Last month, on the 21^st of October, the Manhattan District Attorney’s Office (along with local police) seized an ancient Achaemenid Persian bas-relief from the European Fine Art Fair at the Park Avenue Armory in New York. The item was being offered for sale by the London-based art dealer Robert Wace for roughly $1.2 million.

The bas-relief, depicting the head of a soldier holding a shield, was carved sometime between 510 and 330 BC and had once formed part of a balustrade in the ruins of Persepolis in Iran, the former capital of the Persian Empire and a UNESCO World Heritage Site.

The relief had been donated to the Montreal Museum of Fine Arts in the 1950s and was shown there until 2011, when it was one of two artefacts stolen from the museum. The Canadian authorities later recovered the relief from a collector in Edmonton. Having already received monetary compensation for the loss from AXA Insurance, the museum’s curators let the insurers keep the artefact, rather than return the money. The second stolen artefact, a marble Roman head, has still not been found.

Wace told the New York Times that he had purchased the piece from AXA and had no reason to query its provenance. “This work of art has been well known to scholars and has a history that spans almost 70 years,” he told the newspaper in an email. “We are simply flabbergasted at what has occurred.”

However, Ebrahim Shaqaqi, the director of legal affairs at the Iranian Cultural Heritage, Tourism and Handicrafts Organisation, a government department, told the Tehran Times that the bas-relief “had been stolen from Persepolis decades ago prior to the 1979 Islamic Revolution” and that action is being taken to repatriate the relic to Iran.

Experts on Persepolis say the bas-relief was first excavated between 1930 and 1933 by a team of archaeologists from the Oriental Institute of the University of Chicago. It appears in photographs of the site taken as late as 1936, after the Iranian government passed a law in 1930, the National Heritage Protection Act, making it illegal to transport such antiquities out of the country.

However, questions arise as to why the Iranian government has not previously made a claim to recover the “stolen” artefact and as to whether Iran has a claim of ownership in light of the fact that the Oriental Institute was granted a concession to excavate the remains of Persepolis in 1931.

While the US has implemented parts of the 1970 UNESCO Convention into its domestic law (Articles 7(b) and 9, to be precise), it has done so in a way that prohibits imports of cultural property coming from specified countries, namely those with whom the US has a bilateral agreement, and inventoried property stolen from a monument or museum. To begin, Iran does not have a bilateral agreement with the US, but more critically the implementing law is not retrospective: it would not apply to material that was stolen or initially exported from its country of origin prior to the law coming into force in 1983. It is for this reason that US authorities would have to rely on other avenues, such as the National Stolen Property Act.

This would not be new: 2003 saw the successful prosecution of prominent New York antiquities dealer Frederick Schultz for dealing in illegally removed artefacts from Egypt, long before the US had entered into a bilateral agreement with Egypt. The trial court in United States v Schultz found that Egypt’s heritage laws had vested title in the country before the artefacts had left its territory, which meant they were considered “stolen” and so came under the remit of the National Stolen Property Act. The court applied established US doctrine whereby a cultural object may be considered stolen if the country of origin can prove that the object was discovered within its territory, that a patrimony law unequivocally vesting ownership of the object in the country was in effect when the object was removed, and that the law was not too vague. The Schultz decision was later upheld on appeal.

While part of the present case will require prosecutors to show that Iran’s 1930 law sufficiently vested title in Iran of the Persepolis monument and that the artefact was illegally removed after the US National Stolen Property Act came into force in 1934 (both of which seem likely), the real challenge will be to explain why it took Iran so long to express interest in this artefact when it had been on display at a public institution in Canada for over 50 years. This will inevitably raise questions of limitation periods, whether under Quebec law (because the Montreal Museum is located in the province of Quebec) or under New York law (because the recent seizure took place in New York), as well as the equitable doctrine of laches.

Interestingly, the English courts have had to consider Iran’s cultural heritage laws, including the 1930 Act, in the case of Iran v Barakat Galleries Ltd. However, that case involved more recent removals of artefacts found buried in the ground, not on a well-recognised monument like that of Persepolis. While Iran had been successful before the English Court of Appeal, the context there was quite different. For one, the English court did not have to consider issues arising from the passage of time and the limitation period. Secondly, it was a civil suit, not a criminal prosecution. And finally, no final judgment was rendered. Iran’s successful appeal on a preliminary point allowed it to reach a favourable settlement, and the artefacts were eventually returned.

It will be worth following what steps, if any, are taken to recover the bas-relief and return it to Iran. Will this be handled by the New York District Attorney’s office? Will there be diplomatic manoeuvring? Or will Iran bring a civil suit of its own accord, much like it had in the Barakat case in England? Whatever the outcome, the timing seems especially propitious in light of Iran’s recently announced plans to launch a museum at the Persepolis site.

For further information on the Schultz and Barakat cases, you may like to read Patty Gerstenblith’s elucidating article Schultz and Barakat: Universal Recognition of National Ownership of Antiquities from Art Antiquity and Law in 2009.