Spotlight: UNESCO and the World Heritage Convention

By Lindsay Dekter*

We must construct the defenses of peace in the minds of women and men.
-UNESCO Motto

A look at the history, framework, and impact of UNESCO’s World Heritage Convention and the work of the World Heritage Committee following UNESCO’s seventieth birthday this past November.

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Krakow, Poland, Historic Center, was amongst the first designated sites and the Celsus Library, Ephesus, Turkey, was amongst most recently designated sites. Left image by Ludvig14 / Right image by Benh LIEU SONG

Historical Background

In reaction to the destruction of two world wars, the United Nations, established in 1945, identified the need for an intergovernmental organization with values anchored in peace making and collaboration. The goal of founding such an organization was to unite heterogeneous social and political regimes worldwide in order to prevent the future occurrence of atrocities like those experienced during the first half of the twentieth century. With that in mind, 37 countries founded the United Nations Educational, Scientific and Cultural Organization (UNESCO) in the months following the end of the Second World War; within a year, twenty countries, including Egypt, Canada, Turkey, the United States, the United Kingdom, and China, ratified the Constitution of UNESCO, and met at the first General Conference of UNESCO in November of 1946 in Paris. UNESCO gained more international support in the 1950s and 1960s when additional countries throughout Asia, Africa, and Europe became members. Seventy years after its inception, UNESCO continues to garner international approval from both long-time and new members, the most recent of which include Montserrat (2015) and Anguilla (2013). Today UNESCO has 195 Member States.

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Distribution of UNESCO Member States by region / Image courtesy of UNESCO

UNESCO was responsible for a number of important global initiatives in its infancy, including recommendations that Member States make primary education “compulsory and universal,” and the extension of international copyright protections. Beginning as early as 1960, UNESCO realized a series of worldwide campaigns and conferences focused on environmental and cultural heritage protection, marking the beginning of the organization’s tenure in a more than half-century-long endeavor in preserving place.

UNESCO and World Heritage

Although UNESCO was officially established in the 1940s, it was not until was 1972 that the General Conference of UNESCO adopted The Convention concerning the Protection of the World Cultural and Natural Heritage. That Convention emerged out of growing international concern for the protection of humanity’s shared natural and cultural heritage, which had become threatened, or in some cases altogether destroyed, by increasing globalization and urbanization during the mid-twentieth century. Four years after adopting the Convention, UNESCO formed the World Heritage Committee (pursuant to Article 8 of the 1972 Convention) to oversee its implementation, allocate monies from the World Heritage Fund (pursuant to Article 15), and consider nominations for inscription on the World Heritage List. The Committee has met annually since 1977 in order to discuss sites on the World Heritage List. During the annual meeting, the Committee reviews the preservation and management of inscribed sites and adds or removes sites from the World Heritage List; any sites in danger are added to the List of World Heritage in Danger. The Committee additionally concerns itself with programs aimed to increase States Parties’ involvement in the protection of cultural and natural heritage, and also amends or creates new programs and policies that ensure the ongoing success of the Convention’s goals.

The World Heritage Committee itself is made up of 21 representatives from various signatory nations who are elected during the ordinary session of the General Conference of UNESCO. Members of the Committee can serve for six years, though most elect to serve for only four. 191 countries and territories have signed the World Heritage Convention to date (almost all of UNESCO’s members), meaning they have committed to preserving World Heritage sites located within their political boundaries as well as their national (non-UNESCO inscribed) heritage. The most recent countries/territories to ratify the Convention include Brunei and Palestine (2011), Singapore (2012,) and The Bahamas (2014). The first included the United States in 1973, followed by nine countries including Australia, Bulgaria, Iraq, and Sudan in 1974. 1975 and 1992 were the two biggest years for new signatories, with 10 and 9 new countries ratifying the Convention, respectively.

Identifying World Heritage

What qualifies as World Heritage is defined in Article 1 and 2 of the World Heritage Convention. In short, and informally, UNESCO’s definition of World Heritage includes the natural or cultural wonders of the world (or a combination of the two). More formally, and drawing from the language of Article 1 of the World Heritage Convention, cultural heritage worthy of inscription on the World Heritage List includes: architectural monuments and/or monumental works of art; groups of buildings, connected by geography or style; cultural landscapes that are a mix of monumental art, architecture, and nature; or archaeological sites. Pursuant to Article 2 of the World Heritage Convention, natural heritage includes: physical, geological, physiological, and/or biological formations or groups of such formations; areas that represent the habitat or of threatened animals and plants; or sites of considerable value to science and conservation, or that represent places of considerable beauty. Any site that is considered World Heritage, natural or cultural, must demonstrate “outstanding universal value from the point of view of history, art or science,” or “outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.”

Outstanding Universal Value is precisely the operative principle guiding States Parties in selecting sites for consideration as additions to the World Heritage List. There are ten criteria under which a site can be understood as having Outstanding Universal Value, outlined in the Operational Guidelines for the Implementation of the World Heritage Convention. For a site to be eligible for inscription on the World Heritage List, it must represent at least one of the ten criteria, which includes qualities like creative genius, uniqueness, associations with events, people, or places of historical importance, natural phenomena, aesthetic importance, habit preservation, cultural traditions, and so on.

In addition to Outstanding Universal Value, the Committee considers the integrity and authenticity of a site, as well as how the site will be managed and protected. Integral to site management is a State Party’s ability to demonstrate legislative or other regulatory protective frameworks at either the national or local level, as well as plans for monitoring and reporting changes and activity at the site. Each year the Committee considers no more than 45 nominations for review, with priority given to unrepresented or underrepresented States Parties and/or underrepresented types of heritage. No State Party may submit more than two nominations at one time, or one natural and one cultural heritage nomination.

Nominating World Heritage

The nomination process begins well before the official dossier is compiled and submitted to the Secretariat by a State Party. A site is only considered for nomination once a State Party creates and submits a tentative list of properties that interested parties (NGOs, INGOs, government agencies, cultural groups, and other stakeholders) agree exhibit Outstanding Universal Value per the World Heritage Convention and Operational Guidelines. The Tentative List must be submitted at least one year prior to the submission of an official nomination, and a nomination can only be submitted for a site that appears on the list. Once the Tentative List is submitted, it is up to the State Party to revise the list, although the Committee recommends States Parties update tentative lists every ten years.

Following the submission of a Tentative List, the State Party must then complete the official dossier for its nominated site. A complete nomination includes the following nine components:

  • Identification of the property;
  • A description of the property;
  • The justification for inscription (paragraph 77 of the Operational Guidelines);
  • A description of the state of conservation of the site and any factors that affect the site;
  • Plans for protection and management;
  • Monitoring plans;
  • All documentation relating to the site (drawings, maps, archival documents, photographs);
  • Contact information for the site’s authority;
  • The signature of the State Party (nominator).

Recognizing that States Parties may require assistance during the nomination process, the World Heritage Committee offers support by providing samples of successful dossiers, examples of robust legal protections and management plans, and direction and information for accessing archival or other documentary material; templates are also provided for organizing documentary material. Additionally, and upon request, the Secretariat will review draft dossiers and provide comments to the nominating State Party prior to official submission.

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 Map of all UNESCO designated World Heritage Sites as of 2015 / Image by NordNordWest

Once complete, the dossier is registered by the Secretariat and then passed on to the appropriate cultural or natural resources Advisory Body, either ICOMOS (International Council on Monuments and Sites) or IUCN (International Union for Conservation of Nature and Natural Resources). One of three recommendations is then made: inscribe the site to the World Heritage List; do not inscribe the site to the World Heritage List; or refer or defer for further research, explanation, or documentation. A successful nomination usually takes one and a half years from the time the dossier is registered to when a site is inscribed to the World Heritage List. The process cannot be completed in a shorter timeframe due to the requirement for registering a site on the Tentative List and the time required to conduct thorough site-specific research. Furthermore, a successful nomination often requires coordination between local, national, and international stakeholders, which in itself can be a multi-year process.

The World Heritage List

The World Heritage List was created in 1978 as a primary function of realizing the protection of world heritage under the World Heritage Convention. Per Article 11 (2) of the Convention, the World Heritage Committee must maintain and publish an up-to-date list of sites. The first sites were inscribed to the World Heritage List in 1978—12 in total—and included the Historic Centre of Kraków (Poland), Aachen Cathedral (Germany), Yellowstone National Park (United States), and Simien National Park (Ethiopia), to name a few. Today there are 1031 total sites that represent 163 States Parties, 24 of which were added during the 39th session of the World Heritage Committee in Germany in July of 2015.

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Aachen Cathedral, Germany, and Simien National Park, Ethiopia, were amongst the first twelve sites inscribed to the World Heritage List in 1978. Left image by Ministry of Building and Transport / Right image by Christof Schenck

The benefits of inscription are numerous and can include financial support, advocacy, physical conservation, economic development opportunities, international awareness, and political protection, amongst others. One of the earliest inscribed sites, the Pyramid Fields from Giza to Dahshur in Egypt, added to the World Heritage List in 1979, benefited from the expertise, financial support, and political influence of inscription when infrastructure development threatened the site’s integrity in the mid 1990s. Following evaluation, reporting, and reminders of Egypt’s obligations to protect the site as a signatory of the World Heritage Convention, UNESCO successfully negotiated development alternatives with the Egyptian government to preserve the integrity and Outstanding Universal Value of the site. The World Heritage Convention has been successfully used as a political and regulatory tool numerous times over the last four decades as evidenced by sites like the Royal Chitwan National Park in Nepal, where UNESCO challenged a river diversion project that would have threatened wildlife protection, and the Old City of Dubrovnik, where UNESCO provided financial support and professional expertise to repair historic buildings damaged by war in the early 1990s. Had these sites not been inscribed on the World Heritage List, their preservation would have been more difficult and certainly not realized in such an effective and quick way, if at all.

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Royal Chitwan National Park and the Old City of Dubrovnik received political and financial support for preservation thanks to inscription. Left Image by Casper Tybjerg / Right Image by Francesco Bandarin

The List of World Heritage in Danger

An integral component for thwarting unwanted change to world heritage sites—change that is incongruent with the World Heritage Convention—is the List of World Heritage in Danger. The List of World Heritage in Danger is a function of the World Heritage Convention, Article 11 (4), that allows the Committee to monitor and respond to both “ascertained” and “potential” danger at inscribed sites (Paragraphs 179 and 180 of the Operational Guidelines). It “is designed to inform the international community of conditions which threaten the very characteristics for which a property was inscribed on the World Heritage List, and to encourage corrective action.” Corrective action is manifested in a variety of ways, depending on the threat, the site, and other factors, and can include launching an awareness campaign or reconstruction of a damaged site. Although States Parties are supposed to inform the World Heritage Committee of threats to a site’s Outstanding Universal Value, UNESCO welcomes dialogue about these issues from any person or organization. There are currently 48 sites on The List of World Heritage in Danger (roughly 5% of inscribed sites). A site is removed from the List of World Heritage in Danger only once the appropriate measures have been taken to restore the site’s heritage value, or when its Outstanding Universal Value has been or will be altogether destroyed with no plan for remedy. In the latter case, which is very rare, the site is removed from the World Heritage List.

