The International Journal of Cultural Property (IJCP) is proud to award yearly the Pierre Lalive and John Henry Merryman Fellowship in Art and Cultural Heritage Law, hosted by the International Cultural Property Society and the Art-Law Centre of the University of Geneva.
The Fellowship has been awarded annually since 2018 to the best article published in the IJCP by a scholar under 40 years of age. The award consists of a 2–4 week residential fellowship at the Art-Law Centre of the University of Geneva. In early 2024 the IJCP announced that as of the 2023 volume of the IJCP, scholars need to be 40 years of age or under at the time of publication to be eligible for the prize.
To date, the award has been given four times. In this interview, Lucas Lixinski (a member of the IJCP Board of Editors at the time of the interviews) interviews three of the award recipients. They are Luke Tattersall (recipient for his 2019 article,Footnote 1 now Barrister at Essex Court Chambers in London, United Kingdom); Tamás Szabados (recipient for his 2020 article,Footnote 2 now Habil Associate Professor at the Department of Private International Law and European Economic Law at ELTE Faculty of Law, Hungary); and Adnan Almohamad (recipient for his 2021 article,Footnote 3 now Archaeologist at Birkbeck College, University of London, United Kingdom).
The purpose of this interview is to allow past recipients to contextualize their pieces in the field, how they see the field’s evolution since their award, and how they have benefitted from the Fellowship to advance their work and their view of the field. This interview has been lightly edited for clarity.
Lucas Lixinski (LL): How did you get into the field of international cultural property safeguarding?
Adnan Mohamad (AA): During high school, my father wished for me to pursue a legal education and become an officer in the security apparatus, a goal that my academic performance could have enabled. However, while awaiting the university admission criteria, I attended a camp for the so-called Revolutionary Youth in Palmyra, where I participated in an archaeological excavation. There, I encountered Dr Khaled Al-Asaad, the director of Palmyra’s antiquities, whose captivating lecture on the history of Syria and Palmyra sparked my curiosity. I posed many questions to him during his talk, and he responded by telling me that there was a newly established department of archaeology in Damascus: I believe that you have the potential to become a prominent archaeologist if you study there. His words had a profound influence on me…. I was unsure whether he genuinely meant them or merely uttered them as a compliment. Nevertheless, they prompted a major shift in my life. Upon returning home, I informed my father of my decision to study archaeology in Damascus. He was furious and initially refused, as he considered the future of archaeology in Syria to be uncertain. He had never heard of such a field before, and he doubted that it would offer a decent income. Moreover, the study would take place in Damascus, whereas we were from Aleppo. This implied that my father would have to bear additional costs for at least four years. However, with the assistance of my mother and uncle Saeed, they persuaded my father to consent. Consequently, I vowed to him that I would do everything in my power to excel, and, indeed, I consistently ranked among the top students and received the Al-Basel Award, which was granted to the best student in each department. Subsequently, the state sponsored my master’s degree in Syrian antiquities in France. After that, I resumed my work at the General Directorate of Antiquities and Museums. In 2016, ISIS executed Dr Khaled Al-Asaad for his role in safeguarding Palmyra’s antiquities.
Tamás Szabados (TS): During my general legal studies, I did not have the opportunity to attend any course on the international protection of cultural heritage. I started my PhD research on a very distant topic that raised private international law and company law questions: the cross-border mobility of companies. However, in this period of my studies, I was reading various works on private international law, and in this way I came across several cases concerning international art trade. These cases demonstrated that the interest in protecting cultural heritage can sometimes override purely commercial interests and the rules governing an international transaction. This was the point where I felt that it was easy to link my interest in art with my work on private law, and I wanted to be immersed in this field. This was in fact a process of self-education. I oriented my research work primarily towards the regulation of the trade of cultural goods from a comparative and European Union (EU) law point of view.
The next level of my activity in this field was when I decided to launch an English-language course on international art trade and law at ELTE Eötvös Loránd University, Budapest, the university where I work. This course, delivered for Hungarian and incoming international students, gives an introduction to the main legal issues of the international art trade and underlines how the public interest in protecting cultural heritage has an impact on transactions involving cultural goods. To my knowledge, no similar legal course existed previously in Hungary.
Luke Tattersall (LT): I started practicing public international law when I joined Essex Court Chambers as a barrister in London, acting for and against states in various international courts and tribunals. Prior to that, I had considered different aspects of international law while studying it at the University of Cambridge.
LL: What was the original seed for what became your award-winning article?
AA: My work in protecting Syrian antiquities during the war in areas controlled by the Islamic State.
TS: My first readings in this field concerned private international law cases. Later, I was involved in the codification of the Private International Law Act in Hungary. Like a few other private international law codifications in other countries, it contains special rules on stolen goods and illegally exported cultural objects. These experiences explain why I focused on the conflict of laws in my article, “In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications.”
