Protecting cultural heritage: a lawyer’s view

Posted on: April 29, 2019 by

In the most recent of London’s Victoria and Albert Museum’s excellent Culture in Crisis lecture series, Leila Aminnedoleh, New York-based art and cultural heritage lawyer, shared some fascinating insights into stories of theft, looting and restitution through the ages in a talk last Thursday, 25th April 2019. Leila practices in the art law field and was able to provide a bird’s eye account of some high profile cases involving the return of stolen art and antiquities.

The talk began by recounting the history of looting. Far from a scourge of the modern age, the misappropriation and destruction of cultural property has been a feature of life – and particularly of war and conflict – from the earliest times. From the looting of Perspolis by Alexander the Great, to the empire-building of Napoleon, to the twenty-first century examples in Iraq and Syria, cultural sites and artefacts have long paid a heavy price in fields of conflict, resulting in their removal from their lands of origin and their dispersal far and wide through the murky underworld of the illicit art trade.

In modern times, it wasn’t until the late twentieth century that the impetus towards restitution gained strength. The political events of the early 1990s in Europe and the increased understanding of the scale of looting during the Second World War resulted in an international effort to restitute this property to its former owners, as embodied in the Washington Conference of 1998. This new era of cooperation and openness also spawned a number of high profile voluntary restitutions, perhaps most notably, the return by New York’s MET of the now famous Euphronios Krater. This ancient Greek treasure, dating from c. 515 BC, had been bought by the MET in 1972 for a record-breaking price of $1 million but evidence then came to light indicating that it had most probably been illegally excavated from an Etruscan tomb in Italy in 1971. Following lengthy negotiations years later, the MET finally agreed to return the Krater to Italy in 2006 in return for the long-term loan of a number of artefacts.

Other US institutions followed suit. In 2011, the Museum of Fine Arts in Boston agreed to return to Turkey the top half of the sculpture known as Weary Herakles (in which it had purchased a half-interest in 1981) when presented with evidence that it had been looted. Three years later the Norton Simon Museum in California announced the return to Cambodia of a statue believed to have been looted from an ancient site. More recently, the MET was in the spotlight again in a case involving the return to the Egyptian Government of a first-century BC gilded coffin which it had acquired as the centre piece of a new exhibition only two years previously (see our report on this case).

Leila was quick to point out that it has not just been US institutions involved in these cases. She mentioned the important case of Iran v Barakat* involving a UK gallery where the UK courts were prepared to recognise the patrimony laws of Iran, resulting in the return to Iran of a number of carved chlorite jars, bowls and cups claimed to have been illegally excavated from the historical Iranian region of Jiroft. Numerous cases involving stolen Indian artefacts connected with the infamous Subhash Kapoor, now in prison in India, were also mentioned.

The number of examples presented during the talk attest to the seriousness of the problem – and these were just a selection of some of the more high profile cases; we can be sure that for every story that gets reported, there are many more less headline-grabbing examples which proceed under the radar.

What can be done to combat this? What could the institutions involved in these cases have done differently? The primary defence of the responsible museum against becoming embroiled in the world of illicit art and antiquities lies in effective due diligence, and a significant part of the talk was devoted to this topic. Interestingly, one of the first responses of the Boston Museum of Fine Arts to the case described above was to appoint the first ‘Curator of Provenance’ in a US museum.

As regards the practicalities of the due diligence process, it goes without saying that acquiring all relevant documentation is a fundamental prerequisite to an acquisition but the verification and authentication of these provenance documents should be afforded the same importance. In a number of cases, institutions fell short on this point and simply took the documents they were provided at face value – rather surprising, you might think, though hindsight, of course, is a very useful tool. The importance of thorough research cannot be overemphasised and should include investigating the patrimony laws of relevant source countries as well as hiring specialist researchers where the situation demands. Effective due diligence is as good an investment for a museum as a looted artefact is a bad one!

The final part of the talk addressed some broader questions about the role and responsibilities of museums in the context of the illicit art trade. One of the key roles is to educate the public about the issue – something exemplified by the V&A’s Culture in Crisis programme under which this talk was given. A rather contentious question which is sometimes posed in this debate is whether institutions should seek to buy looted art in order to ‘save’ the works. In the speaker’s eyes, the answer is a resounding ‘no’: this only serves to incentivise looting, and the looting process itself is immensely damaging, not only risking physical damage to the objects themselves, but also destroying the archaeological context and the understanding and knowledge that this embodies.

The final question raised, rather bravely, since it is something of a Pandora’s Box, was the issue of repatriation: Should museums repatriate artefacts in their collections? This is a question which has received significant airtime in recent months following the pronouncements of French President Macron and the Sarr/Savoy report recommending the return of colonial artefacts from French museums to their African countries of origin (on which we offered some thoughts here). As Leila pointed out, these questions are generally ultimately ones of ethics rather than law. A number of broad benefits of voluntary repatriation – both ethical and practical – were suggested, including that it can help to build relationships and to honour source communities and historical events, bringing parties together to come to terms, in some way, with the brutal practices of past times.

We were reminded then, that whilst works of art and cultural property have been the subject of illicit activity, theft, looting, damage and destruction since time immemorial, they have also served to bring people together and to provide a focus for collaboration, coalescence and resolution.

*An article discussing the important case of Iran v Barakat by Kevin Chamberlain in Art Antiquity and Law is available here.

Image: Chell Hill CC BY-SA 3.0