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Hatra, Iraq, and Old City of Sana’a, Yemen, both added to the List of World Heritage in Danger in 2015, and likely destroyed (at least partially) during conflict and/or acts of terror in the region this year. This information, unfortunately, has not been updated in UNESCO’s database or documents. Left Image by Véronique Dauge / Right Image by Jean-Jacques Gelbart

Since the inception of the World Heritage List, only two sites have been delisted. The first, the Arabian Oryx Sanctuary in Oman, was delisted in 2007 following increased poaching and habitat destruction within the conservation area; the second, the Dresden Elbe Valley, was added to the List of World Heritage in danger in 2006 and delisted in 2009 following a plan to construct a four-lane bridge through the center of the landscape. In both cases the Committee worked with the States Parties to find some resolution, but determined that the Outstanding Universal Value inherent to each site had been or would be destroyed by the respective countries’ decisions. The List of World Heritage in Danger is an integral component of the Convention that allows the Committee to exercise its power over site management, but is not without limitations. For example, some sites have been on the list since the 1980s and 1990s, while other sites on the List have been completely destroyed.

Conclusion

The World Heritage List has been generally successful at promoting the preservation of inscribed sites. Indeed, inscription on the World Heritage List gives States Parties access to financial support and international conservation campaigns, and gives them greater access to specialist knowledge through international partner organizations, which in theory contributes to better preservation and site management. Like the Pyramid Fields in Egypt mentioned previously, many sites have benefited from inscription on the World Heritage List over the last four decades, including the Archaeological site of Delphi in Greece, where development was thwarted in favor of inscription, or the safeguarding of Venice, UNESCO’s longest running campaign and inspiration for the creation of the World Heritage Convention. Even sites believed to suffer irreparable damage like the Old City of Mostar or the mausoleums recently destroyed in Timbuktu have benefited from inscription, drawing the attention and support of the international community for reconstruction.  

The world has recently witnessed the shortcomings of the World Heritage Convention, however, which is particularly evident at many sites in the Middle East that, despite inscription, could not be saved from complete destruction. The Temple of Baalshamin. the Temple of Bel, and the Arch of Triumph, all located in the ancient city of Palmyra in Syria, or Hatra in Iraq, are just a few of the many UNESCO-inscribed World Heritage sites destroyed by the Islamic State. The list grows when sites destroyed by other militant groups or acts of war are included, such as Aleppo in Syria, or when the Tentative List is considered, where sites awaiting inscription to the official World Heritage List have already been obliterated (the Ancient City of Nineveh in Iraq, for example) . Despite numerous international campaigns that sought to prevent damage to these sites, the lack of political influence from the world’s foremost heritage preservation organization was made abundantly clear, and its inability to mandate preservation and assist States Parties in protecting their sites has frustrated many. The situation has reached the point that many individuals and small organizations are now leading monitoring and response projects rather than UNESCO itself. In fact, UNESCO has yet to update any information about the aforementioned sites (and others in danger) on their website. Certainly the protections and resources inscription affords should not be minimized since positive outcomes are evident, nor should the knowledge, intentions, or contributions of individuals working within UNESCO. Yet the limitations of the World Heritage Convention, particularly with regard to its inability to protect heritage in times of conflict, or the lack of authority it wields in sanctioning States Parties who fail to comply, have become increasingly visible as global hostilities intensify. In light of these trends the efficacy of UNESCO and the World Heritage Convention in promoting peace and preservation outside of times of peace does seem minimal, if not entirely impossible. While the ideology of the Convention is proactive in nature, its power, it seems, is in its ability to treat a wound rather than prevent it.

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Temple of Bel, Palmyra, before and after satellite images of Islamic State led destruction. This site was added to UNESCO’s List of World Heritage in Danger in 2013, and despite numerous international campaigns, could not be saved. Image courtesy of The Times.

To that end, and as the result of the recent and unprecedented destruction of World Heritage sites, the influence and value of UNESCO, particularly the cultural arm responsible for the World Heritage Convention, has come under considerable scrutiny. Perhaps the recent Islamic State led destruction of UNESCO World Heritage sites (and other war-related destruction in the region) will one day be counteracted by virtue of inscription like the sites in Mostar and Timbuktu. While certainly reconstruction is not the ideal method of heritage preservation, recent events elucidate a systemic failure in UNESCO’s ability to proactively protect world heritage when it is most vulnerable, and instead points toward its capacity and proficiency for triage post-conflict. Considering, though, the powerful language of UNESCO’s Constitution that elaborates a commitment to peace, collaboration, and mutual respect and welfare on a global level, it is obvious the organization’s initiatives and members were not intended to simply observe and respond to world affairs once the air has cleared, but to instead lead through the haze. With that in mind, it may be time to reevaluate UNESCO’s international influence generally. More specifically, and with the knowledge of more than forty years of practice, it is almost certainly time to revisit the World Heritage Convention in order to establish what it is actually capable of achieving, and whether authoritative leadership is an improbable fantasy or feasible reality. Whatever the case, adjustment to either doctrine or practice (or both) is necessary.

Select Sources:

  • World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO, file:///Users/Home/Downloads/document-57-1.pdf (July 8, 2015).

*About the Author: Lindsay Dekter is a Center for Art Law Intern (Fall 2015) and a graduate student at New York University in the Program in Museum Studies. She holds a BA in Cultural Geography and an MS in Historic Preservation. Her current studies focus on museums and legal issues, cultural heritage policy and preservation, ethics, provenance research, and restitution.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

Unearthing the Evidence: How Soil Analysis will Revolutionize the National Stolen Properties Act

 

By Timur Tusiray*

Introduction

Less than one percent of the world’s archeological sites have been located or excavated, leaving the vast majority of humanity’s heritage open for discovery and exploitation by looters. This issue is not only relevant to Middle Eastern countries ravaged by conflict, but to areas around the world. For example, in China there are over a quarter-million known archeological sites, and it is reported that most have been looted to some extent. The sheer volume presents a unique challenge to those trying to prevent widespread looting by not only frustrating efforts to confiscate these looted objects, but also determining where they were looted. To further complicate matters, in the United States, criminal prosecution of those trafficking in cultural property hinges upon proving the actual provenance of these trafficked objects.

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Last month, the TED prize, a nonprofit forum for cutting edge ideas, was awarded to Dr. Sarah Parcak granting her $1 million to develop a project connected to her work in satellite archeology. Dr. Parcak is the founding director of the University of Alabama at Birmingham’s Laboratory for Global Observation, and through the use of satellite technology, has been able to track the increasingly destructive looting of archeology sites around the world. A pioneer in this new world of “satellite archeology,” Parcak has stated that she plans to use the money to continue her work in tracking, and hopefully preventing the widespread looting of cultural sites.

Parcak’s award is just another indication of the increasing awareness and action by the mainstream international community to protect cultural heritage. For more coverage on the subject, please read prior articles on the matter: here and here. However, what is truly unique to come from this development is Dr. Parcak’s recognition that satellite technology does not address the issue of tying a looted item to a particular site, but rather that, “someday digitized data on soil composition might be able to authenticate such matches.” (emphasis added).

That day may be soon upon us. With increasing technological advances in forensic soil analysis, and the recognition of its utility in combating the illicit market in cultural property, soil analysis can become a powerful tool. However putting the science aside, data from soil analysis could help alleviate the restrictive United States’ legal requirements for criminal prosecution of looters and the subsequent repatriation of looted objects through the National Stolen Property Act, giving a new tool to a traditionally convoluted and unwieldy test.

What is Soil Analysis?

Soil is a very complex combination of materials. Beyond the “parent rock” material, each sample has a unique composition of vegetation, flora and fauna, DNA of microbes, in addition to minerals the size and shape of sand grains. Soil analysis, in the context of assisting investigations into provenance, incorporates “new techniques in chemical, physical, biological, ecological and spatial analysis, coupled with informatics” to pinpoint areas in which the soil may have come, and to compare soil from those areas with the original soil sampling. This in turn helps investigators in site identification, site comparison and measurement for the eventual use as evidence in court.

Soil analysis is not a new technology, with the earliest example of a forensic soil comparison being documented in Berlin in 1856, and infamously having been considered by Sherlock Holmes in 1887 in, “A Study in Scarlet” to pinpoint the location of suspects. More recently, forensic soil analysis has been used by international organizations to combat the illicit trafficking of wildlife, and continues to be used on occasion by law enforcement agencies to assist investigations and solve crimes. However, the multi-disciplinary advances made in soil analysis has made progress from the realm of artful deduction into scientific process.

Application to Protecting Cultural Heritage

Soils can be a very potent type of trace evidence for linking an object to its original excavation site. Given the nature of the illicit market, in which objects may pass through several hands, and across many borders before being restored and cleaned, objects often retain the original soil from the site from which they were looted. It is typically not until the object reaches the final dealer that the object then gets cleaned in order to be sold. This traditional illicit market structure is also transforming, especially in cases involving the so-called Islamic State (“ISIS”), in which there is evidence of ISIS agents going directly to buyers in the West with these newly looted and soil encrusted objects.

There are already cases where soil analysis has been used to verify provenance of various cultural objects. For example, two Australian collectors were being investigated for possessing fossilized egg nests suspected of being looted from a Chinese site. The Australian collectors claimed the nests were not Chinese, but rather legal American fossils. Under Chinese law, fossilized dinosaur nests are protected, and both their sale and purchase are banned in Australia. To prove that they were illegally obtained, a soil analysis laboratory was hired, and compared the nest against soil samples from the various possible source areas for the nest. The lab found completely different mineralogy between where the collectors claimed the nest came from and the nest itself. They were subsequently convicted, and the eggs returned to China.

Soil analysis has many benefits for proving the provenance of an object. For example, trace soil may be so small as to be invisible, but with modern analysis, they can still yield meaningful results. Soil is easy to collect, and quickly analyzed. It can also be highly varied, and vast databases of soil types have already been catalogued. For example, in the U.S. alone there are more than 100,000 types collected, with attempts at digitizing and expanding the databases underway. Furthermore, the U.S. military has been collecting soil samples in the Middle East for decades now for various research reasons. Finally, unlike in wildlife crimes where DNA analysis is heavily relied on, cultural objects do not contain unique DNA identifiers, making soil a reliable alternative.

Finally, law enforcement officials working on wildlife crime, specifically that of ivory, sometimes find multiple soil samples on an individual tusk. Much like cultural objects, these elephant tusks were warehoused in various locations as they travel and exchange hands in the illicit market. Enforcement officials, utilizing these soil samples, were not only able to trace the tusk back to its original herd, but were able to determine which countries the tusks were trafficked through from each sample, and aggregating data and routes from multiple seized tusks are able to find “choke points” in the trade where a bulk of the objects travel through. This type of investigative work on wildlife crime has crossover into the world of looted cultural objects.

Of course there are still certain barriers to the widespread use of soil such as the cost, and limitations of access to soil databases around the world. However, with the increasing reliability of technology used in such analyses, along with the increasing call to repatriate looted objects, the importance of soil samples should only increase.

Why is this Important for Criminal Cases Brought in the United States?

