Debate on the Portable Antiquities Scheme (UPDATE)

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.

Portable Antiquities Scheme Review and Treasure Report

A flurry of new information on the Portable Antiquities Scheme has been released today. The PAS is the voluntary program which records objects found by members of the public in England and Wales, some of these objects may qualify as treasure as defined under the Treasure Act, in which case finders are entitled to the full market price of the object while the Crown holds title.

First, the Review of the Portable Antiquities Scheme was released today (commissioned by the Museums Library and Archives Council with the British Museum and the Department for Culture, Media and Sport). The very positive review notes the PAS is under-resourced and yet "still well-liked, delivering genuine partnership and good value for money. Having reviewed budgets and operations, it is clear that with no increase in resources, posts must be cut and the scheme will not deliver regional equity." The report recommends an increase in funding of just over 9% next year. This appears to be very good news for the scheme in the short-term as the cuts made this year can be reversed.

Second, the Treasure Annual Report was released today. A few highlights:

• "Treasure" reporting increased again, with 749 objects qualifying as treasure reported, up from 665 in 2006. One of which was this Iron Age torc, made of gold and silver and found near Newark in 2005.
  
• In 2007, 77,606 objects were recorded on the PAS database, now totaling 360,000 objects.
• Since 2003, the date at which the PAS was extended throughout England and Wales, treasure reporting has increased nearly 200%.
  

The release is featured in a brief BBC story today "Treasure Hunters Boost Gold Finds". To read my thoughts on the PAS, and what it means for other nations of origin, see here; Kimberley Alderman has a kind summary of it today. The biggest success of the PAS has been its inclusion of a variety of disparate interests from coin collectors to archaeologists. Such compromise is exceedingly rare in heritage policy.

It has also included social groups which aren't always typical museum-visitors -- a very good thing in my view. This happens in two ways. First, finders are encouraged to report and record the objects they find. Second, anyone can access the database and use the data. This may include people ranging from schoolchildren to doctoral candidates to established academics.


The images of the finds are stunning. Below is a slideshow from the PAS on flickr.

My Article on the Portable Antiquities Scheme

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

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

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

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

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

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

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

The Uneasy relationship between Scholarship and Journalism (UPDATE)

Lee Rosenbaum, arts journalist and fellow blogger at culturegrrl has an Op-Ed in today's LA Times titled "Make art loans, not war" in which she argues for increased loans from Italy and Greece, a more collaborative relationship between North American "Universal" museums, and an increase in what she calls "citizen archaeology" along the lines of the portable antiquities scheme in England and Wales.

It's a well written piece, but it strikes me as a compilation of a lot of other scholarship. I suppose it's a journalists prerogative to take the work of scholars and researchers and reconfigure it in a more digestible (i.e. better written) form, but it does strike me as a bit unfair that she gets to take credit for some ideas which have been persuasively and compellingly articulated elsewhere. I'd like to point out some of the theoretical foundations for the ideas that Rosenbaum articulates.

John Merryman has long been a champion of "cultural property internationalism", and Kwame Anthony Appiah also made a compelling argument for a similar kind of idea in his recent work, Cosmopolitanism: Ethics in a World of Strangers.

Antiquities leasing is a particularly interesting idea, and it's one that's received some interesting attention recently, including an article by Peter Wendel, a law Professor at Pepperdine University, as well as a recent working paper by Michael Kremer and Tom Wilkening who argue from an economic perspective that long-term leasing of antiquities would allow source nations to earn much-needed revenue from their antiquities, but would preserve their own long-term ownership interests. I've even argued here that the agreements forged by the Getty, the MFA Boston, the Met, Princeton, and Yale with Peru are essentially leasing agreements between the two sides. Clearly, the custom established by these agreements leads to the idea of leasing as a workable solution to these intractable disputes.

I found Rosenbaum's argument for citizen archaeology particularly interesting:

More controversially, I believe that source countries should consider training and licensing citizen archaeologists. The antiquities police can't hope to end all the looting or shut down the black market completely. But if those who make finds are compensated for reporting them and perhaps trained to help excavate them, midnight marauders who mangle masterpieces and destroy archaeological context may become less numerous and destructive. One precedent for the "if you can't beat 'em, join 'em" approach is Britain's financial compensation of metal detector-wielding amateurs who turn over significant finds including gold, silver and prehistoric objects to the proper authorities.

This is a subject upon which I've written, and what she's referring to here is the Portable Antiquities Scheme, and the Treasure Act. Their flickr site is particularly interesting, which is where I found the image above of a Roman horseman found in Cambridgeshire last year. The PAS operates only in England, Wales and Northern Ireland. Scotland is not a part of the scheme. Unfortunately the PAS is in danger due to budget restrictions and funding for the London Olympics.

I discuss the PAS and the idea of rewarding finders of objects in some detail in my recent article WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE, 25 Cardozo Arts & Ent. L.J. 597 (2007), available on Lexis and Westlaw. I think she may be under a mis-impression regarding the scheme. The PAS encourages voluntary reporting of finds for those objects which fall outside the scope of the Treasure Act. The scheme has created a massive community archaeology project for objects which are found on private lands and do not belong to the Crown. There has always been a requirement in England and Wales to return valuable metal objects to the Crown, however the introduction of the scheme dramatically increased compliance with the law. Based on this, I argue that it's not enough for a source nation to declare ownership; to effectively protect sites it must also erect appropriate mechanisms to promote compliance with those ownership declarations. When a metal detector finds a valuable piece of gold on private land (detecting on scheduled monuments is strictly forbidden) the finder is entitled to an award, which thus encourages the reporting of finds. However, such a system may not work in all source nations, as you do not want to encourage haphazard looting. As a result the PAS and the Treasure Act are important policy solutions to consider, but are not a cure-all for the antiquities trade.

