Tuesday 31 March 2015

Elgin Marbles: British Museum rejects UNESCO mediation process

UNESCO and the Greek government have made longstanding appeals to the UK to enter into mediation over the possible return of the controversial ‘Elgin Marbles’, the sculptures removed by Lord Elgin from the Parthenon in the early 1800s that, following their purchase by the British Government in 1816, became part of the British Museum’s collection. This week the British Museum wrote an open letter to UNESCO declining to participate in mediation, but suggesting that it was open to a possible ‘joint venture’ with the Acropolis Museum.

British Museum’s letter to UNESCO

Justifying its rejection of UNESCO’s offer to mediate, the British Museum argued that the matter fell outside UNESCO’s mandate to ‘preserve and safeguard endangered cultural heritage’. Since the surviving Parthenon sculptures are “carefully preserved in a number of European museums”, they “clearly do not fall into this category".

Secondly, the letter suggested that the UNESCO-facilitated mediation only concerns intergovernmental disputes, whilst the British Museum is not a government body, and the collections do not belong to the British Government.” It was expressed that any collaborative ventures with Greek institutions would "not [be] on a government-to-government basis".

The letter reminded UNESCO that the British Museum has ‘routinely lent to Greece’, and enjoys ‘excellent collaborative relationships with Greek museums and universities’. Sidestepping the long-running debate over the legality of Lord Elgin’s actions, the British Museum stated that the Elgin Marbles are held “for the benefit of the world public, present and future”, and invited the Museum’s Greek counterparts “to explore new ways of enabling the whole world to see, study and enjoy the sculptures of the Parthenon.”

The letter promoted the British Museum’s current exhibition ‘Defining Beauty: the Body in Greek Art’ as an example of the ‘great public benefit’ of inter-museum loans. Meanwhile, the controversial loan of one of the Parthenon sculptures to Russia at the end of last year - which at the time had provoked a furious reaction from the Greek government – was described enthusiastically as ‘Russia’s first glimpse of the splendours of fifth-century Athens’.

The ‘Ilissos’ from the Parthenon on display in the State Hermitage Museum, St Petersburg, 6 December 2014 – 18 January 2015 (British Museum)

British Government’s letter to UNESCO

A second letter addressed to UNESCO, sent on the same date and signed by the UK Culture Minister Ed Vaizey, adopted a markedly different tone. 

The letter made explicitly clear that the Elgin Marbles were ‘legally acquired by Lord Elgin under the laws pertaining at the time” and thus the British Museum possessed “clear legal title to the sculptures since 1816". The letter asserted that "neither the British Government nor the British Museum are aware of any new arguments to the contrary since 1985, when a formal Greek request for the return of the sculptures was turned down".

The British Government also called out what it saw as Greece’s intent to deny the British Museum’s right of ownership during the mediation process, and added that legislation limits the British Museum from de-accessioning objects in their collections. 


The Greek government responded by issuing a statement “deploring” the British Museum’s refusal to enter mediation, adding: "British negativism is overwhelming, along with its lack of respect for the role of mediators". It has been suggested that the UK’s refusal to join the mediation process could result in legal action by the Greek government in an international court to reclaim the ancient sculptures.

Meanwhile the chairman of the British Committee for the Reunification of the Parthenon Marbles, Eddie O’Hara, said that the British Museum “plays the game of offering a loan because they know the Greeks would never accept a loan”.  Any agreement involving the loan of the Elgin Marbles would require recognition of the British Museum’s right of legal ownership and a promise to return the sculptures.

UK polls have consistently showed strong support in Britain for returning the sculptures: an opinion poll conducted by YouGov in October 2014 showed that only 23% of the British public thought the Marbles should stay in Britain. 

Unfortunately, the public's appetite for change has not been reflected at a political level. An early day motion tabled earlier this month in the House of Commons urged the British Government to act to “reunite these British-held Parthenon sculptures with those now displayed in the purpose-built Acropolis Museum in the shadow of the monument to which they belong, the Parthenon”. It garnered a mere 20 signatures out of a possible 455.

