AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I Art & Cultural Heritage Law Newsletter A Publication of the Art & Cultural Heritage Law Committee

Encouraging the Mobility of Visual Art Collections in the EU, Part 1 JASON-LOUISE GRAHAM

Introduction presidencies2 and has resulted in a num- he concept of the mobility of visu- ber of successful national campaigns al art collections has been a reoc- that have set the international frame- curring focal point of cultural work and guidelines for best practices CONTENTS Tprograms in the EU, spurred on of future collection mobility. During Encouraging the Mobility of Visual Art throughout several EU council presiden- Belgium’s Council presidency (July 1 – Collections in the EU, Part 1 cies. Europe is home to one of the largest December 31, 2010) Belgian cultural and most expansive cultural heritage professionals and government repre- PAGE 1 collections in the world – which must re- sentatives for culture played an active Investing in Underwater Cultural spond to extremely high demands. role in completing concrete Council Heritage: Challenges and Prospects Collection mobility, particularly in the recommendations surrounding indem- PAGE 9 framework of the Lisbon Agenda,1 which nity schemes for collection mobility, fi- Cultural Property as a Military aims for greater social, cultural and eco- nalizing reports as part of the EU’s ex- Objective nomic cohesion, is seen as a policy tool to pert Working Groups in the Open PAGE 12 enhance the many different cultural Method of Coordination (OMC) frame- 3 Andy Warhol’s Antitrust Woes: identities in Europe, but also a tool for work. With structured access to exist- cohesion between these diverse entities ing information, recommendations, Implications of a New Complaint in a structural manner. However, major guidelines, codes and action plans pro- Against the Andy Warhol Foundation obstacles including the high costs of duced by top museum professionals on Authentication Boards and transportation and insurance, different from various member states and EU ac- the Marketplace standards of active and passive conser- tors (i.e. expert working groups), many PAGE 16 vation or discrepancies in safety stan- museums will be able to promote and Art, Law and Cultural Heritage in dards and national laws of repatriation, implement the best possible mobility Abu Dhabi and thus trust between the players, have 2 The EU Council (Council of Ministers) is made up of one PAGE 19 made it so that on average museums can national minister from each country and represents the Arts and Cultural Organizations — show only a minute percentage of their legislature of the European Union. Every six months, Setting the Pace with Social Media collections at a point in time. With the the EU council rotates its presidency chair in charge support of EU council instruments, the of running meetings and setting the agenda. This way PAGE 26 each country can get a chance to advance both national theme of collection mobility has been de- The Getty Museum’s Non-Victorious Bid cultural portfolios as well as a fresh take on EU related veloped throughout major conferences portfolios (such as trade and foreign affairs). to Keep the “Victorious Youth” Bronze in relation to the different EU council 3 OMC was introduced by the European Council of Lisbon, PAGE 30 and is designed to help states coordinate and collaborate The First Annual National Cultural 1 European Union, Treaty of Lisbon Amending the Treaty on in addressing the reforms needed in order to reach the European Union and the Treaty Establishing the European Lisbon goals. The OMC’s fourth cycle ended in 2008. For Heritage Law Moot Court Competition Community, 13 December 2007, 2007/C 306/01, available at more information see http://ec.europa.eu/invest-in- PAGE 33 http://www.unhcr.org/refworld/docid/476258d32.html (last research/coordination/coordination01_en.htm#1 (last visited Jan. 20, 2011) (hereinafter “Lisbon Agenda”). visited Jan. 14, 2011). Continued on page 3 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 1 Electronic copy available at: http://ssrn.com/abstract=2370742 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

The Art & Cultural Heritage Law Committee is a committee of the American Bar Association Section of International Law. Its current leadership is as follows: CO-CHAIRS Mark B. Feldman Robert H. Saunders VICE CHAIRS Patty Gerstenblith Marilyn E. Phelan Peter Karl Tompa NEWSLETTER EDITORS David J. Bright

oscatelli Sharon M. Erwin M Jacqueline d. Farinella

ianca NEWSLETTER CONTRIBUTORS B Jason-Louise Graham On behalf of the Art & Cultural Heritage Law Committee, Valentina S. Vadi welcome to our Winter 2011 Issue! This summer we provided you with the diverse Naomi Kalies perspectives of our distinguished colleagues each addressing a single topic – the Amanda Niederauer current state and future challenges of the 1970 UNESCO Convention on the Means Kate Fitz Gibbon of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership Sharon Erwin of Cultural Property, as presented at the Committee’s panel at the International Leila Amineddoleh Emily Monteith and Virginia M. Cascio Law Section’s Spring Meeting. For this issue, a new group of accomplished contributors have traveled around the world to report on new important issues and DESIGNER developments in the field of art, cultural heritage, and cultural property law. www.jameefarinella.com In this issue, Leila Aminadollah reports from Italy on the Italian government’s ARTISTS continued battle with Getty Museum for the return of its Victorious Youth bronze. Jesse Wakeman: www.jessewakeman.net Kate FitzGibbon was in even warmer weather, examining in person the rapid and Bianca Moscatelli: www.biancamoscatelli.com Lai-Chung Poon: www.laichungpoon.com sweeping museum building taking place in Abu Dhabi, and considering how this Håkon Gåre: www.gare.no/ aggressive cultural development will maintain harmony with the religious and Brandon Jacob Mills conservative culture of the region. We are also pleased to present the first in a two- part series by Jason-Louise Graham, reporting from Belgium, that will examine the To get involved with the Committee, past, present and future of mobility in art collections within the EU. please e-mail Our own Sharon Erwin considers the various ways cultural organizations are using Jacqueline Farinella: social media, and offers some important considerations to those hoping to utilize [email protected] social media as a networking and fundraising tool. Valentina Vadi, a lecturer of or David Bright: International Law at Maastricht University in the Netherlands, shares with us her [email protected] investigation into the current state of the law protecting underwater cultural heritage. Finally, Amanda Neiderauer takes a close look at the role of authentication boards, particularly in the context of recent legal action involving the Andy Warhol Subscription & Submissions Foundation, and Naomi Kailes examines troubling inconsistencies within the e-mail Jacqueline Farinella: [email protected] or military exception found in international cultural protection law. We are also David Bright: [email protected] pleased to present a review of the first annual National Cultural Heritage Law Moot Submissions are welcome and will be published Court Competition by Emily Monteith and Virginia Cascio. The second annual at the discretion of the editors. We also competition will be held on February 25-26, 2011 in Chicago. encourage artists to submit their work and border art in jpeg format, which will be duly credited We hope you enjoy this exciting discussion. to the artist. Views contained in the newsletter David Bright, Sharon Erwin and Jacqueline Farinella, are those of the authors only and do not represent the official position of the Committee or Newsletter Editors the American Bar Association.

All graphics, images, photographs, and text appearing in this newsletter may be protected by copyright. Commercial use of copyrighted material is prohibited without express written permission of the copyright owner.

ART & CULTURAL HERITAGE LAW COMMITTEE page 2 Electronic copy available at: http://ssrn.com/abstract=2370742 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I and loan standards in a concerted man- subject on a European level particularly museum walls and national borders. ner and on a wider scale. in the early 1990s.6 The first legal instru- This institutionalized cultural frame- This article aims to generate an up- ments developed concerning mobility of work, however, could not be forged by dated and complete overview4 of what cultural goods, Regulation (EEC) No harmonization under community law. It are the most important instruments and 3911/927 “on the export of cultural goods” was, rather, achieved through the Open criteria necessary to facilitate collection and Directive 93/7/EEC “on the return of Method of Coordination (OMC), “an ap- mobility of public art collections (which cultural objects unlawfully removed propriate framework for cooperation” are extra commercium, or not technical- from the territory of a Member State” (Council Resolution 21 January 2002), ly part of the economic market of goods), were constructed “for the protection of established by the Lisbon Agenda in within and beyond national borders, as the cultural heritage of the Member 2000. This delicate framework would well as what the obstacles may be. This States”. While these instruments repre- lead to a complex but effective system of article will accomplish its goal by first sent a step towards conceptualizing legal coordination between EU Council presi- presenting the existing legal instru- frameworks of collection mobility, they dencies, the EU culture committee, com- ments and denoting the role of important also raised the sense of national cultural petent Member State executives, players, like the UK and the Netherlands, protectionism8 and the bar for future mo- National Museum Professionals and fi- in developing and implementing these bility of cultural objects. nally international art/cultural institu- instruments. Second, this article will Since 2000, with the onset of the tions. The latter have played an especial- use the method of direct sources in the Lisbon Agenda, a new impetus was given ly vital role in the development and sur- form of interviews with top museum to the field of culture thanks to a drive to vival of Europe’s Cultural Programme professionals, cultural representatives optimize mobility (of goods, services, (both in 2000 and 2007-2013) in its setup on an EU level and legal advisors from capital and people) and social cohesion. and its maintenance. Belgium to gain insight into the ap- A dual need emerged wherein culture The theme of culture is largely a non- proach and position of cultural institu- would be joined into the discussion of EU competence, and the initiatives have tions to understand the benefits, legal economic competitiveness. Firstly with- come from individual member states and challenges and conduits of mobility of vi- out mobility, cultural institutions and from international network groups.9 In sual art collections in the EU. This arti- their art objects would become stagnant as much, Mr. Hans Feys of the Flemish cle prefaces a future study on the compli- in a continent of free-movement, not Agency for Art and Heritage,10 mentions cations, solutions possibilities of collec- only economically and in terms of infor- that the first suggestions for developing a tion mobility within Belgium, as a com- mation mobility but also in terms of in- ‘mobility of collections policy’ came plex and struggling federal system at the novation. In other words, culture had a from the renowned BIZOT group, made heart of Europe. need to become liberalized in the up of top-museum professionals, who Schengen area – the free trade area (for began to feel an untenable financial I. Brief Background of Collection currency, workers, goods and services) strain when it came to short term exhibit Mobility ending at the borders of the European making. Insurance costs, travel costs, le- BEGINNINGS Union. A strong institutional framework gal obstacles to the mobility of works and The subject of intra- and inter-border had to be developed to protect the irre- 9 The Réunion des Musées Nationaux, also known as the mobility of art collections in Europe, fol- placeable and invaluable objects once Bizot Group and established in 1986, follow the Inter- lowing the lead of the UNESCO conven- they were transported beyond the safe national Council of Museums (ICOM) code of Ethics for tion of 1970 (dealing with illicit mobility this protection, such as the 1970 Unesco Convention …”). Museum Professionals created in 2006. The Network of Eu- of cultural objects) as well as the creation 6 Id. (“… the 1985 Council of Europe Convention and the ropean Museum Organizations (NEMO) established in 1992 1995 Unidroit Convention …”). provides information to museums on EU initiatives and of international cultural organizations 7 Council Regulation 3911/92 (1992). lobbies the EU on issues relevant to museums – promoting of museum professionals – the first 8 In this light, the European Parliament adopted a Resolu- their importance to EU policy makers, and encourages known as the Réunion des Musées tion based on the Commission’s report on the implementa- exchange of information between museums. The Interna- Nationaux, or the BIZOT Group, in the tion of Regulation (EEC) No 3911/92 and Directive 93/7/ tional Organization for the Conservation of Contemporary 5 EEC, on 21 June 2001, where upon the Council established Art (INCCA) is a network of professionals who have access late 1980s has become an important a Resolution on 21 January 2002. This Council Resolution to each others unpublished information (artist interviews, 4 The first draft of this article was composed on June 1, “invites the Commission to pursue the initiatives it has condition reports, installation instructions etc) through 2010, two months before the EU expert working group already launched to contribute more effectively to the Database for Artists’ Archives, in order to gain knowledge published its final report in August 2010, with recom- protection of the Member States’ cultural heritage and on the active and passive conservation of modern and mendations addressed to Member States, the museum to the effective functioning of the mechanisms set up by contemporary art. The Federation of European Art Galler- community and the European Commission. NEMO, the Regulation (EEC) No 3911/92 and by Directive 93/7/EEC and ies Association (FEAGA) represents the political interests Network of European Museum Organizations, participated develop, if necessary, other initiatives, for example a work of over 2000 modern and contemporary art galleries in in the work of the group as an observer. This report will programme, in the context of the Advisory Committee on the EU and Switzerland. It is active on the European policy feed into discussions by the Cultural Affairs Committee of cultural goods ….” Council Resolution on the Commission level in Brussels, and aims to strengthen information the future Council Workplan on Culture for 2011 onwards. report on the Implementation of Regulation (EEC) No about the profession of galleries, especially their support 5 Resolution on the Implementation of Regulation (EEC) No. 3911/92 on the Export of Cultural Goods and Directive 93/7/ of artist in building an art market. 3911/92 and Directive 93/7/EEC (2002) (“… (4) International or- EEC on the Return of Cultural Objects Unlawfully Removed 10 Interview with Mr. Hans Feys, Flemish Agency for Art ganisations have drawn up instruments designed to promote from the Territory of a Member State, No C 32/3 (2002). and Heritage (May 31, 2010). Continued on page 4 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 3 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I cultural workers, but also obscurity and frameworks began, each time led by an plan must be centrally handled by the misinformation were all aspects which EU presidency. In 2003 a first conference member states holding the EU Council impeded the cultural institutions from was held in Greece (17-19 March 2003), presidencies between 2004 and 2007. In effectively running their enterprises. on the Enhancement and Promotion of as much, the Council of Ministers under The BIZOT group became active, lobby- Cultural Heritage of European the British presidency approved the plan ing UNESCO, formulating the needs of Significance. This was followed by Lending to Europe on May 23, 2004. museums and aggrandizing their net- Council Resolution 2003-4879 (24 A key aspect of this plan importantly work with other museums in need. November 2003) on the Cooperation be- suggests the creation of an Action Plan to Though the EU had competence in the tween cultural institutions and muse- address the issues of mobility and to cre- field of culture of Member States, and ums. After a 2004 reunion of the BIZOT ate a well-functioning framework and would not become active in developing a group, the Dutch presidency organized a reciprocal code of conduct. Accordingly, framework for culture until 2000, the le- conference called Collections on the after the Increasing Mobility of gal obstacles and financial disadvantag- Move in The Hague (9-10 October 2004), Collections Conference (27-28 es for cultural institutions were dis- becoming the pivotal point for the devel- November 2005) in Manchester, and a abling them not only from being compet- opment of the Collection Mobility 2006 reunion of the BIZOT group, the itive on the market, but also disabled framework in Europe. The working Finish presidency organizes a confer- them from participating in the exchange group of museum professionals leading ence 20-21 July 2006 called Encouraging of goods (and workers) within the free the conference published a yellow book Mobility of Collections. In the confer- movement zone. So, according to Feys, know as Lending to Europe: ence, opened by Finish Minister of two discourses merged: the museum dis- Recommendations on collection mobili- Culture Tanja Saarela and EU course on the need to enhance exhibi- ty for European Museums, which aimed Commissioner of Culture and Education tions, and the political discourse on the to render a report on Policies of Ján Figel, museum professionals from all need to create cohesion and foster un- Collection Mobility, inspirations and over Europe were gathered to discuss a derstanding between cultures by shar- best practices and practical solutions to draft Action plan.13 The most important ing and exchanging the common problems of cultural mobility. It served aspect of this Action Plan will consist of European heritage and specific cultural as a recommendation for the Council creating Expert Working Groups, sug- traditions of member states. The merger upon which to base its benchmark pro- gested previously in the Lending to of these two discourses led to the devel- gram on culture. This conference has Europe document, and their task to ad- opment of this subject in the EU. also been important in bringing to light dress several key problems as well as the necessity of strong heritage decrees; their aim to coordinate on an EU level. COMMUNITY INSTRUMENTS AFTER THE definitive frameworks, legal conduits The Working groups must, however, be LISBON AGENDA and technical specifications wherein conducted in line with “Article 151 of the With the existence of new legal instru- cultural institutions can work legally Treaty establishing the European ments to protect the cultural heritage of and become eligible to receive subsidies Community whereby any measures to Member States and demand of museum for their operations. A few days after the harmonize national legislation are groups to ameliorate their capacities to conference (27-28 October), and based excluded”,14 and thus national experts function, appropriate frameworks had on the yellow book’s recommendations, must work together under the Open to be developed wherein this protection a Council Resolution 13839/04 (2004) on Method of Coordination (OMC). could occur in both a transparent and ef- a Work Plan for Culture 2005-2006 was The ensuing Action Plan for the EU fective manner, while not removing the published (this plan would later be re- Promotion of Museum Collections’ option of cultural sharing in the named Work plan for Culture 2005- Portuguese presidency at the end of 2007. Bundesminis- European community.11 In as much a tra- 2007). The Resolution establishes mobil- terium fur Unterricht, Kunst und Kultur, 2007, Glossary of jectory of conferences to develop such ity as a central part of the work plan. In terms and concepts used in the arts funding programme November of the same year, the Work of the Ministry of Education, the Arts and Culture, avail- 11 According to Lucie Lambrecht, this refers to the able at http://www.bmukk.gv.at/enfr/arts_en/glossary_2. important decision of the Court of Justice of the European Plan is adopted by the EU Council of xml (last visited May 25, 2010). 12 Union, decided on December 10, 1968, Commission of the Ministers. The implementation of the 13 Drafted in 2006 by Frank Bergvoet and Astrid Weij from European Union v Italian Republic, wherein “the Court the NL, Hillary Bauer from the UK, Jean-Luc Koltz from ruled (…) that the Italian Republic, by continuing to levy 12 The EU Work Plan for Culture 2005-2007 contains Luxembourg, Ulriche Emberger and Armin Mahr (chair) after 1 January 1962 the progressive tax laid down by agreed measures relating to five priorities: (1) contribution from Austria, Minna Karvonen and Paivi Salonen from Fin- Article 37 of the law of 1 June 1939 No. 1089 on the export of cultural industries to the achievement of the Lisbon tar- land, Mechtild Kronenberg Gunther Schaerte and Werner to other Member States of the community of articles of an gets; (2) digitisation of the cultural heritage; (3) upgrading Weber from Germany. artistic, historic, archeological or ethnographic interest, the European Culture Portal; (4) mobility of works; and (5) 14 Leeuw, de R. (2006) Lending to Europe: Recommendations has failed to fulfill its obligations under article 16 of the mobility of artists. The implementation of the plan has to on collection mobility for European Museums. Netherlands treaty establishing the European Economic Community; be centrally handled by the member states holding the EU Ministry of Education, Culture and Sciences, 9 (April, (…)” Interview with Lucie Lambrecht, May 31, 2010. See Council presidency from 2004 to 2007. During Austria’s 2005), www.codart.nl/images/Lending_to_Europe.pdf Case 7-68, Commission of the European Communities v presidency the emphasis was on “creativity and content”. (last visited Feb. 22, 2010) (hereinafter “Expert Group Italian Republic, 1968 E.C.R 423. The next work plan is supposed to be adopted under the Recommendation 2006”). Continued on page 5 ART & CULTURAL HERITAGE LAW COMMITTEE page 4 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

