The April issue of 2024 Art Antiquity and Law has gone to press: hard copies will be posted out to subscribers next week, and for digital subscribers, the online version should be available via Hein very soon.

This issue contains an article by Achilleas Iasonos  (Post-Doctoral Researcher at the Earth and Ocean Lab, Department of Geography, University of Cork) on the development of international frameworks relevant to the protection of underwater cultural heritage in the deep waters of the exclusive economic zone and the continental shelf. As the technology for conducting exploration for oil and gas beneath the oceans develops and operators penetrate ever deeper, it is, he argues, necessary to develop industry by-standards to ensure protection for archaeological and historic assets that may be discovered accidentally in the course of offshore drilling activities. The author examines the attempts at both the international and the State level to provide such protection. He considers the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage as well as different national laws, pertaining to how different States of the European Economic Area such as Greece, Norway, the Netherlands, Ireland, Spain, Denmark, Bulgaria, Poland and elsewhere such as the United Kingdom, Australia and the USA are using their national frameworks to ensure the effective protection of underwater cultural heritage in the deep waters of the exclusive economic zone. He defines the legal rights, duties and obligations that a coastal State has in the exclusive economic zone and on the continental shelf, and then charts the development of international law with respect to underwater cultural heritage in the deep seas.

Art Antiquity and Law, April 2024

Next, Oliver Lenaerts (lawyer at Contour Law, Belgium) examines the ways in which gallery owners and artists try to contain arbitrage opportunities. These arise when investors buy artworks in bulk from an ‘emerging artist’, take one artwork to auction where they drive up the price and, then, sell the rest of the lot through the private dealer market at a price somewhere between the purchase price and the auction price so that a reasonable profit margin is realised. Art gallery owners in the primary market have hedged against this by removing those so-called ‘art flippers’ from their customer base. The author examines the types of actions adopted by gallery owners so as to curb art flipping, either by refusing outright to sell or by imposing contractual transfer restrictions such as pre-emption or preferential rights (rights of first refusal or ‘ROFRs’) or inalienability clauses (the so-called ‘no flip’ clauses). He then considers the validity of such clauses under European competition law. He concludes that careful drafting of the contract between artist and gallery owner is appropriate; gallery owners should be careful about sharing information with other artists about ‘art flippers’ to avoid the risk of creating a horizontal boycott; in the context of ‘no flip’ clauses, the contract should define clearly the group to which the clause applies and the duration of the inalienability.

Debbie De Girolamo (Reader in Law, Queen Mary University of London) explores, through a series of poignant case studies, the voices of claimants seeking to recover art works looted by the Nazis from their families.  The author points out that the individual claimant has not been at the forefront of the restitution discussion, particularly with regard to the consideration of how best to resolve their claims. The literature often presumes to speak for claimants without their voice being heard and this article explores the experiences and views of ten restitution claimants through their spoken and written words. In so doing, common elements to their claims are articulated: difficult searches for current possessors of artwork; construction of a gapless provenance history; provision of acceptable documentation proving entitlement to artwork; strenuous efforts to engage in constructive dialogue with possessors for resolution; and resort to legal action when all else fails.

Finally, Charlotte Joy reviews Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs by Shea Elizabeth Esterling, published in 2024 by Routledge.