Author: Helena Arose

U.S. Court of Appeals Protects Foreign Governments From Being Sued for Antiquity Ownership Claims in Landmark Ruling

Posted on by Helena Arose

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.

Antiquities Coalition: Culture Should Not Be a Military Target

Posted on by Helena Arose

Statement Follows Reports that the U.S. Government Would Consider Striking Iranian Cultural Sites

The Antiquities Coalition welcomes the statement by the U.S. Department of Defense reaffirming the United States’ longstanding commitment to safeguarding cultural heritage from war and terrorism—not just for preservation, but as a tool to share American values, build diplomatic ties, and fight violent extremism around the world. 

“Historically, the United States has been a leader in defending civilization from those who seek to rewrite history, whether the Nazis in World War II or ISIS today,” said Deborah Lehr, Chair and Founder of the Antiquities Coalition. “The Trump Administration has successfully used cultural heritage to strengthen counterterrorism and law enforcement cooperation with our partners across the Middle East and North Africa, resulting in the signing of an unprecedented number of bilateral agreements with countries such as Libya, Algeria, and Jordan. This outreach is both preserving history and furthering America’s other interests by recognizing and respecting the region as a cradle of civilization, art, writing, law, and faith.”

In recent years, world wonders such as the Great Pyramids, Palmyra, and Tomb of Jonah, as well as countless other sites and the communities surrounding them, have been targeted or outright destroyed by rogue states and violent extremists. These attacks followed the playbook of history’s most hated villains from the Third Reich, to the Khmer Rouge, and the Taliban.

We are grateful that the U.S. position on Iran has been clarified. Indeed, any efforts by the United States to harm cultural heritage would undermine our ethical and moral leadership at a critical time in the Middle East, North Africa, and beyond. 

Now is the time for Washington to build on decades of tireless efforts by our greatest Presidents, Generals, and generation after generation of American heroes in and out of uniform. This includes progress by the current administration, such as last October’s celebrated relaunching of the “Monuments Men and Women,” through which our armed forces are helping to secure cultural heritage in war and other disaster zones. This type of initiative exemplifies the best of the American tradition while strengthening our national security. 

Our country’s leaders may at times be called on to protect and defend America and our democracy, but it is critical that military actions are not taken at the expense of the values our nation embodies.

 

 

About the Antiquities Coalition 

To protect our shared heritage and global security, the Antiquities Coalition is leading the international campaign against cultural racketeering, the illicit trade in ancient art and artifacts. We champion better law and policy, foster diplomatic cooperation, and advance proven solutions with public and private partners worldwide. We are working toward a future when the past is preserved for the next generation, not looted, smuggled, and sold to finance crime, conflict, and terror. Learn more at theantiquitiescoalition.org.

Public’s Help Needed to Recover “Blood Antiquities”

Posted on by Helena Arose

Antiquities Coalition and Yemen Release Information on Thousands of Artifacts Looted Amid War with al-Qaeda and Insurgents

Blood antiquities are financing the civil war in Yemen, exacerbating the world’s worst humanitarian crisis. That’s the message from the Republic of Yemen as it battles Houthi militias and Al-Qaeda in the Arabian Peninsula (AQAP). Yemen needs the public’s help to find and recover thousands of its priceless artifacts that have been looted from museums, libraries, and ancient sites amid the ongoing fighting. Experts fear many of these cultural objects are being smuggled onto the black market, and could end up in the largest global art market, the United States. Buyers should beware.

In response to this cultural racketeering, the Antiquities Coalition and the Republic of Yemen are releasing records of 1,631 objects missing from the country’s museums. This report was painstakingly compiled by Yemeni archaeologists and government officials, despite the continuing conflict. The pieces highlighted were pillaged from the Aden National Museum, Taiz National Museum, and National Museum of Zinjibar. They span centuries and civilizations, from Sabaean inscriptions, to Roman coins, marble statuettes, bronze figures, and sacred manuscripts.

“Terrorists and extremists alike, also destroy cultural heritage sites for ideological or propaganda reasons, while looting and trafficking antiquities to finance additional brutalities. Yemen is especially vulnerable to this cultural racketeering,” said Ambassador Dr. Ahmed Awad Binmubarak.  “Organized criminals, armed insurgents, and violent groups are plundering our treasures and are smuggling them overseas. Let us combat this crime against civilization and work together for long-term solutions to protecting our cultural heritage and in a manner writ large.”

