The Doctrine of Discovery is an international legal principle which justifies property rights over new-found territories. The doctrine is still very much alive today. Russia evoked it when it placed its flag on the Arctic Ocean floor in 2007 to claim the potential oil and gas reserves there.
North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world. The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people. In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one's knowledge of both countries and their Indigenous peoples.
It's a great read, and the doctrine of discovery has a lot to do with the difficulty cultural policy makes had in formulating a cohesive national and international legal regime to handle, regulate, and restrict the trade in cultural objects. Much of the very restrictive cultural patrimony laws in many nations of origin can be directly attributed I think to the massive cultural and economic drain which took place when European colonists discovered new lands.
The domestic legal and policy framework for portable antiquities in England and Wales is unique, and differs from the typical approach. Three things set it apart from most other nations of origin. First is the limited state ownership of undiscovered antiquities, the second compensation to finders of the full price of their finds if the find is acquired legally, and perhaps most importantly is the legalization of indiscriminate digging in many areas.
Metal detecting is legal in the UK, and is only prohibited in specially designated areas, known as scheduled ancient monuments.
Only limited classes of objects become the property of the crown when they are discovered. This includes objects composed of at least 10% gold or silver, multiple ancient coins, and prehistoric base-metals, which are objects such as bronze. Pottery and carved objects become the property of the finder.
All other objects become the property of the finder, and in some cases landowners and finders share the value of finds. Finders of objects encompassed under the Treasure Act are entitled to the full market value of the find, as estimated by an evaluation committee.
The PAS is a voluntary scheme which fills the gaps left by the treasure act. There exists some confusion about the scheme, as a lot of commentators incorrectly talk about the scheme as shorthand for compensating finders of antiquities. Such a measure already exists outwith the PAS. However, the PAS is a voluntary network, organized by a national network of finds liaison officers. They speak with metal detecting groups about good practice, conduct community outreach programs, and most importantly record finds. They are often based in local museums or archaeology departments. In some cases, museums approach finders and purchase these objects.
One of the most positive impacts of the scheme is its database, an impressive accumulation of information, with over 300,000 objects recorded.
The scheme has led to a dramatic increase in the number of objects being reported, and a dramatic increase in objects which finders have always been legally-required to disclaim.
This begs the question: should the approach of England and Wales to Antiquities be adapted to other nations?I think the national network of FLO’s has been tremendously successful, and setting aside the issues of cost and implementation, would ideally be implemented everywhere.In England and Wales, nearly 90% of finds take place on cultivated land, where industrial farming practices and chemicals can potentially damage objects near the surface.
The question of whether the limited state ownership of undiscovered antiquities, the compensation to finders of the full price of their finds, and the legalization of indiscriminate digging can be adapted to other nations remains in some doubt. It should be noted that the legal prohibitions on antiquities digging in England and Wales are far more lenient than in nearly every other nation. The policy sacrifices archaeological context without question.
If we compare Scotland, which has an ownership interest in all undiscovered antiquities with England and Wales the data would seem to lend support to the notion that declaring an ownership interest of only limited classes of objects, and only prohibiting digging in limited areas has produced better results. Between 1998 and 2004, Scotland reported an average of just over 300 finds. During the same period, an average of just over 300 objects which qualify as treasure were recorded, but there was an average of nearly 40,000 finds reported by the portable antiquities scheme per year.
The scheme resulted in a dramatic increase in the reporting of treasure. A small portion of this increase may be explained by the widening of scope of the treasure act. However, I think we can draw two conclusions from the scheme:
First, if individuals are compensated for finding antiquities they will look for them, and find them, in some cases this damages the archaeological context of course.
Second, as the specter of increased criminal investigation of the antiquities trade and seems increasingly likely, with massive investigations coming to light in recent days in both Italy and here in California I think certainly the trade itself will have to find ways to justify its continued existence. Should the antiquities trade continue to exist in some form, the approach in England and Wales would seem to offer an interesting, and inarguably a successful model.
It should be noted that legally sanctioning digging, or funding digging would be politically unpopular in many nations with a strong cultural identity, such as Italy. I think cultural policy makers should approach any strategy which might incentivize digging with great caution.