The National Stolen Property Act (“NSPA”) is the central statute that has been utilized to prosecute individuals who transport stolen objects. It establishes a felony offense for knowingly transporting stolen objects in interstate or foreign commerce. This much maligned statute has the potential to be a vigorous tool to prosecute individuals dealing with looted objects in the United States due to its broad territorial application, however, it has been hamstrung by case-law interpreting the definition of “stolen property.” The increasing efficiency and spread of soil sampling may be the solution to make this statute relevant again.

Scope of the NSPA

The NSPA has broad territorial effect. In United States v. Schultz, the Second Circuit upheld a conviction of a well-known New York art dealer for conspiracy to receive property stolen in violation of a foreign government’s patrimony law. They further expanded that the objects need not be stolen in the U.S., and the owner of the object, nor the defendant have to be U.S. nationals (Schultz at 402). There only needs to be a nexus to the U.S. for the NSPA to be applicable. In the case of Schultz, the nexus was established when the objects were shipped to the United States.

Definition of Stolen Property

However, in United States v. McClain, the Fifth Circuit set out a stringent test (the “McClain Doctrine”) to determine when an object was considered “stolen.” In McClain, several American art dealers were convicted of selling stolen Mexican artifacts. The test the court laid out was that:

  1. Patrimony Law: The country from which the objects derives must have a clear law giving ownership of undiscovered objects in the state.
  2. Political Boundaries (Geographic and Temporal): And the objects in dispute must be shown to have come from the modern political boundaries of the state, after the effective date of the national ownership law.

This test was followed later in the Second Circuit in Schultz, and barring further case law diverging from it, is persuasive precedent for all jurisdictions applying the NSPA.

Much criticism has been leveled against the second prong of this test, saying that proving an object came from within the borders of a specific nation at a specific time is often difficult, if not impossible to prove. This is largely due to the fact that ancient civilization’s borders do not adhere to the borders of modern day states. For example, in McClain the defendants were accused of stealing certain pre-Columbian artifacts from Mexico. However, as was a point of contention in the case, the style of the artifacts in question could have been excavated not only in Mexico, but also Guatemala, Honduras, Panama, and Costa Rica. Looking at the Middle East, one can imagine the difficulty in proving the provenance of a looted Mesopotamian artifact, as the kingdom of Mesopotamia spanned across modern day Turkey, Syria, Iraq, Iran and some of Kuwait. Finally, without an eye witness at the looting, timing will always been in question. This is where the proliferation of accurate modern-day soil testing becomes invaluable.

Conclusion

As discussed above, soil sampling paired with aggregated data from satellite archeology, which can pinpoint the exact location and possibly the time of excavation, is no longer one of estimates, but of scientific fact. Dr. Parcak’s work highlights the importance of new scientific methods in combatting the illicit market in cultural objects. With the increasing scale and scope of looting occurring throughout the world, the United States must start utilizing such methods, especially that of soil analysis and sampling, in order to give new life to the NSPA.

Selected Sources

*About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and IP laws. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com, or on twitter @TimurTusiray

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

 

Hopi Restitution Suits: Questions of Standing and Rights

By Lindsay Voirin, Esq.*

Center for Art Law previously reported that the Hopi Tribal Council partnered with the Holocaust Art Restitution Project (HARP) to file suit against France’s board of auctions for refusing to stop the sale of sacred Hopi objects, having concluding that Native American tribes lack legal standing to bring a cultural claim in France. The partnership was at once unexpected and tactically sound. In this article, we review the background for the case and the procedural history

*  *  *

Source: Sacred Hopi and Acoma objects are displayed at the Drouot auction house in Paris prior to auction, June 10, 2015. REUTERS/JACKY NAEGELEN

Sacred objects as displayed at the Drouot auction house prior to June 2015 auction. Source: Reuters/Jacky Naegelen.

 

The controversy concerns Hopi artifacts that are religious objects necessary for the use and the continuation of the Hopi religion by present day adherent. Known as kwaa tsi, and sometimes described as “katsina friends,” these artifacts are offered for sale by French auction houses, despite protests and lawsuits filed by the Hopi Tribe to enjoin the sales.

The katsina friends go through a ceremonial process of deification whereby they embody spiritual life. They then become a “Katsina” and serve as a messenger to the spiritual domain for rain and life blessings. Katsina friends are used during katsina religious ceremonies.These artifacts are considered sacred objects and objects of cultural patrimony and cannot be transferred, sold, conveyed or removed from the tribal land without permission of the Hopi Tribe. However, recently they have been included in at least six auctions in France between 2013 and 2015.

Every time kwaa tsi are offered for sale, the Hopi Tribe objects vehemently, yet their pleas remain disregarded. Therefore, the Tribe representatives have turned to administrative and legal mechanisms to attempt to enjoin the sales since 2013. The Hopi Tribal Council has filed suits in French civil courts on various occasions preceding the sales, including in April 2013, December 2013, and June 2014. Unfortunately, these judicial attempts to enjoin the sales have been unsuccessful. Furthermore, administrative petitions to the “Conseil des Ventes” (“CVV”), a French regulatory body tasked with overseeing auctions in France, have also failed. In its decisions, the CVV repeatedly held that the Hopi Tribe did not have the legal capacity to sue in France.

Article 27, United Nations Declaration on the Rights of Indigenous People (2007)

Article 27, United Nations Declaration on the Rights of Indigenous People (2007).

Internationally, the 2007 United Nations Declaration on the Rights of Indigenous People (UNDRIP) sets forth rights of indigenous people such as the right to be free from discrimination in the exercise of their rights. The current French laws have not yet been interpreted to allow an indigenous tribe or individual leader of a group to have a legal existence or standing to bring a cultural claim in French court.

In order to succeed in stopping the sales in France, the Hopi claimants have to first prove that they have standing to bring a cultural claim in a French court. The strategy of partnering with an non-government organization (NGO) to effectuate legal standing is not a new strategy. The Hopis previously partnered with Survival International France, an NGO that helps tribal people defend their land and protect their livelihood. In that instance, the court acknowledged standing but dismissed the claim on the grounds that Survival International could not legally represent the Hopis to sue for repatriation of the masks.

In both the previous 2014 case and in the instant case brought by the Ciric Law Firm on behalf of the Hopis and HARP to enjoin the sales of the Hopi artifacts, the CVV dismissed the cases on the basis that the Hopis lack standing. In fact, the CVV held that no Native American group qualifies for legal standing to bring a cultural claim in France. Moreover, the Board refused to consider evidence that legal title could not have vested in subsequent possessors of the masks. Article 1-5-1 of the Board’s Code of Ethics for Auction Houses stipulates that auction operators have a duty to investigate the provenance of objects sold. When faced with requests to apply Article 1-5-1 and require that that the provenance of the objects be considered, the Board refused, finding that the auction house acted in good faith.

Source: ABC15.com

Source: ABC15.com

Future attempts to sell Hopi artifacts at French auction houses will likely be faced with similar suits and requests to enjoin the sales. It seems unlikely that the CVV or the French civil courts will change their position without a change in legislation. As for a legislative solution, the CVV has the power to set forth proposals for legislative and regulatory changes. Recently, a strong faction of advocates for repatriation of Hopi artifacts has begun to lobby government officials. The simple solution is for France to recognize and accept Article 27 of UNDRIP, which requires the State to establish and implement a process to adjudicate the rights of indigenous peoples pertaining to their land, territories and resources. Only upon legal recognition of the Hopis can the French Board and French civil court begin to adjudicate the Hopis claims requesting injunction of future sales and repatriation of sacred artifacts.

 

Select Sources:

*About the Author: Lindsay Voirin is a patent attorney and current student at NYU Wagner School of Public Service, where she is working toward a Master in Public Administration. Her career interests include intellectual property, technology, international development and human rights law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

The New Frontier of Cultural Property Protections: When Acquiring Cultural Objects Supports Terrorism

By Timur Tusiray*

Collage of Headlines

Collage of Headlines featuring recent looting and destruction of cultural heritage in the Middle East areas under the ISIL control.

The United States Anti-Terror Act, 18 USC 2331, et seq. (“ATA”or the “Anti-Terror Act”), a potent anti-terrorism law (enacted in 1991) often used to prosecute financial institutions and other organizations, has now been identified as a tool to pursue individuals who operate in the cultural property market for materially supporting foreign terrorist organizations (“FTO”). In relevant parts it reads “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned…” (18 U.S.C. § 2339B(b)). The implications of such a development are wide-ranging, and understanding them will be key for practitioners and individuals active in cultural property acquisitions.

Recent tumultuous events involving the illicit looting and trafficking of cultural objects from Syria and Iraq by the so-called Islamic State of Iraq and the Levant (“ISIL” formerly known as ISIS), an FTO, have many wondering how the illicit traffic of cultural heritage may be checked. The question is made more urgent by the tragic beheading of Professor Khaled al-As’ad, a university professor and former general manager of antiquities and museums in Palmyra, and the destruction of historic temples in the same region.

In light of these events, on August 25, 2015 the FBI released an unusual one-page alert calling for art and antiquities market leaders to aid in the international effort to prevent the sale and import of artifacts from ISIL-controlled Syria and Iraq. While such a call for cooperation echoes ongoing efforts by national and international governments and agencies to stem the flow of finances and support to ISIL, the document briefly highlights the Anti-Terror Act as an avenue of recourse for leveraging substantial civil and criminal penalties against those buying or trading in objects coming from hot zones in the Middle East. (Readers should note that the FBI document erroneously cites the law as “18 U.S.C. § 233A” instead of “18 U.S.C. § 2339A”).

The brevity with which the FBI mentions the ATA in its August 25th document, belies the potential for this law to become a robust tool in the fight against the illicit trade. Among other things, the ATA gives standing to American nationals who were victims of terror attacks, to sue those who knowingly provided material support to an FTO, or to terrorist activities, including raising funds for FTOs. (18 U.S.C. § 2339B).  With prescribed penalties ranging from fifty thousand dollars per infraction in civil cases, to life imprisonment in criminal cases, practitioners in the field would be wise to become familiar with the evolving case law around the ATA, especially with recent developments in the U.S. Court of Appeals for the Second Circuit.

In September 2014, in the case of Linde v. Arab Bank, 269 F.R.D. 186 (E.D.N.Y. 2010), a jury found Arab Bank guilty of several offenses under the ATA, including aiding and abetting terrorism by knowingly allowing tens of millions of dollars to flow through their accounts to the families of Hamas terrorists. More recently, in Weiss v. National Westminster Bank, PLC, 768 F.3d 202 (2d Cir. 2014) (“NatWest”), the Court of Appeals found that under the ATA, plaintiffs need only show that the bank had knowledge of, or exhibited deliberate indifference to, whether or not it maintained bank accounts that transferred funds to a charity organization that funneled money to Hamas. In both cases, a bank managed accounts that transferred cash to a “middle-man” organization, which in turn provided funds for both terrorist organizations and legal charitable activities. Victims of the terrorist organizations won rulings in their favor against third-party entities operating as middlemen for the FTO.

