By: Merve Stolzman
On Wednesday, February 18, 2015, the American University International Law Review (“AUILR”), together with the American University Intellectual Property Brief, the American Society of International Law (“ASIL”) Cultural Heritage and the Arts Interest Group, and Center for Art Law, hosted a symposium titled “Protecting Art and Cultural Property Through International Law” at ASIL’s Washington, D.C. headquarters at Tillar House. The various issues discussed at the event had as their stimulus the strong belief that art and cultural property have a tremendous value to many different actors. In particular, the discussions focused on how comparative and international law could help to preserve this value. As the Washington College of Law’s (“WCL”) Dean Claudio Grossman explained, “The passion, values, and emotions that go into art are worthy of protection.”
Artists often see their work as an expression of their thoughts, feelings, creativity and personality. Understandably, they therefore wish for better rights to protect their work and reputation. Unlike writers or musicians, artists in the U.S. do not receive royalties when their work is re-sold. The U.S. is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, which provides for such rights. However, unlike seventy of its counterparts, predominantly in Europe, the U.S. has not chosen to implement this aspect of the Convention domestically. Given the positive experiences of those states that have granted artists resale royalty rights, the U.S.’s reluctance to follow their lead is puzzling.
While the resale royalty rights legislation enacted in California is currently being attacked on constitutionality grounds, speakers in Panel one suggested that the main problem is not that the U.S. legal system lacks the foundations to provide for such rights at the federal level. Rather, stakeholders, namely auction houses, have lobbied hard against resale royalty rights because of the potential ramifications such rights will have on their business. Lisa Jones confirmed that at least for mid-range auction houses, introducing resale royalty rights could detrimentally affect purchasing. However, Kevin Amer noted that the experiences of other countries have illustrated that the impact on the art market is exaggerated. Irina Tarsis observed that the auction houses’ interests have taken center stage partly because artists have failed to unite and vocalize their interests to counter the auction houses’ lobbying efforts.
At the end of Panel one, speakers noted the fear that targeting the obligation to pay resale royalties solely to auction houses would drive the art market “underground” into the private sphere. They hinted that this could have major repercussions for authentication because buyers often rely on auction houses to thoroughly investigate the provenance of a particular piece before agreeing to sell. This observation highlighted the interconnectedness of the issues presented throughout the symposium. As the speakers in Panel two explained, the art market is currently flooded with looted works. This has had a profound impact on authentication, and has increased the likelihood that museums and private buyers will purchase illicit works. The looting problem has also severely damaged the cultural heritage of the countries from which these works were stolen.
Many by now have likely seen the video ISIS posted online last week of its members destroying precious Assyrian antiquities displayed in the Mosul Museum in northern Iraq. Arguably, this video was not only aimed at undermining Iraq’s rich pre-Islamic culture, but also provoking a retaliatory response. The video illustrates that ISIS is acutely aware of the significance art and antiquities have on cultural identity. ISIS has not only been guilty of destruction, however. It has also substantially profited from the looting and sale of Syrian and Iraqi antiquities. Reports suggest that ISIS made around $36 million in Syria last year from a single looting incident.
As the opening keynote, Patty Gerstenblith explained, armed conflict is the “perfect storm” within which large-scale looting can take place. While such conduct has had a long history, it was not until the mid-twentieth century that the international community attempted to protect cultural property through international agreements. The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict prohibits the destruction and seizure of cultural property during armed conflicts, and the export of such objects from occupied territory. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property addresses the international art market, and obligates states parties to regulate the import, export, and restitution of illicit works.
The opening keynote and speakers from Panel two emphasized that the ultimate aim of these conventions was to disincentivize looters from stealing art and antiquities for personal gain. The question remains how best to do so. Ms. Gerstenblith opined that the current legal regime lacks efficacy, and proposed that the international community unify the two legal regimes for combating the looting problem, one focusing on armed conflict, and the other on the international market. Eden Burgess highlighted the need for domestic approaches to tackle the looting problem, and commended the efforts of organizations such as the International Committee of the Blue Shield to train soldiers on the ground to prevent looting and destruction of cultural property. Leila Amineddoleh acknowledged that regulating the looting of objects during an armed conflict is difficult, if not impossible, and emphasized that this is why educating and encouraging buyers to investigate the origins of the works they wish to purchase is key. Bonnie Magness-Gardiner asserted that disrupting transnational criminal networks, and prosecuting individual looters through a variety of criminal charges reduce incentives to engage in the trafficking of cultural property, but highlighted the evidentiary issues that often arise in the course of such prosecutions.
While preventing looting should remain the ultimate objective, this only addresses one aspect of the problem. Owners of looted objects understandably want these works back. The question then becomes how to restore to them what they have lost. Responses have been contentious to say the least. Various stakeholders, including private owners, museums, lawyers, and governments, have been battling over the whether restitution or repatriation is even best means of protecting the art or antiquity in question. The Elgin Marbles controversy is the prime example. Nevertheless, speakers in Panel three, and the closing keynote, Tom Kline, were adamant that the return of looted works should be encouraged through transparency and good faith engagement between the current possessors and original owners.
The participants drew upon a series of examples to illustrate both the successes and downfalls of varying restitution and repatriation mechanisms. These mechanisms include litigation, bilateral agreements imposing import controls, official seizures, negotiation and settlement, voluntary return, and temporary loans. Gary Vikan provided the museum perspective, emphasizing that if the owners have a good reason for wanting it back, museums should accommodate. Frank Lord IV highlighted the tensions and obstacles that plague restitution litigation, especially when owners initiate proceedings in more than one country for the same work. He further noted that for Nazi-looted art, the statute of limitations often has a significant impact on the success of restitution litigation. Tom Kline advocated for a more comprehensive approach, where museums, source countries, and the original owners can collaborate to find a solution that best caters to all of their respective interests.
One important consideration is that it is often difficult to prove ownership in the restitution and repatriation process. Provenance research plays an important role in easing this difficulty. The efforts at the Smithsonian to engage in due diligence before obtaining pieces for its collection, illustrate the indispensable need for provenance research initiatives. Panelist, Jane Milosch, stressed that while a substantial degree of progress has been made, provenance research has faced many obstacles, particularly because of the lack of funding and connoisseurship in the field. Colette Loll emphasized that the increasing prevalence of fakes and forgeries in the international art market only makes provenance initiatives more complex, as fakes and forgeries distort the artistic record, and consequently compromise national and museum archives.
AUILR was privileged to have such well-renowned experts in the art and cultural property discourse to discuss how best to respect and protect the substantial value artists, countries, collectors, and museums place on arts and antiquities. These speakers not only provided a comprehensive assessment of the underlying concerns that undermine the protection of art and cultural property, but also provided unique perspectives on how to best combat these concerns. As Symposium Editor for AUILR, I hope that the symposium not only raised awareness of these issues in the international realm, but also had a positive impact on the discourse. I look forward to AUILR and WCL’s future involvement in helping to protect art and cultural property through international law. Please check back to our blog for the next few weeks to read more detailed descriptions of our keynotes and panels.