Mobility and Loan Standards is en- Action Plan mentioned above, the Open dures); Study possibilities to eliminating dorsed by the EU Cultural Affairs Method of Coordination (OMC) expert barriers that still persist in relevant legal Committee on October 17, 2006. In the working groups,17 led by Hillary Bauer and administrative frameworks at na- same year ICOM also re-publishes its (Head of the Cultural Property Unit at tional level (e.g. Ensure more MS devel- code of ethics for museum. Finally, after Department for Culture, Media and op indemnity schemes; Introduce the launch of the 2007-2013 Cultural Sport in the UK) and Rosanna Binacchi Immunity from seizure protection for Programme,15 the EU reaches an impor- (Ministero per i Beni e le Attvità loaned objects; Promote due diligence; tant level of cultural policy which has Culturali Direzione Generale Beni Share information (through websites, now become a cornerstone in develop- Archeologici, Italy), have been active possibly create new ones); Trust one an- ment plans with third countries and in- since 2007, finalizing their report in other; Contrast theft and illicit traffick- ternational diplomatic relations.16 June 2010. The main topics discussed in ing; Build on capacity through exchang- Finally, the Council’s Work Plan for this report are based on the specific ing experiences and experts.20 Culture 2008-2010, in accordance with fields proposed in the draft Action Plan,18 The method applied by the working globalization tendencies in the cultural and include (1) state indemnity and in- groups will not only ultimately lead to a and creative fields, aims to maximize ac- surance; (2) immunity from seizure for well informed and detailed report, in- cess to these fields through the promo- cultural objects on temporary loan; (3) cluding the specific concerns and partic- tion of UNESCO conventions and the de- long term loans; (4) prevention of thefts ularities member states have to deal velopment of data, statistics and meth- and illegal trafficking; and (5) mobility of with, but also a concise and accessible odology. The Work Plan further aims to museum professionals, or the exchange web database - www.lending-for-eu- create a transparent overview of exist- of expertise. Each sub-group addressed rope.eu - which will include this re- ing practices, and includes the need for one topic, and was headed by a national search and resulting reports. This site an important follow-up schedule for the representative. Hans Feys, advisor on will be vital in accessing information 2006 Action Plan. cultural goods at the Flemish Arts and and best-practice advice in a transparent Also important to the collection mo- Heritage Agency, participated in the manner. Finally, through the clearly de- bility project are cooperation between working group report on value, non-in- fined role of the working groups by the museum professionals, development of surance and indemnity schemes. 2006 Action Plan, Member States have network groups and web portals, in par- Caroline Marchant (Gestionnaire de la had the opportunity to participate at an ticular the centralization of information Collection du Patrimoine culturel de la EU level, which at other occasions has via the NEMO website. These web por- Communauté française at the Ministère seemed inaccessible due to the non-har- tals and network groups have created de la Communauté française de monizing legal status of the culture field. positive opportunities to reduce any re- Belgique) and Nathalie Monteyne (regis- The development of the EU instru- maining discrepancies concerning prop- trar at the Royal Museum of Fine Arts, ments and working groups surrounding er conduct and standards, and have im- Antwerp) participated in the working cultural mobility confirm that the OMC proved transparency and effectiveness group on long-term loans. Each working is complex but effective. Collaboration of the Collection Mobility project. One group concluded by July 201019 with a re- with international art and cultural insti- result is the Standard Loan Agreement, port on each delegated topic, followed by tutions, led by the top national museum created by NEMO from a collection of a general report of the OMC working and art professionals, balance commu- 360 different loan contracts and best group. The general report aims to clarify nity recommendations, as well as nation- practices gathered around Europe in certain common objectives as first de- al needs and recommendations, while 2005. Additionally, the development of fined in the OMC’s preliminary producing an informed equilibrium the new CM 2.0 site (www.lending-for- September 2009 presentation in among these different needs, conse- europe.eu) is a prelude to the future of Brussels, including: quently recommending new or further collection mobility and cultural net- Propose incentive mechanisms for guidelines to Ministries of Culture and works becoming digitized. the mobility of collections including long finally to the Commission who in turn term loans (e.g. Use standard proce- also initiates (recommends) new tools – ACTION PLAN 2006: EXPERT WORKING such as colloquia or action plans. In this GROUPS 17 In line with Article 151 of the Treaty establishing the way, thanks to the informed balance be- European Community any measures to harmonize national As a consequence of the vital 2006 legislation are excluded. Expert Group Recommendation tween museum professionals and EU in- 15 Council Resolution on a European Agenda for Culture 2006, supra note 14, at 9. stitutions, Member States have been able 2007/ C 287/ 01 (2007). 18 The proposed subjects include (1) conduct and adminis- to embark on structured advancement in 16 Initiated by the European Commission, the Interna- tration; (2) value, non-insurance, indemnity and insurance; the cultural field. The UK (1986, 1992 tional Colloquium, “Culture and creativity as vectors of (3) immunity from seizure; (4) long term loans; (5) loan Development” took place in Brussels, from April 2-3, 2009. fees; (6) publications and copyrights; (7) digitization; (8) 20 OMC Working Group, “Mobility of Collections”; Presenta- The conference gathered 500 cultural and development trust; and (9) reasons to lend/reasons not to lend. tion at the European Culture Forum (2009), available at professionals, as well as policy-makers, from ACP and EU 19 Interview with Hans Feys, advisor on cultural goods at ec.europa.eu/.../OMCgroupMobility_collections_RosannaBi- countries creating a platform for debates. the Flemish Arts and Heritage Agency (May 31, 2010). nacchi.ppt (last visited Jan. 20, 2011). Continued on page 6 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 5 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

presidency),21 the NL (1986 presidency), ble and real.30 PT (1992, 2000, 2007 presidency),22 FR Such programs, according to Ms. (2000 presidency), GR (2003 Deckers, enrich the capacity of small presidency),23 IT (2003 presidency),24 the museums to draw visitors, to revive NL (2004 Presidency),25 the UK (2005 them, but also to enhance the placement presidency),26 AU (2006 presidency),27 FI of works within a museum context Exchanges thus give a (2006 presidency)28 and DE (2007 where conditions are far more optimal presidency)29 have all used their presi- than public halls or libraries. Secondly, chance for the works dencies as moments to push major devel- such programs provide important inter- opments in the mobility of collections actions between regions and regional in- to become less obscure experienced coordinated developments. stitutions, enhancing the cultural story as well as a chance for and through it tourism. II. The Benefits of Collection Mobility Third, and vitally important, is the museums to update their The benefits of mobility have been de- boost in passive conservation which de- fined with the help of the 2004 confer- rives from such mobility programs. In knowledge and capacities. ence Lending to Europe as well as the order to lend a work, both the borrower 2006 Action Plan. In an interview with and lender must prepare conditions for Director Paul Huvenne and Collection its move in an optimal manner. Before a Manager Yolande Deckers at KMSKA work can be loaned, the depots must be (Antwerp’s fine art museum), a true ad- well researched in order to decide which vocate for collection mobility programs works can be loaned. The work being who has managed to convince the loaned will be inspected, a condition and Flemish government department for Art provenance report will be created and and Heritage management (IVA Kunsten the work’s existence will become docu- en Erfgoed) to subsidizes several impor- mented more properly. The borrowing tant collection mobility programs, the museum will have to describe its envi- benefits of collection mobility are palpa- ronment in order for the lending muse- um to assess whether the work can be 21 “The UKRG (United Kingdom Registrar Group) Standard conserved properly in it – this means Facilities Report has set the framework for collection management and assessments since 1991.” Expert Group both labor and professional capacity as Recommendation 2006, supra note 14, at 12. well as temperatures and security. 22 See Lisbon Agenda and Council Resolution on a Euro- Exchanges thus give a chance for the pean Agenda for Culture, 2007/ C 287/ 01 (2007). This later works to become less obscure as well as a act led to the EU Cultural Programme 2007-2013. chance for museums to update their 23 Conference: Greece: 17-19 March: Enhancement and promotion of Cultural Heritage of European significance. knowledge and capacities. Lastly, 24 Council Resolution 2003-4879: 24 November 2003: Deckers notes that the project will as a Cooperation between cultural institutions and museums consequence lead to an important in- (recommended by the EU commission). crease in understanding of the museum’s 25 During the Netherlands’ Presidency, a high level expert group drew up a report in the conference Collections of own collection; not only in terms of tech- the Move in The Hague (2004) called Lending to Europe, nical and conservation needs but also in which consists of a description of the central thematic ar- terms of the collection as an entity. Not eas and practical recommendations for museums, Member lending works out would in this regard States and EU institutions. 26 Council Adopts Work Plan for Culture 2005-2007 and detract from the museum’s full potential the Council of Ministers on Culture 2005 (23 May) – British and collection discourse. Thus the prac- Presidency – approves ‘Lending to Europe’. tice of lending out works, by way of in- 27 The Austrian Presidency chaired a team represent- creased understanding, will also lead to ing the six successive Presidencies of the Netherlands, more cohesive and coherent collection Luxembourg, the United Kingdom, Austria, Finland and Germany (2004-2007), which prepared a ‘Draft Action Plan presentations seen by wider audiences. for the EU Promotion of Museum Collections’ Mobility and Though these examples relate to one re- Loan Standards’. gion (Flanders) within Europe, the bene- 28 To encourage the mobility of collections, Finland’s fits are entirely transposable to a European EU Presidency organized a conference at the National context and discourse. Collection mobility Museum of Finland in Helsinki on 20-21 July 2006. 29 May 6 - 7, 2007 Bremen Declaration on Mobility of 30 Interview with Paul Huvenne, Director, and Yolande Museum collections. Main topic: Building up trust and Deckers, Collection Manager, Koninklijk Museum Schone networking. Kunsten Antwerpen (April 19, 2010) Continued on page 7 ART & CULTURAL HERITAGE LAW COMMITTEE page 6 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I within the EU is seen as a policy tool to to borrow big or medium-big works. In as Museum in Eindhoven, most Dutch mu- enhance different cultural identities and much, if important works from a private seums, including contemporary art mu- cohesion between these diverse entities collection are to be loaned to a public in- seums, were positively affected by the in a structural manner. stitution, state indemnity schemes can Delta Plan for the Preservation of the also be used to cover the costs of the Cultural Heritage.33 This plan, lobbied III. The Pivotal Role of Member States: damage risks in these loans, thus avoid- for by the Netherlands Ministry of Providing Indemnity Schemes ing the costs of having to insure these Welfare, Health and Cultural Affairs The 2004 conference Lending to Europe risks on the private insurance market. and researched by the Institute of Dutch in The Hague showed that proper organi- Museums and public art galleries also Collections (or Institutuut Collectie zation of collection mobility remains very have an increased interest from to bor- Nederland), developed a system for man- costly. The conference also brought to light row from private collections because aging collections in the Netherlands. It the vital role of the State in establishing in- States want to increase the public’s ac- aimed to develop a plan of how to keep demnity schemes and thus the perimeters cessibility to top works that are not on collections up to par by creating high for subsidizing collection mobility. the market nor in museums, and thus quality standards of good practice. All As Lucie Lambrecht, Belgian lawyer rarely seen. State indemnity covering museums received money from the and specialist in investment, art and cul- the private person’s costs will be in the Dutch state to develop a registrar system tural property law, explains, indemnity public interest after all. (based on the British model) in which all schemes concern the art risk premium or Indemnity schemes cover museums the necessary information about art- coverage, paid for by the state.31 These from costs under specific guidelines and works could be stored. Of course the schemes are meant to relieve museums situations, but, according to Ms. mere creation of a comprehensive regis- of the high costs of mobility laid upon Lambrecht, such considerations sur- trar system and even preferably – ac- them by private insurance companies for rounding indemnity are not only a matter cording to Bernedes – an online database collection mobility inside the state or en- of cultural economy but also a matter of for national museums in Belgium would tering the state. They do so by (partly or politics and policy. The matter is political not only be conducive to transparency entirely) transferring the liability of the because collection mobility often in- nationally and internationally, but would museums for possible damages to works volves legislation from different territori- also be helpful in bringing the lagging on loan to the state. This means that mu- al entities, which may have different stan- museums up to par with international seums lending top works to other nation- dards than the loaning country of origin. knowledge – best practice and conserva- al museums are covered, but also that Countries such as the UK, for example, tion standards – as well as strong com- museums borrowing top works from with a transparent registrar system and municative network relations. Building other nations are covered for damages as clear indemnity schemes, are not only this knowledge and research of collec- well. When works are borrowed abroad, models for best practice, but also the most tions, or passive conservation, helps to the borrowing state will simply pay the desired exchange partners because of build knowledge on how to prevent dam- transportation and borrowing fees, but this trait. The matter is also one of policy age to works, what conditions the work not the insurance or indemnity costs. because in providing indemnity, states should be kept in, etcetera. According to Indemnity schemes are usually ap- give museums the choice between either Ms. Bernedes, the Delta Plan was a plied to works which are no longer avail- the lowest cost and risk – or much more breakthrough project that ultimately able for the market (extra commercium), expensive private insurance. Of course in brought the Netherlands to the top of having become too expensive to value (in doing so, the state may gain an unfair ad- European museum standards and en- relation to the market), but are still im- vantage over the private insurance mar- abled them to launch important initia- portant cultural heritage.32 Indemnity ket and also disrupt the internal market tives like Museum Collections on the schemes for collection mobility pro- system by discouraging such a business, Move 2004. grams thus concern benefiting public in- which they still need at different levels of Indeed, in an effort to enhance pas- stitutions and public interests or goods, society. In order not to contradict sive conservation, the Working Group on promoting the cultural attractiveness of European law, in terms of unfair advan- Mobility of Collections’34 final report ad- the cities with quintessential culturally tages due to state subsidy or monopolies, dressing Member States, the museum representative, or ‘blockbuster’, shows. indemnity schemes need strong legal But the financial relief also enhances a guidelines that create a balance for both 33 Interview with Christiane Bernedes, manager of collec- tions at the Van Abbe Museum in Eindhoven (April 12, 2010). certain good-will of larger museums to the economy and the preservation of cul- See The Deltaplan for the preservation of the cultural invest more in exchanges with smaller tural property. heritage in the Netherlands, S. Scholten, 2008, available at museums who cannot otherwise afford http://www.icn.nl/bibliotheek/publicaties-medewerkers- IV. How Member States Can Prepare icn/scholten-s-pub-deltaplan-preservation (last visited 31 Interview with Lucie Lambrecht (May 31, 2010). May 15, 2010). 32 According to Mr. Feys, contemporary art is usually for Change 34 Established by the Council in its Work Plan for Culture still too inexpensive to apply to the indemnity coverage According to Christiane Bernedes, man- (2008-2010) within the context of the implementation of scheme in relation to the costs of such a program. ager of collections at the Van Abbe the European Agenda for Culture. Continued on page 8 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 7 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

... it is the state’s responsibility to provide smaller museums with financial and technical facilities and tools to reach the high standards set by larger museums and international organizations as ICOM ... akeman W Jesse

community and the European ties grow accordingly. Such policies Commission, published in August 2010, can be established within the frame- are available on both the European work of clear national cultural policy Commission’s website,35 the CM 2.0 site programs. Finally, along with the im- (www.lending-for-europe.eu), and the plementation of best standards and NEMO website. practices defined by the last Working Group under the Council’s Work Plan Conclusion for Culture (2008-2010), the process of Bernedes suggests it is the state’s re- digitization is clearly gaining impor- sponsibility to provide smaller muse- tance. The forum has, importantly, be- ums with financial and technical facil- come digitized so all participants may ities and tools to reach the high stan- remain up to date, but in the UK and dards set by larger museums and inter- the Netherlands we can also see how national organizations as ICOM, so the digitization of national collections they can ultimately have the ability to (in registrar systems) becomes an im- participate with the international ex- portant aspect of passive conservation change. According to Ms. Lambrecht with long-term benefits. This next im- the creation of strong indemnity poli- portant step in collection mobility will cies for mobility programs in countries invoke many questions surrounding such as the UK and the Netherlands, copyright law, but perhaps also enable has led to the reduction of costs of in- a vaster interaction between more in- surance over time trust between par- ternational players. u 35 The European Commission, http://ec.europa.eu/culture/ our-policy-development/doc1575_en.htm (last visited Jan. Additional sources used for this article are 20, 2011). on file with the author.