There's a couple of interesting items on the Portable Antiquities Scheme blog, and I'd like to boost the signal a bit and post them here. First is a video of Peter Twinn, a metal detectorist and archaeology student at Bristol Universtiy, who was interviewed in a brief piece on the BBC.
I have recently come across some very interesting excerpts from Scottish Parliamentary Questions and Answers. Now, these are seldom mistaken for serious policy debate, but these reveal some shortcomings in current policy. There exists a serious gap from what Alex Salmond and the Scottish National Party are saying about repatriation, and what they are actually doing.
First, with respect to "tainted cultural objects", the Scottish Labour Party's Shadow Minister for Culture asks what Scotland is doing to ensure stolen or looted objects aren't bought and sold in Scotland. The answer, it seems, is not much.
Q S3W-8645 Malcolm Chisholm: To ask the Scottish Executive what legislative changes it believes are required to ensure that dealing in tainted cultural objects does not occur in Scotland. (SP 21/01/08)
A Answered by Linda Fabiani (08/02/08): While we are not aware that Scotland has a problem with this type of illicit activity at present, the government remains sympathetic to such legislation and we are looking at the options available to us, including examining legislation that already exists such as the Dealing in Cultural Objects (Offences) Act 2003. This will assist ministers in determining how best to proceed.
It seems Scotland are still waiting to act, but it would be regrettable indeed if they made the same mistakes that were made by their neighbors down south. The Dealing in Cultural Objects (Offences) Act 2003, in force in England and Wales, is not a criminal offence which will likely have any kind of measurable impact on the illicit trade, as I've argued here. The evidentiary hurdles are simply too great given the current state of the art and antiquities trade. One hopes that MSP's don't wait until another high-profile theft or sale takes place before they act. One would have thought the arrests following the recovery of da Vinci's Madonna of the Yarnwinder would have at least eliminated the argument that this is not a problem, and nothing needs to be done.
More interesting perhaps, is the question regarding the repatriation of cultural objects held by Scottish museums. One would think that given the repeated claims Alex Salmond has made for the "return" of objects such as the Lewis Chessmen, his Government would have formulated a cohesive cultural policy. Not so it seems:
Q S3W-8842 Malcolm Chisholm: To ask the Scottish Executive what its policy is on returning cultural artefacts held in Scottish museums to their nation of origin. (SP 25/01/08)
A Answered by Linda Fabiani (07/02/08): Decisions on the repatriation of cultural objects held by Scottish museums are for the Board of Trustees of each museum to take. The Trustees of National Museums Scotland recently agreed to requests to return a Tasmanian skull to Australia and other human remains to New Zealand. Under the National Heritage (Scotland) Act 1985, Scottish ministers approved the Australian Government and The National Museum of New Zealand as bodies to which National Museums Scotland could transfer objects from their collection.
Alex Salmond has been arguing for a return of the Lewis Chessmen for over a decade now. Is that the best cultural policy his government can come up with? They will simple leave it to individual Boards of Trustees.
I'll ask again, what is the cultural or historical imperative which dictates the chessmen should be taken from the British Museum, and returned? And if so, does this mean other treasures such as the St. Ninian's Isle treasure should be returned to Shetland? On the one hand Salmond argues against this perceived injustice which led to the current location of the Lewis Chessmen (even though they are Norwegian), but he makes no corresponding changes in Scotland for objects in its collections, which may have been taken under far more questionable circumstances.
Nearly a year ago, I wrote about the protests surrounding the loan of Leonardo da Vinci's the Annunciation to the Tokyo National Museum for three months. The loan generated massive protests in Italy. Italian Senator Peolo Amato even chained himself to the entrance to the Uffizi gallery in Florence.
The loan went forward, and in this week's annual gallery attendance rundown in the Art Newspaper, the work attracted over 10,000 visitors per day, the highest daily average for any exhibition since the Art Newspaper began compiling such statistics in 1997. The full table is here.
The attendance is impressive, and it's worth noting that though there may be small risks associated with transporting a work like this, perhaps the trade-off is worth it to earn revenue, but more importantly perhaps, to allow Japanese to experience an important Italian work of art.