In short, there has been a great deal of attention placed on the return of objects to Italy, but nearly all these returns, and certainly the most valuable and significant objects, were returned based on substantial evidence, often photographs, which indicate the objects in question had been illegally excavated. The Medici Conspiracy details the investigation. These returns to Italy are the product of a massive investigation of a single commercial stream (albeit a substantial one) from Italy to North America. The challenge for cultural policy makers is to think about the other source nations and other transactions. Rosenbaum rightly points out some of the innovative potential solutions to these dilemmas, I just think it's regrettable that the Op-Ed forum doesn't allow her to reference some of the important work she may have relied on to formulate her thoughts.

UPDATE:

Rosenbaum responds to me here, and also posts reactions from a "prominent curator" and David Gill.

Metal Detecting Filling the Gap Left by Reduced Funding for Archaeology?

That's the gist of Maev Kennedy's extended piece on the U.K.'s Portable Antiquities Scheme in today's Guardian: 

As the money that funded an unprecedented explosion of professional archaeology during the economic boom years runs out, public hunger to peel back the past beneath our feet is helping to fill the gap. So the grots are identifying lost villages and settlements, Roman forts and temples, previously unknown trade routes; even mapping the slow ebb of the Roman empire from Britain.

By law, you must have a licence to excavate or remove even a pebble from a scheduled ancient monument or listed building, and all treasure finds anywhere must be reported. But anyone can pick up a metal detector – there are an estimated 180,000 in Britain – and take it into a ploughed field with the permission of the landowner. Fired by an unprecedented public interest in archaeology, thousands of people are doing just that, and the finds they report, often almost worthless in terms of cash, are proving true treasure.

"This is revolutionary stuff," says Sam Moorhead, a coins expert at the British Museum, who is in charge of the coins reported under the Portable Antiquities Scheme (PAS). "Gold doesn't map settlements – high-status coins could be hidden or lost anywhere. But where you've got 100 grots, you've got a settlement."

The grots have only been reported since 1996, when the PAS began establishing a national network of finds officers, to record and crucially map all the archaeological objects found by amateurs. The scheme has gradually forged a truce between most career archaeologists and the metal detectorists many previously regarded as little better than looters.

Reports of finds from bronze-age arrows to second world war cap badges are now running at 50,000 a year. Gradually, the detectorists realised that the archaeologists were interested in the rubbish in their grot pots. This week the scheme recorded its 400,000th object, a classic grot from Lincolnshire that has turned out to be a fabulously rare coin.

 For my thoughts on the PAS, see here.  For a published examination of how we might apply the PAS and some of its policies elsewhere, see here. 

Nighthawking Report Published: Illegal Metal Detecting Has Decreased

The long-awaited report upon the impact of illegal metal detecting ("nighthawking") conducted by Oxford Archaeology on behalf of English Heritage, is now available from  the Historic Environment Local Management website.  It appears that illegal metal detecting in England has declined since 1995, the point at which soon after, in 1997, the Portable Antiquities Scheme first began its efforts.

Ownership declaration is an important legal strategy undergirding the protection of heritage; but this declaration in isolation does not necessarily create the best cultural heritage policy. Effectively guarding every archaeological site is impossible given limited resources. The looting of corresponding sites elsewhere in the World, particularly in North and South America is a travesty and presents a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. That's not to say that these states should encourage metal-detecting, but the efforts of the PAS have appeared to substantially decreased looting and illegal activity.  Education and outreach, even if it means compromise, are essential. Outreach and education is badly needed.

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? 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.

The most interesting revelation of the report is the suggestion that metal detecting has substantially decreased since the PAS began.  In 1995, 188 scheduled monuments were reported damaged; in 2008, that number was 70.  In 1995, 74% of archaeological units reported their sites had been molested; in 2008 that number is 28%.  I take that as pretty strong support for the proposition I argued for in my recent piece on the Portable Antiquities Scheme, A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin, IJCP (2008).


Despite the overall decrease, the report still argues the criminal penalties remain insufficient, and the local enforcement officers and the Crown Prosecution Service need to do more to ensure individuals caught violating the law receive suitable punishment.  At present the maximum penalty is three months in prison and a £1,000 fine. 

The report provides a number of other key points:

1. Provide clear guidance to the police, Crown Prosecution Service and Magistrates on the impact of Nighthawking, how to combat it, levels of evidence and possible penalties.
2. Provide more information for landowners on identifying Nighthawking and what to do when they encounter it.
3. Develop better ways to find out what is going on and establish and promote a central database of reported incidents of Nighthawking.
4. Publicise the positive effects of responsible metal detecting and the negative effects of Nighthawking.
5. Ensure the PAS is fully funded, so links between archaeologists and metal detectorists are further strengthened.
6. Integrate metal detecting into the archaeological process, including development control briefs.
7. Implement changes recently introduced in Europe which increase the obligation on sellers of antiquities to provide provenances and establish legal title, and urge eBay to introduce more stringent monitoring of antiquities with a UK origin offered for sale on their website.