These Second Circuit cases set forth the following rules:

  1. Causation – A defendant’s acts “were a substantial factor in the sequence of responsible causation,” and that the “injury was reasonably foreseeable or anticipated as a natural consequence” of those acts. (Linde)
  2. Scienter Requirement – Defendant “knew or was deliberately indifferent” to whether the “middle-man” organization provided material support (financing) to a terrorist organization, irrespective of whether that support actually aided terrorist activities. (Weiss)
  3. Fungibility of Money – Acknowledged earlier rulings that the specific money provided to the charities from the bank did not need to directly fund terrorist activities. Instead, merely providing funds to an organization that may have applied it to both legal, and terror organization activities was sufficient to show material support of a terrorist organization. (Weiss)
  4. Applicability of Foreign Laws – Found that US laws can be applied to extraterritorial actions, and govern the applicability of the ATA, preempting foreign law. (Weiss)

These new rules highlight the expanded reach of the ATA, while the facts of these cases mirror the current structure of the illicit market in cultural property, making it directly applicable to the latest developments in international cultural property acquisition and trade.

The traditional pattern of cultural property circulating in the illicit market – often utilized by designated FTOs – is shown to work in four stages, as identified by Peter B Campbell: (1) looting; (2) trafficking by organized criminal or terrorist networks from source nations abroad; (3) laundering of objects to give them false provenances, typically through legitimate internationally-connected dealers; and (4) entry into the legal market. Each step is a sphere of activity, and there may be multiple actors within each sphere. ISIL has utilized this same traditional market structure, using well-established smuggling routes throughout Jordan, Turkey and Lebanon to sell objects to intermediary dealers who legitimize the objects, and sell through legal channels to buyers in the West. These channels may range from high-end antiquity dealers, to objects sold by individuals through online marketplaces. For example, earlier this year a Syrian coin from around 500 BC was being sold on eBay with dirt still caked on it, and was widely reported by various news sources, including the Guardian, as potentially being excavated from ISIL controlled territories.

In a contemporary development, as reported by David Kohn in the New Yorker, ISIL has also begun to take control of the intermediary steps, reportedly involved from the first stage of extraction to the final sale and exit of cultural property from their controlled territories. In some cases, there have been reports that ISIL representatives are establishing direct, one-on-one relationships with buyers in the West. (see Russell Howard, et al., Digging In and Trafficking Out: How the Destruction of Cultural Heritage Funds Terrorism)

The international community has already taken some well-publicized steps to denounce and curb this trade. The UN Security Council has passed resolutions banning all trade in antiquities from Syria and Iraq, while certain EU nations have increased their import controls for such objects. In the U.S. this year, the Protect and Preserve International Cultural Property Act was reintroduced, and has passed in the House. The Bill would, among other things, restrict imports of cultural property from Syria.

Even with this increased scrutiny, many of these transactions continue to occur, and are imperfectly addressed under traditional domestic laws (e.g. the National Stolen Property Act, 18 U.S.C. §§ 2314 and 2315; U.S. war crimes statute 18 U.S.C. § 2441(c)). However, as seen with the banks in the highlighted ATA cases, the burden of proof for wrongdoing has been significantly diminished, making successful litigation under the ATA a real possibility in the art and antiquities market. Under the ATA theory, members of the class harmed by the FTO’s activities would have to prove that an institution or collector buying a cultural object, provided some value to an intermediary (or directly to an FTO itself) knowing that object was trafficked by, or for an FTO. Or even simply showing that they were deliberately indifferent to the supply chain providing such an object would be sufficient. This is a low bar to be met with the increased media coverage, and academic and law enforcement scrutiny in the region.

Finally, the reach of the ATA is almost limitless. So long as there is some personal or financial harm suffered by a U.S. national from an act of terror, a cause of action can be brought under the ATA by the said individual, their estate or heirs against any defendant for both domestic and extraterritorial actions solely under U.S. law. (18 U.S.C. § 2333(a)). This article merely addresses regions encompassed by the conflicts in Syria and Iraq, the ATA would apply to any place in the world with operating terrorist organizations or activities as defined under the statute.

While the looting of cultural property to fund violence is a decades old practice unlikely to abate soon, the increasing global scrutiny on ISIL and the wide-reach of the FTO activities, the recent develops in the Second Circuit interpreting the ATA, and the FBI’s warning of liability under ATA seems to indicate the Anti-Terror Act’s future potential as an unexpected tool for curbing the illicit trafficking of cultural property.

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About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and business law. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com.

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Let’s do it again but better? Pros and Cons of Renewing the US-Italy Cultural Property MOU

by Tess Bonoli*

CPAC collage

Since January 19, 2001, the Memorandum of Understanding (MOU) between the United States and Italy has offered an added layer of protection to Italy’s cultural heritage. It was designed to regulate imports of  pre-Classical, Classical, and Imperial Roman period cultural artifacts in the United States. The MOU is in response to a request from the Italian government, pursuant to Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the Convention). The Convention’s implementing legislation, the Convention on Cultural Property Implementation Act (CPIA), came into effect in 1983. Article 9 of the Convention empowers any State Party whose cultural patrimony is in jeopardy to call upon other State Parties who are affected to assist with curbing the illicit traffic. These bilateral agreements last five years, and may be renewed an indefinite number of times, following a petition and a review of the bilateral commitments. On February 26, 2015, the U.S. State Department announced that Italy had requested a third renewal of the MOU; this request is currently under review – with competing interests advocating for and against another term.

“Italy is blessed with a rich cultural legacy and therefore cursed to suffer the pillaging of important cultural artifacts,” stated John R. Phillips, American ambassador to Italy. The current MOU requires that the U.S. and Italy both contribute their resources to work toward the shared goal of preserving invaluable objects of cultural and historical importance. The U.S. is responsible for restricting importation of materials on the Designated List (including categories of stone, metal, ceramic and glass artifacts, and wall paintings); upon the recovery of such materials, returning them to Italy; and providing public notice of the items on the Designated List. In turn, the Italian government is obligated to increase scientific research; guard archaeological sites that are known to be at risk from looters; develop Italian tax incentives for private support of legitimate excavations; institute more severe penalties for looters; regulate the use of metal detectors; provide ongoing training for the Italy’s national military police, the Caribinieri, etc. In 2010, Italy also agreed to facilitate U.S. access to its art and artifacts through long-term loans, permitting scientific analysis of those materials, by encouraging American museums and universities to participate in Italian excavations, and by promoting exchange and study abroad programs. Both countries further agreed to launch joint efforts to strengthen cooperation from other Mediterranean nations, publicize the terms of the MOU, and examine more ways to facilitate the legitimate export of items sold within Italy.

Since its inception, the MOU has guided the successful recovery and return of statues, sculptures, architectural fragments, weapons and armor, vessels, coins, wall paintings, and inscriptions. In May 2015, U.S. Ambassador Phillips generalized that the joint efforts of American agents and Italian investigators had “borne fruit in returning some important artifacts to their rightful home in Italy.”

Noteworthy returns that occurred in 2014 and 2015 have included objects recovered from American museums, auction houses, galleries, private collections and universities. For example, Giovanni Battista Tiepolo’s painting, “The Holy Trinity Appearing to Saint Clement,” was stolen from a private home in Turin in 1982 and discovered in a Christie’s online catalogue in January 2014. An Etruscan bronze statuette of Hercules, stolen from a museum in Pesaro in 1964 was recovered from a New York City gallery in October 2014. Pompeian frescos and a dog-shaped askos, looted from Pompeii in 1957, were recovered from a San Diego warehouse in February 2015. An Etruscan black figure vase with dolphins was seized from the Toledo Museum of Art, after it was revealed that antiquities dealer Giacomo Medici presented false provenance documentation to the museum. The Minneapolis Institute of Arts acquired an Attic red-figure vase from Medici, which was recovered after U.S. authorities learned of its falsified provenance. Three rare 17th century books, which were stolen from the National Historical Library of Agriculture in Rome and distributed among a private collector and Johns Hopkins University, were seized and returned to Italy. A second century sarcophagus lid depicting a sleeping Ariadne was recovered from a New York gallery and returned in 2015. Interpol, the International Criminal Police Organization,“estimates that the stolen art and cultural property market produces more than $9 billion in profits each year, and it’s the fourth most profitable black market trade after human trafficking, narcotics and weapons.”

Despite the undeniable success achieved by the MOU’s joint efforts, another five-year renewal is not guaranteed. On April 8, 2015, the U.S. State Department Cultural Property Advisory Committee (CPAC) met in open session (full list of attendees and CPAC members is available here) to discuss the renewal of the Italian MOU, with Patty Gerstenblith presiding. Peter Tompa, one of the presenters before the CPAC, speaking on behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild argued against the renewal; he explained “import restrictions were never meant to be permanent. Rather, they were aimed at cutting market demand to allow time for a source country to get its own house in order.” Moreover, others doubted the practicality of returning such artifacts to Italy. Sue McGovern-Huffman, of the Association of Dealers and Collectors of Ancient and Ethnographic Art, asserted that “restrictions have been detrimental to collecting.  Over time, this will negatively impact museums that benefit from donations from collectors.  Import restrictions disadvantage American collectors versus those in the EU.” While McGovern-Huffman fully supports the MOU’s goal of preventing the illegal removal of cultural objects from Italy, addressing the CPAC she emphasized the vital role that U.S. art collectors and museums have played in the preservation and study of artifacts. She also cautioned that the current MOU severely inhibits the ability of private collectors in the U.S. to aid in such preservation and suggests that less restrictive means can be employed to achieve the goal of protecting Italian artifacts, without leaving U.S. collectors and museums at a disadvantage. Others echoes McGovern-Huffman’s concerns, and warned that the MOU’s rigid restrictions would “destroy the historically close relationship between advanced collectors and museums and inevitably impact donations of coins to numismatic institutions…likely to result in a drastic reduction in numismatic scholarship.” The Designated List, as McGovern-Huffman noted, includes common archaeological objects that “possess no special or rare features” and, because such items are so prevalent, they “cannot be realistically deemed of specific cultural, historical or scientific importance to the republic of Italy.”

In addition, concerns have been raised about whether the Italian government has been fulfilling its responsibilities under the MOU. According to Tompa, “in prior MOUs, Italy pledged to consider ways to make it easier to secure export certificates for archaeological objects legitimately sold within Italy itself. Unfortunately, nothing has been done to keep this promise, and, if anything it has become more difficult to procure them.” Attorney, Stephen Knerly, representing the Association of Art Museum Directors, stated “Italy has not lived up to its promises in the MOU to provide long-term loans. The only museums to get long-term loans are those that receive them as a quid pro quo for repatriation of artifacts.” Knerly emphasized that, even when U.S. museums do receive artifact loans, they are personally responsible for the expensive courier and insurance fees, as “Italy will not accept US State Department guarantees of indemnity and requires American museums to purchase insurance from Italian companies.”

Despite these concerns, supporters of the renewal, including Ann Stock, the U.S. Assistant Secretary for Educational and Cultural Affairs, explained that the MOU was necessary to combat an ongoing struggle and that “[t]he cultural heritage of Italy continues to be in jeopardy from pillage of archaeological material.” Professors Jane DeRose Evans, Alex Barker and Carla Antonaccio, all give the MOU unqualified support. Barker, whose university collaborates with programs at Rome’s Capitoline Museum, insisted that all legal requirements on Italy’s behalf have been met for a renewal of the MOU. Antonaccio explained that Italy was doing the best it can, despite a severe budgetary crisis. Finally, addressing the arguments raised by the numismatic collectors, Evans indicate that “locals and collectors and dealers should be educated to discourage looting. Even common coins have value.”