There are indications though that the work is not entirely a work of da Vinci, but he may have finished a work by Domenico Ghirlandaio, a fellow apprentice in the same workshop as Leonardo. As such, in 1869, soon after the work came to the Uffizi from a monastery in Monteoliveto, it was recognized as perhaps an early work by da Vinci, who probably inserted the angel on the left of the work. A detail of the angel is pictured above.
There has been an increase in attention paid to the tentative agreement, not yet concluded, between Yale University and Peru over artifacts from Machu Picchu. The former first lady of Peru, Eliane Karp-Toledo had an Op-ed in the New York Timeson Saturday which was a scathing criticism of Yale University.
Yale University Staff reporter Paul Needham has also done some excellent reporting on this controversy, a recent article from Feb. is here, and an earlier one in Jan. is here.
I commented on the tentative Memorandum of Understanding back in September, and on the claims for repatriation back in June.
As I understand it, the initial agreement seemed to be an outstanding agreement for all concerned. Peru would receive title to the objects, many of the research pieces would remain in Connecticut under a 99-year lease, there would be an international traveling exhibitions, and finally Yale would help build a museum and research center in Cuzco. Such an institution would seem to be badly needed, as there are indications the current museum near the Aguas Calientes train station is not fit for purpose:
The doors were open to the air, which was moist from the nearby river, and the sole official was a caretaker who sold tickets and then exited the building. On display in the attractive (if unguarded) museum are the finds that Peruvian archaeologists have made at Machu Picchu in the years since Bingham’s excavations.
Despite what would seem to be a very good agreement for both sides, Karp-Toledo is very critical of Yale University, and indeed Hiram Bingham III who discovered the objects. She argues the objects were only to be taken from Peru for 12 months, and that legal title to all the objects must be returned to Peru. She claims "Yale continues to deny Peru the right to its cultural patrimony, something Peru has demanded since 1920."
Yale University wants to keep many of the pieces which aren't fit for museum display and study them, under a new 99-year lease. That doesn't seem to me to be unreasonable, given Peru's slight legal claims to the objects. It would seem that any legal claim Peru could bring for these objects has long since passed the statute of limitations. Peru has no tenable legal claim to the objects, however they do have a very powerful, even emotional ethical claim for the return of these objects. However, it seems to me that the ethical claims for return which have characterized the recent restitutions to Italy and Greece are absent in this case.
Unless I am missing something, Yale has absolutely no legal obligation to return the objects. I find it a bit puzzling that some in Peru are so critical of the potential agreement. The answer may be directly tied to notions of colonialism, past injustices, and even the current indigenous political movements there. However, the goal should be to advance the study of Peruvian heritage, to continue to publicize the site itself and encourage responsible tourism there. A frank discussion of the tangible benefits that both Yale and Peru will potentially receive is needed, however in these discussions it is often difficult to move beyond notions of identity and heritage, which often trump the more practical realities of what may be at stake.
It seems others have shared my initial reaction to Karp-Toledo's piece. Lee Rosenbaum wonders how some of the more extreme comments made it into the piece.
Paul Needham continues his fine work on this story in the Yale Daily News and gives reaction from individuals at yale. Richard Burger, an archaeology professor at Yale called the Op-Ed "sour grapes". It seems Helaine Klasky, Yale University spokeswoman is preparing a response. That should be interesting.
One wonders perhaps how pure Karp-Toledo's motives may be. There is no question sites in Peru have been looted, but I don't think Macchu Picchu is one. Is she using Hiram Bingham III as a political symbol, which generates public interest? I see a corollary to what Alex Salmond has done in making ill-conceived calls for return of objects from the British Museum. I do not see what grounds Peruvians may have to question this accord, which seems to be an extremely generous offer from Yale. Perhaps they should learn from a fellow nation of origin, Italy, which seems to have embraced the idea that it needs these cultural institutions in Europe and North America. Peruvians may regret that it was an American archaeologist who took objects from Macchu Picchu, but as Burger said "Yale would do well in a trial."
I often get asked about career opportunities in this field, mainly from postgraduate law students who have finished their LLM's, or from art history or museum studies folks who are very keen on the subject, but unsure of where to go with a career.
