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Who Owns the Past? Turkey's Role in the Loss and Repatriation of Antiquities

Published online by Cambridge University Press:  28 February 2019

Kathleen Price
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Extract

“Every flower is beautiful in its own garden. Every antiquity is beautiful in its own country. “ Sign in Ephesus Museum lobby, quoted in Lonely Planet Turkey (11th ed.) at 60.

“History is beautiful where it belongs.”—OzgenAcar[Acar Erghan], imprinted on posters in Turkish libraries, classrooms, public buildings and shops and quoted in S. Waxman, Loot at 151; see also S. Waxman, Chasing the Lydian Hoard, Smithsonian.com, November 14, 2008.

Type
Articles
Information
International Journal of Legal Information , Volume 38 , Issue 2 , Summer 2010 , pp. 201 - 213
Copyright
Copyright © 2010 by the International Association of Law Libraries. 

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References

1 The Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) describes cultural property as “property which on religious or secular grounds, is specifically designated by each State as being of importance for archeology, prehistory, history, literature, art or science and which belongs to the following categories:Google Scholar

  1. (a)

    (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest;

  2. (b)

    (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;

  3. (c)

    (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;

  4. (d)

    (d) elements of artistic or historical monuments or archaeological sites which have been dismembered;

  5. (e)

    (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;

  6. (f)

    (f) objects of ethnological interest;

  7. (g)

    (g) property of artistic interest, such as:

    1. (i)

      (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);

    2. (ii)

      (ii) original works of statuary art and sculpture in any material;

    3. (iii)

      (iii) original engravings, prints and lithographs;

    4. (iv)

      (iv) original artistic assemblages and montages in any material;

  8. (h)

    (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections;

  9. (i)

    (i) postage, revenue and similar stamps, singly or in collections;

  10. (j)

    (j) archives, including sound, photographic and cinematographic archives;

  11. (k)

    (k) articles of furniture more than one hundred years old and old musical instruments.

Most of the litigated cases involve fine art or archeological artifacts, but the principles are the same for libraries. John Henry Merryman in Law, Ethics, and the Visual Arts (6th ed.)at 34 [hereinafter cited as Merryman]describes a 1940 incident in which Dr. Alexander Guttman was entrusted with Hebrew books and manuscripts from the Hochshule Fur die Wissenschaft des Judentums when leaving Berlin for the US; he placed these with Sothebys for sale in 1984; Sothebys was forced to settle a suit brought by the NY Attorney General with a recall of books from purchasers and a partial payment to Guttman. Similar cases, such as that of the Quindlinberg Treasure, church objects sent home to Texas by a serviceman and offered for sale by his heirs many years later, demonstrate the resort to settlement rather than litigation frequently found in these situations. Holocaust experts predict that more objects will find their way to market as those who secreted them die and unwitting heirs seek to sell them. The existence of the Art Law Register, IFAR database, Nazi-era Portal and numerous books and inventories with pictures of items “lost” during WW II should exist in their repatriation to state museums or restitution to private owners.Google Scholar

Cultural property need not be tangible. The 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (http://www.unescoorg/culture/ich/index.php?pg=home) deals with oral traditions, including language; performing arts; social practices, rituals and festivals; traditional knowledge; and crafts. The best known Turkish item inscribed on the list is the Mevlevi Sema (Whirling Dervish) Ceremony, a Sufi Islamic dance/musicale dating back to 1273, prohibited during the period of secularization, and recently revived in public performances. The convention website is useful in providing slideshows and videos of inscribed items.Google Scholar

The 1972 UNESCO World Heritage Convention (http://whc.unesco.org/en/convention***text) identifies natural and cultural sites of significance to signatories. Turkish sites include:Google Scholar

Cultural Google Scholar

  1. ■

    ■ Archaeological Site of Troy (1998)

  2. ■

    ■ City of Safranbolu (1994)

  3. ■

    ■ Great Mosque and Hospital of Divriği (1985)

  4. ■

    ■ Hattusha: the Hittite Capital (1986)

  5. ■

    ■ Historic Areas of Istanbul (1985)

  6. ■

    ■ Nemrut Dağ (1987)