As the U.S. and Italy plan to decide on the fate of the renewal of the MOU by January 2016, these two nations will need to balance their individual concerns, regarding the conservation of their resources and their own access to the artifacts, with the overarching need to find the most effective means to facilitate the preservation of cultural objects and dissemination of knowledge. The U.S. and Italy may find that their solution is to amend the MOU prior to renewing it, as the parties did with first renewal in 2006 and the second renewal in 2011. Reducing import restrictions on coins, mandating a certain volume of annual artifact loans to U.S. museums and educational institutions, and removing particularly prevalent, nondescript items from the Designated List are all amendments that would quell U.S. concerns while continuing to aid the Italian government in protecting its cultural objects.

Since the adoption of the CPIA 32 years ago, 15 nations have reached MOUs with the United States, including Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, El Salvador, Greece, Guatemala, Honduras, Italy, Mali, Nicaragua, and Peru. Consequently, collectors of antiquities in the U.S. have felt their opportunities shrinking as protections increase and restrictions mount; however, these MOUs has proven themselves to be a meaningful mechanism for safeguarding the world’s cultural patrimony.

Selected Sources:

About the Author: Tess Bonoli is a rising third-year law student at Brooklyn Law School. She received a B.A. in Classics, Latin, and Italian from Tufts University. She may be reached at tessbonoli@gmail.com.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice readers are not meant to act or rely on the information in this article without attorney consultation.

The Eaton Collection: Off the Block at Rago

By Rebecca Krishnan-Ayer*Screen Shot 2015-06-10 at 12.26.01 AM

The Contested Sale

The New Jersey-based auction house Rago Arts and Auction Center (est. 1988) stirred controversy with the April 2015 projected sale of 450 works of art and artifacts from the Japanese-American internment camps established during World War II. In the wake of the New York Times article announcing the auction, activists and community leaders alike banded together to ignite a social media campaign against the auction house, whose annual sales total approximately $30 million. Rago initially stood behind their decision to proceed with the sale, citing a lack of alternate options available to the client for relinquishing the items. As the New York Times reported, “A spokeswoman for Rago wrote in an email that the unnamed auction consignor, who knew the Eaton family, is ‘not in a financial position’ to donate the material to institutions and ‘did not feel qualified to choose one institution over another.’ The consignor has described the protests as a ‘social media attack’ meant to ‘bully us into compliance with their demands.’”

Meanwhile, protest groups established a Facebook page, “Japanese American History: NOT for Sale,” assembling over 6,700 followers. Critics also launched a Change.org petition, lambasting “the betrayal of those imprisoned people who thought their gifts would be used to educate, not to be sold to the highest bidder in a national auction, pitting families against museums against private collectors.” Among those issuing a rallying call for action was Japanese American actor George Takei, who helped catapult the controversy to the forefront of Japanese American cultural groups’ and foundations’ agendas–he himself was interned in one of these camps at the age of five. Eric L. Muller, Dan K. Moore Distinguished Professor in Jurisprudence and Ethics at University of North Carolina School of Law, assisted with preparing the sale catalog for Rago, and declined to proceed with a lecture planned at the auction house after learning that the consignor had refused to transfer or donate the property to Japanese-American cultural institutions. “I did not feel that I could deliver a public lecture connected to the sale in good conscience,” Muller told the ArtsBeat blog of the New York Times of the ethical quandary he faced. As the social media campaign opposing the sale gained traction and an injunction was issued from one former internment camp site, the Heart Mountain Wyoming Foundation, Rago announced their agreement to cancel the auction on April 15, 2015. The auction house’s decision and underlying motivations still draw criticism from activists such as Shirley Higuchi, chairwoman of the Heart Mountain Wyoming Foundation, who stresses that only after the immediate threat of legal action did Rago agree to withdraw the items from the auction block.

The Objects

The ownership of the collection, comprising 23 lots, can be traced back to the 1950s. Following World War II, a number of former internees and Japanese American families donated works of art and furniture to Allen Hendershott Eaton, a historian conducting research for his 1952 book, Beauty Behind Barbed Wire: The Arts of the Japanese in Our War Relocation Camps. The objects were then handed down to an unnamed family friend of Eaton’s heirs based in Connecticut. Among the items bestowed to Eaton were unique “handmade cigarette boxes, delicate bird brooches carved of wood, intricate family nameplates, a cat figurine shaped from tree roots, and watercolors of life inside the camps, including children playing in dirt lanes and outdoor assemblies,” the LA Times reports. In an interview with NPR, Delphine Hirasuna, a scholar specializing in art created in the internment camps observes: “Here is something that gives them pride about what the[ir] grandparents created under really bad circumstances.” The emotional value of the collection far exceeds its monetary value (Rago appraised the lots for a collective estimate of around $26,000) and includes oil paintings and rare black and white photographs depicting families, internees creating works of art, and the rarely seen environs of camps in the West. Individuals born in internment camps or whose relatives experienced the tragic imprisonment of 120,000 Japanese Americans following the U.S. bombing of Pearl Harbor stand by the injustice in selling and monetizing such seminal memories and facets of history.

The Outcome

Screen Shot 2015-06-10 at 12.23.26 AMOn May 2, 2015, the Japanese American National Museum in Los Angeles announced plans to acquire the hotly contested collection as a result of Takei’s efforts to halt the public sale and with the cooperation of the would-be consignor. The museum recently honored Takei, a board trustee, for his contributions with the Japanese American National Museum’s Medal of Honor for Lifetime Achievement. According to Takei, “To put [the Eaton collection] up on the auction block to the highest bidder, where it would just disappear into someone’s collection, was insensitive. The most appropriate and obvious place for the collection was the Japanese American National Museum.” Rago Arts and Auction Center presumably played a role in the amicable settlement and urged the arts community to engage in a broader discussion on related legal and ethical dilemmas facing other institutions. Its managing partner, Miriam Tucker, affirms, “The issue extends beyond what is legal. It is something auction houses, galleries and dealers are faced with regularly.”

The Rago case recalls the efforts and ethics involved in recovering other culturally significant property such as Nazi-era looted works or Native American artifacts. Marc Masurovsky, co-founder of the Holocaust Art Restitution Project, describes a certain “sensibility and sensitivity” that must be acknowledged when dealing with such works. The attempted sale of the Eaton collection also raises interesting issues regarding precedent and discretion when it comes to auction houses accepting consignments, institutions acquiring objects, or galleries purchasing works. Legality aside, ethics and public good seem to challenge the notion of a “pure transaction” involving works of art and objects of cultural heritage.

Note from the editors: On the footsteps of the positive outcome for the Eaton collection, Center for Art Law is acutely interested in the auctions of Hopi artifacts that have taken place and continue to occur in France despite the communal and legal efforts to halt those contested sales. While Rago decided, with some backing from the court, to withdraw the Eaton items from auction, Hôtel Drouot, the largest auction house in Paris, has been proceeding with the sales of Hopi relics despite public outcry.

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About the Author: Rebecca Krishnan-Ayer received a B.A. in Art History and French Literature from Johns Hopkins University.

 

Donating Art – Not as easy as you may think…

By Aaron M. Milrad, first published on the Dentons website on 2 April 2015.

Owner

In advising potential art donors I find my clients are surprised when I ask “Are you the owner of the art?” At times there is no quick or obvious answer. Who was the buyer of the art? Who was listed on the Bill of Sale? Is it you, your spouse or your corporation? What if you and your spouse are no longer married and living together, but the Bill of Sale shows that the artwork was sold to Mr. and Mrs. X? Who can donate it? Keeping the original Bill of Sale is an important aspect of donating art as a museum or art institution will ask you to sign a Deed of Gift confirming that you are the owner of the art and have authority to donate it.

The deed of gift

The Deed of Gift will also ask you to warrant that the artwork is free and clear of any encumbrances; that is, that you have not pledged it to the bank for a loan or an ongoing loan agreement and that no creditor has filed any claim against your assets, including the artwork.

It is also common for the Deed of Gift to ask, and have you confirm, that the artwork has not been imported into Canada in contravention of any cultural property laws of the country of origin of the artwork (a Mexican object, as an example) or in contravention of Canadian law.

Canada is a signatory to UNESCO Convention dealing with the rules for importing and exporting of cultural property from member states.

Where to donate?

Mandates of collecting differ significantly from one institution to another. Selecting the right institution is important as the donor does not wish to be embarrassed by having an institution refuse the work as being outside its mandate. For example, the George Gardiner Museum of Ceramic Art collects only ceramics and related material. Other museums may collect only Canadian art or military art – or may not collect at all and may only exhibit art on loan.

Institutions will consider other factors:

  1. How important is the artwork;
  2. How the work fits into its collection;
  3. The size of the work;
  4. Whether it can be easily accommodated in storage; and
  5. How often the institution will want to show the work to the public (that is, its importance as art).

Your personal appreciation of the work in question does not necessarily make it an important work for an institution to receive as a donation. There must be a value and a relationship to the institution’s existing collection to warrant its acceptance of the work. You should ask the institution in advance as to its mandate and what the institution may be looking for in the way of art donations.

Donation of money

It is not unusual for an institution to tie its acceptance of the art donation to a requirement that the donor also contribute money to help cover the cost of “the care and feeding of the artwork”, and/or the cost of independent appraisals by professional appraisers to establish the fair market value of the art donation that will be reflected on the donor’s tax receipt. Often times, such a monetary contribution can be made to the institution for its general purposes. Care has to be taken to avoid direct or directed payment to the appraisers, as this may not qualify as a donation for income tax purposes.

Fair market value

If a tax receipt is requested or required, the artwork must be valued by independent appraisers at or near the time of the donation. Sometimes the curator of the institution itself may appraise the work. If the artwork has an original cost and a current value less than $1,000, there is no tax ramification for a capital gain under the Income Tax Act.

“Fair market value” is not defined in the Income Tax Act. However, it has been established by various court decisions as being the highest price an artwork is expected to bring in the context of willing buyers and willing sellers in the appropriate “sales market” applicable to that artwork, and under no compunction to transact. Often times, in seeking to quantify the artwork’s value, the tax authorities will look at the original price paid by the donor as the starting point, as well as the qualifications of the independent appraisers who valued the artwork.

Acceptance

Many institutions will require that the donation of the artwork be approved not only by the relevant curator, but also by an acquisition committee or even by the institution’s board of trustees. This is not a quick process. Usually, acquisition committees sit only three or four times a year. If timing of acceptance of a donation of artwork is important for tax reasons (i.e. the receipt is required for a particular tax year), sufficient time has to be given to the institution to process the artwork for donation in accordance with the rules of the institution and the tax authorities.

The institution must be a ‘charitable organization’ in order to issue tax receipts. It will not wish to put its status in jeopardy for having a faulty donation acceptance program.

Certified cultural property

A donation may be made by a collector to an institution under normal donation rules for a tax receipt for fair market value of the artwork. However this process will result in a taxable capital gain to the donor based on the increased value of the work from the time of purchase to the time of donation. There may be different tax issues for an art donation made by an art dealer, or artists donating their own artworks, but that is outside the purview of this article. However, an art donation made under Canada’s Cultural Property Export Import Act may qualify for a special benefit given to the donor.

