently held by the University of Pennsylvania.  Twenty of the gold objects are on display at the Bowers Museum.  The Bowers website touts these objects as Trojan gold excavated by Heinrich Schliemann.  However the history of the objects is unknown: 

George Allen of Hesperia Art, a few blocks from Rittenhouse Square, approached the museum with a rare opportunity: the chance to purchase 24 gold pieces that he said were from ancient Troy.
Allen had no evidence to back up his claim that the gold was of Trojan origin, other than what the museum's curators could see with their own eyes. The earrings and other baubles were in the same style as the famous objects found by Schliemann.

The pieces were so similar that initially the curators thought they might be from the Schliemann collection - which was still missing, its loss mourned by art historians worldwide.

In addition, the objects for sale bore tantalizing similarities to golden artifacts from another ancient stronghold: the royal Mesopotamian city of Ur, in what is now Iraq. Scholars already had theorized the existence of a trade network between the two civilizations. The new items, though they lacked a paper trail, seemed to support that theory.

"The purchase of this collection is urgently recommended," Penn curator Rodney Young wrote in a March 1966 memo to the museum's board.

Young also acknowledged that the items had an unsavory aspect, probably having been "looted by peasants and dealers."

Museum officials decided to buy the pieces, for $10,000. But evidently they had misgivings.
Four years later, in 1970, the museum announced it would no longer acquire undocumented objects, arguing that such acquisitions encouraged the "wholesale destruction of archaeological sites."

1. Tom Avril, Tracing ancient roots of Penn Museum's gold, PHILADELPHIA ENQ., January 31, 2010.

Ratifications

In July the Netherlands accepted the 1970 UNESCO Convention and it will enter into force on the 17th of October, 2009.

Also, Italy has ratified the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. 

Asif Efrat on International Antiquities Law

Asif Efrat, Visiting Professor at Cornell has posted a paper, Protecting against Plunder: The United States and the International Efforts against Looting of Antiquities

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern of US policymakers about looting abroad resulted from a series of scandals which exposed the involvement of American museums and collectors with looted material. Advocacy efforts of American archaeologists also played a key role in educating policymakers about the loss of historical knowledge caused by looting and the necessity of regulation. The article further analyzes how antiquities dealers and certain museums lobbied Congress against implementing the UNESCO Convention and why Congress decided in favor of implementation as an act of international moral leadership. Following the analysis of the Congressional battle, I examine how the US debate over looted antiquities has evolved to the present. The article concludes with implications for the role of values versus interests in international law.

My Article on Conflict of Laws and Cultural Property

I have posted on SSRN the final version of my paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Columbia Journal of Law and the Arts 111.

Pictured here is a Byzantine mosaic from the Hagia Sophia in Istanbul, similar to the mosaics taken from Northern Cyprus which gave rise to the Goldberg suit. The Seventh Circuit Federal Court of Appeals upheld the default—and problematic for cultural property disputes—lex situs rule in holding “Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.” The trial court had noted that although Switzerland was the location of the wrongful activity, it bore little connection to the cause of action. None of the parties or important actors was Swiss; the mosaics had never been in the stream of commerce in Switzerland; and they had only been on Swiss soil for four days. The jurisdiction with the closest connection to the objects was Cyprus, not Indiana. After all, the mosaics had been firmly fixed to the church for over 1400 years. Although it would therefore make sense to give concessions in the law to jurisdictions such as Cyprus, courts have shown a hesitancy to apply the law of the source nation, or lex originis.

Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

Keywords: art, antiquities, private international law, conflict of laws, international law, lex originis, lex situs, renvoi, art theft, antiquities, cultural heritage, cultural property

I'd be delighted to hear any reactions to the work at derek.fincham "at" gmail.com.

"Like water on a leaky roof"

That's how James Cuno describes the 1970 UNESCO Convention in a Q&A with Science News.  He makes some correct criticisms I think, but I differ with him on the ultimate remedy for these difficulties.  I think we need to start with an open antiquities trade in which the history of objects is published, open to the public, and even enlists 3rd parties evaluate the propriety of acquisitions.

What was the effect of the UNESCO 1970 treaty on looting of archaeological sites?

It hasn’t stopped looting. In fact, from what we hear, looting is increasing.  Looting is not a leisure pastime. People don’t decide to become a looter rather than being a lawyer. They are desperate people doing desperate things. In situations of a failed economy, a failed government, the absence of civil society, internecine warfare, sectarian violence, drought — whatever — conditions emerge that can create pressures for looting. Simply criminalizing the illegal acquisition of goods won’t stop looting. It hasn’t stopped the trade in drugs or trade in stolen materials of any kind.

