Private International Law and Nations of Origin

I have posted on SSRN a working version of my forthcoming paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, to be published some time next Spring in the Columbia Journal of Law and the Arts. Here is the abstract:

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

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

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

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

Protection, Preservation and Commodification

Italy has been making tremendous strides of late in securing the return of objects. A major tenet underlying these successful repatriation claims has been the idea that by cutting off buyers of illicitly excavated objects, and by ensuring objects are not entering major museum collections, the demand for the illicit trade will be substantially reduced.

This is an important policy shift, and has unquestionably altered the cultural property policy landscape. However I think its worth asking if nations like Italy are following through with their aspirations, and if everything is being done to preserve sites and archaeological context. It stands to reason that more nations of origin will be adopting this Italian strategy, but we should ask ourselves if perhaps these efforts are looking at only one part of the problem.

In fact as I tried to point out last week, it looks like more nations of origin will be banding together and attempting perhaps to negotiate as a bloc, in much the same way that OPEC has dominated the world's supply of oil. TIME Magazine's Richard Lacayo in his "Looking Around" blog responded to my assertion by rightly pointing out that "OPEC is powerful because it sits on top of a natural resource that, at the end of the day, the world requires. Antiquities source nations have.....antiquities."

He's right of course that there isn't nearly the same demand for antiquities as for a commodity like oil, but nations of origin do need market states in a number of ways which aren't often fully appreciated. Italy, though it was very forceful in its recent negotiations with the Getty, the Met, and the MFA Boston chose not to use all of the legal ammunition it perhaps could have, and even reached very generous reciprocal loan agreements in exchange for the repatriated objects. The obvious question is: why be so accommodating if there were such powerful ethical principles and photographic evidence which called for the return of these objects?

The answer I think is that these nations need good relationships with other nations, and one of the major reasons is the enormous tourist dollars visitors from America (and elsewhere) can bring to these nations. Capitalizing on this tourism can have a heavy price however.

Adam L. Freeman has an excellent article on Bloomberg in which he details the struggle Italian authorities have had in properly caring for Pompeii (pictured above), "Chunks of frescoes depicting life in the Roman city are missing, carried away by visitors or eroded by the elements. Graffiti is gouged into walls. Tourists ignore signs forbidding flash photography as they take pictures of erotic designs inside the Lupanare, an ancient brothel." This all comes as Italian Prime Minister Silvio Berlusconi attempts to cut expenditures, with the Culture Ministry likely to receive heavy cuts after the former government cut protection by 20 percent this year already. In fact, Italy has declared a state of emeregency for the ancient city and appointed Renato Profili former head policeman for Naples to oversee the situation.

Profili is quoted "It's obvious that there is an emergency in a country like Italy where there's so much to protect and so little money to do it.'' This despite the 33 million euros generated by all the tourists who visit the city.

Other nations are having similar struggles. Robert Turnbull a few weeks ago in the New York Times details a museum/retail mall development in Cambodia near Angkor Wat, pictured here.

There aren't easy answers of course, but merely returning objects to nations of origins won't by itself protect sites, heritage and context.

The valuable tourist dollars which these sites bring in can help alleviate the situation, but it also carries with it the distasteful tradeoffs, such as the commodification of heritage, and the wear-and-tear which millions of visitors will always cause. Hopefully nations of origin will be able to move beyond the dramatic repatriations, which are a necessary step, and continue to work to preserve the sites themselves.

Measuring the Size of the Illicit Antiquities Trade

There is more and more good empirical work being done to measure the size of the illicit trade in antiquities. The latest is a super paper by Raymond Fishman and Shang-Jin Wei, both of Columbia University (some users may need to pay to download if they don't have an .edu or .gov ip).

They came up with a great idea to measure illicit antiquities entering the United States. They capitalize on the odd way the trade works. An object may be illegally exported from a source nation, but be imported and sold in a perfectly legal manner in the United States. The historic justification for this is the idea that nations will not enforce the public laws of another nation. However this policy has disastrous consequences for the antiquities trade. By focusing on this paperwork gap, they can estimate the nations with the biggest loss of antiquities. The biggest reporting gaps are in Syria, Iran, Egypt, Greece, Vietnam and Russia. As one would expect Canada, New Zealand, Britain and Hong Kong have low reporting gaps. Both Canada and Britain of course have limited export restrictions.

Here's the abstract:

We empirically analyze the illicit trade in cultural property and antiques, taking advantage of different reporting incentives between source and destination countries. We thus generate a measure of illicit trafficking in these goods based on the difference between imports recorded in United States' customs data and the (purportedly identical) trade as recorded by customs authorities in exporting countries. We find that this reporting gap is highly correlated with the corruption level of the exporting country as measured by commonly used survey-based indicies, and that this correlation is stronger for artifact-rich countries. As a placebo test, we do not observe any such pattern for U.S. imports of toys from these same exporters. We report similar results for four other Western country markets. Our analysis provides a useful framework for studying trade in illicit goods. Further, our results provide empirical confirmation that survey-based corruption indicies are informative, as they are correlated with an objective measure of illicit activity.

(Hat tip: Jay Hancock)

The GAO takes the Smithsonian to Task

Many have argued that a compelling case can be made that art and antiquities should be displayed in market nations in the developed world because they are better preserved there than they might be if returned to source nations which are often underdeveloped. The GAO report which James Grimaldi highlights in today's Washington Post seriously undermines such arguments. It reveals a troubling picture of what should be America's proudest cultural institution. Instead a picture of staggering institutional incompetence is revealed:

• Alarms ring and guards are unable to respond;
• A water leak in the Sackler Gallery could have destroyed artwork worth half a billion;
• Fossils were stolen from display cases at the Natural History Museum;
• Plastic sheets are required to protect Native American artifacts from damage;

The Taliban Attacks Another Buddha

A very troubling story from Pakistan. On Monday, armed men attempted to damage this giant Buddha in the Swat valley in Pakistan. The BBC has a good report. The men arrived in the night, drilled holes in the rock, and filled them with dynamite. There was damage to the rock above the carving, but the actual carving was unharmed. The carving is considered the second-largest in Asia behind only the now-destroyed Bamiyan Buddhas.

I'm not sure how much can be done to protect sites in this part of the world. I know there is a UNESCO Convention on the Intentional Destruction of Cultural Heritage, but that kind of multilateral treaty seems ill-equipped to prevent this kind of willful and senseless destruction.

(hat tip to David Nishimura at Cronaca)