ART & CULTURAL HERITAGE LAW COMMITTEE page 8 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

The dispute began in 1991, when the Malaysian government entered into a contract with Malaysian Historical Salvors (MHS), to locate and salvage the cargo of an ancient shipwreck, the Diana.3 Under the terms of the contract, artefacts directly related to Malaysian history and culture would be retained by the government, while the other recov- ered items would have been sold at Christie’s.4 The government would re- ceive the sale proceeds, while paying a percentage of the sum to the company.5 The salvage efforts took almost four years; when MHS found and salvaged the sunken vessel, nearly 24,000 entire pieces of Chinese blue-and-white porce- lains were recovered.6 The dispute arose with regard to the proceeds of the auction and the quantity of items, which Malaysia withheld from sale. The company commenced arbitra- tion at the ICSID, holding that Malaysian courts had denied due process and that hung Poon

C there was a violation of the BIT. For its ai-

L part, the Respondent objected to juris- diction over the dispute, arguing that the contract was not an investment. This Investing in Underwater Cultural line of argument was upheld by the sole arbitrator who dismissed the claim on Heritage: Challenges and Prospects jurisdiction. The Arbitrator considered VALENTINA S. VADI that the nature of the Claimant’s activi- ties was largely similar to a commercial ncient shipwrecks contribute to law has been at the forefront of legal de- salvage contract and that under ICSID our understanding of history, bate for the past two years. practice and jurisprudence, an ordinary providing a glimpse into differ- The issue emerged with regard to the commercial contract could not be con- Aent epochs and societies. In re- salvage contract between a British compa- sidered as an investment.7 cent times, the advancement of technol- ny and the government of Malaysia for the Given the unusual nature of the sal- ogy has made it possible to find, visit recovery of an ancient shipwreck in the vage company’s activities, the Arbitrator, and remove artefacts from shipwrecks straits of Malacca.1 In the Malaysian Mr. Michael Hwang, paid particular at- that have been kept remote in the abyss Historical Salvors case, an Annulment tention to the criterion as to whether the for centuries. The increasing capability Committee of the International Centre for contract made a significant contribution to reach these archaeological treasures the Settlement of Investment Disputes to the economic development of the host has intensified the debate on related (ICSID) held that the performance of the state. Adopting a teleological approach ownership and management issues. company under the salvage contract fell to the interpretation of the ICSID While private actors have claimed pos- within the meaning of “investment” as de- Convention, the Arbitrator interpreted session rights under the law of salvage fined by the Malaysia/UK Bilateral the word “investment” as an activity and sold the artefacts, the scientific Investment Treaty (BIT).2 2009, ICSID Case No ARB/05/10, available at the website of community and the public at large 1 Malaysian Historical Salvors, Sdn, Bhd v. The Govern- the International Centre for the Settlement of Investment would demand the preservation of cul- ment of Malaysia, Award on Jurisdiction, May 17, 2007, Disputes, available at http://www.worldbank.org/icsid (last tural heritage. In this broader context, ICSID Case No ARB/05/10, available at the website of the visited Nov. 27, 2010). the question whether salvage may be International Centre for the Settlement of Investment 3 Id. at §7. Disputes, available at http://www.worldbank.org/icsid (last 4 Id. at §11. considered a form of investment and visited Nov. 27, 2010). 5 Ibidem. therefore, besides admiralty law, is also 2 Malaysian Historical Salvors, Sdn, Bhd v. The Government 6 Id. at §13. governed by international investment of Malaysia, Decision on Application for Annulment, April 16, 7 Id. at §148. Continued on page 10 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 9 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I which promotes some form of positive grounds. First, the Claimant made refer- deny the nature of investment to the sal- economic development for the host state. ence to the “travaux préparatoires” of the vage activities. The fact that the salvage The Arbitrator found that the salvage ICSID Convention. The travaux prépara- contract was not an easily recognizable contract did not benefit the Malaysian toires establish that the drafters of the investment appears to have had an ex- public interest in a material way, but only ICSID Convention decided against defin- cessive weight in assessing whether in a cultural and historical way. ing the notion of investment and setting there was an investment. A salvage con- Accordingly, the Arbitrator concluded any monetary floor for this notion. tract may seem to be an unthinkable kind that the contract was not an “invest- Second, the Claimant challenged the ele- of investment with respect to more tra- ment” within the meaning of Article 25 vation of the hallmarks of an investment ditional investments such as oil explora- (1) of the ICSID Convention.8 to the level of jurisdictional conditions. tion, infrastructure building and so on The award immediately raised a storm Third, the Claimant contested the intro- and so forth. Still, the notion of invest- of criticism.9 The current author contrib- duction of a further jurisdictional re- ment has evolved through time. uted to the emerging debate by emphasiz- quirement of contribution to the econom- Finally, as one of the counsels for MHS ing that the economic benefits of an eco- ic development of the host state and the said, ‘The fact that, in MHS, the invest- nomic activity do not have to be signifi- quantitative assessment of such contribu- ment was relatively small and related to cant in order to qualify it as an “invest- tion. The Respondent countered that the cultural heritage, was certainly not a ment”. There is no a de minimis threshold ICSID annulment is a narrowly circum- ground to disqualify it as an investment’.16 for qualifying an economic activity as an scribed remedy and that the Tribunal had Paradoxically, the Malaysian Historical investment.10 The fact that traditionally not manifestly exceeded its powers.12 Salvors case may become a leading one investment disputes have involved con- The majority of the Ad Hoc not because of the quality of its reasoning spicuous investments does not exclude Annulment Committee established that but because of its reversal. This reversal the possibility that smaller investments the salvage contract is a form of invest- may have crucial implications on the cul- are protected by BITs. Some of these criti- ment on the basis of Article 1 of the BIT.13 tural policies of maritime states. If sal- cisms were upheld by the ad hoc Therefore, the majority of the vage contracts with foreign companies Annulment Committee, which annulled Committee reached the conclusion that may be deemed to be investments, they the award.11 MHS challenged the award the Arbitrator exceeded its powers by are not merely regulated by national law, on the ground that the Tribunal mani- failing to exercise jurisdiction and that it salvage law or cultural heritage law, but festly exceeded its powers by failing to ex- manifestly did so because it failed to take they are also governed by international ercise jurisdiction, which it possessed into account the BIT mentioned above, it investment law. In this regard, if a dispute over the dispute. The Claimant contested elevated certain criteria to jurisdictional arises out of the implementation of a sal- the overly restrictive notion of invest- requirements and it failed to take into ac- vage contract, foreign investors may ment adopted by the Tribunal on three count the travaux préparatoires of the claim that state regulations on the protec- 14 8 Ibidem. Under Article 25 (1) of the ICSID Convention, “The ICSID Convention. tion of underwater cultural heritage jurisdiction of the Centre shall extend to any legal dispute A different perspective, which was amount to a violation of the fair and equi- arising directly out of an investment, between a Contracting not considered by the Annulment table treatment or to an indirect expro- State (or any constituent subdivision or agency of a Con- Committee and was dismissed by the priation or to other violations of invest- tracting State designated to the Centre by that State) and a national of another Contracting State, which the parties Arbitrator as speculative, considers the ment treaty standards. Arbitrators will to the dispute consent in writing to submit to the Centre….” conservation of cultural heritage as hav- then face the challenge of reconciling cul- 9 See, e.g. V. Vadi, Underwater Cultural Heritage & Interna- ing a direct linkage with the develop- tural heritage protection and the promo- tional Investment Law: A Case Study (2007) ITALIAN YEARBOOK OF ment of the tourism business and other tion of foreign investments. INTERNATIONAL LAW, 143-158; V. Vadi, Investing In Culture: Under- 15 water Cultural Heritage and International Investment Law economic activities. The salvage and The law of foreign investment is one (2009) 42 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 3, 1-52. preservation of ancient shipwrecks may of the oldest and most complex areas of 10 “In a draft preceding the Working Paper, a lower limit make a substantial contribution to the international law. As there is still no sin- ($100,000) had been fixed for the subject-matter of the social, cultural and economic develop- gle comprehensive global treaty, inves- dispute. That provision had not been retained . . . because disputes involving small amounts could be important as test ment of the host state. tor’s rights are defined by a plethora of cases, whereas there would be other cases in which it would In the case at stake, the fact that eco- bilateral and regional investment trea- be impossible to place a pecuniary value on the subject-mat- nomic considerations were paralleled by ties and by customary international ter of a dispute.” HISTORY OF THE ICSID CONVENTION, Volume other considerations, namely cultural law.17 Investment treaties provide an ex- II-1, p. 567 (cited by Malaysian Historical Salvors, Sdn, Bhd v. Gov’t of Malaysia, Decision on the Application for annulment, concerns, probably led the Arbitrator to 16 Emmanuel Gaillard, cited by Peterson L. ‘Majority Finds note 114). 12 Malaysian Historical Salvors, Sdn, Bhd v. Gov’t of that Failure to Examine Wide Definition of Investment in 11 Malaysian Historical Salvors, Sdn, Bhd v. The Gov’t of Ma- Malaysia, Decision on Application for Annulment, §44. UK-Malaysia BIT was Manifest Excess of Powers on the Part laysia, Decision on the Application for annulment. On the 13 Id. at §§58-61. of Earlier Arbitrator’ Investment Arbitration Reporter, 20 jurisdictional review of ICSID awards, see Philippe Pinsolle, 14 Id. at §44 April 2009, 5. “Manifest” Excess of Power and Jurisdictional Review of IC- 15 V. Vadi, Investing in Culture: Underwater Cultural Heri- 17 Campbell McLachlan, Laurence Shore and Matthew SID Awards, in F. ORTINO, A. SHEPPARD AND H. WARNER (EDS) INVESTMENT tage and International Investment Law Vanderbilt Journal Weiniger, International Investment Arbitration Substantive TREATY LAW – CURRENT ISSUES VOL. I (2006) 51-58. of Transnational Law, 2009, 853-904, at 898. Principles (2007) 15. Continued on page 11 ART & CULTURAL HERITAGE LAW COMMITTEE page 10 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

From a cultural perspective, however, underwater cultural heritage represents an integral part of the cultural heritage of humanity and a particularly important ills

element in the history M of peoples and their relations with each other. randon Jacob B

tensive protection to investor’s rights in perspective, however, underwater cul- order to encourage foreign direct invest- tural heritage represents an integral part ment (hereinafter, “FDI”). At the proce- of the cultural heritage of humanity and a dural level, investment treaties offer inves- particularly important element in the his- tors direct access to an international arbi- tory of peoples and their relations with tral tribunal. Thus, foreign investors can each other. The question whether inter- directly challenge national measures national investment law may constitute aimed at protecting cultural heritage and an appropriate framework in order to rec- seek compensation for the impact on their oncile private interests with the public in- business of such a state regulation. As in- terest of cultural heritage protection in ternational law has not yet developed any international law is now open. u machinery for the protection of cultural heritage through investment dispute set- Valentina Vadi is Lecturer of tlement, arbitrators will have to reconcile International Law at Maastricht cultural heritage protection and foreign University (the Netherlands). She holds a investment promotion, mapping and in- doctorate in international law from the terpreting the relevant applicable law. European University Institute, degrees in In conclusion, if a bilateral investment international law and political science treaty includes a broad notion of invest- from the University of Siena, a Master of ment, salvage contracts may be deemed to Research in Law from the European be protected under international invest- University Institute and a Magister Juris ment treaties. From an economic per- (MJur) in European and Comparative spective, the MHS decision on the appli- Law from the University of Oxford. cation for annulment shows that salvage Valentina is a qualified lawyer (Florence may represent a form of investment. Bar). Valentina’ s main areas of research Therefore, another layer of international are in international economic law, intel- regulation could now be considered to lectual property regulation and cultural govern underwater cultural heritage re- heritage law. She may be contacted at covery and management. From a cultural [email protected].

AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 11 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

whi1st besieged or bombarded.”11 Cultural Property as a Military Similarly, Protocol I prohibits “acts of hostility directed against the historic Objective monuments, works of art or places of NAOMI KALIES worship which constitute the cultural or spiritual heritage of peoples,” the use of nternational law has provided pro- esting because, although Protocol I cate- such objects in military efforts, and sub- tection for cultural property for cen- gorizes cultural property as civilian ob- jecting cultural property to reprisals.12 turies. International cultural pro- jects, it grants more specific protections These objects can only be attacked if Itection law has also, however, always to it in Article 53.5 When the goal of the they are being illegally used as a shield13 allowed for a military necessity excep- law was to protect cultural property, one and therefore constitutes a “military tion.1 The exception is based in the belief would think that the more specific pro- objective.”14 Protocol I defines a military that in some occasions cultural property tections of Article 53 would have been objective as “limited to those objects can be a legitimate military target.2 The used to achieve this goal over the general which by their nature … make an effec- breadth of this exception greatly impacts protections of Article 52. This disparity tive contribution to military action and how much protection is granted to cul- matters because the ICC is the body with whose total or partial destruction, cap- tural property during armed conflicts. the greatest potential to develop strong ture, or neutralization … offers a definite This article will examine the military legal protections for cultural property military advantage.”15 necessity exception as it has been histor- during war. Embodied in all of these documents is ically codified in international treaties the principle that cultural property is and compare that definition with that in- I. The Military Necessity Exception in protected property. Protocol I addresses cluded in the Rome Statute and therefore International Law cultural property separately in its own the ICC Elements of the War Crime of International legal protections for cul- article highlighting its special status.16 Attacking Protected Objects. When the tural property have a long history. The The case law of international tribunals Rome Statute’s definition is placed into Second Treaty of Paris chastised regards the law protecting cultural the context of the larger international le- Napoleon for his looting, 6 and the Lieber property as lex specialis.17 This clear sep- gal corpus, the only reasonable interpre- Code established certain sites as protect- aration of cultural property from other tation leads to a result where the defini- ed during the American Civil War. The civilian objects highlights the special tion of the crime actually precludes pros- Hague Convention of 18997 created gen- status international law gives cultural ecution by the ICC, especially in ethnic eral rules of war and World War II moti- property. It is also this distinction, which conflicts. vated the Hague Convention of 1954,8 its the Rome Statute and therefore, the ICC The Rome Statute defines the military protocols9 and the Protocols attached to approach deny to cultural property. necessity exception in the terms all other the Geneva Conventions,10 all of which international treaties and case law use put forth specific protections for cultur- II. The Rome Statute and the ICC for general civilian objects.3 Other inter- al property during war. Elements: A New Standard? national legal texts give cultural proper- Article 35 of the Lieber Code states, The ICC Elements establish the require- ty a more inclusive status and therefore “Classical works of art, libraries, scien- ments to prove someone is criminally define the military necessity exception tific collections, or precious instru- responsible and liable for punishment more strictly. Article 8(2)(b)(ix) of the ments, such as astronomical telescopes, for a crime within the jurisdiction of the Rome Statute adopted the military ne- as well as hospitals, must be secured ICC.18 The Elements assist the court cessity exception put forth by Protocol I against all avoidable injury, even when with interpretation and application of of the Geneva Conventions for civilian they are contained in fortified places Articles 6, 7, and 8 of the Rome Statute.19 objects.4 This choice of language is inter- of International Armed Conflicts art. 52, June 8, 1977, 1977 11 Instructions to the Armies of the United States in the 1 Convention for the Protection of Cultural Property in the U.N.J.Y.B. 95 (hereinafter “Protocol I”). Field (Lieber Code), art. 35, Apr. 24, 1863 (hereinafter “Lieber Event of Armed Conflict art. 11(2), May 15, 1954, S. TREATY DOC. 5 Id. at art. 53. Code”) (emphasis added). NO. 106-1(B), 249 U.N.T.S. 214 (hereinafter “Hague Convention 6 Treaty of Paris (1815) Done at Paris 20 November 1815. 12 Protocol I, supra n. 4 at art. 53. of 1954”). Reprinted in Fred L Israel (Ed.) Major Peace Treaties of 13 Hague IV, supra n. 2, at art. 27. 2 Convention (No. IV) Respecting The Laws and Customs of Modern History 1648-1967 Vol. I (New York: McGraw-Hill, 14 Protocol I, supra n. 4 at art. 52(2). War on Land, art. 27, Oct. 18, 1907, 36 Stat. 2277 (hereinafter 1967), 577-593. 15 Id. “Hague IV”) (“provided [items of cultural property or sites] 7 Hague IV, supra n. 2 at art. 27. 16 Protocol I, supra n. 4 at art. 53. are not being used at the time for military purposes”). 8 Hague Convention of 1954, supra n. 1 at art. 11. 17 Prosecutor v. KordiÐ & Cerkez, Case No. IT-95-14/2-T, Trial 3 The Rome Statute art. 8(2)(b)(xi), July 17, 1998, A/ 9 Second Protocol to the Hague Convention of 1954 for Judgment, ¶ 361 (Feb. 26, 2001) (meaning the law governing CONF.183/9, 2187 U.N.T.S. 3; Elements of Crimes art. 8(2)(b) the Protection of Cultural Property in the Event of armed this specific subject matter overrides the law governing (xi), Sept. 9, 2002, ICC-ASP/1/3(part II-B) (hereinafter “ICC Conflict, art. 1(f), Mar. 26, 1999 2253 U.N.T.S. 172, available general matters). Elements”). at www.icrc.org/ihl.nsf (last visited on June 5, 2010) 18 Elements of Crimes, supra n. 3 at General Introduction 4 Protocol Additional (No. I) to the Geneva Conventions (hereinafter “Second Protocol”). ¶ 2. of Aug. 12, 1949, and Relating to the Protection of Victims 10 Protocol I, supra n. 4. 19 Id. at ¶ 1. Continued on page 13 ART & CULTURAL HERITAGE LAW COMMITTEE page 12 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

The drafters clearly were referring to cultural property when using the term “protected objects.” oscatelli M ianca B

Article 8(2)(b)(xi) of the Elements pros- rating the military necessity exception ecutes attacks against cultural property into ICC proceedings, but the general ci- by establishing the war crime of attack- vilian objects protection for “all objects ing protected objects.20 “Protected ob- which are not military objectives.”24 jects” are defined as “buildings dedi- Protocol I defines military objectives as cated to religion, education, art, science “limited to those objects which by their or charitable purposes, historic monu- nature, location, purpose or use make an ments, hospitals….”21 This definition effective contribution to military action mirrors the definition of cultural prop- and whose total or partial destruction, erty employed by the Lieber Code, capture or neutralization, in the circum- Hague IV, and the Hague Convention of stances ruling at the time, offer a definite 1954.22 The drafters clearly were refer- military advantage.”25 ring to cultural property when using the This same definition of military ob- term “protected objects.” It is unclear jective was incorporated a year later in why the drafters incorporated only the the Second Protocol to the Hague general civilian objects “military objec- Convention of 1954.26 The Second tive” exception. Protocol, however, adopted a more tradi- Protocol I specifically prohibited “any tional military necessity exception by re- acts of hostility” directed against cultur- quiring that “(1) cultural property has by al property, the use of cultural property its function, been made into a military in support of military efforts, and mak- objective; and (2) there is no feasible al- ing cultural property the object of repri- ternative available to obtain a similar sals.23 The Rome Statute did not adopt military advantage to that offered by di- these specific protections when incorpo- recting an act of hostility against that ob- jective” before an attack can be justi- 20 Elements of Crimes, supra n. 3 at art. 8(2)(b)(xi). 21 Id. at art. 8(2)(b)(xi)(2). 22 Hague Convention of 1954, supra n. 1 at art. 4(2); Hague IV, 24 Id. at art. 52; cf Rome Statute, supra n. 3 at art. 8(2)(b)(ix). supra n. 2 at art.27; Lieber Code, supra n. 11 at art. 35. 25 Protocol I, supra n. 4 at art. 52(2). 23 Protocol I, supra n. 4 at art. 53. 26 Second Protocol, supra n. 9 at art. 1(f). Continued on page 14 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 13 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