So an important artifact with dubious provenance for sale on the open market, available for anyone else to buy, isn’t available to foreign researchers?

Right. So fewer and fewer things are entering into the public domain.  These export constraints are creating black markets. And like water on a leaky roof, looted artifacts are finding the path of least resistance to a buyer somewhere. I’ve heard they’re going to the Arab Emirates and Asia. What I can tell you is that they’re not coming to museums in the United States and Europe [which adhere to UNESCO 1970].

Just because other nations and buyers may be buying looted objects does not I think justify their purchase by North American institutions.  There are flaws with the Convention, but it has produced some important changes in heritage law and policy.  It has helped elevate the importance of national ownership declarations, and it has raised the general profile of heritage policy.  It has not yet produced a perfect regulatory framework, and though the convention has some drawbacks, we could also point to lackluster implementation or enforcement by many nations at the market end. 

Student Comment on American Cultural Heritage Law

Katherine D. Vitale has posted on SSRN her Student Comment, The War on Antiquities: United States Law and Foreign Cultural Property, 84 Notre Dame L. R. 101 (2009). 

She criticizes the general trend of American cultural heritage policy, and is far too kind I think to museums and antiquities dealers generally.  She has some very interesting things to say about the AAMD Guidelines, and does a very good job putting the recent California searches in context, perhaps helping to explain why a year has elapsed with little apparent progress.  

From the Abstract:

The use of the National Stolen Property Act and Archaeological Resources Protection Act as mechanisms to protect cultural property taken from a foreign state through prosecution of individuals who buy, sell, and otherwise deal in such property is in direct tension with the Convention on Cultural Property Implementation Act ("CPIA"), a statute enacted in accordance with an international treaty to which the United States is a party. This Note explores how criminal liability under United States law for museum officials and others who acquire art, archaeological materials, and especially antiquities, originating in foreign nations conflicts with CPIA's treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization's 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ("1970 UNESCO Convention"). Part II examines the 1970 UNESCO Convention's influence on United States civil law and policy regarding foreign cultural property, and on the acquisitions policies of international and domestic museums. Part III discusses criminal penalties under both the National Stolen Property Act and the Archaeological Resources Protection Act for those who knowingly acquire stolen foreign cultural property. Part IV analyzes the conflict between policies on foreign cultural property followed by the United States and domestic museums and the application of criminal penalties in art-trafficking cases. In addition, this Part explores the consequences of the conflict for both the United States and individuals, and suggests resolutions to the conflict through law. Finally, Part V concludes that in order for the United States to fulfill its obligation under the 1970 UNESCO Convention, it must stop conducting a war on antiquities-and those who acquire them.

UNESCO Wants HMS Victory Preserved

Yesterday UNESCO released a statement concerning the announced discovery of the wreck of the HMS Victory by Odyssey Marine:

“I am delighted that such an exceptional example of underwater heritage has been located. The cultural and scientific value of this artefact is considerable,” declared Koïchiro Matsuura, Director-General of UNESCO. “In the spirit of the Convention adopted by UNESCO in 2001, I trust that all parties concerned will take the necessary measures to ensure this important vestige of British naval history is safeguarded and given appropriate attention, not used for commercial gain.”

The statement stands in stark contrast to this week's earlier interview by the company's own Greg Stemm.  UNESCO and the relevant Underwater Heritage Convention both strongly disapprove of the use of underwater sites for commercial gain.  Few of the World's major nations have signed on to this proposition.  The UK Government would seem to believe that scientific study can be accomplished with commercial exploitation, or at least that the commercial value may outweigh a more thorough study. 

China's CPAC Request Granted

 China's request for import restrictions of certain classes of China's antiquities has finally been granted.  The Memorandum of Understanding is here, while the State Department Press Release is here.   Now prohibited, unless accompanied by a Chinese export license will be "archaeological material originating in China and representing China’s cultural heritage from the Paleolithic Period through the end of the Tang Dynasty (A.D. 907), and of monumental sculpture and wall art at least 250 years old; including categories of metal, ceramic, stone, textiles, other organic material, glass, and painting".

Randy Kennedy has an overview for the New York Times.  Professor Patty Gerstenblith thinks the decision "is a very appropriate way for the State Department to have applied the statute and the statutory requirements to China’s request". 