Tuesday 17 March 2015

Should destruction of cultural heritage be a war crime? Or maybe it already is ...

Art & Artifice is pleased to bring readers another guest post from our friend Kevin Winters, looking at the concept of the war crime in connection with art and cultural artefacts.  This is what he writes:
In a recent article in the Wall Street Journal, it was said that there was a need for the destruction of cultural heritage to be deemed a War Crime.  This followed the reported destruction of a number of statues and relics of the Assyrian empire by extremist organisations in Iraq.  The article advocated a change in the legal regime governing War Crimes, and for the destruction of cultural heritage to result in charges being brought against perpetrators before the International Court of Justice.  
The discussion in the article throws into the spotlight an obvious question: what is the law regarding the destruction of cultural property?  It is the responsibility of different countries to decide how much importance they wish to attach to cultural property, and to legislate accordingly.  The situation is slightly different in the international sphere.  
Cultural heritage has been recognised as being protected under international law for quite some time.  In "Intentional Destruction of Cultural Heritage and International Law" Thesaurus Acroasium XXXV (2007) 377-396. available here, Professor Vrdoljak demonstrates that both international tribunals and organisations have expressly recognised the importance of the protection of cultural heritage.  There are in fact several instruments that advocate the protection of cultural heritage including:
  • Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954;
  • Convention on the Protection of Natural and Cultural Heritage 1972;
  • Convention for the Safeguarding of Intangible Cultural Heritage 2003; and
  • Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005
In its widely cited 2003 Declaration, UNESCO, having noticed an increase in the number of instances where cultural heritage was being intentionally destroyed, stated that:
“The International community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight against its intentional destruction in any form so that such cultural heritage may be transmitted to the succeeding generations.” 
The full text of the 2003 Declaration is available here.
It is quite clear that there is a great deal of international law that recognises a need for the preservation of cultural heritage.  The only remaining question to be determined is how these legal rules are enforced.  It is incredibly important to understand that there is no ‘police force’ in international law.  The principal subjects in the international legal regime are States themselves, and by extension, they are the most powerful enforcers of international law.  In the context of enforcing the rules of protection of cultural property, a number of international tribunals have been very active, particularly the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC).  This post will focus on the ability of the ICC to enforce international law given that the former tribunal was designed to deal with international crimes that took place at a particular point in time.  
 The ICC has jurisdiction to investigate and prosecute some of the most grievous crimes ever imagined.  It is interesting to note the prominence that the protection of cultural heritage is given in the Rome Statue (the governing treaty for the ICC which sets out its jurisdiction, its procedures and the mechanisms by which States interact with it).   In Article 8(2)(a)(iv) the Rome Statue defines  ‘War Crimes’ as the
‘Extensive destruction and appropriation of property, not justified by the military necessity and carried out unlawfully and wantonly’
Furthermore, the Rome statue goes on to give more detail on the substance of a War Crime as including at Article 8(2)(b)(ix):
‘Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’.
The full text of the Rome Statue is available here.  
From a reading of the Rome Statue it appears quite clear the destruction of cultural heritage does in fact already constitute a War Crime.  The issue for many may be the nature of the regime under which the protection of cultural property operates.  
International law is a consensual regime (States must agree to be bound by it), which some may view as a flaw of the system.  It is suggested however that this is inaccurate, as this is how the system was designed: States cannot be bound by international law e.g. treaties unless they have agreed to be so bound.  The same can also be said of the jurisdiction of the ICC in that States must implement the Rome Statue and invite the ICCs and its Prosecutors jurisdiction.  There are however other means through which the Prosecutor of the ICC may investigate and prosecute crimes regarding the destruction of cultural property:
  • Either a State which is not a party to the Rome Statue may accept the jurisdiction of the ICC under Article 12; or
  • The Security Council of the United Nations may refer a matter to the ICC for its determination under Article 13.
Notwithstanding the avenues that may be pursued to bring a matter before the ICC, many may feel that this is not sufficient to adequately protect cultural heritage.  This may be for a number of reasons:  the consensual nature of international law; or as has been argued by other commentators, the law as it stands is not sophisticated enough to be of real benefit.   It is beyond the scope of this blog article to enter into these debates. 
The point however is to illustrate that, contrary to what has been reported  international law does classify the destruction of cultural heritage as a War Crime.  Further, there is machinery to deal with these infringements as and when they occur.  Whether or not the regime is satisfactory however, remains subject to debate.    