Media Coverage:
Bloomberg, Telegraph, AFP, BBC, Guardian, Times

Viking Silver Discovered by Metal Detectorists on Display in York

This hoard of viking silver -- buried in the 10th century -- was discovered by Metal detector David Whelan and his son Andrew in a field in 2007.  Included in the find were 617 coins and 67 other objects.  The treasure was valued at over £1m.  They went on public display in York last week.  Andrew Morrison, curator of archaeology at the York Museums Trust tells the BBC what we know about the silver and the role it played in the Anglo-Scandinavian economy:

"We can certainly say it's an Anglo-Scandinavian hoard because of the contents," Mr Morrison insists. Among the coins are dirhams from Muslim states as far away as central Asia and Afghanistan.  "What they're showing you is trading links. That tends to be very much more the Viking side of life than the Anglo-Saxon side of life," says Mr Morrison. The Scandinavian seagoing peoples travelled and traded far and wide   The presence of "hack silver" - items such as jewellery cut into pieces for their silver value - is also "what you expect from an Anglo-Scandinavian economy," he adds. The Anglo-Saxons tended to use coins rather than bullion.  The hoard will be on show in York from 17 September until 1 November.  It will return to the British Museum while the Yorkshire Museum closes for refurbishment until August 2010. It will then return to York for "a period of time" - by which time the whole hoard, including all 617 coins, should be ready to go on display.  For Mr Morrison this co-operation between regional and national museums is "the way forward - you get the best of everything: the local input into ways of doing things, with the national expertise".  The hoard, for him, has a personal feel - it gives clues about whoever it was who hid it. The single gold arm ring among the mass of silver items could well have been of great sentimental value to its owner, he believes. Possibly it was a reward for services given by a superior ruler.  In sum, he says: "This is the lifetime's treasure of a reasonably wealthy individual."  It also helps us to remember what a wealthy and prestigious place Northumbria, centred on York, was, he observes - sometimes in the richness of archaeological finds in the city and its surroundings "we forget how it is a place with the seeds of power and glory."

  In an ideal world of course all these objects would be professionally excavated.  Yet these objects tell us a great deal about the culture which produced them, they can be enjoyed by scholars and the public in York and at the British Museum.  Contrast this with the Sevso Treasure, which is locked away at Bonham's auction house.  Three nations of origin, each with national ownership declarations and no similar rewards for finders, fought over those works, and the result was the trust created by the Marquess of Northampton was able to retain possession.  Whatever criticisms can be lodged with the Treasure Act and the Portable Antiquities Scheme, they reward compliance.  They work.  We still know very little about the Sevso Treasure, who discovered, and where.  The current state of law and policy produces a perfect black market.  The PAS offers a good alternative.  What is the utility of a legal regime which cannot be enforced? 

I've argued that the PAS has a lot of merit, and should be considered as a potential policy model for other nations. Rick Witschonke, reported on a conference earlier this month at the British Museum on the Portable Antiquities Scheme, and his thoughts are here. 

Trevor Timpson, The 'wonderful, wonderful' hoard & Getting the most out of treasure [BBC Sep. 17, 2009]. 

Antiquities Problems in Bulgaria

Malcolm Moore has an excellent article in the Telegraph on antiquities smuggling in Bulgaria. Don't miss the excellent slideshow.

Not a lot is written about antiquities smuggling there, but perhaps more work needs to be done, as Bulgaria is behind only Greece and Italy in terms of antiquities in its soil. Bulgaria has taken the approach of most source nations and declared an ownership interest in undiscovered antiquities. As I've argued, those declarations do very little of their own accord. A comprehensive policy and education of the public is needed, as has been done successfully in most of the UK with the Portable Antiquities Scheme.

A police spokesperson, Volodia Velkov estimated that tomb raiding generates £4 billion per year for organized crime. That number seems a bit inflated, but there is no way to make a definitive accounting. This Thracian gold vase would be worth a few pounds surely. Just last week a man was arrested smuggling 100 objects to Germany worth £345,000.

Mr. Velkov says "Since last October, when we started the new department, we have seized 16,000 artefacts,... More than 30,000 people are involved in tomb-raiding. The business is very well-organized and the expeditions are financed by rich Bulgarians living in the US, Britain and Germany...The main route is through Germany, where there are huge warehouses full of our antiquities,...".

One approach may be to license private collectors. Archaeologist Nokolai Ovcharov says "The government cannot afford to excavate all the sites itself. So they should give out concessions and carry out rigorous checks on what is found. The longer it takes to pass a new law, the more treasure we will lose."

That seems to be the only solution available short of eliminating the antiquities trade completely, or requiring comprehensive provenance research. Until that happens, expect more looting from Bulgaria.

(hat tip to David Gill)

Financial Innovations and the Antiquities Trade

Earlier this year I was asked to participate in a gathering of lawyers, archaeologists, antiquities dealers, economists, and members of the museum community at the Milken Institute in Santa Monica California: "Financial Innovations to Curb Looting and Preserve Cultural Resources"

The institute has published a report available here (registration required). From the press release:

Participants examined how market-based financial innovations could help stem the black market on antiquities by changing incentives that would create cultural and economic value to all stakeholders.

“An open, more efficient market can help address many of the problems that plague the antiquities trade, including poverty, corruption and environmental and cultural degradation,” said Glenn Yago, director of capital markets at the Milken Institute. “The whole chain of events, from country of origin to museum or personal collector, needs a new set of legal market-based rewards.”

I gave a few comments on the intersection of the Treasure Act and the Portable Antiquities Scheme in England and Wales, which I expanded and developed into a longer article.

I've read the report, and it offers three potential ways we might use these "financial innovations" to reform the antiquities trade:

• long-term leases for museums and exhibitions
  
• museum/collector partnership-sponsored digs
  
• the design and development of archaeological development bonds

The first is already taking place with increasing regularity. The latter two will likely be met with more controversy, but they do have a lot of merit I think if they are implemented carefully and thoughtfully. Any reform will have to have the support of nations of origin, and they have to be confident that their efforts are producing a good deal for them, and aren't just a continuation of the taking of recent centuries.

The event itself was great, and it brought together a number of stakeholders -- including archaeologists and antiquities dealers. It was clear that they have deep-seated disagreements, but there was a core of things upon which they did agree, which is the foundation of any effort at reform.

I strongly encourage those interested in the antiquities trade to give the report a read.