  7. ■

    ■ Xanthos-Letoon (1988)

Mixed Google Scholar

  1. ■

    ■ Göreme National Park and the Rock Sites of Cappadocia (1985)

  2. ■

    ■ Hierapolis-Pamukkale (1988)

2 S. Waxman, Loot: The Battle over the Stolen Treasures of the Ancient World. NY: Times Books/Henry Holt 2008 at 139–40 [hereinafter cited as Loot].Google Scholar

3 Id. at 138.Google Scholar

4 Id. At 142.Google Scholar

5 Id. At 140–1.Google Scholar

6 Hervé Duchěne, Golden Treasures of Troy: the Dream of Heinrich Schliemann, NY: Abrams, 1996; M. Wood, In Search of the Trojan War. NY: Facts on File, at 47–93.Google Scholar

7 Turkey v. Metropolitan Museum of Art, 762 F. SuPp. 44 (S.D.N.Y. 1990).Google Scholar

8 The literature on the Elgin Marbles is voluminous and dates to the debates in Parliament over their acquisition. Among the sources are Loot at 221–32; Merryman at 346–63; DuBoff and others, Art Law Cases and Materials(NY: Hein 2003) at 84–6; Bator, “An Essay on the International Trade in Art,” 34 Stanford L. Rev. 275,298,303.Google Scholar

9 See, e.g. M. Kimmelman, Elgin Marbles Argument in a New Light, NYT 6/24/09 at C1.Google Scholar

10 B. Hoffman, Art and Cultural Heritage: Law, Policy and Practice. NY: Cambridge, 2006 at 89 [hereinafter cited as Hoffman].Google Scholar

11 Convention for the Protection of Cultural Property in the Event of Armed Conflict, www.icomos.org/Hague [hereinafter cited as Hague]. The current act dates from 1954; 2d protocol 1999; the US ratified on September 25, 2008.Google Scholar

12 See ethics codes of major archeological associations; Neil Brodie, “An Archeologist's View of the Trade in Unprovenanced Antiquities,” in Hoffman at 52 and Loot, Legitimacy and Ownership (2001); Patty Gerstenblith, “The Public Interest in the Restitution of Cultural Objects,” 16 Conn. J. Int'l L. 197 (2001); and generally, Legal Perspectives on Cultural Resources (Richman and Forsyth ed.)[Hereinafter cited as Perspectives]. Walnut Creek: Rowman & Littlefield 2004.Google Scholar

13 See Turkey v. Metropolitan Musem below as a typical example. The universal museums have fought back; their most vociferous spokesman is James Cuno, Who Owns Antiquity?: Museums and the Battle over Our Ancient Heritage (2008).Google Scholar

14 Many source countries have passed blanket ownership laws claiming all cultural property above or below ground discovered or undiscovered; examples are Italy, 1939, Mexico, 1972, Egypt, 1983, and Peru, 1985. US Courts require that objects must be found within the country's modern borders, that the law gives clear notice of ownershi p (not just export provisions that needn't be enforced by another jurisdiction) and that the jurisdiction seeking return enforce its law within its own borders, Peru v. Johnson, 720 F. Supp 810 (C.D. Cal 1089). Market nations criticize these laws as leading to thriving black markets and prefer screening laws, such as the UK's, that apply only to national treasures, provide for export permits, may give the government a limited time to match a price offered by a purchaser, and emphasize the importance of display in a public institution. Nina Teicholz, Archeology Odyssey Magazine (March/April 2001) quoted in Merryman at 223–6; John Henry Merryman, The Antiquities Problem,” 3 Public Archeology Rev. 10–12 (December 19950 reprinted Merryman at 226–9.Google Scholar

Turkey's cultural property laws (Law No. 5226 for the Conservation of Cultural and Natural Property (2004)(“CCNP”) and Law No. 2863 on the Protection of Cultural and National Assets (1983, as amended 1987)(“PCNA”) provides for ownership of cultural property on state lands, registry of privately held cultural property, acquisitions by museums, limited temporary export and return of property not necessary for museums, www.ifar.org/country_title.php?docid=1180202246.Google Scholar

