What’s Missing in the Legal Protection of Cultural Heritage?

Last Friday, I had the privilege of attending the the Lawyers’ Committee for Cultural Heritage Preservation sixth annual conference, “Cultural Property: Current Problems Meet Established Law” in Philadelphia. The Penn Museum was an amazing host and I learned a great deal from the speakers. For me, much of the news was disappointing, but I saw it more as a call to action for the next generation to prepare themselves for the work ahead. There was SOOO much to go over that I am going to share posts on some of the topics throughout the next month. DISCLAIMER: I am not a lawyer. Forgive me!

The day began with a lecture from Patty Gerstenblith, Distinguished Research Professor of Law and Director, Center for Art, Museum & Cultural Heritage Law at DePaul University School of Law. Additionally, in 2011, she was appointed by President Obama to serve as the chair of the his Cultural Property Advisory Committee in the U.S. Department of State. She’s pretty much a rock star!

UNESCO 1970Her lecture focused on the gaps protecting looted cultural heritage between the UNESCO 1970 Convention and the National Stolen Property Act, explaining the two prong approach. Prong 1: UNESCO 1970 Convention , when focusing on US Cultural Property Implementation Act (CPIA) only include two provisions (substantively from 1983): Article 7b applies to public institutions and the 1983 date; Article 9 allows other states to call on pillaged objects. Gerstenblith included 2 examples of Article 7B: A Peruvian altarpiece from 16th century church with was stolen during renovation and then returned, and a Chinese piece consigned at Christies, but seized and return. She noted that other claims on undocumented archeological and ethnological objects are based on chart: “Guide to Cultural Property Import Restrictions currently imposed by the United States of America” based on agreements with individual countries and cover different materials and have to be renewed every 5 years.

Prong 2: Recognition of foreign ownership laws (National Stolen Property Act) and has many ramifications in the US and the British Courts, where the principal has also been recognized. The first generation cases include the Lydian Hoard with an action filed against the person in possession in the United States with U.S. Attorney in a foreign jurisdiction. The second generation of cases include the phiale seized from Michael Steinhart. Italy did the criminal investigation in Sicily with looters, but the United States provided assistance and discovered illegal importation and filed their own charges in US court with the Act. Using this provision of 19 U.S. Code § 1595a, if you have stolen property, now the United States can file as the plaintiff on behalf of a foreign country and cover the costs and doesn’t have to deal with the statute of limitations. Gerstenblith also noted that there is not much required in terms of burden of proof. It also does not apply to art from the holocaust, but archaeological objects owned by a nation.

This provision has led to some problems like in the case of a Cambodian sculpture a couple of years ago at Sotheby’s Not clear how object owned by Cambodian government, because laws not clear on national ownership (really export controls). Also, there is a need to show knowledge of smuggler “knowing” the ownership.

What Gerstenblith goes further to point out is the consequence related to smuggling prosecution. There is so little respect for the law and people’s willingness to not challenge system with such lenient sentencing. The Schultz prosecution was last conviction that gave serious jail time. So it’s really only catch and release, with criminal defense as the cost of doing business. Often , the accused with give up the object so the United States government has reduced its criminal investigations. Further, people who want to comply don’t know how to comply. Looking at the situation with looting in places like Iraq and Syria there is no way to bring a claim because there is no diplomatic relationship. There is an emergency provision, but it is not really created for speed, because first there must be a bilateral agreement and then it goes to Asst. Sec. at the State Department who can put in emergency restriction. UN asked for trade restriction on all Iraq objects and US passed legislation by removing some aspects of the Cultural Property Implementation Act (for Iraq). No action has been taken for Syria in US (UN passed another resolution); Elliott Engel posed legislation recently, but not passed…and in current climate, not very effective.

Gerstenblith also noted the lack of strong museum policies using the examples of the Euphonious Krators and 2 coins at Museum of Fine Arts in Boston who got sign off from Italians. There is also room for sale – examples: Artemis and Lioness (have good provenance). But this did bring up a question of the responsibility of museums to directly or indirectly influence the private collector who may want to donate to museum, setting an over set of best practices for any object purchase. Will broader attention to looting in places like Syria help the public push the necessary institutions forward? A LOT of food for thought…

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