fied.27 By excluding the additional lan- guage of either Article 53 of Protocol I or Article 6 of the Second Protocol, the Rome Statute’s is isolated. III. Cultural Property and Ethnic Conflict Cultural property faces its gravest threat during ethnic conflicts. When a rival cul- tural group is the military enemy, the symbols of that culture “by their nature … make an effective contribution to mili- tary action.”28 When territorial claims are involved there is often the desire to erase evidence of the other group’s his- tory in the territory and therefore bol- ster the claims of one’s own group.29 It then becomes arguable, under such cir- cumstances, that the “total or partial de- struction, capture or neutralization [of ills cultural property] offer[s] a definite mil- M itary advantage.”30 The case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) is instructive randon Jacob on how devastating the “military objec- B tive” standard could be to prosecuting attacks against cultural property. under Article 3(d) the “destruction or Article 52 (outlining the “military objec- The ICTY prosecuted some of the willful damage done to institutions dedi- tive” standard for civilian objects) and the most devastating attacks on cultural cated to religion … the arts and sciences, specific protections of Article 53 (creating property since World War II.31 The ICTY historic monuments and works of art a higher military necessity standard for approaches these issues by incorporat- and science.”34 cultural property).”36 ing both the general protections of Case law of the ICTY has acknowl- The ICTY applied these standards in Article 52 of Protocol I and the more spe- edged the two forms of protection set out a two-staged fashion. First it applied the cific protections of Article 53 of Protocol in Protocol I by adopting its definition of a general protections of Article 52 and the I and Article 6 of the Second Protocol. 32 military objective, and by continuing to “military objectives” standard.37 It then The ICTY prosecuted the destruction of grant cultural property the stronger mili- analyzed if the specific objects at issue cultural property under Article 5(h) of tary necessity protections contained in qualified for the more specific protec- the ICTY Statute persecutions on politi- Article 53.35 In Hadzihasanovic & Kubura, tions and stricter military necessity cal, racial and religious grounds33 and where two military commanders were standard of Article 53.38 In KordiÐ & charged with allowing their troops to Cerkez, the ICTY limited the more spe- 27 Id. at art. 6(a)(i) & (ii) (emphasis added). 28 Protocol I, supra n. 4 at art. 52(2). vandalize the Monastery of GuÐa Gora cific protections to three categories of 29 Final Report of the United Nations Commission of Experts and the Church of St. John the Baptist in objects: “historic monuments, works of on the Former Yugoslavia, 27, U.N. Doc. S/1994/674 (May 27, Travnik, the Tribunal held that Article art, and places of worship, provided they 1994), available at http://www.his.com/~twarrick/commxyu1. 3(d) of the ICTY Statute incorporated constitute the cultural or spiritual heri- htm (“This purpose appears to be the occupation of terri- 39 tory to the exclusion of the purged group or groups”). both the general protections of Protocol I, tage of peoples.” In that case, KordiÐ, a 30 Protocol I, supra n. 4 at art. 52(2). Prosecution Notice of Filing of Fourth Amended Indictment, Bosnian Croat politician, and Cerkez, 31 This conflict serves as a prime example of the point ¶ 77 (July 9, 2008). the Commander of a Brigade of the 34 See, e.g., Prosecutor v. Prlic, Stojic, Praljak, Petkovic, that in ethnic conflicts the symbols of the other ethnic Croatian Defense Council, incited and group—their art, architecture, and religious and historical Coric, and Pusic, Case No. IT-04-74-T, Trial Judgment, ¶¶ 60, sites—become military targets. 72, 87, 153, 171, 186 (June 11, 2008). carried out ethnic cleansing against 32 Updated Statute of the International Criminal Tribunal 35 Prosecutor v. Hadzihasanovic & Kubura, Case No. IT-01-47- Bosnian Muslims between November for the Former Yugoslavia art. 3, May 25, 1993 (amended AR73.3, Decision on Joint Defense Interlocutory Appeal of July 7, 2009), available at http://www.icty.org/sections/ Trial Chamber Decision on Rule 98BIS Motions for Acquittal, 36 Hadzihasanovic & Kubura, at ¶¶ 45 & 46. LegalLibrary/StatuteoftheTribunal (last visited June 5, 2010); ¶ 45 (March 11, 2005); see also Prosecutor v. Strugar, Case 37 Prosecutor v. KordiÐ & Cerkez, Case No. IT-95-14/2-A, Prosecutor v. Brdjanin, Case No. IT-99-36-T, Judgment, ¶157 No. IT-01-42-A, Appellate Judgment, ¶ 277 (July 17, 2008); Appellate Judgment, ¶ 89 (Dec. 17, 2004). (Sept. 1, 2004). Prosecutor v. Strugar, Case No. IT-01-42-T, Trial Judgment, ¶¶ 38 Id. at ¶¶ 90-91. 33 See, e.g., Prosecutor v. Dordevic, Case No. IT-05-87/1-PT, 302-07 (Jan. 31, 2005). 39 Id. at ¶ 90. Continued on page 15 ART & CULTURAL HERITAGE LAW COMMITTEE page 14 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

1991 and March 1994.40 The charges in- “all acts of hostility, use in support of the cluded the targeting of mosques in each military effort, or being the object of re- town.41 prisals” if the destruction is carried out The two-staged analysis of the ITCY in a manner consistent with other mili- demonstrates just how deficient the tary targets.50 ICC’s approach to prosecuting attacks As opposing cultures vie against cultural property is likely to be. IV. Conclusion The ICC definition of military necessity Unfortunately, many of the conflicts tak- for territory, the historic equates cultural property with civilian ing place presently are ethnic wars. As objects, so an ICC judge would never get opposing cultures vie for territory, the and religious buildings, to the second-stage of the ICTY analysis. historic and religious buildings, monu- monuments and other The lex specialis status granted to cultur- ments and other cultural sites are looked al property is lost in an ICC prosecu- to as proof of one’s claim to the territory. cultural sites, are looked tion.42 The analysis of a recent appeal Under such circumstances, cultural serves as an illustration.43 In Brdjanin, property may be increasingly viewed as a to as proof of one’s the Appellate Tribunal applied only the military objective rendering the ICC claim to the territory. military objective standard as defined in practically worthless as a venue to pros- Protocol I since the buildings did not ecute these crimes. The ICC’s approach meet the limits laid out in KordiÐ & towards cultural property breaks with Cerkez.44 The prosecution had the bur- traditional international law and there- den of proving “that the destruction in fore greatly weakens the ICC’s position question was not justified by military as an authoritative voice in this field. necessity.”45 The trier of fact considered Even the saving grace of customary in- all direct and circumstantial evidence ternational law is put into doubt by the and assessed the factual context within ICC’s approach. The ICTY has held that which the destruction occurred.46 The the protections for cultural property ad- Brdjanin Appellate Tribunal looked to vanced through Article 53 of Protocol I the methods employed to destroy insti- and the Hague Convention of 1954 have tutions dedicated to religion and the achieved customary international law time and effort expended to carry out status.51 Customary international law sta- that destruction in concluding that the tus means that the legal principles em- buildings contained no military threat.47 bodied in these texts are accepted as the Brdjanin shows that an ICC prosecu- law regardless of the venue.52 The fact tion, applying only the “military objec- that the ICC (the venue with the greatest tive” standard would require the defen- possibility for trying these crimes at the dant to show only quick and proportion- international level) applies a less strict al action to justify destruction of both ci- military necessity standard creates a risk vilian objects and cultural property.48 of its customary international law status The analysis ends once the methods and being challenged.53 Therefore, consisten- time and effort expended to destroy the cy in setting forth the military necessity object are established.49 Without the exception is so important. u more specific protections, which the Article 53 analysis provides, items of cul- The author is a J.D. Candidate 2011, tural property are not protected from University of New Hampshire School of 40 KordiÐ & Cerkez, Trial Judgment, at ¶¶ 1, 5(e) Law (formerly Franklin Pierce Law 41 Id. at ¶¶ 804-807. Center); LL.M. International Law with 42 See KordiÐ & Cerkez, Trial Judgment, at ¶ 361 International Relations, 2007, Brussels (holding that cultural property has a special status under School of International Studies. international law). 43 Prosecutor v. Brdjanin, Case No. IT-99-36-A, Appellate Judgment, ¶ 337 (Apr. 3, 2007) 50 Compare id. with KordiÐ & Cerkez, Appellate Judgment 44 Id. at ¶ 90 (granting the higher military necessity standard of 45 Id. Article 53 of Protocol I to cultural property). 46 Id. 51 Hadzihasanovic & Kubura, at ¶¶ 46-48. 47 Id. at ¶ 341. 52 Ian Brownlie, Principles of Public International Law 5 48 See Brdjanin. (Oxford Univ. Press 5th ed. 2002). 49 Id. at ¶ 337. 53 Id.

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Andy Warhol’s Antitrust Woes: Implications of a New Complaint Against the Andy Warhol Foundation on Authentication Boards and the Marketplace AMANDA NIEDERAUER

n January 15, 2010, a complaint the 1960’s.”5 The apparent basis for this ing (again, in the same series as the alleging antitrust violations was claim stems from Shaer’s experience Mearns Painting). After learning of filed in the District Court in the having a painting owned by her (referred these rejections, Shaer decided not to OSouthern District of New York to herein as the “Mearns Painting”) re- submit the Mearns Painting “for fear against a number of defendants associat- viewed by the Board. The Mearns that rejection by the Authentication ed with the Andy Warhol Foundation, Painting comes from the same series of Board was a foregone conclusion.”11 The including the Andy Warhol Foundation work as the painting owned by Simon- Simon-Whelan piece has since been apt- for the Visual Arts, Inc. (the Whelan, the subject of the May 2009 ly referred to as “Double Denied”.12 Shaer “Foundation”), The Estate of Andy case against the Defendants. The Warhol believes that the request for review was Warhol (the “Estate”), Vince Fremont, painting owned by Simon-Whelan has simply part of a greater effort to deny the Vince Fremont Enterprises (“Fremont become a recognized image in the press, authenticity of this series of paintings, Enterprises”), The Andy Warhol a young self-portrait of Warhol in bold thereby eliminating them from the mar- Authentication Board, Inc. (the reds and blacks with light blue details. ketplace.13 The Shaer Complaint goes as “Board”), and other collective defen- According to the Simon-Whelan case, an far as to accuse “The Warhol dants (collectively together with the identical image was greatly valued by Conspirators” of enforcing “a particular Foundation, the Estate, Fremont Warhol himself; the artist selected the vision of Warhol’s legacy without regard Enterprises and the Board, the image for the cover of his 1970 catalogue for the truth.”14 At the end of October “Defendants”).1 The complaint (herein- raisonné.6 2010 Joe Simon-Whelan announced that after the “Shaer Complaint”), filed by According to Shaer, she submitted the he and his lawyer would be withdrawing Susan Shaer, accuses the Defendants of a Mearns Painting in 1990 to the Estate, at from the case at the next hearing, and he “20-year scheme of fraud, collusion and which time the Estate gave the painting a confirmed that the parallel Shaer manipulation [in an effort] to control the “C” rating, indicating that the Estate was Complaint would also be dropped. market in works of art by the late Andy not able to form an opinion on the paint- Simon-Whelan and Shaer, both repre- Warhol.”2 Following a comparable com- ing’s authenticity.7 This rating was of- sented by Seth Redniss, still believe very plaint filed in May 2009 by Joe Simon- fered before the Board had been assem- strongly in their cases, it seems that the Whelan regarding the authenticity of his bled. In 2004, nine years after the Board financial burden of going up against the Warhol painting,3 the Shaer Complaint had been established, and fourteen years Warhol Foundation and related reopens discussions and debate sur- after the initial opinion from the Estate, Defendants is just too much.15 On rounding the supposed monopolies that the Defendants sent a letter to Shaer in- November 15, 2010 the Simon-Whelan authentication committees can hold in viting her to re-submit Mearns Painting case was officially dismissed after a set- the art market. for review.8 The letter to Shaer gave no tlement was reached between the par- The Shaer Complaint makes a number indication that works of the same series ties. The Warhol Foundation spent near- of claims and accusations against what had been previously rejected by the ly $7 million on the Defendants’ defense, Shaer labels collectively as “The Warhol Board.9 According to the Shaer and Joe Simon-Whelan received no Conspirators.” One claim accuses the Complaint, the letter “stated ambigu- money in the settlement.16 Defendants of acting in direct conflict ously that ‘additional information has The accusations outlined in the Shaer with their own mission.4 To this end, the come to the attention of the Board since Complaint raise serious questions about complaint states that “the very institu- the date of the Estate’s opinion letter.’”10 the role of authentication boards in the tions and individuals -- the self-de- The Board had already twice denied the 11 Complaint at 27, Shaer, No. 10 Civ. 0373 (S.D.N.Y. filed Jan. scribed Warhol ‘experts’ -- entrusted authenticity of the Simon-Whelan paint- 15, 2010). with protecting Warhol’s legacy are de- 12 Id. at 28. liberately destroying seminal work from 5 Id. 13 Id. at 2. 6 Jason Edward Kaufman, Warhol Foundation Lawyers Quash 14 Id. at 10. 1 Shaer v. Andy Warhol Found. for the Visual Arts, Inc., et al, Antitrust Lawsuit, ArtInfo.com (Oct. 24, 2010) http://blogs. 15 Jason Edward Kaufman, Warhol Foundation Lawyers No. 10 Civ. 0373 (S.D.N.Y. filed Jan. 15, 2010). artinfo.com/inview/2010/10/24/warhol-foundation-lawyers- Quash Antitrust Lawsuit, ArtInfo.com (Oct. 24, 2010) http:// 2 Complaint at 2, Shaer No. 10 Civ. 0373 (S.D.N.Y. filed Jan. quash-antitrust-lawsuit/ blogs.artinfo.com/inview/2010/10/24/warhol-foundation- 15, 2010). 7 Complaint at 26, Shaer, No. 10 Civ. 0373 (S.D.N.Y. filed Jan. lawyers-quash-antitrust-lawsuit/ 3 Simon-Whelan v. Andy Warhol Found. for the Visual Arts, 15, 2010). 16 Linda Sandler, Warhol Foundation’s $7 Million Defense Inc., et al, 10 Civ. 6423 (S.D.N.Y. filed July 13, 2007). 8 Id. Beats Lawsuit, Businessweek.com (Nov. 16, 2010) http://www. 4 Complaint at 2, Shaer, No. 10 Civ. 0373 (S.D.N.Y. filed Jan. 9 Id. businessweek.com/news/2010-11-16/warhol-foundation-s-7- 15, 2010). 10 Id. million-defense-beats-lawsuit.html. Continued on page 17 ART & CULTURAL HERITAGE LAW COMMITTEE page 16 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

“his entire estate…should be used to create a foundation dedicated to the ‘advancement of the visual arts.’” hung Poon C ai- L

marketplace. Certainly, the accusation and simultaneously raise a number of that denials made by the an authentica- larger issues, including the role of courts tion board are part of a scheme to wrong- in authenticity decisions. Many of the is- ly reflect the history of Warhol’s work sues in the Shaer Complaint deal with ac- seems difficult to prove given that the cusations of collusion and fraud, which authority of the Board is often granted by certainly fall within the authority of the the artist. Upon his death, Warhol’s will courts. However in other cases, such as a stipulated “his entire estate…should be recent case against the Alexander & used to create a foundation dedicated to Louis Calder Foundation, courts have the ‘advancement of the visual arts.’”17 been asked directly to declare a work The Foundation, Estate, Board and those authentic, which seems to absolutely entrusted with the protection and man- fall outside of their jurisdiction. 18 In agement of these entities are purported- Thome v. Alexander & Louisa Calder ly responsible for upholding the legacy of Foundation, the plaintiff sought a decla- Andy Warhol in the best ways they see ration of authenticity by the Appellate fit, much in the same way an executor of a Division of the Supreme Court of the personal estate is entrusted to act on be- state of New York, but the court held that half of the deceased. Given this entrust- such a judgment was not within its juris- ment, these entities should generally be diction.19 The court explained: a declara- respected as the authorities for Warhol, tion of authenticity would not resolve his legacy, and his estate, as should most [the] plaintiff’s situation, because his in- authentication boards with respect to ability to sell the [Calder sets] is a func- the artists they represent. tion of the marketplace. If buyers will not However, actions of these entities in- buy works without the Foundation’s list- dicate an apparent monopoly over the ing them it its catalogue raisonné, then market of the respective artist’s work, the problem lies in the art world’s volun- 17 See The Andy Warhol Foundation for the Visual Arts, at 18 Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88 http://www.warholfoundation.org/foundation/index.html (N.Y. App. Div. 2009). (last visited Nov. 29, 2010). 19 Id. Continued on page 18 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 17 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

lished artist authorities. At the end of the day, someone needs to hold the responsi- bility for serving as the authority on is- sues of authenticity and for monitoring the property in the market. For artists without authentication boards, these tasks can be an unwieldy. Auction hous- es and dealers can, of course, make their own judgments in circumstances where no authentication board exists, evaluat- ing provenance and markings on works of art that help to support its authentici- ty. However, it can at times be a challenge to ensure that inauthentic works are not sold under improper provenance, and the existence of authentication boards and catalogues raisonné are invaluable to the marketplace. Living artists, such as Jeff Koons, recognize the importance of tracking inventory in order to avoid this very problem.24 Many artists have extensive staff support to designate and 25 Håkon Gåre Håkon record inventory as it is created. While complaints like those made by tary surrender of that ultimate authority sum of money. Warhol’s paintings com- Shaer, Thome, and Simon-Whelan bring to a single entity.20 mand high prices at auction, with the authentication boards and foundations While this state appellate court may world record for a Warhol painting at into scrutiny, such entities seem to bene- not think it wise to allow an authentica- $71.7 million.22 fit the relevant market. In many cases, tion board such a monopoly, the fact is The question leads to another discus- authentication boards are comprised of a that this is a system demanded by the sion that is brought to the forefront with group of experts in the relevant field. buyers and the market. If an inauthentic the Shaer Complaint, which is the use- Rather than leaving a decision of authen- work came for sale to the market, no rep- fulness and necessity of these authenti- ticity up to a single person, the board utable dealer or auction house would cation boards and foundations to the structure offers a forum for multiple agree to sell it. The Shaer Complaint market. The quality of the overall mar- opinions on authenticity. Within the states, “[S]ince the painting will never be ketplace relies on authentication boards contemporary art marketplace today, authenticated by the Board, so long as in order to ensure that the market is not authentication boards should be viewed [the] Defendants are in charge, its mar- inundated with fakes and replicas. The as an asset. Responsibility for these ket value is effectively zero.”21 Assuming introduction of inauthentic property to works must fall to someone, and authen- this is true, what are implications on the the market leads to a reduction in value tication boards, like that for Warhol, help market? Considering the positions of for the artists’ work and decreased confi- protect an artist’s legacy by monitoring both the purchasers of artwork and the dence in the marketplace by buyers. the property that exists on the market. owners and sellers of the artwork, the Leslie Prouty, Senior Vice President of In the decades ahead, living artists will implications are really twofold. On the Contemporary Art at Sotheby’s New no doubt create new methods to verify one hand, the existence of authentica- York is thankful that authentication the authenticity of their work as it is pro- tion boards offers certainty and confi- boards, like the Warhol Board, exist. duced, rather than leaving the task to dence to buyers. If a painting receives the Prouty has stated, “[A] designated au- their descendants or scholars years later. stamp of approval, so to speak, from an thority, such as an artist authentication This will greatly benefit the market and authentication board, a buyer can be board or committee, brings confidence allow buyers greater certainty in the confident in its authenticity. On the oth- to the market.”23 It would not be in the in- works they purchase. u er hand, if an authentication board labels terest of auction houses, dealers or their a painting inauthentic in error, the own- clients, to bring works to the market that The views expressed above are solely er of that work can lose out on a great have been deemed inauthentic by estab- those of the author and may not reflect the 20 Id. at 103. 22 Id. at 3. views of the author’s employer, Sotheby’s. 21 Complaint at 28, Shaer, No. 10 Civ. 0373 (S.D.N.Y. filed Jan. 23 Interview with Leslie Prouty, Senior Specialist, Sotheby’s 24 Id. 15, 2010). Contemporary Art, in New York, New York (June 16, 2010). 25 Id.