Restitution, Repatriation and Return: When Objects Go Back; (Part 2 of 5) Restitution of Cultural Objects Taken During World War II

By Kevin P. Ray, first posted on Greenberg Traurig’s art law blog Cultural Assets on March 20, 2015.

This article is thshutterstock_35931382e second in a five-part series discussing the restitution, repatriation, and return of cultural objects. Each part addresses a different category of return. The first article in the series available here, addressed the restitution of stolen cultural objects. This article is the continuation of Part 1 and discusses developments in the restitution of cultural objects taken during World War II. The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.

Museums’ Use of Technical Defenses: Von Saher and Beyond

The question of museums waiving defenses, as the AAM Standards suggest, has emerged as an important point of conflict in Nazi-era restitution cases. In a few instances, museums have filed quiet title actions against restitution claimants, asking courts to issue declaratory judgments that the museums have good title to the objects and/or the claimants’ rights have been lost due to statutes of limitations or laches. [See, e.g., Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996, at *1 (E.D. Mich. Mar. 31, 2007); Museum of Fine Arts, Boston v. Seger-Thomschitz, Case No. 08-10097-RWZ, 2009 WL 6506658 (D. Mass. June 12, 2009); Museum of Fine Art v. Schoeps, 549 F.Supp.2d 543 (S.D.N.Y. 2008).] Such cases remain rare, and are controversial. [See, e.g., Grosz v. Museum of Modern Art, 772 F.Supp.2d 473 (S.D.N.Y. 2010); Simon J. Frankel and Ethan Forrest, “Museums’ Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Restitution Claims – A Defense,” 23 DePaul J. Art, Tech. & Intell. Prop. L. 279, 281 (2013).] However, museums asserting statutes of limitations and laches defenses – what have become known as “technical defenses” – rather than allowing cases to be decided solely on the merits is not less controversial. [1]

Statute of limitations and laches[2] defenses are commonplace in stolen art litigation. [For a discussion of statutes of limitations and related issues in stolen art cases, see my earlier discussion in “Restitution of Stolen Cultural Objects,” available here.] The propriety of museums’ use of such technical defenses is highlighted in Von Saher v. Norton Simon Museum of Art at Pasadena. [Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9th Cir. 2014).] Before the Second World War, Jacques Goudstikker was a preeminent Amsterdam art dealer. [See “Reclaimed: Paintings from the Collection of Jacques Goudstikker,” exhibition March 15 – August 2, 2009, Jewish Museum website, available here.] When the Nazis invaded the Netherlands in 1940, the Goudstikkers, as Jews, were endangered. They fled the country, leaving behind their possessions, including the contents of Jacques’s art gallery, which included more than 1,400 objects, including two life-size 16th-century panels by Lucas Cranach the Elder, titled “Adam and Eve.”  Jacques Goudstikker had purchased the Cranach panels at auction in 1931. The auction was titled “The Stroganoff Collection,” and included objects that had been expropriated by the Soviet government from the Stroganoff family, as well as from other owners within the U.S.S.R. The Cranach panels had not been owned by the Stroganoff family, but had been in the collection of the Ukrainian Academy of Science in Kiev.

After the Nazis occupied Amsterdam, the Goudstikkers’ possessions were confiscated, with Hermann Goering selecting ca. 800 objects for his personal collection. Many of the Goudstikker objects were retrieved by Allied forces at the end of the war and were sent to the Central Collecting Point in Munich for cataloging and processing. Allied policy was to return Nazi-looted objects to the governments of the countries from which they had been taken, reasoning that those countries were in the best position to locate the original owners and return the objects to them or to their heirs. Along with other Goudstikker objects, the Allies restituted the Cranach panels to the government of the Netherlands. However, in 1961, an heir of the Stroganoff family filed a claim against the Cranachs, and Netherlands erroneously restituted the panels to him. The heir sold the Cranach panels to the Norton Simon Museum of Art at Pasadena in the early 1970s.

Von Saher I

With Von Saher the question of whether a statute of limitations defense is appropriate in the case of Nazi-looted objects has been extensively litigated. Concerned that California’s three-year statute of limitations was presenting an unfair burden on claimants with respect to Holocaust and in Nazi-era looting cases, the California legislature extended that statute of limitations, but only for such Holocaust and Nazi-era looting claims. Marei Von Saher, the heir of Jacques Goudstikker, filed a replevin action in California in May 2007 against the museum, and the museum filed a motion to dismiss, arguing that the California statute extending the limitations period unconstitutionally intruded upon the federal government’s “exclusive power to make and resolve war, including the procedure for resolving war claims.” [Von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV-07-2866-JFW, 2007 WL 4302726 (C.D. Cal. Oct. 18, 2007).] The district court agreed, and dismissed the case. Ms. Von Share appealed the decision to the 9th Circuit Court of Appeals, which issued a decision finding the California extension of its statute of limitations unconstitutional but allowing Ms. Von Saher leave to amend her complaint to allege that her claim was brought within the existing three-year statute of limitations measured by the discovery rule. [Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (2009).] That decision was reheard en banc, with the full court again holding the extended limitations period to be unconstitutional, and remanding the case to the district court to allow the plaintiff to amend her complaint. [Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (2010).]

Von Saher II

Following the 9th Circuit’s decision, Ms Von Saher filed an amended complaint. The California legislature amended its statute of limitations, this time avoiding the foreign affairs conflict, and providing generally that claims for the recovery of artworks must be brought within six years after “actual discovery” by the plaintiff of the current location and current possessor of the object (provided that the object has been taken within the last 100 years). The constitutionality of this limitations period was challenged in a wholly separate Nazi-confiscated art case, and the statute was upheld. [Cassirer v. Thyssen-Bornemisza Collection Foundation, 737 F.3d 613 (9th Cir. 2013).] However, the district court granted the museum’s second motion to dismiss the case, holding that Ms Von Saher’s claims were preempted by the foreign affairs doctrine. [Von Saher v. Norton Simon Museum at Pasadena, 862 F.Supp.2d 1044 (2012).] Quoting the Solicitor General’s brief with approval, the district court found that “[w]hen a foreign nation, like the Netherlands here, has conducted bona fide post-war internal restitution proceedings following the return of Nazi-confiscated art to that nation under the external restitution policy, the United States has a substantial interest in respecting the outcome of that nation’s proceedings.” [Id. at 1051.]

On appeal, the 9th Circuit reversed that decision, finding that the Dutch post-war internal restitution proceedings that resulted in the Cranachs being given to the Stroganoff heir were not adequate, and were, in fact, criticized and disavowed by the Netherlands in a reassessment in the 1990s.  The court further found that the later Dutch restitution proceedings concerning objects from the Goudstikker collection (which resulted in the return to Ms. Von Saher of several hundred objects) were not internal restitution proceedings with respect to the Cranach panels, since those panels were no longer located within the Netherlands at that time and could not be returned. The 9th Circuit rejected the Solicitor General’s position that U.S. policy supported the finality of countries’ internal restitution decisions, without further considerations. Rather, the court stated:

 “U.S. policy on the restitution of Nazi-looted art includes the following tenets: (1) a commitment to respect the finality of ‘appropriate actions’ taken by foreign nations to facilitate the internal restitution of plundered art; (2) a pledge to identify Nazi-looted art that has not been restituted and to publicize those artworks in order to facilitate the identification of prewar owners and their heirs; (3) the encouragement of prewar owners and their heirs to come forward and claim art that has not been restituted; (4) concerted efforts to achieve expeditious, just and fair outcomes when heirs claim ownership to looted art; (5) the encouragement of everyone, including public and private institutions, to follow the Washington Principles; and (6) a recommendation that every effort be made to remedy the consequences of forced sales.” [Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d at 721.]

While museums and their trustees certainly have a duty to protect and preserve the objects in their collections, as well as an obligation to evaluate claims made against objects that they hold,[3]the Von Saher case has become a touchstone for critics of museums’ use of technical defenses to delay or foreclose resolution of bona fide claims on their merits. In Von Saher, the parties have been in court for seven years and have not yet reached the merits.

Objects Held by Foreign Museums: The Foreign Sovereign Immunities Act

Most U.S. museums are private charitable organizations, but that is not the norm in most other parts of the world, where museums are state-owned or state-affiliated. That means that parties asserting claims for the restitution of objects held in foreign museums frequently involve questions of foreign sovereign immunity.

Generally, a foreign state is immune from the jurisdiction of federal and state courts in the U.S. [See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983).] However, the Foreign Sovereign Immunities Act (FSIA) [28 §§ U.S.C. 1602-1611.] allows U.S. courts to exercise jurisdiction over foreign sovereigns and their agencies and instrumentalities, but only within certain statutorily-defined exceptions. Although the FSIA was not enacted until 1976, it applies to all cases filed after its enactment, regardless of when the alleged wrongdoing occurred.[ See Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004)(holding that the FSIA applies to conduct “that occurred prior to 1976 and, for that matter, prior to 1952 when the State Department adopted the restrictive theory of sovereign immunity.”).] Under the FSIA, state-owned or state-affiliated museums are considered agencies or instrumentalities of their foreign sovereigns.[4]

The most commonly applied FSIA exception in cultural property restitution cases is the “expropriation exception.” [See, e.g. Altmann v. Republic of Austria, 317 F.3d 954, (9th Cir. 2002),aff’d, 541 U.S. 677 (2004); Cassirer v. Kingdom of Spain, 580 F.3d 1048, (9th Cir. 2009); Agudas Chasidei Chabad of United States v. Russian Federation, 528 F.3d 934 (D.C. Cir. 2008); Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C. 2005).] Under the expropriation exception, a foreign sovereign (or its agency or instrumentality) is amenable to suit in U.S. courts where property has been taken in violation of international law and either (1) “that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state,” or (2) that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.” [28 U.S.C. § 1605(a)(3).]

Foreign Sovereign-Owned Property in the U.S.

The first prong of the expropriation exception has typically been applied in cases where objects owned by foreign museums are temporarily located in the U.S. For example, in Malewicz v. City of Amsterdam, [Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C. 2005); Malewicz v. City of Amsterdam, 517 F.Supp.2d 322 (D.D.C. 2007).] the heirs of artist Kazimir Malewicz sought the return of 14 Malewicz paintings from the City of Amsterdam, whose Stedelijk Museum had placed the paintings on temporary loan to the Solomon R. Guggenheim Museum and the Menil Collection. Amsterdam argued that because the paintings on loan were immune from seizure under the U.S. Department of State’s Mutual Educational and Cultural Exchange Program, the court should dismiss the case. The court, however, disagreed, holding that “[i]mmunity from seizure is not immunity from suit for a declaration of rights or for damages arising from an alleged conversion if the other terms for FSIA jurisdiction exist.” [Malewicz v. City of Amsterdam, 362 F.Supp.2d at 312.]

