The global effort to identify and repatriate looted antiquities received a huge boost yesterday from the United States Court of Appeals for the Second Circuit, which made a decision reaffirming the legal right foreign governments have to contact U.S. art market participants and claim ownership of antiquities.
The case in question, Barnet et al. v. Ministry of Culture and Sports of the Hellenic Republic, centered on a Greek bronze figure of a horse from the 8th century B.C. Its first appearance in the public record occurred in 1967, when it was sold at a public auction in Switzerland. At some point, the figure came into the possession of now-disgraced antiquities dealer Robin Symes (previously referenced in our “Like a Bull in an Art Museum” story map), who sold it to art collectors Howard and Saretta Barnett in 1973. Howard Barnet died in 1992, while Saretta Barnet died in 2017. Before her death, though, she created the 2012 Saretta Barnett Revocable Trust to transfer possession of this antiquity (among others) to her three children. These trustees partnered with Sotheby’s to auction the figure in 2018.
However, the auction proceedings were halted when Greek officials emailed a letter to Sotheby’s, claiming this antiquity in accordance with their national patrimony laws.
While Sotheby’s pulled the horse figure—which was expected to auction for $150,000 to $250,000—from auction, the auction house joined the trustees in suing the Ministry of Culture and Sports of the Hellenic Republic (i.e., Greece) through the United States District Court for the Southern District of New York on June 5, 2018, demanding that Greece officially declare that the figure had reached the plaintiffs through lawful means. According to the Center for Art Law, this marked “the first time an auction house has sued a government.”
The United States’s Foreign Sovereign Immunities Act often protects foreign sovereign governments from being sued in U.S. courts, but there are a variety of exemptions. In this case, the plaintiffs alleged that by reaching out to claim ownership of the horse figure, Greece committed “an act outside the territory of the United States in connection with a commercial activity … that … causes a direct effect in the United States.” If the United States District Court for the Southern District of New York adopted this classification, the FSIA would not bar suit, allowing Sotheby’s and the trustees to obtain the jurisdiction necessary to proceed with suing Greece in U.S. courts.
Greece made a motion to dismiss the case, countering that the act of demanding the return of state property in accordance with patrimony laws in accordance with patrimony laws did not fulfill the FSIA exception for commercial activities. If the United States District Court for the Southern District of New York was in agreement, this argument would undercut the only FSIA exception the plaintiffs had been relying on to make their case.
Instead, the United States District Court for the Southern District of New York denied Greece’s motion on June 21, 2019, concluding that the act in question was indeed made in connection with a commercial activity.
Greece subsequently appealed this decision to the United States Court of Appeals for the Second Circuit, leading the United States District Court for the Southern District of New York to stay the proceedings of the original suit, pending the results of the appeal.
The Antiquities Coalition took interest in the case as an advocate for the proper enforcement of patrimony laws as a means of combating the illicit trade in cultural property while allowing for the continuation of the legal markets and trade practices. In conjunction with the Hellenic College Holy Cross Greek Orthodox School of Theology, Italy, Mexico, and Cyprus, the Antiquities Coalition submitted an amicus brief to the Second Circuit Court of Appeals in support of Greece’s motion to dismiss for lack of jurisdiction on account of Greece’s sovereign immunity. Agreeing that Greece, by sending the demand letter, was exercising its regulatory and police powers over its cultural heritage property, the above amici used their brief to emphasize and explain that the reason why Greece’s conduct did not qualify as commercial activity for the exception under the FSIA was because of the existence of Greece’s state patrimony laws, which make such cultural heritage property materially different from other property not subject to such laws.
By declaring state ownership through an act of sovereignty (i.e. through legislation), rather than through traditional commercial means (e.g. transfer of title for a price), and by prohibiting, sometimes criminalizing, private ownership, exportation, or transfer without explicit permission, state patrimony laws make the subject property state assets and are enforceable through the state’s exercise of its sovereign police and regulatory powers. Therefore, Greece’s act of demanding the repatriation of a state asset pursuant to the ownership and regulations codified in its patrimony laws was a sovereign act, not simply a commercial activity. Furthermore, the amici wrote their brief to warn of the practical consequences of the District Court’s decision for the ability of foreign states to enforce their patrimony laws while still protecting their sovereign immunity. The District Court’s decision would leave foreign states with three undesirable options: to protect their sovereign immunity but forfeit their right to enforce their patrimony laws leaving their cultural heritage property outside of their country and in the hands of people potentially involved in the illicit trade; to write a demand letter but expose themselves to the possibility of being sued and dragged into a U.S. court; or to waive their sovereign immunity and file suit against the wrongful possessor in a U.S. court from the outset.
Yesterday, the judges of the United States Court of Appeals for the Second Circuit ruled in Greece’s favor.
“We agree that the core challenged act in this case was Greece’s sending of the letter asserting ownership over the figurine,” wrote Judge Steven James Menashi in the United States Court of Appeals for the Second Circuit’s opinion. “We disagree, however, that the act was undertaken in connection with a commercial activity outside the United States. The connected activity was Greece’s enactment and enforcement of patrimony laws that declare the figurine to be the property of Greece. The enactment and enforcement of such patrimony laws are archetypal sovereign activities and therefore do not provide the requisite connection to commercial activity that would authorize suit under the FSIA. Because the commercial-activity exception was the only purported basis for jurisdiction, we reverse and remand with instructions to dismiss this action for lack of jurisdiction.”
Unfortunately, this ruling does not affirm Greece’s claims of ownership or require the plaintiffs to return the figure to Greece. It does, however, create a precedent of protection for any foreign governments who may be considering reaching out to U.S. antiquities dealers to make a claim of ownership.
The Antiquities Coalition commends the Second Circuit Court of Appeals and congratulates Greece on this decision.