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source countries such as China, Afghanistan, Pakistan, and Egypt. 3 In the process of creating a cultural hub in the heart of the Middle East, Abu Dhabi has integrated education and global art history on an unprecedented scale. It has deliberately chosen to use art as an educational tool in bringing the inhabitants of the UAE, a deeply reli- gious and traditional people, into inti- mate contact with other ways of think- ing and life around the world. This open- ness to outside influence, with a concur- rent emphasis on the value of the UAE’s traditional culture, is a consistent theme in the recent history of the region.4 The combined focus on culture, education and diversity in the UAE stems directly from the vision of Sheik Zayed bin Sultan al-Nahayan, a central figure in the founding of the modern UAE.5 The Saadiyat Island development is intended to form an educational-cultur- oscatelli

M al nexus for the entire Middle East. It in- cludes a spectacular museum in honor of ianca

B Sheik Zayed, focusing on natural history, archaeology, and UAE heritage studies, as well as a campus of New York Art, Law and Cultural Heritage in University.6 Talks are also taking place with Yale University to create a school, Abu Dhabi which would teach art, architecture, KATE FITZ GIBBON dance and drama.7 These educational cum development projects are seen as “H e who has no past, has neither Abu Dhabi’s re-creation of itself as an in- serving not only the inhabitants of the present nor future.” ternational educational and tourist des- UAE and other Gulf states, but the global Sheik Zayed Bin Sultan Al Nahayan.1 tination. community of the Islamic ‘umma.8 The museums include a Louvre- 3 Staff at the Abu Dhabi Tourism Development & Investment bu Dhabi, the largest and richest franchise global fine art museum and a Company (TDIC) stressed the organization’s commitment to of the seven federated states in Guggenheim satellite for modern art. An respect for international instruments on cultural heritage; the United Arab Emirates (UAE), agreement between the Louvre and the they also noted that Agence France Museums has both ac- is engaged in the most rapid, lav- government of Abu Dhabi to loan re- quisition authority and responsibility for legal compliance. A Interview with TDIC staff in Abu Dhabi (Apr. 8, 2010). ish, and conscientiously law-abiding ex- nowned artworks from French national 4 Sheikh Zayed Bin Sultan al Nahayan‘s personal philosophy ercise in museum-building in the history collections has raised allegations of con- of leadership through consensus, tolerance for diversity, of the world. Along with a national mu- flict of interest in France. The Louvre deep religious faith, emphasis on global understanding and promotion of modern education for all continues to seum, maritime museum, biennale park Abu Dhabi, as the new museum will be resonate throughout UAE society on every level. and numerous entertainment and sports called, has also begun to acquire impor- 5 Frauke Heard-Bey, From Trucial States to United Arab venues, two major international muse- tant ancient and modern artworks on the Emirates xxix-xxx (3rd ed. 2009). See also Sheikh Zayed bin ums are under construction in a $27 bil- open market though its museum part- Sultan Al Nahyan, Founder of the UAE, UAE Embassy, Wash- 2 ington, DC, http://www.uae-embassy.org/uae/history/sheikh. lion, 670-acre “cultural district” on ners and agents. While Abu Dhabi has 6 Erin Conroy & Jen Thomas, First look at the Zayed National Saadiyat Island, the “island of happi- given scrupulous attention to legal is- Museum (Nov. 25, 2010), http://www.thenational.ae/news/ ness.” All of these projects are part of sues regarding antiquities, some of these uae-news/first-look-at-the-zayed-national-museum, and materials originally came from sensitive About NYU Abu Dhabi, http://nyuad.nyu.edu/about/. 1 This famous statement by the late Sheikh Zayed, founder 7 Rachel Boyd, Arts institute plans intensify, Yale Daily News, of the United Arab Emirates, appears repeatedly throughout 2 Didier Rykner, First Acquisition Committee for the Sept. 13, 2007, available at http://www.yaledailynews.com/ the emirate of Abu Dhabi, printed on billboards and etched Louvre-Abou Dhabi, Art Tribune (May 25, 2009), http://www. articles/view/21282. into stone on museum walls. thearttribune.com/spip.php?article535. 8 The Islamic ‘umma is the global community of the faithful; a Continued on page 20 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 19 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

Questions remain about how the ul- involved a $520 million payment for 30- tra-modern content and diversity of edu- year use of the Louvre trademark and cational and museum activities will re- $247 million for loans of 200-300 art- main in harmony with UAE domestic works over 10 years.11 In addition, the social policy and its outreach to the rest Louvre will provide Abu Dhabi with four of the Muslim world. While the UAE has temporary exhibitions a year for 15 years Abu Dhabi’s planned recently enacted numerous laws that for $253.5 million, and curatorial and draw on civil law codes, under the UAE managerial work by a new agency, combination of museums, Constitution and for reasons of national Agence France-Museums, for $214.5 religious sentiment, UAE law must be million over 20 years. Abu Dhabi will re- university campuses and consistent with Shari’ah, Islamic law. furbish a wing of the Paris Louvre to be entertainment venues The UAE’s firm commitment to Shari’ah named in honor of Sheik Zayed bin as well as to compliance with perceived Sultan al-Nahayan, the founder of the in a single complex norms of international law and Abu UAE, restore the Théâtre du Château de Dhabi’s forward-thinking economic, so- Fontainebleau, to be named after the is unprecedented. cial, and educational policies raise fasci- current UAE president, Sheik Khalifa nating questions of where, when and bin Zayed al-Nahayan, and finance a new how potentially competing principles of art research center in France.12 law will be resolved. International discussion has focused on how Abu Dhabi’s wealth will affect The Saadiyat Island Global Museums competition for artworks, the potential Abu Dhabi’s planned combination of mu- thinning of France’s cultural assets and seums, university campuses and enter- the risk to artworks in overseas trans- tainment venues in a single complex is port and display.13 In France, critics have unprecedented. Abu Dhabi has contract- raised questions of conflict of interest ed, for an unknown amount, for a between the Louvre Abu Dhabi acquisi- Solomon R. Guggenheim Museum fran- tions committee at Agence France- chise that includes the Guggenheim Museums and French museums in com- name, art “products” for exhibition, and peting for artworks in the open market.14 curatorial and administrative services.9 Among the nineteen artworks acquired The Guggenheim was the first extensive through Agence France-Museums for international museum-franchise opera- the Louvre Abu Dhabi in 2009 were an tion, with branches in Venice, Bilbao, important Mondrian, a Bellini Madonna Berlin, and Las Vegas. Former director and Child, a Murillo, an Ingres, three Thomas Krens described the Abu Dhabi Manets, a Gothic sculpture of Christ, Guggenheim as “truly global, represent- Limoges enameled works, a Legrain ing art from the Middle East, Russia, stool from the 1920s, a Greek black-fig- Eastern Europe, Asia, Africa, as well as ure amphora, a schist sculpture of a Europe and America. It will change the Bodhisattva, a marble head of the Buddha model of the art museum.” 10 from China, a section of a Mameluke Holy The Abu Dhabi Louvre expansion is a Quran, and a fibula from the Damagnano component, albeit a very large one, in treasure that was long sought by the France’s 20-year Le Grande Louvre Louvre itself. 15 Project, which coincided with major cul- 11 Alan Riding, The Louvre’s Art: Priceless. The Louvre’s tural institution-building in France: a Name: Expensive, N.Y. TIMES, Mar. 7, 2007, available at http:// branch museum in Lens, France, the op- www.nytimes.com/2007/03/07/arts/design/07louv.html. era Bastille, Cite de la Musique and the 12 Ambassade de France, Abou Dabi, Visite de Cheikh new Bibliotheque Nationale de France. Sultan Bin Tahnoon en France (Apr. 28 2007), http://www. ambafrance-eau.org/france_eau/spip.php?article828. The $1.3 billion dollar Louvre-Abu 13 H. Astier, Gulf Louvre deal riles French art world, BBC NEWS Dhabi agreement entered into in 2007 (Mar. 6, 2007), http://news.bbc.co.uk/2/hi/europe/6421205. stm. community that transcends tribal, racial, and national boundaries. 14 Didier Rykner, First acquisitions by the Louvre-Abu Dhabi, 9 Stella Wai, A Branding Context: The Guggenheim & The Lou- Art Tribune (Apr. 3, 2009), http://www.thearttribune.com/ vre, Master’s Thesis, Ohio State Univ. ii-iii (2008), available at spip.php?article544. http://drc.ohiolink.edu/handle/2374.OX/107242. 15 Didier Rykner, Long sought by the Louvre, now acquired 10 Id. at 44. by the Louvre Abou Dhabi, Art Tribune (June 15, 2009), Continued on page 21 ART & CULTURAL HERITAGE LAW COMMITTEE page 20 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

French Culture Minister Renaud Donnedieu de Vabres stated, “We’re not selling the French legacy and heritage. We want this culture to radiate to parts of the world that value it. We’re proud that Abu Dhabi wants to bring the Louvre here. We’re not here to transform culture into a consumer product.”16 It is also important to note that there are eco- nomic and diplomatic interests at play beyond the commoditization of national art treasures: in May 2009, French President Nicolas Sarkozy inaugurated a military base in Abu Dhabi one day and placed the foundation stone for the Louvre Abu Dhabi the next.17 Whatever critics may say about Abu Dhabi buying its way into the tradition- ally Western culture club, the emirate is at the forefront of global changes in mu- seum goals and management. Abu Dhabi’s plan to draw tourists with art of- ferings is fully in line with current inter- ills national branding of museum names and M focus on fulfilling the audience’s expec- tation of a museum experience. By pack- aging the artworks in startling architec- randon Jacob tural creations by Frank Gehry, Jean B Nouvel, Tadao Ando and Zaha Hadid, Abu Dhabi is delivering the Louvre, raiding and trade, herding and the over- modernized state built with the oil- Guggenheim, and its own national land caravan trade.19 wealth discovered in the 1960s. In terms brands with a flourish. The Gulf region has been a transit of human rights and social policy, the point for traders to the Far East, first by UAE is one of the most liberal Arab UAE History Muslim traders, then for the Portuguese states, but power and authority continue For centuries, the region of the present- in the 1500s and the British beginning in to run along princely family lines. The day Emirates has consisted of many the 1600s. Reorganization by the Arab ruling families of the Emirates hold ex- small sheikhdoms whose ruling families tribes in the 1800s led to increasing con- ecutive authority as members of a controlled, sometimes with the help of flicts with the British and to a series of Supreme Council. The ruler of Abu Bedouin fighters, the settled communi- treaties beginning in 1820 with the then- Dhabi has consistently served as ties along the coast and in major oases.18 constituted Trucial States. An 1892 trea- President of the UAE and that of Dubai, Up until the mid-twentieth century, the ty gave Britain control of the region’s ex- Vice-President and Prime Minister. economy had been based on pearl fish- ternal affairs. Britain’s decision to with- Laws are drafted by a Council of ing, date palm agriculture, maritime draw from the region came suddenly in Ministers, passed to a partly-elected, http://www.thearttribune.com/Long-sought-by-the-Louvre- 1971, but was met by a determination by partly-appointed National Assembly, now.html?var_recherche=abu%20dhabi. the emirates of Dubai and Abu Dhabi to and then to the Supreme Council, but the 16 Molly Moore, Plans for ‘Desert Louvre’ Provoke Outrage build a federation of Arab states in the re- President and the Supreme Council have in France, WASH. POST, Mar. 11, 2007, available at http://www. gion. Five others joined them; Sharjah, the authority to issue federal laws with- washingtonpost.com/wp-dyn/content/article/2007/03/10/ 21 AR2007031001261.html. Ajman, Fujairah, Umm Al-Qwain and out Assembly approval. 17 Agence France-Presse, Sarkozy In Abu Dhabi To Open Ras Al-Khaimah. The UAE joined the Sheik Zayed bin Sultan al-Nahayan, Gulf Base For France, Defense News (May 25, 2009), http:// United Nations in 1972.20 the first President of the UAE, was a re- www.defensenews.com/story.php?i=4106900&c=MID&s=TOP, Independence came at a time of very markable figure in the Arab world; his and T. Ramavarman, French President to Open Naval Base rapid development that transformed the social philosophy of pluralism, cultural Tomorrow, Khaleej Times, May 25, 2009, available at http:// www.khaleejtimes.com/DisplayArticle08.asp?xfile=/data/ UAE from a subsistence economy to a diversity, gender equality, and tolerance theuae/2009/May/theuae_May613.xml§ion=theuae. 19 Id. at 170-191, remains at the forefront of Abu Dhabi’s 18 Heard-Bey, supra note 5, at 165-196, 239. 20 Id. at 238-245, 362-363, 367-368. 21 Id. at 375-383. Continued on page 22 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 21 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

