WYWH: Review of “Cultural Property: Current Problems Meet Established Law”

By Jill A. Ellman, Esq.*

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On March 27, 2015, the Lawyers Committee for Cultural Heritage Preservation (LCCHP) and the Penn Cultural Heritage Center hosted the conference entitled Cultural Property: Current Problems Meet Established Law  in Philadelphia. This was the sixth annual conference for LCCHP, a not-for-profit organization dedicated to safeguarding cultural heritage, and the attendees included attorneys, archaeologists and other individuals interested in preserving cultural property. Four panels tackled ongoing issues including the problem of archaeological site looting, museum responses to the legal environment and collecting ethics, due diligence in provenance research, and emergency responses to the current crisis in Syria.

Patty Gerstenblith (Distinguished Research Professor of Law, DePaul University), commenced the conference by presenting on the adequacy of U.S. law, policy and practice in averting the international trade of looted objects. Gerstenblith explained that as looting of cultural property, a worldwide phenomenon, motivates by economic gain from source countries, cutting the demand for such objects in destination markets might be the only way to stem it. She described the vulnerability of archaeological sites, which consist of multiple layers of objects that reconstruct entire time periods and civilizations. Once looters destroy these sites, the context of the objects contained within are misunderstood or lost. See, e.g., Euphronios krater. While scholars are able to piece together the painter, potter, writing and characters represented on the Euphronios krater, information regarding the person buried in the tomb, including the food ritual burial practices as well as the health and age of the person, remain a mystery. Additionally, Ms. Gerstenblith explained that the abrupt stripping of objects from the ground results in the loss of knowledge of authenticity and purpose of those objects, such as the case of looted Cycladic figurines, which appeared on the art market in the 1950s.

Ms. Gerstenblith addressed existing laws aimed to combat illicit trafficking and trade of cultural property, including the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (implemented by the United States through the enactment of the Cultural Property Implementation Act in 1983). Ms. Gerstenblith emphasized that even if an object is seized at the U.S. border and returned to the source country, it is still a loss for humanity because the context of that object is displaced. The ultimate win would be for the object to stay in the origin country. Efforts to train and provide expertise that would stem the flow of exporting objects in the originating country are therefore more effective for the preservation of cultural remains.

Ms. Gerstenblith also discussed the history of legal cases involving stolen property, identifying a first generation of cases in which a foreign country brings a replevin action in a U.S. court with the assistance of U.S. attorneys. But, she explained that a second generation of cases involving countries requesting actions to be brought by the U.S. government is now more prevalent. With respect to these second generation cases, the burden of proof is in favor of the U.S. government. Ms. Gerstenblith highlighted the problems with the current state of government involvement for this second generation of restitution cases. For instance, the U.S. government is likely to prevail even in circumstances where it is unclear how a foreign state possesses ownership of an object. See, e.g., U.S. v. Khmer Statue (specific factual allegations in the U.S. government’s complaint were lacking as to when the statue was stolen from Cambodia). See also Buying and Selling Antiquities in Today’s Market. In addition, Ms. Gerstenblith emphasized that because of the burdens of proof and costs, most of these cases are not litigated. Instead, courts sign off on complaints brought by the U.S. government, resulting in the creation of bad law.

Finally, Ms. Gerstenblith mentioned that there has not been a successful criminal prosecution since U.S. v. Schultz, in which the U.S. government brought charges against an American dealer for his conspiracy to smuggle Egyptian antiquities. Instead, the importation of stolen antiquities has become more of a game of catch and release: if a person imports stolen antiquities, then he or she may simply give up the object and walk away. She contended that the U.S. government has become lax with prosecuting and governmental agencies do not actively pursue criminal investigations. In addition, she suggested that there is ambiguity within the current legal framework for those who want to comply with the law.

Part I. Destruction of Archaeological Context

Dr. Katharyn Hanson (Postdoctoral Fellow, Penn Cultural Heritage Center, the University of Pennsylvania) opened the first panel concerning The Problem of Archaeological Site Looting and the Legal Context/Legal Response by showing satellite images of devastating looting of Mesopotamian archaeological sites in Iraq and Syria. At the site of Umma in southern Iraq, for example, satellite images detected over 8,000 looters’ pits between 2003 and 2005. The rapid acceleration of damage to Syrian sites is also very alarming. With respect to the ancient site of Apamea in Syria, satellite images taken between July 2011 and April 2012 revealed looting of at least 15,000 more pits than in southern Iraq. Dr. Hanson stated that looting is most effective when stopped on the ground by archaeologists and local police.