2007 in Review

One of the best things about the end of the year is the chance to catch up on things I've missed out on during the year. I love the year-end best music lists, all of which are helpfully compiled on largehearted boy. Movie lists are great as well, though many of the Onion's favorite movies have yet to appear in most theaters. Dahlia Lithwick, the always-excellent legal reporter for Slate also runs down the "Bush administrations Dumbest Legal Arguments of the Year".

It's also been an eventful year in the cultural policy world, and in that spirit I've compiled the Top Ten Cultural Property events of the past year.

10. The Major theft in Brazil of Picasso's Portrait of Suzanne Bloch and a work by Brazilian artist Candido Portinari from the greatest South American Art Museum, the Sao Paulo Museum of Art. Much of the subsequent US media coverage of the theft has misleadingly depicted the Sao Paulo Museum of Art as a poor and bumbling institution that couldn't afford insurance. That's highly misleading, because even the wealthiest institutions have difficulty insuring their works. It's expensive to insure a work worth $100 million, and its often more cost-effective to spend that money on security. Of course the security was not up to the task in this case, but one wonders if a major theft of this nature from an American or European museum would be so quick to blame the museum?

9. The still-to-be revealed extent of the forgeries created by Shaun Greenhalgh, who lived in Council Housing in Bolton with his aging parents. His forgeries fooled the British Museum, the Art Institute of Chicago, and some of the world's leading experts on Gauguin. The most surprising aspect may be the breadth of the forged objects which ranged from an ancient Greek kouros to Egyptian to ancient cuneiform to a sculpture by Gauguin. How many more Greenhalgh's are on display now? We don't know for sure. It calls to mind Orson Welles' final masterpiece F for Fake: "It's pretty but is it art? How is it valued? The value depends on opinion, opinion depends on the expert, a faker ... makes fool of the experts - so who's the expert? Who's the faker?"

8. The recovery in August of three Picasso works stolen from the artist's granddaughter in February.

7. Another major story is the state of antiquities--discovered, displayed, stolen-- in Iraq.

6. The theft in August in Nice France, in which thieves stole 4 works by Monet, Sisley, and Bruegel. It's probably not possible to sell these works on the open market, but at least two of these paintings had been stolen in 1999. A theft to order seems the likely explanation.

5. A significant continuing story is the increasing number of WWII-era art claims.

4. In October da Vinci's Madonna of the Yarnwinder was recovered from a Solicitor's office in Glasgow, four years after its theft from Drumlanrig Castle. It was a major recovery because it was a da Vinci, but also because it was recovered in a solicitor's office. I'm looking forward to more details as the criminal trial unfolds in 2008.

3. A major story in the UK is the trouble for arts and museum funding in the face of the London Olympic bid. This funding shortage could destroy much of what makes the UK cultural policy tick, including the Waverley limited export scheme, the Portable Antiquities Scheme, and arts funding generally.

2. A major milestone this year was the legal claims brought by Iran in England to seek to block the sale of antiquities. The first was Iran v. Berend [2007] EWHC 132 (QB) (an unsuccessful attempt to block the sale of a limestone relief from Persepolis). The other major dispute involved chlorite objects from the Jiroft region of Iran. The High Court ruling Iran v. Barakat Galleries Ltd. [2007] EWHC 705 held Iran was not able to establish an ownership interest, however this was overturned by the Court of Appeal in Iran v. Barakat Galleries [2007] EWCA Civ 1374. These decisions received surprisingly little media coverage, but will have long-lasting consequences for years to come as they have extended the standing of the 1970 UNESCO Convention, and provided important precedent for other nations which may seek to prevent the sale of antiquities in London's bustling antiquities markets.

1. The story I found myself writing the most about this year was the interminable dispute between Italy and the Getty, which finally culminated in an agreement this summer for the return of dozens of important works to Italy. The dispute has a number of related stories, including the ongoing dispute over the Bronze Statue of a Victorious Youth, and the Marion True/Robert Hecht criminal trial in Italy. Will it fundamentally change the antiquities trade? Does it signal the end of the universal museum? Will cultural policy matter in nations other than Italy? Perhaps 2008 has the answer to those questions.

Axes!

Bus driver Tom Peirce has discovered 500 Bronze Age metallic objects with his metal detector in Dorset. The Daily Mail has the story with photos.

The discovery includes 268 complete axe-heads, one of the biggest hoards ever found in Britain. The find, as it constitutes a "prehistoric" metallic object qualifies as "Treasure" and is the property of the Crown.

Archaeologists believe the hoard was buried in the field as some form of ritual offering to the gods.

Grandfather Mr Peirce, from Ringwood, Hants, said: "When we took them out of the ground, some of them were so pristine you would think you had just bought them at B&Q yet they were 3,000 years old."

There were so many of the artefacts that the pair couldn't collect them all so returned the following day with fellow detectorist Brian Thomas,75, to gather the rest.

Mr Peirce, who has been a metal detectorist for five years, added: "We went back and dug in another hotspot and found a load more.

"We were very lucky because there was not much else in the field.

"If we had tried another place or walked in a different direction, we'd never have found them."

Mr O'Connell, 62, who has owned the farm for four years, said: "Within about half an hour of Tom searching, he came rushing over to me looking shocked.

"During the war, a plane had crashed in the same field and for a minute I thought he had found a bomb.

"We went back up there on my tractor and saw the axe heads. I didn't have a clue what they were - I thought it was scrap metal at first.

"I have owned the farm for four years and had no idea they were up there. It is very exciting."

The find will now be valued, and the finder and the landowner will split the market value, which is estimated to be £80,000.

It's this reward scheme under the Treasure Act which encourages the reporting of these finds. The difference between this policy and the typical approach in source nations is it encourages finders to come forward with finds; however it also encourages more metal detecting, which can be seen as a trade-off. The compensation scheme is a pragmatic balancing of interests, which places a higher value on the acquisition of the find, and bringing discoveries to light, rather than leaving objects in the ground. I think it's an excellent policy for the UK, but it may be questioned whether such an approach would work as well in other nations without the economic resources to fund the scheme.