James Lally, a New York dealer in Asian art was not quite as impressed, "It’s going to have a terrible effect on efforts to encourage new students to study Asian art and on collectors and patrons to become involved in the field ...  They’ll say, ‘Well, I’ll just go to contemporary art or I’ll support the symphony.’ It sends the wrong signal.”
 
Peter Tompa has a thoughtful criticism on his blog as well,

I would, however, echo [other's] concerns about fair enforcement, particularly when it comes to coins. Indeed, many Chinese coins of the types covered under the agreement have so little monetary value that it makes little sense for importers to go through the time and effort to secure the necessary certifications for licit import. For example, at the CPAC hearing in February 2005, I passed around a Han Dynasty cash coin from the 1st c. BC (bought for $2.25) and a Tang Dynasty cash coin c. 618-907 AD (bought for $8.00).

Such a problem presents some very difficult regulatory challenges, and goes I think to the heart of how we define cultural heritage or property.  I don't envy the task of ICE agents, who are now charged with making sure these very small objects are not imported into the US. 

China has created a large heritage bureaucracy which does allow the purchase and sale of antiquities, but the government has  right of first refusal for all of these objects.  There is also a complicated ratings system, overseen by a government official in relics shops, which determines what is too important to sell, and what is not.  The system has been criticized for its potential for abuse, though what heritage policy in any nation isn't. 

Peru Files Suit Against Yale

Last Friday, in the United States District Court for the District of Columbia, Peru quietly filed suit against Yale University seeking the return of a number of objects from in and around Machu Picchu. The objects were excavated and removed to the United States by Hiram Bingam in the early part of the 20th Century. This is the culmination of a long process between Peru and Yale, in which the parties had seemingly agreed to a beneficial compromise for both. The suit will of course be interesting to unfold, as it would seem to push the boundaries for a court resolution of a dispute over objects which were removed from Peru in the waning years of the imperial age.

The suit was expected, as Peru had made the tentative decision last month to bring suit. This after what had appeared to be a happy resolution to the dispute, with Yale offering a very substantial settlement including an international traveling exhibition and the construction of a new museum and research center in Peru in exchange for a new 99-year lease on the objects.

That deal fell through, and now Peru has decided to seek redress in Federal Court.

I've had a chance to quickly read over the complaint and I see a number of interesting issues:

• The degree to which the 1970 UNESCO Convention may apply -- as an international instrument and policy imperative.
• If there will be further development of the requirements neeeded to establish national ownership over an object. The complaint cites an 1893 Decree which prohibited removal of objects absent special permission from the government. A potential issue may be what kind of special permission --if any -- Hiram Bingham had from Peruvian authorities at the time.
• Also, there will likely be an interesting back and forth over whether Peru's suit is timely. The complaint argues that there has only recently been a demand and refusal of the objects, though there appears to be the possibility of a strong laches defense for Yale given the time which has passed since the objects left Peru. Yale may have a strong defense by arguing it has held the objects in a transparent way, and Peru has impinged Yale's rights by waiting so long to bring a claim.
  
• Finally, there may be interesting conflicts of law issues which arise.

A win for Peru in court may set a precedent for other future claims from the imperial age, and may extend further the window for nations of origin to seek the repatriation and restitution of objects. This would be a powerful legal option going forward, in which the pendulum has seemingly already swung back to favor nations of origin already.

However even if the court dispute is unsuccessful, Peru may still have a good outcome if they can sway public opinion at home or abroad. I have more questions than answers at this point. I wonder to what extent Peru may be seeking a public shaming of Yale in the hopes of punishing them or forcing them to apologize for taking these objects away. It should be noted that the objects themselves are primarily interesting for their intellectual value. They are not prized for their inherent beauty or value. Their primary purpose would seem to be to assist in research and other pursuits. One wonders if Peru would be able to perform this research function as well as Yale University? Or, if those intellectual pursuits might have been best advanced if Peru had been able to reach an agreement with Yale which would have resulted in the construction of a research center in Peru. Isn't the 'star' of the ancient city the well-preserved ruins themselves?

The initial complaint is here ($).

Hat Tip: Peter Tompa.

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?

Germany and the UNESCO Convention

David Gill speculates today that Germany may be a hub of the antiquities trade after recent reforms in Switzerland. That may be possible, or perhaps even likely, but he provides little empirical evidence, and merely some offers speculation. He does not consider for example the very useful EU restrictions on cultural objects which effectively prevent the trade in objects originating from EU member nations.