Tess Davis (Executive Director, the Antiquities Coalition) presented her research on the criminal trafficking networks in the historical case study of Cambodia’s civil war in the 1960s and 1970s. Her presentation revealed the corrupt nature of criminal looting networks that often involve gangs, foreign military and incumbent governments. Ms. Davis painted a grim picture that once the established criminal networks are in place, especially when armed forces fund the theft, those networks become more difficult to dismantle, and peace may in fact make it easier for them to operate.

Ole Varmer (Attorney, National Oceanic and Atmospheric Administration) and Jim Goold (Counsel, Covington & Burling) delved into the emerging area of law regarding the looting of underwater cultural heritage (UCH). Mr. Varmer explained that there is a gap in protecting UCH. He suggested future protection of UCH may be enforced through the Archaeological Resources Protection Act §6(c), which has been applied to archaeological objects from foreign lands. For further discussion See Underwater Cultural Heritage Law Study. Mr. Goold spoke on his involvement in the “Black Swan” case, concerning the salvage from a Spanish warship off the coast of Portugal by U.S. treasure hunters. In that case, the American company Odyssey Marine Exploration, Inc. brought a lawsuit claiming that its imported treasure from an unknown site (code-named the “Black Swan”) was from beyond the territorial waters of any nation, and therefore international laws did not apply. Mr. Goold’s presentation highlighted the thorny set of issues that may arise in cases where UCH does not fall within specific jurisdictional boundaries.

Keynote speaker Mariano Aznar Gomez (Professor, Universitat Jaume I) addressed the issue of the adequacy of international law, policy and practice in preventing underwater looting. He noted the difficulty of establishing hierarchy of ownership among states or countries of origin. Mr. Gomez concluded that while there are still many perceived threats to the protection of UCH, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage may be a good solution. He emphasized the importance of the cooperation and collaboration of states to protect cultural objects.

Museum Responsibility, Collection Ethics and Due Diligence in Provenance Research

The lunchtime discussion moderated by Thomas Kline (Of Counsel, Andrews Kurth) among Dr. Richard Leventhal (Executive Director, Penn Cultural Heritage Center), Timothy Rub (CEO, Philadelphia Museum of Art), and Victoria Reed (Senior Curator for Provenance, Museum of Fine Arts, Boston (MFA)) focused on Museum Responses to Legal Environment and Collecting Ethics. All panelists emphasized the importance of transparency and continued best-effort practices for museums to disclose objects with incomplete provenance to foreign countries as a means to encourage dialogue. Dr. Leventhal highlighted that he was proud of the University of Pennsylvania’s “Pennsylvania Declaration” that it would not purchase art without verifiable provenance. Nonetheless, he emphasized that museums should engage in more provenance research and provide object registries accessible to the public. He opined that the transition from litigation to cooperation between museums and other countries, especially smaller and poorer countries, is essential in negotiating the placement of an object. Ms. Reed mentioned the MFA’s adherence to the 2008 Association of Art Museum Directors (AAMD) Guidelines and its staffs’ due diligence in conducting research to verify an object’s provenance. She seconded Dr. Leventhal’s sentiment that museums may reach creative solutions with countries, such as receiving exhibition loans in exchange for the museum’s return of certain objects. In addition, she stressed the importance of museums’ ongoing responsibility to consistently review collections and digitize records. Mr. Rub responded that digitizing records for big museums with large collections is a monumental task. He queried whether the more important issue is museums’ ability to check so-called orphaned objects with unverifiable provenance.

Legal Responsibilities, Methods and Due Diligence in Provenance Research, as those responsibilities extend to museum collections, was the topic of the third panel. Dr. Margaret Bruhac (Assistant Professor of Anthropology, the University of Pennsylvania) discussed approaches to provenance research for Native American heritage collections. Dr. Bruhac revealed the immoral museum collection methods of Native American artifacts in the early 19th century, including the purchase of artifacts from elderly or vulnerable tribes. She explained the identity of an object may be lost through the sorting and circulation of museums and collectors; such as the case of wampum belts, which became a hot sales commodity in the 1970s. Dr. Bruhac concluded that Native American property may be identifiable to a particular tribe only if museums and tribal nations share an open dialogue. Ms. Reed defended the ability of museums to acquire antiquities in the case of unverifiable provenance, citing MFA’s policy of assessing the risk of acquisition based on certain criteria. Ms. Reed mentioned that museums and collectors should demand the proper paperwork and ask more questions in order to facilitate transparency of orphaned objects. Dr. Lauren Ristvet (Associate Professor of Anthropology, the University of Pennsylvania) presented on provenance research approaches regarding cuneiform tablet collections. Her presentation highlighted the problematic impact that continual looting in Mesopotamian archaeology has in understanding the past. She differentiated the University of Pennsylvania’s collection, acquired through excavations in the ancient city of Nippur in Iraq versus those purchased for Yale University’s collection. The tablets at Penn, while not as aesthetically pleasing as those in Yale’s collection, are arguably more invaluable because their context is intact, providing insights into Sumerian literature and the Sumerian educational system. The tablets acquired at Yale, in contrast, consist of glued, incongruent fragments, some of which were thrown away, thereby destroying the historical meaning of the tablet.