Those objects which don't qualify as treasure are subject to the voluntary Portable Antiquities Scheme. Treasure basically includes precious metals (i.e. gold and silver), prehistoric base-metal like these bronze objects, and objects found with them. Since 1997, objects which don't qualify as treasure can be recorded by the Finds Liaison Officers which have forged connections with local metal detectorists, and have compiled information which has led to a more complete understanding of important sites.

I should note, that it's my understanding that Greece and Italy both have similar rewards schemes, but not a lot has been written about them to my knowledge. My initial conclusion is these schemes are not funded as well, and have not produced the kind of results the PAS has. I believe both nations reward finders at something like 25% of an object's value if it is discovered by chance. If any readers have knowledge of these kinds of rewards schemes I'd appreciate a post in the comments.

(Hat tip: Will Anderson).

Olympics or Arts

A steady string of arts venues have suffered closure in the UK in recent weeks. The Komedia in Brighton has had to shut its doors; the Windsor Arts Centre closed its doors last friday; and earlier this month the Lemon Tree in Aberdeen suddenly shut its doors as well. I should note in the interest of full disclosure that my wife had been in charge of marketing at the Lemon Tree for nearly a year, and its sudden closure came as quite a shock. It was hardly the season's greetings we were expecting from the Aberdeen City Council. The Lemon Tree closing was particularly disappointing for us, as it was a great venue which did a lot of community and charity work; and in many cases funding was secured which actually made these events profitable.

Sadly the trend seems likely to continue. And what is the root cause? Arts funding is always a battle, especially for real new and creative enterprises. In many cases much of the money the arts council and other organizations had previously given these organizations has been diverted to the Olympic fund. Not only that but corporate and other sponsorships are diverted to the Olympics as well. It's not only arts funding either.

The Portable Antiquities Scheme, a pioneering community archeology project will likely have its funding cut this year. Will Anderson rightly points out that "to halt the PAS now that it is operating so successfully would be folly. All so they can build another few domes for the Olympics. It is the department of 'Culture' Media and SPORT and its proxy the Museums, Libraries and Archives Council, that deserve to be scrapped".

Colin Renfrew had an excellent summary of the scheme's benefits in an opinion piece in the Guardian earlier this week. He points out that the scheme is "starting to transform our understanding of many aspects of the past". Seventeen PhDs have used PAS data. I know it featured prominently in my thesis as an excellent and pragmatic way to effectively regulate sites in source nations. In terms of concrete discoveries, a Viking age cemetery was discovered in cumbria, a Roman bowl bearing the names of forts on Hadrian's wall has been acquired by the British Museum and others. Perhaps most importantly, "the scheme has also taken the initiative in policing the internet for objects that should be reported under the Treasure Act and has promoted a code of practice".

The situation isn't any better in Scotland either, where funding for the 2014 Commonwealth Games in Glasgow will likely begin to increase as well. I don't doubt that holding the Olympics in London will give a number of benefits to London and the UK. Perhaps if most British citizens were given a choice maybe they would choose Olympic funding over the arts and culture. However, I think those in charge should be upfront about the hidden costs and very real cuts which this Olympic bid will cause.

Ratcheting Down the Antiquities (and Drug) Wars

The NYT has an article suggesting President Obama's choice for "drug czar" (the head of the Office of National Drug Control Policy) could substantially alter federal drug policy in positive ways (my emphasis):

The anticipated selection of Chief Kerlikowske has given hope to those who want national drug policy to shift from an emphasis on arrest and prosecution to methods more like those employed in Seattle: intervention, treatment and a reduction of problems drug use can cause, a tactic known as harm reduction. Chief Kerlikowske is not necessarily regarded as having forcefully led those efforts, but he has not gotten in the way of them.

Under John P. Walters, the drug czar during most of the administration of President George W. Bush, the drug office focused on tough enforcement of drug laws, including emphases on marijuana and drug use among youths. The agency pointed to reductions in the use of certain kinds of drugs, but it was criticized by some local law enforcement officials who said its priorities did not reflect local concerns, from the rise of methamphetamine to the fight against drug smuggling at the Mexican border.

 There has never been a "war" on antiquities looting which could approach the America's often wrong-headed illegal drug policy.  But it's hard not to notice the parallels between the potential shift in American policy on drugs and the efforts of the Portable Antiquities Scheme, which has achieved some notable policy successes by taking a pragmatic approach, aimed at similar kinds of "harm reduction".  

One of the weaknesses with prohibitionism is it restricts supply, without taking account of the potential demand.  This makes the targeted trade -- whether it's drugs or guns or antiquities -- this makes the illegal trade  more profitable, allowing better more sophisticated tactics to evade law enforcement.  There's a good argument I think that some prohibition helps create and incentivize large-scale criminal operations and organized crime networks. 

Art-Beat Constables

Martin Bailey of the Art Newspaper has the story of Scotland Yard's part-time volunteer officers which have been tasked with policing art theft, the sale of looted antiquities, forgery and fraud. 

ArtBeat began in January 2007, and there are currently 13 special constables (six males and seven females). These include two from national museums, three from the Art Loss Register, three archaeologists with the remainder from a variety of institutions. The two from museums are Zoe Jackman of the V&A (see below) and Michael Lewis of the British Museum, where he is deputy head of the Portable Antiquities Scheme.