plans for development. Sheik Zayed saw a modern society upon the solid ground the family as the essential support for of tradition. From the outside, there ap- education and preservation of culture, pear to be two separate legal structures. but believed that it should be enriched One is civil code-based, drawn from out- and expanded by state-supported access side sources and applying to commerce, to education for all Emirati citizens. trade, contracts, and other aspects of The Emirate’s legal Emiratis view advanced Western- public life. The other is based on Shari’ah style education as an absolute political Islamic law and customary tribal law structure reflects the necessity for retaining control of their (‘urf) and is applied in separate Shari’ah nation and culture. The rulers strive to courts to cases involving marriage, di- nation’s abiding concern embrace all the aspects of globalism and vorce, inheritance and other family mat- for building a modern modern society that can coexist with es- ters. This appearance of division into sential Emirati moral values and social civil and Shari’ah systems is deceptive, society upon the solid norms. Speaking at a recent exhibition in however, as Shari’ah is inseparable from Abu Dhabi of Islamic art, HE Zaki Anwar all aspects of human life and society, ground of tradition. Nusseibeh, Vice Chairman of the Abu comprising “an infallible doctrine of du- Dhabi Authority for Culture and ties the whole of the religious, political, Heritage (ADACH), pointed to the mu- social, domestic and private life of all seum projects as part of the Abu Dhabi those who profess Islam.”24 Shari’ah is Government’s “overall strategy to rein- learned by all citizens from infancy and force Abu Dhabi’s engagement with its is often expressed through “adab” (so- own heritage and history and to under- cial rules of propriety and customary line its commitment to the authentic law). The lessons of Shari’ah often can- voice of its inner national identity.”22 not be applied directly to complex con- Currently, Emiratis are a minority in temporary legal disputes; these gaps are their own country, comprising less than filled by the modern civil codes. 20% of the total population.23 In these cir- However, in contrast to certain other cumstances, official encouragement to Muslim countries where Shari’ah is the explore the world outside coexists with official foundation for law but is given concern for maintaining Emirati tradi- very limited practical application, it is tions and family cohesion. Younger inconceivable that laws contrary to Emiratis often take good jobs and the gov- Shari’ah would be acceptable in any ernment-supported social safety net for realm of UAE law. 25 granted, but their commitment to coun- Legal development in the UAE has try and tradition is clear. As one female been necessarily rapid. Through the ear- law student told me, “I want you to see my ly 20th century, there were multiple juris- face. Remember me. I am going to be dictions and judicial practice was based someone important in my country.” upon a tribal system of rules and norms Emiratis are well aware of how difficult it that worked together with Islamic can be to maintain cultural identity. Shari’ah.26 Family and tribal disputes When a young docent at an art exhibition were brought to elders or sheiks; special explained to women visitors how wom- pearl courts made up of panels of the en’s crafts preserved clan identity and larger merchants handled fishery and Muslim traditions in Soviet Central Asia, trade issues.27 Rulers were the chief the women were so moved that they cried. 24 Encyclopaedia of Islam (1934), 320, 321. 25 Butti Sultan Butti Ali Al-Muhairi, The Development of the Legal Development in the Emirates UAE Legal System and Unification with the Judicial System, The Emirate’s legal structure reflects 11 Arab L. Q. 116, 123-126 (No. 2, 1996). 26 Id. the nation’s abiding concern for building 27 In the last century, the judge of the pearl court was one 22 The exhibition was of the recently established private man, a respected individual from the pearling community, collection of Nasser D. Khalili. TDIC, Arts community urged to appointed by the Ruler. The pearl court heard disputes aris- support Abu Dhabi’s cultural ambition (Jan. 24, 2008), http:// ing between divers, boat-owners, merchants and investors. www.ameinfo.com/145004.html#story. Although decisions were generally based upon customary 23 UAEinteract.com, Expat growth widens UAE demographic law and tradition, the pearl courts and other ad hoc judicial gap UAE (Sept. 25, 2008), http://www.uaeinteract.com/docs/ bodies were imbued with the spirit of Islam and shari’ah in Expat_growth_widens_UAE_demographic_gap__/32128.htm. the wider sense. Id. at 124-125. Heard-Bey supra note 5, at Continued on page 23 ART & CULTURAL HERITAGE LAW COMMITTEE page 22 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I source of law and authority; in the larger Shari’ah constitutes a main source of impinging on it.”31 towns they might bring in “qudah”, who legislation under Article 7 of the 1971 The result was a foretaste of conflicts were sometimes foreign professional UAE Constitution. Article 75 of the law that would continue to arise in harmo- judges trained in Shari’ah outside the re- establishing the Supreme Court (Law nizing Shari’ah and adopted law. The gion, sometimes respected local persons 10/1973) states, “The Supreme Court draft penal code delivered by the High knowledgeable in “fiqh”, the jurispru- shall apply Shari’ah, Union Laws, and Committee in 1978 was rejected; the dence of Shari’ah. The various judges other laws in force conforming to the largely civil law-based code met neither and courts opined on disputes, but usu- Islamic Shari’ah. Likewise it shall apply the goals of Islamization nor of unifying ally did not have the power to enforce those rules of Custom and those princi- UAE law. A Federal Penal Code was ad- their rulings. Criminal law penalties ples of natural and comparative law opted only in 1987, after a decade of sub- varied from immediate application of which do not conflict with the principles stantial modification brought the system Shari’ah-based penalties to negotiation of Shari’ah.” Similarly – but not identi- closer to the jurisprudence of Shari’ah.32 and blood-money payments; statutes cally – worded legislation applies to oth- Decisions regarding display and ac- and codes were unknown.28 er courts (Article 8 of Law 6/1978), effec- cess to art in museums, the subject matter By the 1940s and 1950s, when oil ex- tively making Shari’ah the principal and methodology of Western-leaning ed- ploration began, the population of the source of law. One consequence has been ucation, the distinctions between nation- emirates included British and European that although the UAE has subsequently al and international projects involving professional and technical workers and enacted numerous codes based largely the wider Muslim world, the nature of large numbers of immigrant Arab, upon civil law models, there remains state versus private ownership, the status Indian, Persian and other Muslim busi- considerable ambiguity regarding the of ‘found’ objects, and the propriety of nesspeople and laborers. The British validity of current or future laws which joining in certain international agree- Crown exercised complete extraterri- conflict in any way with Shari’ah.30 ments - all issues are potentially subject to torial jurisdiction over non-Muslim The primacy of Shari’ah is a serious Shari’ah-based regulation. To raise just foreigners beginning in 1946, utilizing matter in the UAE. For example, in 1978, one of these potential areas of discussion, the Indian Code. The indigenous courts the UAE rulers tasked a High Committee the application of Shari’ah to making art, primarily used the “Majella”, a 19th cen- of non-Emirati, Egypt and Iraq-trained art collecting and display is far more nu- tury Ottoman codification of Shari’ah, legal scholars to create criminal, civil, anced and complex than as is generally for textual law.29 Problems developed and commercial statutes based upon understood by Westerners, who have of- because the archaic forms of the Shari’ah, by identifying and correcting ten heard only that figural representation Majella were unsuited to modern con- areas where UAE law conflicted. There is prohibited by Islamic law. flicts. The civil codes adopted by many were multiple goals in “islamizing” UAE As Joseph Alsop noted in “The Rare Arab nations at the time were essential- law: it was hoped that codification would Art Tradition”, three cultures have ly foreign and unacceptable to the local resolve the disparities between the pre- appreciated ancient objects for their his- communities. ferred systems of Islamic and tribal law toric and instructional value as well The sudden departure of the British in the different emirates and ameliorate as their intrinsic worth: the classical in 1961 from Kuwait and 1971 from the domestic public concern over crime as- Greek and Roman, leading into the west- UAE left a vacuum that increased the sociated with the influx of foreign work- ern European, the Chinese, and the pressure to create new legal structures. ers. A Shari’ah-based code would also Islamic.33 Although clearly preferring While Abu Dhabi and Dubai initially ad- meet the challenges of populist Islamic the art of the word and the abstract to the opted a penal code based upon the Indian movements by demonstrating the fideli- representational, Islamic leaders gener- Penal Code, other modernizing Arab ty of the UAE to Islam. While it was ac- ally preserved and maintained monu- states used Egyptian and French civil knowledged that a codified Shari’ah ments of cultural expression from wide- law-based systems. It was thought that would leave many gaps, some thought ly divergent philosophical and moral having a civil system in the UAE would that these could be filled by legislation in systems, from the Egyptian pyramids to facilitate pan-Arabic unity. At the same harmony with Shari’ah principles. Greek temples to Christian churches, in- time, a series of conventions in Beirut Others did not believe that Shari’ah cluding the books, images and artifacts and Baghdad had renewed discussion re- could be codified: Shari’ah was “a divine- within them. garding the study of Shari’ah in Arab ly ordained system in which human leg- The debate over the propriety of rep- schools of law as an official source of law islature has no right to intervene.” resentational imagery has been active and the appropriate grounding for en- Government could only “enact adminis- actment of substantive law. trative regulations ... without materially 31 Problems of Modern Islamic Legislation, Studia Islamica, 111, 158. 12 (1960), 99-129. 28 Heard-Bey, supra note 5, at 57-160. 30 Butti Sultan Butti Ali Al-Muhairi, The Position of Shari’a 32 Butti Sultan Butti Ali Al-Muhairi, The Islamisation of Laws 29 W. M. Ballantyne, The States of the GCC: Sources of Law, within the UAE Constitution and the Federal Supreme Court’s in the UAE: The Case of the Penal Code, 11 Arab L. Q. 350, 368 the Shari’a and the Extent to Which It Applies, 1 Arab L. Q. 3, Application of the Constitutional Clause concerning Shari’a, (No. 4, 1996). 5-6, 8 (Nov. 1985). 11 Arab L. Q. 219, 222-224 (No. 3, 1996). 33 Joseph Alsop, The Rare Art Traditions, 29 (1982). Continued on page 24 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 23 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I throughout the last century. A well- age and understanding of images re- tional laws. By delegating its acquisition known instance in the Holy Qur’an de- mains a matter of serious debate among functions, Abu Dhabi seems to have scribes God’s grant to the Prophet Islamic scholars. placed the burden of compliance on Solomon of the power to rule unseen There are also numerous hadith that France-Museums instead. creatures; Solomon demands that the caution against the vanity and social im- Developing UAE law seeks out practi- jinn (devils) make beautiful images for propriety of having many luxurious cal guidance from all major legal sys- his pleasure. As a prophet, and infallible, things in a poor society.37 The most liter- tems. Shari’ah is not the only law that Solomon was not capable of doing some- al arguments in each instance may also considers the content and meaning of thing forbidden. 34 be brought to a more abstract and higher images; a categorical statement by a Many scholars point to examples from philosophical level. Among the most French panelist at a recent conference in “hadith”, or traditions based upon the say- challenging of the hadith are those that Dubai that architects’ moral rights ings and actions of the Prophet address the human soul and spirit “that would preclude tourists from taking Muhammad recorded after his death, that warn against promoting human capacity photographs without permission of any distinguish between the Prophet for concretization while weakening hu- of the landmark buildings under con- Muhammad’s strict prohibition against man capabilities for abstraction.”38 struction in the UAE prompted a dozen making images to serve as idols (a key issue In the current context, there is so far questions from the floor.42 It is hoped in the early days of Islam, when the no indication that the presentation of art- that Abu Dhabi will look widely in the Prophet was striving to eradicate idol wor- works will be constrained within a par- law to seek practical solutions to future ship in the Arabian Peninsula) and the ticular vision – the fresh perspective cultural heritage issues. making of beautiful objects that served a brought to bear by Emiratis may in fact be purpose other than worship. Most com- a relief from the standard global museum Archaeology in the Emirates mentators now hold that the prohibition is narrative and will at least obviate criti- Archaeological work in the UAE has had tied to the intended use of the images. This cism of museum presentation as “neo-co- enthusiastic local support since it began position is supported by hadith regarding lonialist” or “exploitative.” It has been in 1959. A number of federated states al- images on textiles, which were acceptable noted that while there is strong represen- ready have museums with archaeologi- when made into cushions.35 tation of Christian religious figures in re- cal galleries; there are extensive, well- The question of intent was raised in cent Louvre Abu Dhabi acquisitions, they mounted exhibitions covering both an- the 19th century with respect to photog- include no nudes.39 Louvre Museum pres- cient history and recent archaeological raphy. While some sought (and others ident Henri Loyrette said in 2008 that the excavations in the Dubai and Sharjah still seek) to ban its use, Sheik type and nature of the exhibits had been museums and part of the new Sheik Muhammad ‘Abduh (1849-1905), a high- affected “to no extent so far” by the fact Zayed Museum in Abu Dhabi will fea- ly influential Egyptian jurist and Muslim the new museum would be in a Muslim ture archaeological exhibits. The emir- reformer, held that the Shari’ah is not op- country and that it would be a “universal ates have also produced books in Arabic posed to the fine arts and letters, saying museum.”40 TDIC deputy chairman and English that encourage respect for of photography, “In general I am inclined Mubarak Al-Muhairi stated, “In princi- ancient objects and archaeological heri- to think that Shari’ah does not forbid one ple, there are no restrictions, but both tage among children. 43 of the best ways of learning, especially if sides will agree on what is shown.” 41 In 2005, Abu Dhabi created a new it does not conflict with the Islamic be- The general supervision of all aspects body responsible for culture and heri- liefs and worship.”36 Today, Islamic tele- of the museum projects is under the Abu tage under ADACH, absorbing several vision channels and websites are widely Dhabi Tourism Development & former departments and the National distributed globally, making Islam one of Investment Company (TDIC). Beyond Library. ADACH has since introduced the most visible religions on television the delegation of certain acquisitions to new regulations for all cultural heritage, and the Internet. Al Jazeera, headquar- the Agence France Museums committee, archaeological and paleontological sites tered in nearby Qatar, is a widely re- there has been no official comment from 42 Comment by Jean Pierre Clavier, UAE College of Law 18th spected, preferred source of news and TDIC, but informal discussions with art- Annual Conference, Building and Construction Contracts Be- programming reaching 40-50 million staffers indicates that the primary con- tween Traditional Legal Rules and Developed Legal Systems, households. Nonetheless, the correct us- cern has been to act with extreme caution April 20-22, 2010 Dubai, UAE. and to abide with all national and interna- 43 UAEinteract.com, Sharjah Museums Department launches 34 Taha Jaber al-Alwani, Fatwa Concerning the United Sharjah Archaeology Museum, http://www.uaeinteract. States Supreme Courtroom Frieze, 15 J.L. & Religion 1, 6-7 37 al-Alwani, supra note 34, at 14-15. com/docs/Sharjah_Museums_Department_launches_Shar- (2000-2001). 38 Id. at 21-22 jah_Archaeology_Museum_website/40728.htm. Children 35 Id. at 16-20, See also Finbarr Barry Flood, Between Cult 39 Rykner, First acquisitions by the Louvre-Abu Dhabi, supra took part in a “crazy bone day” in April in Dubai, digging and Culture: Bamiyan, Islamic Iconoclasm, and the Museum, note 14. up replica dinosaur bones in an event produced by the ART BULLETIN, Vol. 84, No. 4, 644-645 (Dec. 2002) 40 Daniel Bardsley, Abu Dhabi’s Louvre to get Middle East Field Museum in Chicago. UAEinteract.com, World’s largest 36 Al-Alfi Abu Saleh, The Muslim Art, its origins, philosophy Art, THE NATIONAL (Aug. 18, 2008) http://www.thenational.ae/ Dinosaur comes to Dubai, http://www.uaeinteract.com/ and schools (in Arabic) 84 (1969), in Rabah Saoud, Introduc- news/uae-news/abu-dhabis-louvre-to-get-middle-east-art. docs/World%E2%80%99s_largest_Dinosaur_comes_to_ tion to Muslim Art (July 2004). 41 Riding, supra note 11. Dubai/29850.htm. Continued on page 25 ART & CULTURAL HERITAGE LAW COMMITTEE page 24 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

requiring cultural heritage and environ- Gulf Cooperation Council comprised of mental impact assessments.44 Bahrain, Kuwait, Qatar, Oman, Saudi Domestically, the first campaign to in- Arabia, and the UAE organizes coopera- form a broader public on the value of ar- tion in agriculture, industry, investment, chaeological heritage began in Abu Dhabi security, and trade.) in April 2010 with a lecture series and re- Cases involving illegal excavation or Despite uncertainties due lease of a documentary on the archaeo- importation of artifacts are rare. In 2010, logical history of the UAE region that was the Abu Dhabi police seized a collection to potential conflicts of distributed to all schools, universities, of coins from a Syrian national that had federal and local governmental depart- been taken from an offshore site twenty law and anticipatory ments, cultural institutions, associations, years before. Dr. Mark Beech, archaeolo- anxiety about the UAE embassies abroad, foreign embas- gist and Cultural Landscapes Manager sies and diplomatic missions in the UAE.45 for ADACH, has stated that 60-80 per- reaction of a conservative In August of 2010, the National cent of the antiquities he is asked to iden- Council for Tourism and Archaeology tify for Customs are fakes made in Iran.47 population to artistic (NCTA) approved a draft law protecting However, antiquities from many excess from the Baroque the UAE’s archaeological heritage. The countries appear to have been declared law, which has been several years in the and brought commercially into the UAE to Basquiat, the addition works, will regulate excavation, ensure for many years: there are close to 100 documentation and protect UAE antiq- large cases of global antiquities of vary- of a new, major cultural uities. The law will next be sent for re- ing quality from the Barakat Gallery that hub to the global view to the federal Cabinet. The Council line the walls of another Abu Dhabi ar- announced in June that the law would chitectural marvel, the $3 billion scene should be welcome boost the UAE’s efforts to join the World Emirates Palace Hotel.48 Tourism Organization and World news to all. Heritage Committee, an affiliate of Conclusion UNESCO. The UAE has not signed either Despite uncertainties due to potential the 1970 UNESCO Convention or 1995 conflicts of law and anticipatory anxiety UNIDROIT Conventions. 46 about the reaction of a conservative pop- ulation to artistic excess from the Antiquities Smuggling Baroque to Basquiat, the addition of a The customs departments of the feder- new, major cultural hub to the global ated states enforce local laws prohibiting scene should be welcome news to all. It is import of undeclared objects including good news for archaeologists that a na- antiquities. To date, the UAE lacks a fed- tion with the financial ability to move eral law governing the smuggling of an- the markets and to act in any way it tiquities. Under regulations adopted by chooses has taken such care to work the Gulf Cooperation Council in 2009, within the law and to focus its energies any cultural object passing through the on preserving its archaeological sites Emirates must have an export certifi- and teaching its people to value ancient cate, giving ownership and origin. (The culture. It is good news for internation- 44 Under Abu Dhabi Law no. 28 of 2005, ADACH is respon- alists that a powerful nation in the sible for preserving archaeological and historical sites Middle East has made the global muse- and inventorying movable cultural heritage; carrying out um experience a core component of its excavations; licensing scientific missions; managing and developing museums and preserving the cultural posses- educational mission for its own people, sions in museums and tracking violations and infringements for the Islamic ‘umma, and for all the to the Emirate’s cultural heritage, by cooperating with the peoples of the world. It is certainly inter- competent authorities. See Abu Dhabi Authority for Culture esting news to lawyers that a valuable and Heritage, http://www.adach.ae/en/portal/heritage/ introduction.aspx. but largely unfamiliar legal perspective 45 UAEinteract.com, Film unveils UAE’s rich archaeologi- may soon be brought to bear on matters cal history UAE, http://www.uaeinteract.com/search/show. of cultural heritage. u pl?url=http://www.uaeinteract.com/docs/Film_unveils_UAEs_ rich_archaeological_history/40588.htm&words=musallam. 47 Loveday Morris, For Sale: Iraq’s Smuggled Heritage, THE 46 UAEinteract.com, NCTA passes Federal Archaeological NATIONAL (Feb. 16, 2010), http://www.thenational.ae/news/uae- Resources Protection Act (Aug. 29, 2010), http://www.uaein- news/for-sale-iraqs-smuggled-heritage. teract.com/french/news/default.asp?ID=222. 48 Viewed by the author in Abu Dhabi (April 2010).

AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 25 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

recent studies show a significant rise in the blocking of social media by corporate employers. A survey by Robert Half Technology, for example, published on October 6, 2009, reported that 75% of surveyed companies were blocking employees’ use of social networking sites (up 20% from February, 2009), and that 54% of corporate America prohibits employees from visiting social media sites while at work.3 Social media sites, according to another survey, were a more popular category to block than sites involving shopping, weapons, sports or alcohol.4 The reasons arts organizations, many of which are nonprofit organizations, use social media include deepening connections with existing patrons, marketing, building community, fundraising, advocacy, education/ sharing industry information, audience research, collaboration, hiring, crisis akeman management, and the integration of W social media with artistic expression.

Jesse Use of social media may also be a means of self-preservation. According to a study released in June of this year by the Arts and Cultural Organizations – National Endowment for the Arts (NEA), individuals who participate in the arts Setting the Pace with Social Media through electronic media “are nearly SHARON ERWIN three times as likely to attend live benchmark arts events as non-media rts and cultural organizations arts organizations are using social participants (59 percent versus 21 are, in many ways, setting the media, this article will conclude with percent).5 In addition, they attend twice pace for the innovative use and fundamental considerations for crafting as many arts events on average (6 events Adevelopment of social media. a social media policy, whether for an arts versus 3 events in one year) and in a Interestingly, they are doing so at a time organization or a corporate organization. greater variety of live art forms”. Based when their corporate counterparts are Some guidelines for specific arts on its research, the NEA concludes, increasingly curtailing the use of social disciplines are also provided. “media-based arts participation appears media, at least by their employees. The The University of Massachusetts to encourage - rather than replace - live use of social media by arts and cultural Dartmouth Center for Marketing arts attendance .”6 organizations has evolved from simply a Research, in a study published last year,1 Arts organizations are not only using passive presence to a means of increasing found that nonprofit organizations in social media to maintain and improve participation and support, creative uses 2008 and 2009 outpaced the business relationships, but as a means of of social media and the integration of world and academia in the use of social social media into art forms. At the same media, including familiarity with, usage 3 News Release, Robert Half Technology, Tweet This But Not That: Many CIOs Establish Stricter Social Networking time, there are cautionary tales about of, monitoring of, and attitude towards, Policies, Survey Shows (April 13, 2010), available at http:// 2 the downside to using social media in the social media. By way of comparison rht.mediaroom.com/SocialNetworkingPolicies (last visited arts, including very public disputes with corporate America, relatively Jan. 22, 2011). involving arts organizations on blogs, 4 ScanSafe, August 2009 Survey. Twitter, YouTube and Facebook. 1 Still Setting the Pace in Social Media: The First Longitudinal 5 Audience 2.0: How Technology Influences Arts Participa- Study of Usage by the Largest US Charities (2007 and 2008 tion, National Endowment for the Arts, http://www.arts.gov/ After reviewing some of the available Studies), available at http://www1.umassd.edu/cmr/studies- research/new-media-report/index.html (last visited Jan. 22, research concerning the use of social research/socialmediacharity.cfm (last visited Jan. 22, 2011). 2011). media and examples of the ways in which 2 Id. 6 Id. Continued on page 27 ART & CULTURAL HERITAGE LAW COMMITTEE page 26 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