In the post he references an article by Andrew Curry ($), a journalist. Journalists do a lot of good reporting, and Curry may be a great one. Journalists who report on the law, particularly one as malleable as the UNESCO Convention often miss the mark however. Curry's summary of the UNESCO Convention, and the arguments Gill makes are very misleading.

Curry's piece states:

Whereas the United States and many of the other 112 signatories to the convention restrict or prohibit trade in broad categories of artifacts, the German law passed last Friday requires countries to publish lists of specific items they consider valuable to their cultural heritage. Only those items will be protected under German law, which means trade in undocumented artifacts, such as those looted from archaeological sites, will be difficult to restrict. “This is a bad signal,” says Michael Mueller-Karpe, an archaeologist at the Roman-German Central Museum in Mainz. “It tells the world that whatever isn’t published isn’t worth protecting.”

This is wrong on at least two accounts. First, both the United States and Switzerland do not prohibit broad categories of objects. They must be subject to ownership declarations. The real important issue here is the enforcement and recognition of foreign export restrictions. To recognize these both the US and Switzerland require individual nations to make a request and require bilateral agreements to implement the heightened restrictions. This is the province of the Cultural Property Advisory Committee in the United States.

Second, Germany requires nations to publish lists of specific items they consider valuable because this is what the Convention requires. Article 5 of the Convention states,

To ensure the protection of their cultural property against illicit import; export and transfer of ownership, the States Parties to this Convention undertake, as appropriate for each country, to set up within their territories one or more national services, where such services do not already exist, for the protection of the cultural heritage, with a qualified staff sufficient in number for the effective carrying out of the following functions:

(a) contributing to the formation of draft laws and regulations designed to secure the protection of the cultural heritage and particularly prevention of the illicit import, export and transfer of ownership of important cultural property;

(b) establishing and keeping up to date, on the basis of a national inventory of protected property, a list of important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage;

(c) promoting the development or the establishment of scientific and technical institutions (museums, libraries, archives, laboratories, workshops . . . ) required to ensure the preservation and presentation of cultural property;

(d) organizing the supervision of archaeological excavations, ensuring the preservation `in situation' of certain cultural property, and protecting certain areas reserved for future archaeological research;

(e) establishing, for the benefit of those concerned (curators, collectors, antique dealers, etc.) rules in conformity with the ethical principles set forth in this Convention; and taking steps to ensure the observance of those rules;

(f) taking educational measures to stimulate and develop respect for the cultural heritage of all States, and spreading knowledge of the provisions of this Convention;

(g) seeing that appropriate publicity is given to the disappearance of any items of cultural property.

Note that article 5(b) requires a register and specific definition, the very thing Gill criticizes Germany for doing. This actually strikes me as a very good policy idea. Cultural heritage can mean lots of things to lots of people. I don't see how its an onerous task for nations of origin at minimum to broadly define categories of objects which should be It should be noted that very few nations have successfully completed this task. This is one flaw, among many, of the UNESCO Convention.

The Convention is an important foundational document, but as a legal instrument leaves a great deal to be desired. Article 2, which can be read more broadly imposes vague requirements on States Party, but States are free to implement the Convention with a great deal of discretion.

Chicago, Cuno and Iraq

Tom Hundley has a very long piece in yesterday's Chicago Tribune on antiquities looting, Iraq, and Jim Cuno's arguments (with slideshow). It's an interesting read, as it summarizes nicely some of the problems with antiquities looting in Iraq, which he argues began in the difficult economic times after the first Iraq War.

At the close of the war in 1991, as Saddam fought off insurrections from the Kurds in the north and the Shiites in the south, the U.S. government imposed a no-fly zone over large swaths of Iraq. This, along with strict UN trade sanctions, created a kind of perfect storm. With the weakened Baghdad regime unable to control large parts of the country, impoverished Iraqi villagers—often with the blessing of village elders—turned to the only source of income available to them: scavenging the hundreds of archeological sites that dot the landscape between the Tigris and Euphrates rivers.

In some areas, the trade in looted antiquities accounted for almost 85 percent of local economic activity. Meanwhile, a weak U.S. economy at the end of George H. W. Bush's presidency was encouraging the truly rich to look for alternatives to stocks and bonds. Art and antiquities fit the bill. As supply obligingly met demand, the market for Mesopotamian antiquities blossomed. Within months of the war's end, a treasure trove of Mesopotamian antiquities began to show up in the gilded display rooms of auction houses in London and New York, no questions asked.