The Art and Antiques Unit needs all the manpower it can get. Last year Scotland Yard proposed halving the staff of its Art and Antiques Unit, which had four officers. In the end, the cuts did not proceed and funding has been confirmed for the current financial year. Nevertheless, resources are tight and having 13 part-time special constables for two days a month is equivalent to one extra full-time officer. Inspector Alan Seldon told us: “There are only four officers in the unit. The scheme expands what we can do, and enhances our capability.” He wants to encourage more recruits from the London art scene.

This seems to be a good idea generally, and if it helps the Arts and Antiques Unit, that must be a good thing.  But its no substitute for an open and honest market in art and antiquities. 

The Year in Cultural Policy

2009 saw a number of interesting trends in cultural heritage law and policy.  Below are a few of the year's prominent stories.  On a personal note, I am still enjoying the fellowship at Loyola in New Orleans; but still looking for a permanent position that will allow me to continue writing and thinking about cultural heritage.  But in the mean time your interest and support continues to enrich and support my work.  There is a need for people to continue thinking and writing about culture.  The blog saw a lot of  interest this year, with nearly 80,000 visitors.  I'd like to thank you all for your interest, comments, and helpful notes and conversations. 

The Four Corners Antiquities Investigation


A large federal investigation into the illegal trade in Native American Artifacts signaled a growing commitment of federal authorities into policing Native American artifacts.  A June 10th raid which searched the homes and businesses of over 20 people lead to arrests, and even two suicides.  So far charges have emerged in Utah, but charges may emerge in New Mexico, Arizona, Nevada, and perhaps even Colorado.

Ongoing Repatriation Efforts

Repatriation continued to dominate headlines this year.  Peru, Egypt, Greece and other nations brought suits and made charges in the press.  One of the most interesting stories which emerged early in 2009 were the efforts by China to secure the return of objects  taken during the period of colonialism.  Many of the prominent details emerged in the press.  In February an auction of many works of art from the Yve Saint Laurent auction became the proving ground for China's cultural diplomacy.  These two bronzes were slated for sale at the auction, having been looted from the Old Summer Palace in Beijing in 1860.  China first threatened suit against Christie's, but that suit was denied. At the auction, Cai Mingchao, the general manager of Xiamen Harmony Art International Auction Co. was the winning bidder on these bronzes.  Yet he refused to pay, essentially sabotaging the auction.  This was another indication of the increasing role that nations of origin are playing in the heritage marketplace.  I'm not sure how many wealthy bidders would be willing to stake their reputation or future ability to bid on such a move in the future, but this was a cunningly simple, very shrewd strategic move by Mingchao and the Chinese.  They wanted to disrupt the market in these objects which had been looted, and did a brilliant job doing so.  

Deaccession

The decision by museums to sell works of art generated considerable controversy this year, and no dispute better encapsulates the difficulties which arise than the decision by Brandeis University to close the Rose Museum of Art.  The University has shifted its position  since the initial announcement.  It has announced its intention to maintain the Rose in some form, but given the University's financial difficulty the decision was not made lightly.  One of the difficulties with deaccession stems from its connection to our fundamental view of art and museum governance.  What is the nature of art?  An art museum?  Are either permanent?  Can we trust the governing structures in our museums?  Our inability to find common ground in crafting answers to these questions accounts for the continued difficulty.  But if the arts community cannot come together and craft viable solutions to these difficulties, we are going to be left with weaker cultural institutions and risk losing more works as a result of financial difficulty. 


Treasure Seekers in the United Kingdom

Earlier this year Oxford Archaeology released a report on the management of undiscovered antiquities in England and Wales.  The conclusion?  Illegal metal detecting in England has declined since the United Kingdom amended the Treasure Act and created the Portable Antiquities Scheme. This has led to the amateur discovery of some beautiful objects, including this Anglo-Saxon hoard discovered by a detectorist this summer.


And of course art theft continued to occur with alarming regularity.

 

US Criminal Penalties and Antiquities

To a casual observer, the recent searches in California would perhaps indicate that American criminal prosecutions and investigations can have a substantial impact on the illicit trade in antiquities. I certainly think they are a welcome sign, and hope that more of them will be supported by investigators and prosecutors. However, that investigation took five years to materialize, and there is still no indication if there will be any arrests. It certainly seems likely, but even this dramatic show of force and investigative might will not, I think, end or even put a substantial dent in the illicit trade. The current regulatory framework in both nations of origin and in market states puts far too much pressure on customs agents, prosecutors, and investigators.

At least that's what I argue in my now-available article in the Cardozo Arts and Entertainment Law Journal, WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE. 25 Cardozo Arts & Ent. L. J. 597-695 (2007)

The pragmatic alternative is the approach in England and Wales with its Treasure Act, Portable Antiquities Scheme, and limited export restrictions. This legal framework and attendant cultural policy is unique, in that it effectively incentivizes obeying the relevant cultural heritage laws. It adopts a carrot and stick approach, while many nations use too much of the stick. I argue that the criminal penalties can be brought to bear in cases of clear and egregious violations, or where there are a great deal of investigative resources available. Such was the case in the California searches, in which an undercover agent posed as a buyer. However, it took five years of investigations, and it's still not clear what the result of these investigations are.

The image above is an Egyptian antiquity which Jonathan Tokeley-Parry bought and sold to Frederick Schultz, who later sold it for $1.2 million in 1993. It's an image of 18th Dynasty pharaoh Amenhotep III (ca. 1403-1354 B.C.). Tokeley dipped the sculpture in clear plastic and painted it to resemble a cheap tourist souvenir. I discuss prosecutions of both men, which took place in England and the US respectively in the article. A lot of articles discuss the Schultz prosecution, but surprisingly no articles have discussed in any real detail the corresponding prosecution of Tokeley-Parry in England, which I think is key to understanding the international nature of the illicit trade, and the kind of complex multinational criminal investigation which is difficult where criminal investigation and prosecution are time-consuming and expensive. Not to mention the substantial pressures of other and often more-pressing matters such as drugs, violent crime, terrorism and the like.