fundraising. By way of example, Facebook, Twitter and YouTube are all IndieGoGo provides an open platform tools “to help people connect with each for artists and arts groups to pitch other,” providing a means to engage projects to the world, while allowing donors and potential donors.14 fans and supporters to experience, Innovative uses of social media for influence and fund the projects they multiple purposes, using multiple Innovative uses of social want to see created.7 Originally limited platforms, are exemplified by The to film projects, IndieGoGo now extends Brooklyn Museum, which created media for multiple its fundraising tools to any project Brooklyn Museum 1stfans, a “socially raising up to $100,000 - including networked museum membership.” purposes, using multiple writing, music, social causes, technology, 1stfans use Facebook, Flickr, Twitter, platforms, are exemplified events, ventures, and political ideas.8 Art Feed, blogs and podcasts to build Other arts organizations have added the museum community and to make by The Brooklyn Museum, fundraising through social media to personal connections with its members. their arsenal of fundraising tools. The Museum offers 1stfan members the which created Brooklyn Research conducted by Charity opportunity to mingle at exclusive Museum 1stfans, a Dynamics and Blackbaud in 2009 meet-ups, access artist-created content concluded that social media “continues on a 1stfans Twitter Art Feed, and “socially networked to drive new levels of success for receive updates through Facebook, nonprofits’ special events, as well as for Flickr and Twitter about 1stfans events, museum membership.” the individuals participating in and behind-the-scenes insights from fundraising for those events.”9. The Museum staff, and “other cool stuff social media tools identified as having going on in the art world.”15 the strongest impact as of the release of The Houston Ballet, Massachusetts the report include Facebook®, Twitter®, Museum of Contemporary Art and Luce and YouTube®.10 Foundation Center for American Art Facebook, by way of example, makes each have embraced social media fundraising easy by offering Events and through innovative and creative uses of Group applications that can be used for Flickr, offering backstage passes, fundraising purposes. Both applications amplifying programming, and engaging are easily accessed under an individual stakeholders in real decision-making.16 or organization’s profile picture. Events Flickr is an online image and video provide a date, time, location and an management and sharing application, option for more information. Events are complete with an online community time specific and “are removed from experience.17 The Houston Ballet has Facebook once the event is over.”11 used Flickr to provide subscribers with a Groups, in comparison, can be used to photo tour of its warehouse permitting start a network for an organization.12 A subscribers to enjoy a behind-the-scenes Facebook Group makes it easy to “post look at its production.18 It has also updates about ongoing fundraisers and featured such photostreams as a behind other group events and notices.”13 the scenes photo shoot of making head 7 Indigogo, http://www.indiegogo.com (last visited Jan. 22, casts for a scene in one of their ballet 2011). productions.19 8 News Release, IndieGoGo, IndieGoGo, Professional Fund- Other arts organizations and artists raising Platform, Acquires Distribution Service, Distribber (March 15, 2010), available at http://www.indiegogo.com/ are exploiting the creative possibilities about/pr/154 (last visited Jan. 22, 2011). 14 Mark A. Pitman, Twitter for Nonprofits and Fundraising, 9 Donna Wilkins and Mark C. Davis, Making Event Partici- THE FUNDRAISING COACH, http://fundraisingcoach.com/free- pants More Successful articles/twitter-for-nonprofits-and-fundraising/. with Social Media Tools (Feb. 2010), available at http://www. 15 1stFans, Brooklyn Museum, http://www.brooklynmuseum. blackbaud.com/files/resources/downloads/WhitePaper_ org/join/1stfans (last visited Jan. 22, 2011). EventParticipantsSocialMedia.pdf (last visited Jan. 22, 2011). 16 Debra Askanase, Using Flickr Creatively: Three Arts Orga- 10 Id. nizations Innovate, Community Organization 2.0 (June 23, 11 USA FUNDRAISING, http://www.usafundraising.com/fundrais- 2009), http://www.communityorganizer20.com/2009/06/23/ ing-ideas/online-fundraising/fundraising-on-facebook.html using-flickr-creatively-3-arts-organizations-innovate. (last visited Jan. 22, 2011). 17 Id. 12 Id. 18 Id. 13 Id. 19 Id. Continued on page 28 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 27 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I of social media and the use of multiple AUDIO program compliments the director meeting with Actors’ Equity, platforms. One example is the viewer’s experience of outdoor sculpture which then issued the following production of Fatebook: Avoiding with a story that is as unique as the statement: Catastrophe One Party at a Time, during artwork it describes, featuring different AEA firmly believes that Twitter is a the Philadelphia Fringe Festival, voices, themes, and production styles, valuable promotional tool for producers produced and created by New Paradise produced by award-winning public to reach a wide potential audience but Laboratories, in which social media is a radio producers and journalists. that tweeting has absolutely no place in part of the art form rather than merely Programs explore personal and cultural the audition room, which is a safe haven supporting it. In Fatebook, the connections to the art, while offering for actors who are now seeking characters live in cyberspace, and their insights into the artists and their employment in this competitive market. “lives intersect with each other and with processes, what the sculptures The casting director apologized, audience members through a variety of represent, the history surrounding the while the producer, composer and co- social media networks” over time, works, and why the pieces were writer of “Gay Bride of Frankenstein” culminating in real space performance.20 commissioned and installed at specific took over running auditions.25 Individual artists experimenting sites in Philadelphia. A more recent controversy in which with social media as a public space for Visitors to the website can log in to comments have poured in relates to the the creation of a new form of public comment, or share the audio slideshows controversy surrounding Evanston, include Ranjit Bhatnagar, who adapted through Vimeo, a networking site for Illinois’ NEXT Theatre’s production of an early net.art project by crowdsourcing filmmakers and video creators to showcase Return to Haifa, publicized as an a sonnet via Twitter, and Yoko Ono, who their own work and receive feedback on original work and/or original adaptation is well-established on Twitter and what they have accomplished. of a play adapted into English from the creates participatory Facebook and Just as the arts are using social media underlying novella, commissioned by Flickr albums. 21Yoko Ono’s Facebook in unique and exciting ways, there are the Theatre, but which led to claims of page and her Flickr albums include also unique social media pitfalls for arts infringement by the Israeli playwright numerous photos posted by others.22 organizations, or at least issues with an who adapted the play into Hebrew with Yet another example of an innovative arts twist. An arts-related social media the permission of the novella’s copyright use of multiple platforms, including cell controversy debated on theater Web sites owner, the estate of the Iraqi author.26 phones, is the Museum Without Walls™: and newspaper blogs, including The New The dispute raises fundamental issues of AUDIO program of the Fairmount Park York Times, involved twittering from Board of Directors governance and Art Association in Philadelphia.23 The Broadway auditions. While conducting a fiduciary duties, contract law and program provides an “easily accessible casting session for “Gay Bride of intellectual property rights – all debated outdoor sculpture interpretive Frankenstein,” the casting director in theater blogs. As stated by Chris Jones program” for Philadelphia’s preeminent posted several messages on her twitter in his blog, the story “is a cautionary tale collection of public art. Museum feed about auditioning performers. of the need for artists to secure rights Without Walls is a “multi-platform” Without mentioning performers by and permissions, especially when interactive audio experience – available name, the director sent tweets such as: “If dealing with an incendiary work. And for free by cell phone, audio download, or we wanted to hear it a different way, don’t the fallout from the affair has almost on the web, offering “the untold histories worry, we’ll ask.” “Seeing #70 right now. destroyed a small but hitherto respected that are not typically expressed on I’m tired. My ears are bleeding.” “Holding theater in Evanston, along with the outdoor permanent signage.” Nearly 100 your foot above your head IN YOUR career of its former artistic director.”27 unique voices are featured, including HEADSHOT is a BAD IDEA!” The Much of the fallout has been played out artists, educators, scientists, writers, ensuing Twitter/blog storm had the very publicly through the blog, curators, civic leaders, and historians. casting director tweeting her defense: comments to the blog, and list serves As described by the Art Association: “There is NO rule/guideline against referencing the blog and its comments. Each Museum Without Walls™: Twitter/Facebook/MySpace/Friendster. Yet another theater company became 20 FATEBOOK: Avoiding Catastrophe One Party at a Time, Freedom of Speech. Ever heard of it?” As mired in a bitter dispute involving the http://www.fatebooktheshow.com/about.php (last visited the controversy grew, Actors’ Equity use of social media, in this case Facebook, Jan. 22, 2011). Association weighed in, stating that due to the public airing of internal 21 An Xiao, Always Social: Getting Noticed (2008-2010), Part Two “Auditions are job interviews; to have dissention. The Skylight Opera Theater (June 16, 2010), http://hyperallergic.com/6700/social-media- them mocked is unfair to actors and 25 Id. art-pt-2. others working on the project.”24 26Chris Jones, ‘Return to Haifa’: Play on conflict stirs 22See http://www.facebook.com/yokoonopage and http:// The dispute ended up with the casting up plenty. Here’s the full story, CHICAGO TRIBUNE, (June 25, www.flickr.com/photos/yokoonoofficial. 2010), http://leisureblogs.chicagotribune.com/the_the- 23 Experience Museum Without Walls™: AUDIO, FAIRMONT PARK 24 Dave Itzkoff, Casting Director Tweets at Tryouts, to ater_loop/2010/06/return-to-haifa-play-on-conflict-stirs-up- ART ASSOCIATION, http://www.fpaa.org/ExperienceMWW-AUDIO. Negative Reviews, New York Times (Aug. 14, 2009), http:// plenty.html. html (last visited Jan. 22, 2011). www.nytimes.com/2009/08/15/theater/15tweet.html?_r=1. 27 Id. Continued on page 29 ART & CULTURAL HERITAGE LAW COMMITTEE page 28 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

trade secrets (customer lists, purchasing/pricing issues); confidential information (donors for example); proprietary information, Intellectual Property and publicity rights; privacy and personal information; accuracy and correcting inaccuracies; proper attribution and credit; appropriate disclosures and best practices for the organization, in its discipline, with consideration given to the organization’s mission. The use of common sense and respect are paramount, regardless of the nature of the organization. Just as important is the need to measure results and continually reassess, revise and update. There are useful resources for those hung Poon

C creating a social media policy in the arts, ai-

L including The Secret Underground Guide to Social Media for Organizations, in Milwaukee, Wisconsin, suffered comprehensive strategy that fits an Colin McKay, www.twitter.com/ financial difficulties that led to the organization’s mission and goals. Social canuckflack; How (and Why) to Develop elimination of five positions. Some media is not a strategy in and of itself, but a Social Media Handbook, Nina Simon, performers and supporters rebelled, it does provide tools and tactics to http://museumtwo.blogspot. fueled by several “exceptionally effectuate strategy. The first step in com/2008/10/how-and-why-to- energetic and thorough bloggers.”28 Two developing any effective policy, develop-social-media.html; and singers with minor roles commented therefore, is to determine the uses to be examples of social media policies, about the theater’s problems on its made of social media. As mentioned at including http://123socialmedia. Facebook page, including the comment the beginning of this article, the purpose com/2009/01/23/social-media-policy- by one singer, “I’ll cap his knees with an may range from deepening connections examples (Corporations, Law Schools, aluminum baseball bat” in reference to with existing patrons, to marketing and Newspapers, Government). the Managing Director. The Director building community to fundraising, Industry specific guides include A took the comments as personal threats advocacy, audience research, crisis New Internet and Social Media Strategy and, after consulting with theater’s management and the integration of for Dancers and Dance Companies, counsel, fired the two singers.29 social media with artistic expression. Doug Fox, http://greatdance.com/ Thereafter, two dozen singers, actors, Whatever the purpose, certain key thekineticinterface/2009/03/social- directors and designers withdrew from elements should be included in an media-internet-marketing; Social Media the season’s performances, and the organization’s social media policy. These for the Arts and Artists, http:// theater lost at least a dozen subscribers include: socialmediaart.ning.com; and and a handful of donors. As a result, the >> Staff Role(s) Orchestras and New Media: A Complete theater instituted a Board member >> Tone and Organizational Culture Guide, Marc VanBree, http:// outreach to members of the local artistic >> Public vs. Internal Policies mcmvanbree.com/dutchperspective/ scene, formed a Committee to discuss >> Reach archives/200904_id272.htm. the company’s artistic direction and n Extend to independent contractors? As the NEA study suggests, social hired an outside public relations n Enforceable? media use and innovation by arts and consultant.30 >> What are other organizations in your cultural organizations are likely to As the above social media disasters discipline/industry doing? increase as organizations recognize establish, the increasing use of social >> Internal/External Monitoring the link between social media media also calls for the development of a >> Risk Assessment interaction and live participation. >> Technical Concerns Given the downside to the 28 Daniel J. Wakin, Milwaukee Theater Has Drama of Its Own, >> Measuring Results pervasiveness of social media, arts and The New York Times (Aug. 3, 2009) http://www.nytimes. com/2009/08/04/arts/music/04skylight.html. cultural organizations need to be 29 Id. Policies should also address prepared with a thoughtful and 30 Id. inappropriate behavior, language, tone; comprehensive social media policy. u

AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 29 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I The Getty Museum’s Non-Victorious Bid to Keep the “Victorious Youth” Bronze LEILA AMINEDDOLEH

he relationship between the the Italian government regarding of Historical and Artistic Interest,” Italian government and the J. Paul repatriation of Italian property as a way which claims national ownership of Getty Museum, the wealthiest to avoid litigation and negative media antiquities in addition to regulating their Tmuseum in the world, has once attention.3 Just last month, the case excavation and exportation.7 again been strained over legal battles against True was dropped after a Roman Furthermore, in 1978, Italy ratified the concerning items that the Italian court found that the statute of limitations 1970 UNESCO Convention on the Means government claims were illegally had run out.4 of Prohibiting and Preventing the Illicit acquired by the museum. Relations Marion True’s trial awakened the Import, Export and Transfer of between the Getty and Italy have already public’s interest in the market for looted Ownership of Cultural Property.8 been tense due to Italy’s forceful request antiquities; in turn, the art world has Additionally, Italy signed a Memorandum for the return of cultural heritage become more aware of Italy’s stance in of Understanding with the U.S. in 2001 property scattered around the globe. The demanding the return of property. This (which was renewed in 2006), in which public became acutely aware of Italy’s international awareness of looting has the U.S. agreed to protect pre-Classical, aggressive pursuit against museums and even helped deter plundering. The leader Classical, and Imperial Roman looters with the publication of The of the Amra dei Carabinieri’s art theft architectural material, as such terms are Medici Conspiracy by Peter Watson and squad, Generale Nistri, reported a defined in that agreement.9 Cecilia Todeschini. The book recounts notable decrease in tomb raiding in Supported by international legal tools, the Italian government’s raid on an 2009.5 Italy is a country rich in antiquities Italy has negotiated with governments international crime syndicate dealing in and art, and those cultural items not only and museums for cultural heritage looted antiquities originating in Italy bring in millions of tourism dollars each property repatriation. In 2007, Italy and and ending with sales to reputable year, but they also form part of the Italian the Getty came to an agreement for the institutions around the world, including identity. In light of these considerations, return of Italian pieces on display; the sales to the Getty Museum. In the wake of Italy justifies its assertive position in museum agreed to transfer 40 objects to Italy’s repatriation quest, the Getty has seeking the return of its looted items. Italy in exchange for an agreement for been charged with numerous accusations However, this is not a recent trend; the “broad cultural collaboration,” Italy’s of irresponsible acquisition practices, nation has a history of protecting its promise to loan significant art works and questionable provenance and artistic treasures. enter into joint exhibitions with the surreptitiously housing looted pieces. Although the Mediterranean nation is Getty.10 Left out of the agreement was a The book also put museum curator now aggressively vying for the return of resolution of the issues regarding the Marion True in the spotlight. In the stolen art objects, legal protection for Getty Bronze; in the agreement, both spring of 2005, Italian prosecutors antiquities has existed in Italy for parties agreed to defer discussions on the announced their decision to try Marion centuries. Antiquities laws in Southern statue until a later date.11 True, a curator at the J. Paul Getty Italy were promulgated as early as 1822, The Getty Bronze, also known as the Museum in Los Angeles, for criminal while the first antiquities laws covering 6 7 Id. association and receipt of stolen property modern Italy were passed in 1902. The 8 See Convention on the Means of Prohibiting and Prevent- in connection with antiquities believed law was updated in 1939 in the “General ing the Illicit Import, Export and Transfer of Ownership of to have been illegally unearthed in Italy Regulations for the Protection of Things Cultural Property. Paris, 14 November 1970, United Nations and smuggled out of the country.1 True Educational, Scientific and Cultural Organization, http:// was the first American curator indicted 3 Elisabetta Povoledo, Princeton to Return Disputed portal.unesco.org/la/convention.asp?KO=13039&language=E Art to Italy; N.Y. TIMES, Oct. 27, 2007, http://www.nytimes. 9 Agreement Between the Government of the United for the trade of allegedly illegal-acquired com/2007/10/27/arts/design/27prin.html. States of American and the Government of the Republic antiquities.2 Her highly-publicized trial 4 Elisabetta Povoledo, Case Involving Former Curator Marion of Italy Concerning the Imposition of Import Restrictions was reported in the New York Times, and True Ends, N.Y. TIMES, Oct. 13, 2010, http://artsbeat.blogs.ny- on Categories of Archaeological Material Representing the times.com/2010/10/13/case-involving-former-curator-marion- Pre-Classical, Classical and Imperial Roman Periods of Italy, the public watched as American true-ends/?scp=1&sq=marion%20true&st=cse. U.S.-It., Jan. 19, 2001, as amended on Jan. 19, 2006 and Jan. museums receptively communicate with 5 Marion Maneker, Italy Defends Its Patrimony, ART MARKET 19, 2011, available at http://exchanges.state.gov/heritage/ 1 Jennifer Anglim Kreder, Behind Italy’s Recent Successes MONITOR, Jan. 7, 2010, culprop/itfact/pdfs/it2001mou.pdf. in Cultural Patrimony Recovery, Art & Cultural Heritage http://www.artmarketmonitor.com/2010/01/17/italy-defends- 10 Press Release, The J. Paul Getty Museum, Italian Ministry Newsletter, American Bar Association, Winter 2008, Vol. 1, Is- its-patrimony. of Culture and the J. Paul Getty Museum Sign Agreement in sue No. 1, http://papers.ssrn.com/sol3/papers.cfm?abstract_ 6 See Andrew L. Slayman, The Trial in Rome, ARCHAEOLOGY, Rome (Aug. 1, 2007) available at http://getty.art.museum/ id=1031752 Feb. 6, 2006, http://www.archaeology.org/online/features/ news/press/center/italy_getty_joint_statement_080107.html. 2 Id. italytrial/ 11 Id. Continued on page 31 ART & CULTURAL HERITAGE LAW COMMITTEE page 30 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

“Victorious Youth” or the “Fano Athlete,” responsibility as a trust to protect art for is a life-size bronze statue of an athlete the public.13 However, on April 21, 2010 crowned with an olive wreath. Most Italian Judge Raffaele Cormio rejected likely it was created during the second or the appeal, finding “no reason” to uphold third century B.C. in Greece. Art the Getty’s request to suspend historians believe that it was looted by confiscation.14 The museum’s founder, the Romans, and then lost at sea in transit Although the courts have ruled in to the Italian Peninsula. The bronze Italy’s favor, having the object returned is J. Paul Getty, had statue was dredged up from the Adriatic a different issue. It is unlikely that the Sea by a fisherman from Fano in 1964, and Italian police will be granted permission reservations about the then he sold it to Italian dealers for to travel to Los Angeles to retrieve the legal status of the bronze. $5,600 shortly afterwards. In 1977, the statue. Some legal authorities believe Getty purchased the statue for $4 million, that it will be very difficult, if not Although he loved the 800 times more than what the impossible, for Italy to have the statue fisherman’s sale price. Italy claims that returned through the channels of statue and wanted to the bronze was illegally traded and that it litigation. For example, law professor purchase it, he never did. is stolen state property, first buried in a and president of the Lawyers’ Committee garden and then hidden by a priest. They for Cultural Heritage Preservation, Patty claim that it was smuggled out of Italy, Gerstenblith stated, “If the bronze was without the required export papers, and found in international waters, rather that the Getty Museum does not have than Italian national waters, I am clear title to the work since the institution doubtful that any U.S. court would did not fulfill its responsibility in recognize it as stolen. … While the completing due diligence. On the other Italians claim that the bronze was hand, the Getty argues that it purchased illegally exported, illegal export does not, the statue through legal channels with by itself, make the bronze stolen or clear title. They claim that the work was otherwise illegal in the U.S.”15 not stolen, and that it was discovered in However, Italy has options. The good faith outside of the territorial Italian Ministry of Culture has had great waters and soil of Italy. In response, Italy success in bargaining for the return of points out that the Getty always had objects during the past few years, so Italy knowledge about the statue’s may negotiate for the return of the questionable provenance. The museum’s bronze. But Maurizio Fiorilli, the founder, J. Paul Getty, had reservations attorney general of Italy, asserts that the about the legal status of the bronze. Italian government has a strong claim for Although he loved the statue and wanted the return of the statue, and feels that to purchase it, he never did. The museum Italy does not need to negotiate for what acquired the piece in 1977, the year after rightfully belongs to Italy. Fiorilli Getty’s death. believes that the piece should be returned In February 2010, an Italian judge to Italy since it is Italian property.16 found that the bronze had been smuggled According to Fiorilli, the statue was out of Italy, and he ordered that the brought to port in 1964, after its discovery museum return the piece to Italy. The J. by a fisherman from Fano.17 When it was Paul Getty Trust appealed the lower brought to land, the statue was not court’s decision arguing that the rules presented to customs authorities, and it that generally apply to art restitution are remained hidden for many years. During invalid in this case, since the bronze has 13 Id. Greek heritage. The museum’s appeal 14 See Getty Bronze Seizure Appeal Turned Down but High Court Ruling Still Pending, Agenzia Nazionale Stampa Asso- maintains that international law does not ciata, Apr. 21, 2010, http://www.ansa.it/web/notizie/rubriche/ require the transfer of the bronze to Italy english/2010/04/21/visualizza_new.html_1765197591.html on the basis of possible (and not fully 15 Martha Lufkin, Greek Bronze Will Stay in the Getty Villa, proven) export violations.12 The Getty Art Newspaper, Apr. 14, 2010, http://www.theartnewspaper. com/articles/Greek-bronze-will-stay-in-the-Getty-Villa%20 asserts that returning the sculpture /20504 would infringe on their legal 16 Id. 12 Id. 17 Id. Continued on page 32 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW page 31 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I