“We call on the art market and general public to help recover Yemen’s missing treasures. These are ‘blood antiquities’ in every sense of the name. However, they are also the rightful property of the Yemeni people, which they hope to pass down to future generations,” says Deborah Lehr, Chairman of the Antiquities Coalition, a Washington, DC-based NGO leading the international campaign against cultural racketeering. “These artifacts help to tell Yemen’s fascinating story, from the days of the legendary Queen of Sheba through the Ottoman Empire. And they will serve as the foundation for the country’s postwar recovery.”

Yemen distributed the original 289-page Arabic language file to the United Nations in May 2018, and the Antiquities Coalition is now circulating its English translation throughout the art market, museum, and law enforcement communities.

The Embassy of Yemen has also launched a 24-hour hotline for the public to report any of its stolen artifacts, which can be reached at +1 (202) 717-1066 or antiquities_hotline@yemenembassy.org.

English Translation of Report

Original Version of Report

 

Picture: A man surveys the damage to the Taiz National Museum in Yemen after shelling in 2016. Credit Abdulnassar Alseddik/Associated Press.

2015 Cairo Conference: Cultural Property Under Threat

Posted on by Helena Arose

TEN MIDDLE EAST AND NORTH AFRICAN COUNTRIES ANNOUNCE CAIRO DECLARATION, TAKE STEPS TO PREVENT THE WAR CRIME OF LOOTING AND THE DESTRUCTION OF HERITAGE

Cairo Conference Group 05 2015

As the Islamic State continued its march of destruction across Iraq and Syria, ten Ministers from Middle East and Northern Africa countries joined together at the Cairo Conference on May 13-14 to announce an action plan in the fight against culture under threat.

The issuance of the Cairo Declaration, the first communiqué of its kind in historic preservation, commits these ten countries to specific actions that will help protect and preserve their priceless artifacts as well as raise awareness globally about the plight of conflict antiquities. The Arab State of Egypt hosted this event as part of its critical campaign in the fight against religious extremism.  The Antiquities Coalition is proud to be a partner in this initiative.

During the opening remarks, the four conference sponsors emphasized the urgent nature of the threat, and called for swift action.  Irina Bokova, Secretary General of UNESCO, called these attacks against heritage  “a Crime of War.” Egyptian Minister of Antiquities Mahmoud el-Damaty highlighted the organized aspects of the antiquities looting and how Egypt had suffered since the January 2011 revolution.

Wendy Chamberlin, chairman of the Middle East Institute, noted the important role that non-governmental organizations can play in supporting countries during a time of crisis such as the one occurring in heritage.  Finally, Deborah Lehr, Chairman of the Antiquities Coalition, stated, “These extremists are using attacks against culture as a means to intimidate those who enjoy beliefs and histories that differ from their narrow and radical religious interpretations, as well as to fund their nefarious causes.  Together, we are stronger than being alone.  We seek solutions – not just discussion of the problems.”

Over twenty leading experts from heritage law, counter terrorism, law enforcement, archaeology international organizations, and regional specialists also participated to share their experiences with the Ministers and their delegations. General themes emerged from the discussions with the experts and countries.

These themes included:

·      Sense of Urgency:  the destruction and looting of antiquities by terrorist organizations and criminal networks creates a crisis that requires immediate action from the region as well as from the international community

·      Regional approach:  countries agreed on the need to address the threat as a region, not just as individual countries.

·      More than war zones:  the crisis extends beyond Iraq/Syria to most of the countries in attendance.  Solutions need to address those not just in immediate crisis, but also under attack by criminal organizations and cultural racketeers.

·      Awareness raising:  public awareness campaigns should be launched.  Internationally, to link purchases of illicit antiquities from the region to terrorist financing and in Cairo Conference countries to help the local communities understand the importance of protecting heritage, especially training for children.

·      Use of international and domestic law: several countries voiced concern about the provisions of existing law to address heritage protection in times of crisis.  While there was no consensus around calls for a new international convention, there was general agreement that the international provisions need to be strengthened and clarified to find ways to better help countries facing a crisis in heritage.

A task force is being established immediately to being implementation of this historic agreement.  The Antiquities Coalition and its partners will be an important collaborator in this effort.