The court found that the requirements for FSIA jurisdiction were satisfied, because (1) the museum’s taking of the paintings violated international law, and (2) the paintings were present in the U.S. in connection with commercial activity. For purposes of determining whether jurisdiction exists under the FSIA, the court “need not decide whether the taking actually violated international law; as long as a claim is substantial and non-frivolous, it provides a sufficient basis for the exercise of [the court’s] jurisdiction.” For purposes of the FSIA, a taking violates international law if it is not for a public purpose, or is discriminatory, or does not provide for just compensation. The City of Amsterdam argued that FSIA takings jurisdiction cannot exist unless the plaintiffs have first exhausted local remedies. The court, however, agreed with the heirs that exhaustion of local remedies was not required because no local remedies were available to the heirs since, under Dutch law, no claim for the return of property (or damages for its taking) can be brought later than 30 years after the date of the taking. Therefore, the heirs had no remedy available to them in Dutch courts. The court found that the museum’s loan of the paintings to the U.S. museums satisfied the commercial activity requirement.

Foreign Sovereign-Owned Property Outside the U.S.

The expropriation exception’s second prong has proven to be an even more powerful tool in cultural property restitution cases, and has provided the basis for U.S. jurisdiction in many of the highest-profile cases of the last decade. They have included the restitution from the Austrian state museum of several Gustav Klimt paintings, the best-known of which is his portrait of “Adele Bloch-Bauer I” (which was then acquired by the Neue Galerie for $135 million), to the heir of the Bloch-Bauers. [Altmann v. Republic of Austria, 142 F.Supp.2d 1187 (C.D. Cal. 2001); Altmann v. Republic of Austria, 317 F.3d 954, (9th Cir. 2002), aff’d, 541 U.S. 677 (2004).] The Altmann case went to the U.S. Supreme Court and established the principle that jurisdiction under the FSIA applies to cases filed after enactment of the FSIA, regardless of when the actions that give rise to the case occurred. In fact, these cases have been instrumental in the development of FSIA jurisprudence. The case has been the subject of numerous articles and books, and is the basis for a forthcoming film, “Woman in Gold,” with Helen Mirren as Maria Altmann.

While the Altmann case was ultimately resolved by settlement, many cases seeking restitution of cultural objects held by foreign state museums or entities are on-going. These include actions by (i) heirs seeking return of a Nazi-confiscated painting currently owned by a Spanish state-affiliated museum [Cassirer v. Kingdom of Spain, 461 F.Supp.2d 1157, 1163-64 (C.D. Cal. 2006); Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1032 (9th Cir. 2010); Cassirer v. Thyssen-Bornemisza Collection Foundation, No. CV 05–03459 GAF, 2014 WL 5510996, *5 (C.D. Cal. Oct. 31, 2014).] (which established the principle that the foreign state against whom suit is brought need not be the same foreign sovereign responsible for taking the property); (ii) heirs for the return of a collection of paintings, including works by Lucas Cranach the Elder, El Greco, Francisco de Zurbaran and Gustave Courbet, from the Hungarian National Gallery (which relies upon the breach of a post-war bailment agreement between the family and the museum); [de Csepel v. Republic of Hungary, 714 F.3d 591, (D.C. Cir. 2013).] (iii) a religious organization for return of a religious library and archive from the Russian State Library and Russian State Military Archive, which objects were first confiscated by the Nazis and later seized by Soviet troops and taken back to the Soviet Union (where the organization brought suit in the U.S. after Russia frustrated litigation there. The organization obtained a default judgment against Russia, and has imposed sanctions of $50,000 per day for Russia’s failure to comply with the court’s order directing it to return the objects); [Agudas Chasidei Chabad v. Russian Federation, 466 F.Supp.2d 6, 16 (D.D.C. 2006); Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 948 (D.C. Cir. 2008).] and (iv) the Welfenschatz described earlier in this article.

The Washington Conference Principles, the museum ethics guidelines and standards, and the succession of court decisions (particularly those brought under the FSIA) have significantly transformed not only the law in the area of cultural property restitution, but perhaps more importantly, they have transformed awareness and behavior. These developments have the potential to affect a normative shift that extends beyond the historical specifics of World War II, and to change the way we think of rights and ownership of cultural property in a wide range of contexts. They are, and will continue to be, touchstones in a broader and continuing discussion.

[1] See, e.g., Jessica Schubert, “Prisoners of War: Nazi-Era Looted Art and the Need for Reform in the United States,” 30 Touro L. Rev. 675 (2014); Jessica Mullery, “Fulfilling the Washington Principles: A Proposal for Arbitration Panels to Resolve Holocaust-Era Art Claims,” 11 Cardozo J. Conflict Resol. 643 (2010); Benjamin E. Pollock, “Out of the Night and Fog: Permitting Litigation to Prompt an International Resolution to Nazi-Looted Art Claims,” 43 Hous. L. Rev. 193 (2006); Rachel Durbin, “Museums and Self-Regulation: Assessing the Impact of Newly Promulgated Guidelines on the Litigation of Cultural Property,” 18 U. Miami Bus. L. Rev. 101 (2010); Emily A. Graefe, “The Conflicting Obligations of Museums Possessing Nazi-Looted Art,” 51 B.C. L. Rev. 473 (2010); Jennifer Anglim Kreder, “Guarding the Historical Record from the Nazi-Era Art Litigation Tumbling Toward the Supreme Court,” 159 U. Pa. L. Rev. 253 (2011); Katherine N. Skinner, “Restituting Nazi-Looted Art: Domestic, Legislative, and Binding Intervention to Balance the Interests of Victims and Museums,” 15 Vand. J. Ent. & Tech. L. 673 (2013). up

[2] Laches is an equitable defense “designed to promote diligence and prevent enforcement of stale claims” by those who have “‘slumber[ed] on their rights.’” Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C.Cir.1982).  To invoke the defense of laches to bar a claim, a defendant must demonstrate that (1) “the plaintiff has unreasonably delayed” in asserting its claim, and (2) “there was ‘undue prejudice’ to the defendant as a result of the delay.” Jeanblanc v. Oliver Carr Co., No. 94–7118, 1995 WL 418667, at *4 (D.C. Cir. June 21, 1995). up

[3] See, e.g., Patty Gerstenblith, “Acquisition and Deacquisition of Museum Collections and the Fiduciary Obligations of Museums to the Public,” 11 Cardozo J. Int’l & Comp. L. 409 (2003)(noting that “Use of either the laches defense or the discovery rule will necessitate a lengthy trial that would consume museum resources.  It will lead to losses in terms of finances, efforts of staff, and, in many cases, negative publicity.  It is thus reasonable for a board of trustees to determine that its chances of retaining an art work through litigation and use of these affirmative defenses are not likely to succeed and thus to seek settlement, while saving the expense of litigation.”). up

[4] See Cassirer v. Kingdom of Spain, 461 F.Supp.2d 1157, 1163-64 (C.D. Cal. 2006) (holding that the Thyssen-Bornemisza Collection Foundation is an agency or instrumentality of the Kingdom of Spain, because it arranged and was a party to the original loan of the artworks, contributed toward the purchase price paid for the artworks, provided a facility to house the artworks, paid the cost of refurbishing that facility, and Spain’s governmental ministers were required to form part of the Collection’s directors); de Csepel v. Republic of Hungary, 714 F.3d 591, (D.C. Cir. 2013) (the Hungarian National Gallery); Agudas Chasidei Chabad of United States v. Russian Federation, 528 F.3d 934 (D.C. Cir. 2008) (Russian State Library and Russian State Military Archive); and Altmann v. Republic of Austria, 142 F.Supp.2d 1187 (C.D. Cal. 2001) (Austrian Gallery which was formerly an agency or instrumentality of Austria and was subsequently privatized). up

Attacks Against Cultural Heritage Abroad Raise Questions at Home

by Melissa (YoungJae) Koo*

Just about a month after the attack at Charlie Hebdo journal and a deadly shooting at a kosher supermarket in Paris, five teenagers are detained in France for desecrating as many as 250 gravestones in a cemetery in a rural town in eastern France, where many Jews are buried. This incident again calls to mind concerns about violations against art and cultural property and the increasing anti-Semitism in France and elsewhere. According to Professor Richard Weisberg, the Walter Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law and a White House appointee to the Commission on the Preservation of America’s Heritage Abroad, the recent troubling desecration event in France has been on the Commission’s radar. It is one of many desecrations of Jewish sites in Europe that have historically happened in Central and Eastern Europe. Although it is not clear whether the motivation of the grave desecration was based on anti-Semitism, the commission has assumed that anti-Semitic sentiment was a major driving force in the actions, Professor Weisberg stated.

Weisberg indicated that the act of vandalism is punishable by criminal law; however, he added that although France as well as the rest of Europe needs to further educate younger generations, there is always a possibility of anti-Semitic incidents happening time to time. To counter other future similar acts, the Commission on the Preservation of America’s Heritage Abroad has been supporting maintenance of sites like graveyards even if there is no desecration, if the sites are important to American constituents. The Commission also has been working with European governments and private groups, both Jewish and non-Jewish, to educate people to prevent desecration.

In addition, Weisberg’s recent article “Even in the wake of Charlie Hebdo, France’s Jews are living in peace” in the New York Daily News points out the overreaction of media, especially in the U.S., toward anti-Semitism in Europe. Weisberg mentioned that despite sometimes being criticized, French government officials “stand[] in solidarity with [their] Jewish population.” The French government has expressed vocal and politically courageous statements in support of the Jewish community as well as abhorrence toward such anti-Semitic incidents, both on national and local level. Indeed, the French Prime Minister Manuel Valls went on record to address his citizens after the January attacks in Paris to underscore that “[a] Jew who leaves France is a piece of France that is gone” to discourage an exodus. The French government’s support of the Jewish community and outcry over destruction of cultural patrimony respond to ongoing issues with extreme right winged, old forms of anti-Semitism in France. In a similar fervent fashion, the French President François Holland has criticized recent ISIS attacks against cultural institutions such as the Tunis museum, attacked by gunmen on March 18 that left 23 people dead, among them 19 tourists from different nations.

Hate crimes that resulted in desecration of a burial place in France also run parallel to the recent extremists’ attacks on cultural sites in Iraq, Syria, Tunisia and elsewhere. As the world leaders denounce such acts, attacks against museums, cemeteries, and cultural properties that affect culture heritage and people in the community, sadly, continue.

*** The author wants to express special thanks to Professor Richard Weisberg for his time and kindness during the interview.

Select Sources:

About the Author: Melissa (YoungJae) Koo, Legal Intern with Center for Art Law, is a third year student at Benjamin N. Cardozo School of Law, concentrating in Intellectual Property law, especially art and fashion law. She can be reached at youngjae.koo@law.cardozo.yu.edu.

 

 

Restitution, Repatriation and Return: When Objects Go Back; (PART 1 of 5) Restitution of Stolen Cultural Objects

By Kevin P. Ray, first posted on Greenberg Traurig’s art law blog Cultural Assets on February 25, 2015.

GT photo

An important and frequently misunderstood development in the law of art and cultural property in recent decades has been the elaboration in national laws, international instruments, and customary international law of the rights of individuals, groups, nations or other entities to obtain the return of cultural objects that were taken from them, their ancestors or predecessor, or their territory at some point in the past. I have previously discussed differing views on the repatriation of certain types of cultural property and the discussion is available here. This article is the first in a five-part series discussing restitution, repatriation, and return of cultural objects.  Each part addresses a different category of return: (1) restitution of stolen cultural objects, (2) restitution of cultural objects taken during World War II, (3) restitution of illicitly excavated and/or illicitly exported cultural objects, (4) repatriation of tribal and indigenous cultural objects, and (5) the return of cultural objects removed during colonial occupation.