The basic private international law problem related to stolen cultural property is well known. It often happens that a cultural object is stolen in a country, let’s say in State A; the stolen artefact leaves the country where the theft occurred and is put into the stream of commerce. It is purchased by a good faith buyer from State B, then resold to a subsequent purchaser in State C. As a result, the object may end up with a purchaser who is not aware of the origin of the object. If the original owner brings a restitution claim against the good faith purchaser, the court has to decide which law to apply. The choice is particularly difficult if the law of the country of origin protects the original owner, while the state where the object is located prefers the bona fide purchaser. As pointed out in the literature, this is in fact a choice between two innocent persons, and it may seem to be impossible to make a just choice. Private international law may seem like a technical subject, but it is decisive in such disputes.
Ideally, the international unification of substantive property law provisions could address this conflict. The tensions between the divergent national property laws were intended to be resolved by the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. However, its reach remained limited since several market countries failed to ratify it. At regional level, European Union (EU) legislation did not address this problem by substantive or a conflict of laws’ provisions, even though the European Union (EU) is quite active in the area of private international law. At the same time, in a few European countries, national legislatures adopted special conflict of laws rules for stolen and illegally exported cultural objects. The regulatory gap in European Union (EU) law induced me to ponder on the question of how cultural objects should be regulated in European (EU) private international law and to what extent the existing domestic solutions can be used as a model for the European Union (EU) and legislatures outside the European Union (EU).
LT: A lot of my cases concern sovereign or diplomatic immunity in one form or another. They also raise issues of the comity of nations as they frequently concern overlapping jurisdictions or competing foreign interests. Writing about these issues in the context of international cultural property largely arose as a result of several high-profile cases that were being heard in the United States at the time.
LL: What was your article’s main thesis and contribution to the field?
AA: My main object was to uncover and document the mechanisms of plundering Syrian antiquities by ISIS.
TS: In private international law, property law questions are in general governed by the law of the location of the object at the time of the relevant transaction. This is the lex rei sitae principle. Most private international laws do not address cultural property specifically but, instead, apply the general lex rei sitae rule to artefacts. However, the application of the lex rei sitae rule can be abused and can lead to “title laundering” by the thief bringing the object to a jurisdiction where a bona fide purchaser can obtain ownership to the detriment of the original owner. This is the reason why several legal scholars proposed alternative connecting factors; in particular, the application of the law of the country of origin (also known as the lex originis principle) to prevent the deprivation of the original owner of his ownership. Some of the more recent private international law codifications have provided specific rules on stolen and illegally exported cultural goods that combine the lex rei sitae and the lex originis principles and choice of law. In the article, I expressed the opinion that the recent codifications – even if their intention can be commended – do not necessarily promote legal certainty and predictability with regard to the governing law and cannot be used without reservation as a model for private international law legislation at the international, European Union (EU), or domestic levels.
LT: The article considered the approach taken by courts in the United States in relation to sovereign immunity being raised as a defense by several states in restitution actions regarding cultural property that had been expropriated during the Second World War. The US courts were interpreting the Foreign Sovereign Immunities Act in such a way as to significantly expand jurisdiction to encompass claims that had no connection to the US, which allowed private litigants to file suits against sovereign states in a wide range of circumstances. This raised interesting issues concerning territorial sovereignty, jurisdiction, and comity within the law of foreign relations.
LL: How do you think your article was received after its publication?
AA: It had a good effect because some of the information provided by parties linked to security services in countries such as the United States of America and Europe was the subject of skepticism and controversy. When I presented independent documents in my article, I was able to reduce the intensity of the controversy and provide internal details about ISIS’s activities in looting antiquities.
TS: I received positive feedback on the article, which became a cited work in this field. This reception motivated me to continue my work. In my subsequent research work, I could use what I learned through my article. I had the opportunity to take part in the work of the European Group of Private International Law (GEDIP), a renowned expert group that recently put forward a proposal for special European Union-level conflict of laws rules on stolen and illegally exported cultural objects. I presented the outcomes of my research at several conferences, such as the biannual conference of the German Society for International Law.
LL: How does the article connect to your research agenda/work?
AA: This article was my inaugural peer-reviewed academic publication in the English language and came after a hiatus from academic research of more than five years due to wartime conditions. It constituted the foundation for all my subsequent research pertaining to the pillage of tangible cultural heritage in Syria, and it inspired me to author several articles on the topics of the plunder of Syrian antiquities, its underlying causes and incentives, and the actual role of local communities, authorities, and terrorist organizations. I also delivered several lectures based on this article and its findings.
LT: My research continues to focus on areas where sovereign states interact with one another, whether through the legislative, executive, or judicial branches of government. Typically, doing so means considering areas where there are competing and often opposing sovereign interests that need to be reconciled through legislative or adjudicative means. This area of study intersects with a wide range of doctrines under international and constitutional law, such as sovereign immunity, the Act of State doctrine, forum non conveniens, extraterritoriality, and so on. What unites these areas is the fact that they concern the application of international law within a domestic context and require the national courts to make determinations bearing upon the international relations between states.