Current Responses and Solutions

The final panel, Emergency Responses to Heritage Destruction in Times of Conflict, focused on the safeguarding of antiquities under siege and attempts to curtail present-day looting. Cori Wegener (Cultural Heritage Preservation Officer, Smithsonian Institution) disclosed international responses to site looting and heritage destruction in Syria. In particular, she stressed the importance of partnerships between non-governmental organizations and museums in order to raise awareness of the looting and help those on the ground who have been cut off from resources. She discussed the current collaboration of the Smithsonian with Safeguarding the Heritage of Syria Initiative (SHOSHI), spearheaded by Salam Al-Kuntar (Consulting Scholar, the University of Pennsylvania Museum). In June 2014, SHOSHI along with the Smithsonian led a conference in Southern Turkey to address emergency packing and planning for Syrian museum collections and the protection of archaeological sites. Led by Syrian technical experts, SHOHSI provided training workshops and supplies to volunteers looking to respond to the disaster. Apart from the conference, SHOSHI engaged in other projects, including training officials from the Ma’arra Museum to cover 90% of the museum’s mosaics with sandbags. Dr. Al-Kuntar seemed hopeful that these emergency efforts will preserve existing artifacts amidst the continual looting.

Susan Wolfinbarger (Project Director, the Geospatial Technologies and Human Rights Project, American Association for the Advancement of Science (AAAS)) concluded with the potential use of satellite imagery for cultural property war crimes prosecutions in Syria. She mentioned efforts by AAAS to train international human rights courts and commissions regarding the use of remote sensing in research documentation. Inaccurate evidence is common in these cases as prosecutions are based off of eyewitness testimony and lack of access to sites. Ms. Wolfinbarger expressed that the technology would be a useful tool in presenting objective evidence of human rights abuses and destruction to cultural property.

Conclusion

The destruction and plunder of cultural heritage, especially in areas of conflict, continues to be a devastating, universal problem. This year’s LCCHP conference highlighted the loss of the cultural meaning of objects and our understanding of memory and past cultures if artifacts are disturbed from their original context. A current illustration of this is ISIS’s attempts to eradicate past history and cultures.

While cooperation, as in the case between foreign governments and museums, is a useful tactic for the restitution of looted objects, there is room for improvement to block looted objects before they reach destination countries. Technology may facilitate the tracking of lost antiquities, but the most effective way to prevent looting is on the ground. Unfortunately, countries of conflict do not possess the resources or ability to police such pillaging. However, educational efforts led by non-governmental organizations and/or resource-rich populations may provide an answer to restrict the flow of antiquities from the origin country. In addition, if museums and collectors take the proper measures to conduct due diligence, demand for looted objects may be subdued. More extensive criminal investigations and policing efforts in destination countries may also prevent the facilitation of this illicit trade. Presently, there is legislation pending in Congress imposing import restrictions from Syria. Ms. Gerstenblith recommends that those wishing to make an impact in restricting trade from Syria call their representatives to pass the appropriate legislation. See H.R. 1493- Protect and Preserve International Cultural Property Act.

Nonetheless, the above efforts are only a beginning to arrest the flow of the illicit antiquity trade. Satellite imagery shows the vast destruction of looted archaeological sites, in which centuries of information regarding past cultures is lost. The universe of looted antiquities from such immense plunder will be resurfacing for years to come. Consequently, the message from this year’s conference was clear: education, transparency of collection practices, and meaningful dialogue between origin countries and market participants are the strongest means to keep cultural heritage intact.

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About the Author: Jill A. Ellman is an attorney in New York interested in the preservation of cultural heritage. She may be reached at jillaellman@gmail.com.

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