According to Italy, the Getty knew the documentation was false, and this knowledge is federal fraud. hung Poon C ai- L

this time, Italian judicial authorities According to the Italian government, began penal investigations of the these facts present enough proof that the fisherman and the first dealer who statue belongs to Italy. purchased the statue. The parties were The Italian government also asserts absolved because the statue was not that the Getty purchased the Fano present. Without the presence of it, Athlete in bad faith. The museum authorities could not determine whether received documentation from a seller in the statue was cultural property. England, even though the province was The Italian attorney general asserts false. According to Italy, the Getty knew that the statue belongs to Italy. If a boat the documentation was false, and this with an Italian flag discovered the knowledge is federal fraud. The statute, international law would deem it museum did not properly research the property of Italy. And if the statue was statue’s provenance even though there not found under the Italian flag, but was were concerns about it. However, even found by an Italian citizen and brought to after purchasing the piece, the museum an Italian port, then it should have be had forty-eight months to check its been declared in order for the owner to records. During that time, the museum receive papers recording its discovery. It never contacted the Italian authorities was compulsory to present the statue to even though the Italian government customs authorities upon docking in had started the process to have it order to pay proper taxes and receive returned. proper papers. The fisherman would The Italian government claims that it have only been permitted to remove the is necessary for all nations to cooperate statue from Italy with proper in the protection of cultural heritage documentation. However, this was not property. All nations have a duty to done. Instead, the statue was hidden for preserve and enjoy cultural property, many years, and then moved between which is why the Italy loans its property nations. Italy’s claim for the statue is to other nations. Cultural property strengthened by the fact that the Fano belongs to one country, but it should be Athlete entered Italian territory from the shared with the international water, and then remained in Italy for community. In this case, Italy asserts that years before leaving the nation. the Fano Athlete belongs to Italy. u

ART & CULTURAL HERITAGE LAW COMMITTEE page 32 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I First Annual National Cultural Heritage Law Moot Court Competition EMILY MONTEITH AND VIRGINIA M. CASICO

On July 28, 2007, federal agents raided ber beads between 900 and 1,200 years National Cultural Heritage Law Moot the home of Kenneth George, a 24-year- ago, was valued at more than $10,000. Court Competition, was based on the old college dropout, and seized from his George also told federal agents that he type of events that increasingly populate garage an amber bead necklace and two found the ceramic masks while camping the landscape of archaeological resource large ceramic masks. The seizure was illegally in a National Forest after leav- trafficking in the United States today. As the culmination of a lengthy investiga- ing the gun show. George stated that, af- interest in cultural heritage preserva- tion into the practice of selling stolen and ter pitching a sleeping bag in a small cave tion has grown, DePaul University looted antiquities on Internet auction within the forest boundaries, he found College of Law joined the Lawyers’ sites. After the necklace and the masks two “shabby looking” ceramic masks Committee for Cultural Heritage were seized, George informed federal when he dug approximately eighteen Preservation in sponsoring the first an- agents that he had obtained the neck- inches into the soil near the back of the nual National Cultural Heritage Law lace, which he had listed for sale on eBay, cave. The Forest Service used thermolu- Moot Court competition to encourage from an antiquities dealer that he met minescence dating to conclude that the dialogue about cultural heritage and the while attending a regional gun show. masks were at least 1,000 years old, and law. Over the course of two days, ten According to George, the dealer in- the commercial value of the masks was teams, having previously briefed the is- formed him that the necklace had been appraised at more than $20,000. sues, argued in front of panels of practi- stolen from a museum in Canada earlier Although the events in this story may tioners in order to progress in the com- that year. The necklace, which was a sound implausible, this scenario, which petition. The final panel of judges includ- Viking cultural object made of large am- formed the basis of the first annual ed the Honorable William J. Bauer and the Honorable Richard D. Cudahy of the United States Court of Appeals for the Seventh Circuit, and former Illinois Appellate Judge and DePaul University College of Law Dean Warren Wolfson. The panel declared Loyola University of New Orleans the overall Champion of the competition. Widener University School of Law was named the Runner- Up, and one of its teams was also award- ed distinctions for presenting the Best Brief. The award of Best Oralist went to Nina Staggers of Widener University School of Law, and Alana McMains of Northwestern University School of Law was recognized as the Honorable Mention Best Oralist. The Competition’s problem revolved around the application of the Archaeological Resources Protection Act (ARPA) to two separate offenses: Kenneth George’s excavation of the ce- ramic masks from Forest Service lands, in violation of ARPA section 6(a), and his offer of the stolen Canadian necklace for sale in interstate commerce, in violation of ARPA section 6(c). Both issues re- oscatelli

M quired the participants and the moot court judges to apply principles of statu- ianca

B tory interpretation to determine wheth-

ART & CULTURAL HERITAGE LAW COMMITTEE page 33 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW WINTER 2011, VOL. III, ISSUE NO. I er the relevant sections of ARPA covered commission of other crimes, the defen- result in a violation of ARPA; in order to the actions committed by George. dant “knowingly transfers, possesses, or render the acts a convictable crime un- Participants were asked to brief and ar- uses, without lawful authority, a means der section 6(a), the “archaeological re- gue the two issues based on these facts as of identification of another person.”5 The sources” element must also be present.10 if the Supreme Court had granted certio- Court held that a statute’s scienter re- George was also able to argue that, rari to hear this appeal from a fictional quirement applied to all subsequent ele- even if the Court was disinclined to apply circuit court. ments of a criminal provision, but Flores-Figueroa as a bright-line rule of For the first issue, the Court was stopped short of establishing a bright statutory interpretation, the nature of a asked to determine whether ARPA’s line rule for statutory interpretation.6 In section 6(a) crime requires the applica- mens rea of “knowingly” applied to every addition, the majority expressly recog- tion of “knowingly” to the crime’s “ar- element of a section 6(a) crime. nized that “the inquiry into a sentence’s chaeological resources” element. George Specifically, the Court was called on to meaning is a contextual one,” but that relied on Staples v. United States11 and determine whether section 6(a) required “[n]o special context is present [in the subsequent case law in which the nature the Government to prove that George case at bar].”7 of the regulated conduct determined knew that the excavated ceramic masks George, the petitioner, made use of whether the scienter requirement would met the ARPA statutory definition of “ar- the argument that Flores-Figueroa, be applied to the statutory element.12 In chaeological resource” at the time that which held that the statute in question particular, George pointed to the Ninth he removed them from the National required the application of the mens rea Circuit’s decision in United States v. Forest. Section 6(a) of ARPA states that to all elements of the offense relying on Lynch,13 in which the Ninth Circuit re- “[n]o person may excavate, remove, dam- principles of “ordinary English gram- lied on Staples to hold that the govern- age, or otherwise alter or deface, or at- mar,” established a precedent that re- ment was required to prove that the de- tempt to excavate, remove, damage, or quired the application of “knowingly” to fendant knew that the object he picked otherwise alter or deface any archaeo- ARPA section 6(a)’s “archaeological re- up in a National Forest was an archaeo- logical resource located on public lands sources” element.8 However, the logical resource because, absent the re- or Indian lands unless such activity is Government offered the argument that quirement, the defendant’s conduct— pursuant to a permit.”1 ARPA defines an the mens rea in Flores-Figueroa immedi- picking up an item from the surface of “archaeological resource” as “any mate- ately preceded the elements of the statu- the ground in a National Forest that was rial remains of past human life or activi- tory offense; by contrast, the mens rea of only later identified as an archaeological ties which are of archaeological interest “knowingly” in ARPA is found in a later resource—was otherwise innocent and … at least 100 years of age.”2 The mens rea provision separate from the elements of blameless.14 George argued that it was element is found in a separate provision, the section 6(a) crime. Therefore, the the masks’ status as “archaeological re- which states that “[a]ny person who Government argued, the Court’s reason- sources” that criminalized the act of re- knowingly violates, or counsels, pro- ing that “ordinary English grammar” re- moving them from federal lands without cures, solicits, or employs any other per- quires a uniform application of a mens a permit and separated them from other- son to violate, any prohibition contained rea to all subsequently listed elements wise “innocent and blameless” conduct. in subsection (a), (b), or (c) of this section does not control where the context of the The Government countered that shall, upon conviction, be … imprisoned statute leaves room for ambiguity in ap- George’s situation was distinguishable not more than one year ….”3 plying a mens rea to the elements of a from Lynch on the basis of the facts The Supreme Court has never direct- general intent crime, as it argued was the known by the defendants in these re- ly addressed whether the mens rea re- case with section 6(a). Moreover, section spective cases. George, unlike the defen- quirement of “knowingly,” which applies 6(a) differed from the statute at issue in dant in Lynch, knew he was on the land to violations of section 6(a), necessarily Flores-Figueroa in another important of another; knew he was excavating in attaches to the element of “archaeologi- respect: In contrast to the element at is- the land; and knew he was acting with- cal resources.” However, the Court has sue in Flores-Figueroa, which was an ag- out the landowner’s permission. As a re- addressed the application of mens rea re- gravating circumstance with respect to sult, the Government argued, one would quirements to statutory elements gener- the crime of identity theft,9 “archaeolog- hardly be surprised that the defendant’s ally, most recently in the 2009 decision ical resources” under ARPA are items 10 See 16 U.S.C. § 470ee(a). Flores-Figueroa v. United States,4 which that Congress has subjected to regula- 11 511 U.S. 600 (1994). 12 See United States v. X-Citement Video, 513 U.S. 64 (1994) involved the interpretation of the knowl- tion. The act of excavating or removing (holding that “the presumption in favor of a scienter edge requirement in a statute establish- objects from federal or Indian lands requirement should apply to each of the statutory elements ing a mandatory sentence if, during the without a permit does not automatically that criminalize otherwise innocent conduct”); Staples, 511 5 Id. at 1888. U.S. at 619 (evaluating the nature of the regulated device or 1 16 U.S.C. § 470ee(a) (2006) (emphasis added). 6 Id. conduct and “the expectations that individuals may legiti- 2 Id. § 470ee(b)(1). 7 Id. at 1891. mately have in dealing with the regulated items”). 3 Id. § 470ee(d) (emphasis added). 8 Id. at 1890. 13 233 F.3d 1139 (9th Cir. 2000). 4 129 S. Ct. 1886 (2009). 9 See Flores-Figueroa, 129 S. Ct. at 1890. 14 Lynch, 233 F.3d at 1144–45.

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conduct is not an innocent act.15 Rather, statute’s legislative history and pream- common experience suggests that such ble, if any.20 In particular, George relied conduct is more likely to be illicit and on ARPA’s Preamble, section 12(c) and blameworthy. Therefore, the legislative history to support the posi- Government argued, following Staples, tion that ARPA only applies to archaeo- the Court should hold that the govern- logical resources found on federal public Section 12(c) explicitly ment was not required to prove that or Indian lands.21 Section 12(c) explicitly George “knew” that the objects of his ac- states that “[n]othing in this Act shall be states that “[n]othing tions were archaeological resources. construed to affect any land other than For the second issue, the Court was public land or Indian land or to affect the in this Act shall be invited to interpret ARPA section 6(c)’s lawful recovery, collection, or sale of ar- construed to affect any language to determine whether it ap- chaeological resources from land other plied only to archaeological resources than public land or Indian land.”22 land other than public that originated from federal or Indian However, the Government countered lands or whether it extended to any ar- that because section 6(c) clearly and un- land or Indian land or to chaeological resources, including those ambiguously prohibits the trafficking of affect the lawful recovery, that originated from a foreign country. archaeological resources, without limi- Unlike ARPA sections 6(a) and 6(b), sec- tation as to the origin of the resources, collection, or sale of tion 6(c) omits any reference to federal the Court was prohibited from inferring and Indian lands, stating only that “[n]o congressional intent. archaeological resources person may sell, purchase, exchange, Turning next to available case law, from land other than transport, receive, or offer to sell, pur- both parties noted that the issue was a chase, or exchange, in interstate or for- matter of first impression in the courts, public land or Indian land. eign commerce, any archaeological re- and identified the Seventh Circuit’s deci- source excavated, removed, sold, pur- sion United States v. Gerber23 as the only chased, exchanged, transported, or re- judicial application of section 6(c) to non- ceived in violation of any provision, rule, federal, non-Indian lands. In Gerber, the regulation, ordinance, or permit in effect defendant artifact collector, appealing under State or local law.”16 To obtain its his conviction under section 6(c) for un- conviction under this count, the lawfully removing and selling artifacts Government relied on a fictional state from private land and then taking them statute, which declared that “[a] person across a state boundary, argued that sec- who knowingly or intentionally receives, tion 6(c) did not apply to archaeological retains, or disposes of the property of an- resources found on private land.24 other person that has been the subject of However, the Seventh Circuit held that theft commits receiving stolen section 6(c) “is not limited to objects re- property.”17 moved from federal and Indian lands” George argued that because of this because the provision was “a catch-all discrepancy in language, the statute was provision designed to back up state and ambiguous and, thus, that the Court 20 See District of Columbia v. Heller, 128 S. Ct. 2783, 2789 n.3 (2008) (“the settled principle of law is that the preamble should consider the statute’s Preamble cannot control the enacting part of the statute in cases and congressional intent to construe the where the enacting part is expressed in clear, unambiguous statute. According to principles of statu- terms.”). tory interpretation, the Court should 21 See 16 U.S.C. § 470aa(b) (“The purpose of this chapter is to secure, for the . . . benefit of the American people, the pro- “first determine[s] whether the statuto- tection of archaeological resources and sites which are on 18 ry text is plain and unambiguous.” If public lands and Indian lands”); 16 U.S.C. § 470kk(c) (“Noth- the text is plain and unambiguous, the ing in this chapter shall be construed to affect any land Court should apply the statute according other than public land or Indian land or to affect the lawful 19 recovery, collection, or sale of archaeological resources to its terms. If, however, the statute is from land other than public land or Indian land”); see also ambiguous, the Court should look to the United States v. Gerber, 999 F.2d 1112, 1115 (7th Cir. 1993) 15 See Staples, 511 U.S. at 609, 614. (“[ARPA] does not affect any lands other than the public 16 16 U.S.C. § 470ee(c). lands of the United States and [Indian] lands”) (quoting 125 17 Dep. L. Code 35-43-4-2(b). Cong. Rec. 17,394 (1979) (remarks of Congressman Udall)). 18 Carcieri v. Salazar, 129 S. Ct. 1058, 1063 (2009) (citing 22 16 U.S.C. § 470kk(c) (emphasis added). United States v. Gonzales, 520 U.S. 1, 4 (1997)). 23 999 F.2d 1112 (7th Cir. 1993). 19 Id. at 1063–64. 24 Id. at 1113–15.

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local laws protecting archaeological chaeological objects, the Government sites and objects wherever located.”25 urged the Court to adopt Gerber’s rea- Furthermore, the court limited the soning that the DePaulia law could have scope of section 6(c) by holding that it ap- “broader objectives . . . that include but plied “to cases in which the violation of are not exhausted in the protection of state law is related to protection of ar- Indian artifacts and other antiquities.”29 The second annual chaeological sites or objects,” but noted Finally, the Government offered that that the applicable law could still have extending section 6(c) to foreign arti- National Cultural Heritage “broader objectives,” such as those em- facts would further ARPA’s purpose to bodied in trespass and conversion laws.26 protect archeological resources be- Law Moot Court George argued that the Court should cause, in the words of the Seventh Competition will be find that Gerber was incorrectly decided Circuit, it was “unlikely that a Congress because ARPA’s Preamble, ARPA sec- sufficiently interested in archaeology to held in Chicago on tion 12(c), and certain statements in the impose substantial criminal penalties legislative history all suggest that for the violation of archaeological regu- February 25 and 26, 2011. Congress intended that ARPA apply only lations . . . would be so parochial as to to archaeological resources found on confine its interests to archaeological United States federal public or Indian sites and artifacts on federal and Indian lands.27 In the alternative, George as- lands merely because that is where most serted that Gerber’s holding should be of them are.”30 limited to only lands within the United Both issues introduced in this year’s States. Particularly, George emphasized, problem were timely questions as to the ARPA’s avowed purpose, as articulated interpretation and scope of ARPA. The in the Preamble, is to protect “the Supreme Court’s decision in Flores- Nation’s heritage” for “the present and Figueroa was handed down in 2009, and future benefit of the American people.”28 it leaves open the question of how much The Government countered that the knowledge the government will need to Court should extend Gerber’s holding prove in future prosecutions under to find that section 6(c)’s protections ARPA section 6(a).31 In addition, ARPA cover archaeological resources origi- section 6(c) has seen increasing use as a nating in foreign lands. The legal tool in the seizure of archaeological Government pointed out that, as in artifacts that have been illegally re- Gerber, George was convicted of offer- moved from their countries of origin, but ing for sale in interstate commerce an such a use of the law has never been test- archaeological object that had not been ed in the courts.32 Briefing these two is- excavated from federal or Indian land; sues provided the National Cultural in this case, an artifact from a foreign Heritage Law Moot Court Competition country, Canada. The Government ar- participants with a unique perspective gued that based on Gerber’s holding, it on how ARPA can be used to protect na- follows that section 6(c) should also ap- tional cultural resources, and perhaps ply to artifacts from foreign lands be- even important, international cultural cause the Seventh Circuit found that resources as well. section 6(c) is not limited to archaeolog- The second annual National Cultural ical objects but is designed to strength- Heritage Law Moot Court Competition en ARPA’s protection by backing up oth- will be held in Chicago on February 25 er federal and state laws. and 26, 2011, with all rounds taking place Thus, the only issue remaining to be in courtrooms of the Everett McKinley determined was whether the DePaulia Dirksen United States Courthouse. u statute could apply to archaeological re- sources. Although the fictional state 29 Gerber, 999 F.2d at 1116. statute does not explicitly protect ar- 30 Id. at 1115–16. 31 See United States v. Flores-Figueroa, 129 S. Ct. 1886 25 Id. at 1115–16. (2009). 26 Id. at 1116. 32 See Andrew Adler, An Unintended And Absurd Expansion: 27 See supra notes 21–22 and accompanying text. The Application of the Archaeological Resources Protection 28 16 U.S.C. § 470aa(b) (emphasis added). Act to Foreign Lands, 38 N.M.L.R. 133 (2008).

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