The article then goes on to summarize James Cuno's views, and gives a very superficial discussion of national patrimony laws. He writes incorrectly I think that the Hague and UNESCO Conventions are the foundation for national patrimony laws. I think that's a questionable assertion, as many patrimony laws were established long before these.

It is worth noting that there is a gross factual inaccuracy in the piece. Despite what the article says, the U.S. has ratified the 1954 Hague Convention. Perhaps Hundley should have spent a bit more time talking with Patty Gerstenblith, whom he quotes in the piece, or even Larry Rothfield -- another Chicagoan -- who has written a recent work on the looting in Iraq.

Student Comment on the 1970 UNESCO Convention

Janene Marie Podesta has written an article in the Cardozo Journal of International and Comparative Law, SAVING CULTURE, BUT PASSING THE BUCK: HOW THE 1970 UNESCO CONVENTION UNDERMINES ITS GOALS BY UNDULY TARGETING MARKET NATIONS. I haven't found a free copy available on the net, so you'll have to rely on the usual scholarly databases if you're keen to get your hands on a copy.

I continue to be surprised at the tremendous popularity of this topic, particularly the frequency with which cultural heritage issues are used as Note and Comment topics for law students. I think this is a good thing, though unfortunately they tend to rely a bit too much on the same staple of core topics and concepts.

From the Introduction:

This Note argues that UNESCO's current policy, which makes a minority number of market nations almost universally responsible for the protection of source nations' cultural property, is contrary to the international public good and cannot succeed in its current form. While well intentioned, placing all responsibility on the receivers of illicit goods will not curb the flow of these goods; it will only send the market further underground. It may also result in criminal prosecution for those who were simply ignorant rather than those who purposefully decimated their own countries' heritage. UNESCO requires almost nothing from some nations (generally, those who gain the most from the system) and burdens others with disproportionate accountability.

Part II of this Note will focus on the various international conventions on the subject of cultural property, predominately the 1970 UNESCO Convention. It will look at the context in which the 1970 UNESCO Convention was convened, the conflicting theories on the concept of “cultural property” underlying the drafting, and the resulting bias against internationalist nations within the 1970 UNESCO Convention. These factors make the system ultimately unsustainable.

Part III traces the development of the current situation by exploring the various interpretations countries have had of the UNESCO decree to “carry out the necessary concrete measures” to protect the state's own “cultural patrimony.” It will focus on the three main types of ownership laws that have been enacted by various countries, and will also reflect on the success that each such method has shown.

Part IV will, conversely, look at those steps taken by market countries, particularly the United States, to “prevent museums and similar institutions . . .from acquiring cultural property,” and “to recover and return” any such property. This part will highlight not only laws specifically enacted in reaction to UNESCO, but also laws that have substituted for such laws in cases of cultural property “theft.” It will then analyze the effects that various rulings have had on the cultural patrimony arena, and forecast the dangers likely to result from such holdings.

Part V suggests alternate possibilities that would more evenly balance the responsibility between those nations that wish to protect their own cultural heritage, and those that wish to help in this quest without sacrificing their own belief systems and citizens' rights.

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.

The Getty Bronze and "Culture Property Wars"

The "Arts, Briefly" section in today's New York Times has a couple of interesting points today. First, Marion True went on trial in Greece for conspiring to acquire a gold funerary wreath, alleged to have been removed from Greece. Also, a judge in Pesaro, Italy dismissed a local prosecutor's claim to the "Bronze Statue of a Victorious Youth" found by fisherman in the Adriatic and currently on display at the Getty. When a repatriation agreement was reached in August for 40 other objects, Italian authorities said they would consider their case after the case in Pesaro was resolved.

Along those lines Lee Rosenbaum has an interesting series of posts on how to create a "ceasefire in the cultural property wars". She makes a number of excellent suggestions, including a need for full disclosure of acquisition policies, and to create a "consistent handling" of repatriation proposals. I agree with both those suggestions.

I have to raise some issues with her discussion of a consensus for future acquisitions. She gives the three dates normally given as cutoffs for new acquisitions:

1. 1970, the date of the UNESCO Convention;
2. 1983, the date the US implemented the Convention with the CPIA; or
3. A 10-year "rolling rule" advocated by the Association of Art Museum Directors.

Those are all plausible dates, but I think Rosenbaum misses the point in discussing the Getty's new acquisition policy, and how it relates to the Getty Bronze. First, here's the Getty's revised acquisition policy:

For the acquisition of any ancient work of art or archaeological material, the revised policy requires:

* Documentation or substantial evidence that an item was in the United States by November 17, 1970 and that there is no reason to suspect it was illegally exported from its country of origin OR

* Documentation or substantial evidence that the item was out of its country of origin before November 17, 1970 and that it has been or will be legally imported into the United States, OR

* Documentation or substantial evidence that the item was legally exported from its country of origin after November 17, 1970 and that it has been or will be legally imported into the United States.