I would be quite eager to hear any comments or reactions to the piece at derek.fincham "@" gmail.com.

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?

This Roman Helmet "Just" a Portable Antiquity

The Crosby Garrett Roman Helmet

This stunning bronze helmet was unearthed in Crosby Garrett in Cumbria in the North of England, not too far from the Lake District.  It was discovered in 33 fragments, face down in the mud on a Roman road.

The helmet belongs to the finder and the landowner, as this helmet does not qualify under the Treasure Act.  It has been pieced together apparently by Christie's auction house which will sell the piece at an auction in October.  It might fetch as much as 300,000 GBP.  Though the piece does not qualify as treasure, it likely would be of "Waverley" quality and thus any export would be delayed to allow domestic organizations an opportunity to match any purchase price.  I've pointed out some of the benefits of the Portable Antiquities Scheme--the voluntary program which encourages the reporting of objects like this which fall below the treasure threshold. But this case presents a troubling result in many ways, as this object was cleaned for sale by Christie's.  We do not know anything about the deposits left on the helmet, or how the helmet was abandoned in pieces along an old Roman road.  Roger Bland also points out the unpalatable consequences of this find:  "It is a pity that the object was restored before there was any opportunity to examine it scientifically, as that would have given us more information about how it came to be in the ground . . .  We hope it will be possible for there to be an archaeological examination of the find spot."

1. Maev Kennedy, “Roman cavalry helmet found with metal detector may go abroad at auction,” September 13, 2010, http://www.guardian.co.uk/culture/2010/sep/13/roman-helmet-metal-detector-cumbria.
2. Roger Bland, “Exceptional Roman cavalry helmet discovered in Cumbria - News section,” n.d., http://www.finds.org.uk/news/stories/article/id/195.

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The PAS

This is the "Staffordshire Pan", a copper alloy "patera" which is decorated with enameled scrollwork. It was found in 2003, and reported to the Portable Antiquities Scheme, and later acquired by the British Museum, Tullie House, and the Potteries Museum. You can read more about the patera at the PAS website. For those interested in the PAS, I highly recommend their blog.

Below is an interview conducted by Chris Vallance of Radio 4 with Roger Bland, the Director of the PAS, and Roy Clare of the Museums, Libraries and Archives Council which currently oversees the program. The object Bland discusses is none other than this very patera. The PAS has received a great deal of attention of late, because it is in jeopardy of funding cuts, as the MLA is itself absorbing a 25% budget decrease this year. The PAS is a remarkably successful program, and as Bland notes in the interview below, utterly unique.

On a related note, there will likely be light posting this week as I will be headed to sunny Los Angeles to discuss some of the policy implications of the PAS. Though it is a remarkable program, and very successful, I'm not sure it is necessarily a solution to looting of antiquities in all source nations, especially in the developing world. I hope to post some more detailed thoughts on that when I return early next week.

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Personal Note

I am pleased to announce that my PhD thesis has been completed, successfully defended, corrected and printed. It's titled "Preventing and Repairing These Losses: The Legal Response of the United States and the United Kingdom to the Illicit Trade in Cultural Property". I think I should have perhaps chosen a more succinct title.

It feels great to be finished, and it was a lot of hard work with some tough decisions, but it wouldn't have been possible without a lot of help and support from my colleagues here in Aberdeen and Joni (aka "my funder"). I'm sorry to say much of that support was undermined by our French Spaniel and serial abuser pictured here.

I've included the table of contents below. I'm still not sure if I want to try and publish it, which would mean a lot more work, and I suppose part of that will depend on where I land in the coming months. I started this little blog as a way to stay productive, even when I couldn't quite get things going on the thesis. I've found it invaluable, and for anyone who writes I think a blog is a great way to keep in the habit of writing.

I'm not sure where we will end up at this point, I plan to continue research into cultural heritage issues, or at least a related field which will allow me to continue the work I've been doing. I had what I thought was a good shot at a couple of postdoctoral funding opportunities which would have allowed me to look in some real depth at repatriation, but unfortunately those fell through. On a happier note I am involved with a really exciting project with some people which will create a really great cultural heritage resource, which I'll talk about in much more depth here in the coming months.

Posting will likely be very light for the next few weeks, as we're heading back to the States to catch up with family and friends.