I always have a tough time answering that question, as I've not yet figured out an answer to that question for my own purposes. My oral exam has been tentatively scheduled for the very near future, and I'm planning on entering a career in law teaching or practicing in an art law or restitution specialty. However those kinds of jobs are rare.
I'm just wondering, do folks know of resources for those interested in restitution or other relevant research or work? I know UNESCO has a small group of people, and there are some very good, committed people writing on this subject at Universities all over the world; but asking challenging questions about provenance, or the ethics of collecting, or museum curatorship would not seem to be the kind of thing that people are exactly eager to hire for. Perhaps I'm wrong in that assumption, but it certainly seems a buyer's market for the few positions that are out there. So, I'd be very interested to hear from people about any resources that might be available, or if folks are interested in hiring cultural heritage lawyers, archaeologists, art historians, or others who are keen on cultural heritage.
This goes beyond just idle interest, because if there aren't options for people to pursue careers asking challenging questions, then I think cultural policy will continue to suffer as a result. In any event, I'd like to have an answer, as I usually get an email at least once a week asking what opportunities are available.
Two of the four works stolen from the Buhrle Collection have been recovered at a mental hospital 500 yards from the private art museum in Zurich. Monet's Poppy Field at Vetheuil and van Gog's Blooming Chestnut Branches were discovered in a parking lot, still behind their display glass and completely unharmed. The two easier-to-carry works, Degas' Ludovic Lepic and his Daughter, and Cezanne's Boy in the Red Waistcoat are still missing.
There's no word about how long the car has been parked in the lot. Did the thieves leave it there immediately after the theft? Or, did they return it there to show they still had the works and were serious about a ransom?
There are also indications that the returned van Gogh may in fact be a copy (Ger.) by his friend and homeopathic physician Paul-Ferdinand Gachet. The Weltwoche, a German-language weekly newspaper publiched in Zurich, has investigated these claims in recent years. Gachet's copies of impressionist works were the subject of a 1999 retrospective at the Met.
Europe is just waking up this morning to news that the four Bührle Collection works stolen earlier this month may have been recovered in a mental institution parking lot, not far from where they were stolen. I'll try to update more this afternoon, when more details are available.
A warm welcome to everyone who's clicked through from Randy Kennedy's excellent piece which appeared in yesterday's New York Times. He managed to add some analysis and even novelty to a subject which often gets the same treatment whenever a high-profile art theft takes place.
I think he contrasts nicely the idea of an alluring art thief with the reality that "art is an exceedingly dumb thing to steal." That certainly seems to be the conventional wisdom. But of course because "art museums are still relatively unguarded public spaces", these thieves will continue to have the opportunity to take objects. The ultimate tragedy would be if we had to run a gauntlet of airport-like security checks to view works of art. However if these thefts continue, that may be a step certain institutions may decide to take. I particularly like the comments he elicited from Thomas McShane, the former FBI agent whose memoirs I reviewed here.
The reason myself and others like to speculate about a "Dr. No" when an extremely valuable and well-known work is stolen can be traced to the very first bond film. Dr. No was of course the unwanted son of a German missionary and a Chinese girl, and a member of the Special Executive for Counterintelligence, Terrorism, Revenge and Extortion (SPECTRE). The film makers, in a throw away moment, capitalized on the theft in 1961 of of this work by Goya, Portrait of the Duke of Wellington. Bond does a double-take when he reaches the island home of Dr. Julius No. He sees the painting and remarks "So that's where that went".
Hugh McLeave's Rogues in the Gallerydetails the perhaps more bizarre reality. The real thief may have been a man named Kempton Bunton. He was a disabled British pensioner who confessed to committing the crime. Bunton was a retired bus driver. In 1961, Charles Wrightsman purchased the painting for £140,000. He wanted to take the work to the United States, but of course the UK's limited export restriction applied, and money was raised to purchase the work and it was displayed at the National Gallery. At this time a great deal of press attention was paid to the work, and Bunton, upset at the amount of money he had to pay for his TV license, may have decided to break into the museum early in the morning and steal the work.