Rosenbaum then argues, "good faith counts. And it seems to me that this is the best argument for returning the Getty Bronze: There was plenty of 'reason to suspect it was illegally exported from its country of origin,' and plenty of people DID suspect it, at the time of the acquisition."

I think Rosenbaum misses the point of the new acquisition policy, because if the Getty were deciding whether to acquire the Bronze today, based on its new acquisition policy it could certainly do so. To be fair, you have to think like a lawyer. The "or" is critical. The Getty could hypothetically acquire the statue if any one of the three clauses are satisfied; it doesn't have to satisfy all three. The statue was found in international waters in 1964. Even assuming Italy was its "country of origin" the statue had left Italy by 1970, and it certainly was legally imported into the United States; as at that time the US did not enforce Italy's export restrictions. It's also worth remembering that absent a treaty agreement the US does not enforce the export restrictions of another nations. The reasons for that policy are complicated, and often don't seem to have a solid policy foundation, but that's the general rule followed in both the US and the UK.

These are difficult issues to be sure, but as I've argued I don't think Italy has a strong ethical or legal claim to the statue. Greece perhaps has an ethical claim, but not Italy. The most likely reason for the statue ending up in the Adriatic is it was taken from Greece, probably by Romans.

Stolen Greek Statue Returned to Greece

This 1,900 year-old torso has been returned to Athens after it was seized in Switzerland. It was recovered in March from the Swiss city of Basel. It had been taken in 1991 from the island of Crete. Switzerland has historically been a transit state for many antiquities, however it has worked to change that in recent months by signing on to the largely symbolic 1970 UNESCO Convention, but also implementing that convention effectively by signing bilateral agreements with Peru, Italy and Greece.

I wonder why the Swiss dealer David Cahn who had the statue was not subject to any criminal penalties, or indeed why he gave up the object so freely. Had the object been in the United States, he would have been subject to Federal Prosecution.

This object was not illicitly excavated, but rather was stolen along with 9 other items. From the comments of the Greek Culture Minister George Voulgarakis, it seems he is connecting the return of this theft with the Parthenon Marbles in the British Museum. Clearly though, the two cases are much different.

412 Antiquities Repatriated

On Wednesday, US Immigration and Customs Enforcement Officials returned 412 pre-Columbian antiquities to Peru. US Officials said it was the largest repatriation since the 1970s. The objects were returned during a repatriation ceremony at Florida International University in Miami. This is the Consul General of Peru, Jorge E. Ramon Morey. The best reporting is from the Miami Herald, with a slideshow and video, here. The Washington Post has a store here, Reuters has a blurb here and the AP summary can be found here.

They were being hawked by Ugo Bagnato, an Italian citizen, from a 1985 GMC cutaway van. Each antiquity was being sold for as much as $2,000 a piece. He smuggled the objects into the country in 2004 using "fake documents." If I had to guess, I'd say he faked the customs documents. I had heard nothing about this case previously, but it seems Bagnato plead guilty and served 17 months in federal prison. He is now awaiting deportation.

The objects included:

• dolls
• tapestries
• gold jewelry
• burial shrouds
• clay vessels
• ancient fabrics
• a child's tunic
  

The arrest is a welcome sign I think, but of course the archaeological context surrounding the objects has been destroyed. As Morey said, coastal areas in Peru are looted to such an extent that "from an airplane, it looks like the area has been bombed." The objects were returned pursuant to the 1997 bilateral agreement between the two nations. This was the way the US chose to implement the 1970 UNESCO Convention.

This arrest of Bagnato and the repatriation, though welcome, indicate that the current regulation of the international antiquities trade is simply not working. One would expect that a guy selling a 3,000 year-old pot from a van should be apprehended. The objects weren't noticed by Customs officials, because most shipments cannot be satisfactorily examined. Also, the middle-men and actual looters are unlikely to be punished.

Will the high-profile announcement this week serve to discourage the illicit trade? I have my doubts. If such this guy can openly sell objects from his van, I wonder how many illicit objects are sold in the more prestigious auction houses and galleries? We cannot be sure of course, because they do not routinely give provenance for their wares, and until they do, Peru and other source nations will likely continue to lose their archaeological heritage.