Restitution of Stolen Cultural Objects

Of what I identify as the five categories of claims for the return of cultural objects, the simplest of these, conceptually, is where the object has been stolen.  We instinctually understand why the original owner would want the stolen object returned.  Popular culture is sometimes ambivalent, though, regarding the theft of art as both glamorous and, to some extent, unserious.  Art, in this context, is a luxury good.  The art heist is a familiar film trope, generally light-hearted (i.e., Gambit(Michael Caine and Shirley MacLaine, 1966, remade in 2012, with Colin Firth, Cameron Diaz, and Alan Rickman), Topkapi (Maximilian Schell, Melina Mercouri, Peter Ustinov, Robert Morley, and George Segal, 1964), How to Steal a Million  (Peter O’Toole and Audrey Hepburn, 1966), or The Thomas Crown Affair (Steve McQueen and Faye Dunaway, 1968, remade in 1999, with Pierce Brosnan and Rene Russo), though sometimes considerably harsher (i.e., Headhunters (Aksel Hennie, Synnove Macody Lund, and Nikolaj Coster-Waldau 2011) and Trance (James McAvoy, Rosario Dawson, and Vincent Cassel, 2013)).  In its light-hearted variation, the art heist is perpetrated by a dashing, raffish thief (often a playboy, engaged in a dual life).  After plot complications and reversals, the thief, on the verge of his (or her) identity being revealed, outwits the lumbering authorities, and escapes with the artwork, and usually his (or her) romantic interest.  The harsher variation, after complications and reversals, typically ends less happily.

Off-screen, art theft is less dashing and less romantic, and it often involves (at some level) criminal networks.  Among the highest-profile thefts from museums are: (1) the brief theft of the Mona Lisa from the Louvre in 1911, taken by museum handyman Vincenzo Peruggia, who attempted to return the painting to Italy (the irony being that the painting had never been unlawfully removed from Italy); (2) the 1990 theft of 13 works (including paintings by Rembrandt, Vermeer, Degas and Manet) from Boston’s Isabella Stewart Gardner Museum,  which remains unsolved and the works unrecovered, although the FBI has identified persons of interest in the case, all of whom have ties to organized crime; (3) the 2002 theft of two paintings from Amsterdam’s Van Gogh Museum, in which thieves entered the museum through the roof; the thieves were later arrested and convictedof the theft, but the paintings have not been recovered; and (4) the 2012 theft of seven paintings (including works by Freud, Gauguin, Matisse, Monet and Picasso) from Rotterdam’s Kunsthal Museum, taken by a group of Romanian thieves, and allegedly incinerated by the mother of one of the thieves to destroy evidence after the group had been arrested.

Museums are not the only targets of art theft.  Cultural objects are perhaps even more frequently taken from private collections and other types of historic and cultural institutions.  A few recent examples highlight how most art thefts are not the glamorous, highly-planned affairs of film, but tend to be crimes of opportunity, often by those who simply happen (for different purposes) to have access to the objects.  In 2009, 12 paintings, including works by Marc Chagall, Chaim Soutine, Arshile Gorky, and Diego Rivera, were stolen from a residence in southern California.  Nine of the paintings, reportedly valued at $12 million, were later recovered. In 2011, a 12th century illuminated musical manuscript, the Codex Calixtinus, was discovered missing from the Cathedral of Santiago de Compostela. The manuscript had been taken by a former electrician, who had been engaged in an on-going series of thefts from the cathedral, having taken, in addition to the manuscript, more than €2.4 million in cash.  The thief was recently convicted and sentenced to a10-year prison term. Still another workman (another electrician, even) with opportunistic access to artworks has also made news recently, although the theft occurred decades ago.  An electrician who worked for Pablo Picasso at his house in Mougins, France, and the electrician’s wife, are currently on trial for stealing 271 artworks from the Picasso house, which the couple then stored in their garage for 37 years.  The Picasso works are valued at between €60 and €80 million.

Whether taken from museums or from private collections, when stolen objects are sold, they are moved through progressively higher-level intermediaries, cleansing them of information about the original owner and the circumstances of the theft.  [See Interpol website, frequently asked questions] With the passage of time, the stolen object is sold (possibly several times), and the current owner may have innocently purchased the object, with no inkling that its history is tainted.  This situation is sometimes spoken of as involving “two innocents” – the original owner from whom the object was taken and the good faith purchaser with no knowledge of the theft.[1]

Typical of such cases is Solomon R. Guggenheim Foundation v. Lubell, in which the Guggenheim Museum sought return of a 1912 gouache by Marc Chagall that had been taken from the museum’s storage area by a mailroom employee in the late 1960s.  While the museum had discovered the gouache was missing during a periodic inventory, it did not notify law enforcement of the theft, concerned that publicizing the theft would drive it underground and make its recovery unlikely.

The gouache was purchased by art collectors, the Lubells, from a gallery in 1967, and displayed it in their apartment for many years.  The museum discovered that the Lubells owned the gouache in 1985, and wrote to the Lubells, demanding its return.  In the litigation that followed, the Lubells argued that the museum had no right to the gouache because New York’s three-year statute of limitations for the return of stolen objects had run.  Just as states have different statutes of limitations that cut off a property owner’s right to sue for the return of a stolen object (to discourage stale claims), states also have different rules governing when a cause of action for recovery accrues and the limitations period begins to run.  In the U.S., there are three approaches to when a cause of action for replevin accrues, and each approaches gives different weight to the rights of the original owner and the rights of the current possessor.  In the most favorable to the rights of the current possessor, the statute of limitations begins to run at the time of the theft.  Most states, however, apply the “discovery rule,” under which the limitations period begins to run only when the original owner learns the location of the object and the identity of the current possessor.[2] New York, however, is still more protective of the rights of the original owner, and applies the “demand and refusal” rule, so that the limitations period does not begin to run until the original owner makes demand upon the current possessor for the return of the object and the current possessor refuses that demand.

In Lubell, however, the trial court applied a variation on New York’s demand and refusal rule, requiring that the original owner show that it had diligently attempted to locate the object.  The trial court granted the Lubells’ motion for summary judgment, holding that “in order to avoid prejudice to a good faith purchaser, demand cannot be unreasonably delayed and that a property owner has an obligation to use reasonable efforts to locate its missing property to ensure that demand is not so delayed.”  In so doing, the trial court relied on a prior decision by the United States Court of Appeal for the Second Circuit, DeWeerth v. Baldinger, which had required diligence on the part of an original owner.  The DeWeerth court had reasoned that:

“A rule requiring reasonable diligence in attempting to locate stolen property is especially appropriate with respect to stolen art. Much art is kept in private collections, unadvertised and unavailable to the public. An owner seeking to recover such property will almost never learn of its whereabouts by chance. Yet the location of stolen art may frequently be discovered through investigation.”

In Lubell, the New York Court of Appeals ultimately rejected both the trial court’s holding and the Second Circuit’s holding in DeWeerth.  The court held that “[o]ur case law already recognizes that the true owner, having discovered the location of its lost property, cannot unreasonably delay making demand upon the person in possession of that property.  Here, however, where the demand and refusal is a substantive and not a procedural element of the cause of action . . . it would not be prudent to extend that case law and impose the additional duty of diligence before the true owner has reason to know where its missing chattel is to be found.”

Statutes of limitations are not the only form of limitation that may apply, since many countries apply prescription periods that operate to vest title in good faith purchasers (even of stolen objects) after a designated period of time. Since cultural objects frequently cross borders, the mere fact that suit is brought in a jurisdiction (like the U.S.) that does not have such prescription periods and in which even a good faith purchaser cannot obtain good title to a stolen object, does not mean that such a period will not apply.  In Winkworth v. Christie, Manson & Woods Ltd, certain artworks were stolen from a collector in England and were taken to Italy, where they were sold to an apparently innocent purchaser. [See  Winkworth v. Christie, Manson & Woods Ltd., [1980] Ch. 496 , [1980] 1 All E.R. 1121].  Later, that purchaser consigned the artworks to an auction house in London for sale.  The collector from whom the objects had been taken brought suit in England for their recovery.  Under English law, a thief cannot transfer good title, and had English law applied to Mr. Winkworth’s case, he would have prevailed and the objects would have been returned to him.  However, the court determined that the question of whether the seller had obtained good title to the objects when he purchased them in Italy was governed by Italian (not English) law.  Under Italian law, a good faith purchaser can obtain good title even to stolen objects.

A similar case arose in New York, where the Greek Orthodox Patriarchate of Jerusalem sought recovery of the Archimedes Palimpsest, a 10th century manuscript, which had been taken from Patriarchate at some point in the past.[See The Greek Orthodox Patriarchate of Jerusalem v. Christie’s, Inc., No. 98 Civ. 7664(KMW), 1999 WL 673347 (S.D.N.Y. Aug. 30, 1999)].  The manuscript’s current possessor was the heirs of a French civil servant, who had acquired it in France in the 1920s.  Under French law, a good faith purchase obtains good title to a stolen object after 30 years.  The heirs consigned the manuscript to an auction house in New York, and the Patriarchate brought suit there.  As in Winkworth, the Archimedes court found that the question of whether the French civil servant’s heirs had good title to the manuscript was governed by French law, not U.S. law.

Although courts have tightened the availability of statute of limitations defenses in stolen art cases, current possessors of stolen (or allegedly stolen) art are increasingly making use of the equitable defense of laches, which operates very similarly to statutes of limitations in cutting off an original owner’s right to bring suit for the recovery of an object if (i) the original owner has unreasonably delaying bringing suit, and (ii) that delay has resulted in prejudice to the current owner (chiefly, resulting in lack of evidence or witnesses).  Many of the most significant developments in the application of laches defenses in recent art cases have been in the area of claims for the restitution of cultural objects that were taken (by the Nazis or otherwise) during World War II, and so I will discuss those developments more fully in the next installment of this series.

[1] See Menzel v. List, 267 N.Y.S.2d 804, 809 (Sup. Ct. 1966) (“The resolution of these problems is made the more difficult in view of the fact that one of two innocent parties must bear the loss.”),modified, 279 N.Y.S.2d 608 (App. Div. 1967) (per curiam), modification rev’d, 246 N.E.2d 742 (N.Y. 1969).  See also Ashton Hawkins, Richard A. Rothman, and David B. Goldstein, A Tale of Two Innocents: Creating an Equitable Balance Between the Rights of Former Owners and Good Faith Purchasers of Stolen Art, 64 Fordham L. Rev. 49 (1995). Available here.   up

[2] See, e.g., O’Keeffe v. Snyder, 416 A.2d 862 (N.J. 1980)(applying New Jersey’s version of the discovery rule, which requires the original owner to diligently pursue the object); Naftzger v. American Numismatic Society, 49 Cal.Rptr.2d 784 (Cal. Ct. App. 1996)(applying California’s discovery rule, which does not mandate due diligence on the part of the original owner). up