After chatting up the security guards, Bunton allegedly learned the electronic security system would be turned off early in the morning. He used tape and paper to insure the door and a window in the toilet would be unlocked, and made his way around back early in the morning and took the painting. He later said "I raced back to the lodgings. Taking the picture from behind the wardrobe, I stood it on the bed with the frame leaning against the wall and looked at it in triumph. Wellington returned my stare with cold contempt and I swear I saw his lips move, with the imaginary voice that said: 'thou low-born wretch, I'll break thee for this.' And somehow I believed he would."
Bunton seemed to be after some notoriety and fame. Letters were soon sent to newspapers, one asked for donations to charity to allow the poor to pay for TV licenses.
In 1965, four years after the theft, Burton reportedly returned the painting via a left luggage office at the Birmingham New Street Station. Soon after he went to the police and confessed to the crime. The police initially rejected him as a suspect, as they didn't think a pudgy 61 year-old disabled man could have committed the crime. However charges were soon filed and the jury only convicted Bunton of the theft of the frame, which was not returned. Judge Aarvold explained to the jury that if they thought he meant to return the painting if a ransom bid failed, they must acquit him. If they felt he would keep it until he got the money, they would have to convict. The jury found Bunton not guilty of stealing the painting, but guilty of stealing the gilt frame, which was never returned. Bunton served only three months in prison.
The law was changed soon after as a direct result of this light sentence. A provision in the Theft Act 1968, sec. 11 makes it a crime to remove without authority any object displayed or kept for display to the public in a building to which the public have access. It does not require an intention to permanently deprive.
As for Bunton, there are some indications that he may have perhaps been innocent. In 1996 the National Gallery released an unsolicited and simple statement that he may have been innocent. What actually happened is still subject to some speculation.
I am just catching up on this story, but it strikes me as particularly troubling. 6,000 year-old paintings of animal and human figures have been spray-painted over by UN peacekeepers in the Western Sahara. The UN personnel with the Minurso mission in the Western Saraha signed and dated their work, and in some cases revealed their identities. As the Times reported back in January:
One Croatian peacekeeper scrawled “Petar CroArmy” across a rock face. Extensive traces of pigment from rock painting are visible underneath. Another left behind Cyrillic graffiti, and “Evgeny” from Russia scribbled AUI, the code for the Minurso base at Aguanit. “Mahmoud” from Egypt left his mark at Rekeiz Lemgasem, and “Ibrahim” wrote his name and number over a prehistoric painting of a giraffe. “Issa”, a Kenyan major who signed his name and wrote the date, had just completed a UN course, Ethics in Peacekeeping, documents show.
The Middle East Online reported that Morocco's director of national heritage has accused the UN forces of graffiti on ancient sites, but also the theft of cave paintings, desecrating graves, and removing engraved paving stones.
Such disregard for important heritage of course implicates the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. To add to the difficulty, the head of the UN mission in Western Sahara (Minurso), seems to have bungled an apology, and served to incite more unrest between the groups he should be monitoring.
I'd really recommend those interested to have a look at what David Nishimura has to say on this, as I picked up the story from him. He notes the parallels with the coverage of the theft of objects from the Iraqi Museum, and the part coalition forces may have played in the looting of the museum in Baghdad. However he notes "the greatest damage in Iraq has been indirect, a consequence of civil disorder, rather than the direct result of military action. The vandalism in the Sahara is particularly shocking due to its deliberateness and the identity of those responsible, along with the complete lack of mitigating circumstances."
I think that's exactly right, and this story has received very little media attention in the West, particularly in the United States. There was a lot of legitimate outrage at the actions of the US military on the heels of the looting of the Baghdad Museum, however the actions of these UN forces deserves an equal measure of outrage in my view, and the troops responsible should be subjected to criminal penalties for looting and vandalizing these sites. Sadly, I think this reveals just how ineffective the international legal regime has been in protecting sites during armed conflict.
I know by monitoring the url logs that this site attracts some interest of journalists, notably when some of my ideas may prove useful for a story, which is great. However rather than writing the same story about Marion True for example, why not broaden coverage to encompass the full nature and extent of the antiquities problem?
The Doctrine of Discovery is an international legal principle which justifies property rights over new-found territories. The doctrine is still very much alive today. Russia evoked it when it placed its flag on the Arctic Ocean floor in 2007 to claim the potential oil and gas reserves there. 