Tuesday 10 March 2015

The Welfenschatz: will the US court take jurisdiction -- and will it make any difference?

Here's a post composed by Kevin Winters, an enthusiastic member of the Scottish IP community and something of a guest blogger on the IPKat.  It addresses yet another art ownership claim arising from Europe's tragic mid-20th century history. Let Kevin explain in his own words:
Last month, a complaint was submitted to the Washington courts, arguing that the surviving heirs of a Jewish consortium of art dealers should be allowed to recover a treasure trove that was sold in Germany over 70 years ago. While many in the art world will be familiar with the story of the Guelph Treasure, or Welfenschatz, a brief overview is called for as the facts of the dispute are complicated. 
What is the background? 
As the Guardian recently reported here, the Welfenschatz is one of the largest collections of medieval religious works that the world has ever seen. Most of the collection was amassed following work on the Braunschweig cathedral, and many of the artefacts are known to be at least 800 years old.  The history of this treasure trove is intertwined with one of the darkest phases in European history.   
The Welfenschatz eventually came into the possession of a consortium of Jewish art traders, when they purchased it from an aristocrat in 1929.  Difficulties arose with the onset of the Great Depression, meaning that the consortium was unable to sell the collection as quickly as they would otherwise have expected.  The facts, as they are reported, are that at some point in 1935 the consortium sold the remainder of the collection to the German state of Prussia.  By this time, Germany was under the rule of Adolf Hitler and the Nazi regime Prussia itself was governed by a leading figure in the Nazi regime, Herman Gรถring. 
What is the dispute? 
The surviving heirs of the Jewish consortium, one American and one British citizen, claim that the sale of the treasure currently estimated to be worth US$226 million was illegitimate, owing to the presence of duress on the part of the Nazi regime resulting in an unfair price being paid.  The collection is currently housed in the Bode museum in Berlin.  
This dispute has already been brought before the municipal authority in Germany that are responsible for the administration of all German museums, the Prussian Cultural Heritage Foundation.  The complaint was subsequently passed to the German Advisory Commission in connection with the return of Nazi-confiscated art, especially Jewish property’, for a non-binding recommendation on the dispute.  Both the Foundation and the Commission, having applied the applicable law and the Washington Principles (a set of guidelines relevant to claims regarding Nazi-confiscated art that was agreed in the Washington Conference on Holocaust-Era Assets in 1988) found that there was no legitimacy to the heirs claim. The press release from the Foundation is available here, and the decision of the Advisory Commission (in German) is available here

While the Heritage Foundation is the responsibility of the German Federal Government and the German states, it cannot be described as a judicial body.  The Advisory Commission on the other hand was created with the express purpose to hear cases of disputes concerning the seizure of cultural property during the Nazi regime.  While the Commissions recommendations are non-binding, they do tend to be respected by other bodies, as reported here.     

The dispute has since been brought to the US against both the Federal Republic of Germany and the Prussian Cultural Foundation.  The complaint lodged with the court in Washington is available here.