Chapter 1: Introduction.. 1

I. The Aims. 1

II. Foundational Issues and Terminology. 3

A. Illicit Cultural Property. 3

B. Source and Market Nations. 3

C. Provenance. 4

III. The Nature and Extent of the Illicit Trade. 6

A. Art 8

B. Antiquities. 9

IV. Laying the Theoretical Framework. 10

A. Values Inherent in Cultural Property Policy. 10

1. Preserving the Object 11

2. Preserving Archaeological Context 12

3. Preserving the National Patrimony. 13

4. International Movement 14

5. Accessibility. 15

B. Cultural Heritage or Cultural Property?. 16

C. How Sympathetic Facts Distort Cultural Property Law.. 17

V. The Scope of this Work. 21

Chapter 2: Regulating Cultural Property at the Source.. 22

I. Introduction: How to Prevent the Illicit Trade at Its Source?. 22

II. Regulation in Source Nations. 23

A. The Typical Approach: Guatemala. 24

B. Other Examples. 27

1. Peru. 27

2. Mexico. 28

3. Nigeria. 29

C. China. 30

D. Italy. 36

E. Cultural Property Strategies in Developing Nations. 39

1. Nationalizing Cultural Property. 39

2. Efficacy of Export Restrictions. 42

3. What can a Source Nation do when an Object has been Exported?. 46

4. Combating the Illicit Trade v. Bare Retentionism... 47

III. Domestic Regulation of Cultural Property in Market States. 50

A. Domestic Regulation in the United States. 52

1. Initial Federal Efforts. 53

2. The Archaeological Resources Protection Act of 1979. 54

3. The National Historic Preservation Act 56

4. Native American Graves Protection and Repatriation Act 58

5. The Law of Finds. 60

B. Domestic Regulation in the United Kingdom... 63

1. Scheduled Ancient Monuments. 63

2. Treasure Trove and the Portable Antiquities Scheme. 65

3. Scotland. 69

4. Limited Export Restrictions: The Waverley Criteria. 74

IV. Summary: What are the Key Components to Effective Domestic Regulation?. 78

Chapter 3: Public International Law and Cultural Property.. 80

I. Introduction: Public International Law and Cultural Property. 80

A. Origins of the Protection of Cultural Property. 81

II. Attempts to Forge a Workable International Framework. 84

A. 1954 Hague Convention. 84

1. Defining Cultural Property in the Convention. 86

2. Shortcomings of the Convention. 87

3. The First Protocol 88

4. The Second Protocol 89

III. The 1970 UNESCO Convention. 92

A. Individual Articles. 93

1. Problems with Interpretation: Articles 3 and 6. 93

2. The “Heart” of the Convention: Article 7. 95

3. Defining the Scope of Protection. 97

B. Impact of the Convention. 97

C. Implementation and Bilateral Agreements. 100

1. Implementation of the UNESCO Convention in the US. 100

2. Switzerland. 105

3. Implementation in the UK.. 106

IV. A Case for the Reform of UNESCO.. 108

A. The Perceived Bias in UNESCO Undermines its Efforts. 109

B. The 1995 UNIDROIT Convention. 113

C. The 2001 UNESCO Convention For the Protection of the Underwater Cultural Heritage. 114

V. Summary. 115

Chapter 4: Conflict of Laws in Cultural Property Disputes. 117

I. Introduction: The Problem When the Claims of Two Relative Innocents Collide. 117

II. Manifestations of the Conflict 120

A. Entrustment v. Theft or Wrongful Dispossession. 121

B. When the Conflict Involves Statutes of Limitations. 123

C. When Tort Rules Conflict 127

D. When Movable Property Rules Conflict 129

E. The Consequences of the Choice of Law Challenge in Art and Antiquities Litigation. 131

III. The 1995 UNIDROIT Convention. 135

A. What UNIDROIT Got Right 136

1. Compensation for the Diligent 136

2. Highlighting Due Diligence. 137

3. Limited Right of Return. 139

B. Two Weaknesses Prohibit Widespread Implementation. 140

IV. The General Choice of Law Inquiry and Alternatives. 141

A. The General Rule: Lex Rei Sitae. 141

B. Renvoi 142

C. Lex Originis. 147

V. Summary. 149

Chapter 5: Market Regulation of Cultural Property in the UK.. 151

I. Introduction. 151

II. Recent Reform in the UK.. 151

A. The Select Committee Inquiry. 152

B. The Illicit Trade Advisory Panel 153

C. After Five Years, What Result?. 155

III. UK Restrictions on the International Movement of Cultural Property. 156

A. Customs Powers. 157

B. EU Legislation Governing Cultural Property. 158

C. Accession to the 1970 UNESCO Convention. 161

D. Public Laws of Foreign States. 161

1. Nationalization and Export Restrictions. 162

2. Stigmatizing Illegally Exported Objects. 163

3. The Recent Iranian Claims: Unpacking Public Laws and Unclear Nationalization. 164

4. Why Not Enforce Public Laws?. 168

IV. The Treatment of Cultural Property in the Law of England and Wales. 170

A. Criminal Law.. 170

1. Theft Act (1968) 170

2. Dealing in Cultural Objects (Offences) Act 2003. 172

B. Private Litigation. 176

1. Contract 177

2. Tort 180

3. Restitution. 182

4. Limitations Rules. 183

V. The Scots Law Treatment of Cultural Property. 186

A. Criminal Law.. 188

1. Common Law Theft 188

2. Reset and Criminal Activity Outside the UK.. 190

3. The Draft Culture (Scotland) Bill 194

B. Private Claims. 194

1. Ownership and Possession. 195

2. Restitution. 196

3. Spuilzie. 200

4. How Might Restitution and Spuilzie Apply. 202

5. Contract and Delict 203

6. Limitations Periods. 204

VI. Summary. 206

Chapter 6: Market Regulation of Cultural Property in the United States. 207

I. Introduction. 207

II. Federal Criminal Regulation. 208

A. National Stolen Property Act Prosecutions under the McClain Doctrine. 209

1. The McClain Cases. 211

2. United States v. Schultz. 214

B. Federal Criminal Forfeitures. 217

1. A History of Forfeiture. 218

2. The Litigation Surrounding Egon Schiele’s Portrait of Wally. 222

3. One Oil Painting Entitled Femme En Blanc by Pablo Picasso. 224

C. US Customs Regulations. 226

D. The Cultural Property Implementation Act 231

III. Civil Remedies. 232

A. The Substantive Claims. 233

B. Limitations Rules. 236

1. Adverse Possession. 237

2. Demand and Refusal 239

3. The Discovery Rule. 241

4. Laches. 243

C. Cultural Property and the UCC.. 244

IV. Summary. 246

Chapter 7: In Conclusion: A Way Forward.. 247

I. In Summary. 247

Appendix I: The 1970 UNESCO Convention.. 250

Appendix II: 1995 UNIDROIT Convention.. 256

Appendix III: The Dealing in Cultural Objects (Offences) Act 2003. 262

Appendix IV: The National Stolen Property Act.. 264

Appendix V: The Cultural Property Implementation Act.. 266

Bibliography.. 279

Cases Cited.. 286

Table of Legislation