15 DuBoff at 87–88;Elisabetta Proledo, “Ancient Vase Comes Home to a Heroes’ Welcome,”, www.nytimes.com/2008/01/19/arts/design/19bowl.html.Google Scholar

16 Merryman, “The Bust of Nefertiti: Partage,” at 414–18.Google Scholar

17 Michael Kimmelman recently wrote a critical, extensive, New York Times article describing efforts of source countries to hold up western museums; he sees cultural patrimony as the only weapon Egypt could use to lash out at Hosny's enemies while simultaneously “pander[ing] to Egypt's… ruling elite” (Kimmelman, Who Draws the Borders of Culture?” NYT, 5/9/10, at 1AR, 18). Egypt's priority is the return of the bust of Nefertitti from Berlin; it also wants the Rosetta Stone from the British Museum, and the statute of Ramses from the Turin Museum. He has cut off ties with the St. Louis Museum and the Louvre over a 3200 year old golden mask of a noblewoman and fragments illicitly chipped from a tomb, respectively. He has since patched relations with the Louvre upon return of the fragments,” Egypt teams with 25 Nations to Return Antiquities,” Associated Press, 4/8/10.Google Scholar

18 Sharon Waxman devotes the first part of Loot to his exploits, at 13–134.Google Scholar

19 Cairo Meeting to demand Return of National treasures, France 24, 7/4/2010, www.france24.com/en/20100407; Egypt hosts meeting on recovery of ‘stolen treasures,’ BBC 4/7/10, new.bbc.co.uk/2/hi/middle_east/8606458.stm.Google Scholar

20 Id.Google Scholar

21 762 F. Supp. 44(S.D.N.Y. 1990)Google Scholar

22 Loot at 152.Google Scholar

23 Id at 147–50.Google Scholar

24 Id at 149.Google Scholar

25 See Hoving's, Making the Mummies Dance: Inside the Metropolitan Museum of Art, (Touchstone, 1994).Google Scholar

26 Hugh Eakin, “Treasure Hunt: The downfall of the Getty curator Marion True,” The New Yorker, December 17, 2007, at 62–75. The Getty has since revised its acquisitions policy to recognize November 17, 1970, the date of the UNESCO Convention, as the cutoff, after which un-provenanced antiquities could not be acquired; this has become internationally recognized and incorporated into the ethics codes of the various museum associations.Google Scholar

27 See Proledo at 14.Google Scholar

28 Lee Rosenbaum, “Shelby White and the ‘Why Me?’ Antiquities Defense UPDATED,” www.artsjournal.com/culturegirl/2008/Shelby_White_and_the_why-me_an.html.Google Scholar

29 Foremost among them is the Getty which has returned items to both Greece and Italy.Google Scholar

30 Supra, note 12.Google Scholar

31 Francisco Francioni and Frederico Lenzerini, “The Obligation to Prevent and Avoid Destruction of Cultural Property: From Bamiyan to Iraq,” in Hoffman at 28–40; James Cuno, “Beyond Bamiyan: Will the World Be Ready Next Time?” in Hoffman at 41–6.Google Scholar

32 Loot at 152–74.Google Scholar

33 Sherry Hutt, “Cultural Property Law Theory:A Comparative Assessment of Contemporary Thought, in Perspectives at 17–36.Google Scholar

34 See, e.g., Chapter 2, Legal Perspectives on Cultural Resources [Richman and Forsyth, eds., 2004]).Google Scholar

35 “Thinking About the Elgin Marbles,” 83 Mich.L.Rev. 1881, 1917 (1985).Google Scholar

36 Wood, supra note 6.Google Scholar

37 UK. House of Commons Library, Holocaust (Stolen Art) Restitution Bill, Bill no. 111, Research Paper 09/59, 23 June 2009; Harvard Law School Arts&Literature Law Society et. al., Spoils of War v. Cultural Heritage: The Russian Cultural Property Law in Historical Context, February 8–9, 2008; workshop, www.law.harvard.edu/faculty/martin/art_law/russian.law.htm. The recent return of illicitly removed fragments from Egypt may indicate a softening in the French position.Google Scholar