What is next? 
The claim is currently before the Washington courts.  The German authorities have recently recognised the collection as a piece of immense cultural importance, meaning that it cannot leave the country without the permission of the German culture minister as was reported here.    
The legal representatives of the surviving heirs cite the US Foreign Sovereign Immunity Act of 1976, the text of which is available here, in support of their claim that the US courts have jurisdiction to hear the dispute.  The legislation normally excludes any action from being raised in the US where the defendant can prove that it is a foreign state. However, there is an exception to this rule: the commercial exception, which provides that the US courts have jurisdiction to hear a dispute

  •          in which the action is based upon a commercial activity carried on in the United States by the foreign state; or
  •          upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or
  •          upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;
The German state is linked to the Foundation through the membership of its controlling body, which is composed of German Federal Government representatives, and through its being a creation of German law.  Legal representatives of the surviving heirs have argued that the activities of the Prussian Cultural Heritage Foundation, in partnership with many American museums the loaning of collections of art, publishing of books for sale etc meets the commercial exception.  As  yet, neither Germany nor the Foundation has entered a defence. 

The difficulty with this claim - should the US courts decide to hear it - is that there does not appear to be any new evidence to  hear.  The German authorities found that there was no historical evidence of a forced sale of the treasure as a result of Nazi persecution, and the US courts will presumably hear the same evidence that was the subject of the Associations decision.  One does wonder how different any decision of the US courts would be compared to that of the German authorities, on the same evidence.      

The Guelph Treasure is one of the largest collections of religious works to have been reported in recent history.  How will the US courts approach the issue of jurisdiction, and will their decision add anything to the debate about how courts handle similar claims in the future? It is not merely the Guelph Treasure but the methodology for determining the validity of historical claims that is at stake.

Sunday 1 March 2015

UN ban on export of antiquities targets Islamic State funding

On February 12 the UN Security Council unanimously adopted Resolution 2199 to respond to the threat posed by the insurgent group Islamic State and affiliated terrorist entities. The resolution condemned any trade with the IS, and set out sanctions aimed at undermining their ability to raise funds through the trade of antiquities, as well as from the trade of oil, hostages, arms and receiving donations.

In relation to the looting of antiquities, the Resolution:
  • condemned the destruction of cultural heritage in Iraq and Syria (whether incidental or deliberate), including targeted destruction of religious sites and objects;
  • noted with concern that the IS, Al-Nusrah Front and Al-Qaida affiliates are generating income from the direct or indirect trade in looting and smuggling of cultural heritage items, which is being used to bolster their recruitment drive and operational capabilities;
  • reaffirmed an existing ban on the illicit trade of antiquities from Iraq, which was first imposed in 2003 during the Iraqi War and calls upon Member States to take preventative action in relation to such trade; and
  • extended this ban to the illicit trade of antiquities from Syria.
The text of the resolution was co-sponsored ‘in a rare display of unity’ by all 15 Security Council members (in contrast to deadlock over Syria’s civil war and the Ukrainian conflict), and the news was welcomed by representatives of Russia, China, the UK, the US and Jordan, as well as UNESCO’s Director-General, who called it “a milestone for enhanced protection of cultural heritage in Iraq and Syria."

The ban follows intelligence obtained in 2014, 2 days before the capture of Mosul by extremists, that revealed the IS had cash and assets of around $875m (£516m). After the fall of Mosul and consequent looting of banks and capturing of military supplies, this is estimated to have risen to about $2bn. The link between terror financing and stolen antiquities is one that has been widely-reported, although it has been difficult to estimate exactly how much revenue has been generated by IS from the trafficking of antiquities as well as the proceeds from taxing looters. An Iraqi intelligence official said, "They had taken $36m from al-Nabuk alone [an area in the Qalamoun mountains west of Damascus]. The antiquities there are up to 8,000 years old". 
"Before this, the western officials had been asking us where they had gotten some of their money from, $50,000 here, or $20,000 there. It was peanuts. Now they know and we know. They had done this all themselves. There was no state actor at all behind them, which we had long known. They don't need one."
Meanwhile, the BBC has just released a report on the trade of antiquities from Syria through Turkey and Lebanon to Europe, featuring firsthand accounts from some of the men involved in the trafficking of cultural objects for the IS. It is interesting to note that at a local level the tide is turning against the smugglers:

‘Mohammed is still involved in cross-border trade, but no longer in antiquities. “Anyone caught with it gets severe punishment,” he says. “They accuse you of being IS.”’