LL: A very common feature of the publication process is that the piece is sort of frozen in time, and yet we evolve as thinkers and writers. With that context in mind, if you were to rewrite that piece today, what would be different?
AA: I probably would have deleted the section comparing the regime to ISIS, so that the reader can focus on ISIS, and the transition from the introduction to the documents section becomes faster and better connected.
TS: I can uphold the main findings of the article. The problem I raised is still not resolved. What I could perhaps refine is the conclusion. I argued that the solutions of the recent codifications and scholarly proposals are not satisfactory because they do not provide legal certainty and do not solve the problem of title laundering. Therefore, I proposed to keep the lex rei sitae rule by itself, or by completing it with an escape clause as long as no more adequate connecting factor is found. Nevertheless, other solutions are also feasible. The aforementioned GEDIP proposal promotes restitution by possible reliance on the lex originis principle as an alternative to the lex rei sitae rule. At the same time, under certain conditions, the court may award reimbursement to a good faith possessor for spending funds for the acquisition and preservation of the cultural object.
LL: What did you do with/during the Fellowship?
AA: The fellowship was invaluable. It broadened my academic network, and through it, I met Dr Patrick Michel from the University of Lausanne. I submitted to him my doctoral project proposal, which he approved and agreed to supervise in collaboration with Professor Jane Bird from the Birkbeck group. I have been admitted to a doctoral program at the University of Lausanne, but without funding … and securing funding is one of the obstacles I currently confront.
During my stay in Geneva, I participated in an online conference (the conference was in Istanbul) and discussed the transgressions of Turkish-backed factions in looting and demolishing antiquities. When I returned to Istanbul after the completion of the fellowship, I was detained by the Turkish army, not the Turkish police. I was interrogated and my computer was seized. After my release, I escaped with my family (my wife and five children, including 6-month-old twins) to Serbia and then to Germany. I am still awaiting the asylum court’s verdict.
I was compelled to leave my country, Syria, due to the nature of my work and my activities in preserving antiquities and the perils and menaces that faced. I was also endangered by Syrian military factions supported by Turkey, and this resulted in my arrest, investigation, and threat of deportation from Turkey to Syria because of my involvement in protecting antiquities. I am presently in Germany. I have applied for asylum and am still anticipating the decision of the Asylum Court. Therefore, I endure a state of instability, but I still maintain that our endeavor to safeguard the Syrian cultural heritage must persist, as it will be a crucial pillar in constructing the future of Syria. This is something worth continuing to work for.
TS: The Fellowship provided me with a unique opportunity to spend four weeks at the Art-Law Centre of the University of Geneva. I am very grateful for the hospitality of Professor Marc-André Renold and the fellows of the Art-Law Centre as well as Sandrine Giroud and the colleagues of the Lalive law firm I met during my stay. I also thank the International Cultural Property Society for its support and for enabling my research in Geneva.
Using the outstanding libraries of the Art-Law Centre and the Faculty of Law of the University of Geneva, I pursued research on private international law treatment of art collections, and I could hold a lecture on this topic. This is a research topic on which I still work.
LL: What do you think are the big debates and unresolved challenges ahead for the field?
AA: Many issues have not been resolved, and there are still many challenges to preventing the looting, smuggling, and trade of antiquities…. On the Syrian level, for example, ISIS was eliminated because it represented a security threat to Western countries, but the Al-Nusra Front was preserved despite its violation and looting of hundreds of archaeological sites in areas of its control. International laws still prevent the funding of local archaeologists in areas of terrorist organizations. This is a defect that must be corrected because local communities are the first line of defense for protecting antiquities. My current research examines the perspectives of Hay’at Tahrir al-Sham on Syrian antiquities following its severance from Al-Qaeda. It analyzes the attitudes and conduct of the Al-Nusra Front and its changes towards antiquities with evidence (internal documents and photos).
TS: There are a series of unresolved and undoubtedly very complicated legal and moral issues in this field that can be traced back to the past: for example, cultural objects removed during the Colonial era, works of art looted during the Second World War, and nationalizations. However, I would like to highlight another challenge that emerged in the last decades, which will remain with us in the future. This is adequate legal regulation of the online art trade. The outbreak of the COVID-19 pandemic gave a boost to online art trade, in particular online auctions. In the case of online transactions, the buyer is less able to check the provenance and authenticity of the goods offered for sale. The role of intermediaries, such as auction houses and art dealers, becomes more important under such circumstances. Online transactions cannot be treated on the same footing as traditional ones. Regulations have to adapt to this changed reality.
LT: With the current global order facing an array of challenges and a steep influx in armed conflict around the world, I believe the big challenge for the law of cultural heritage in the future is to offer more robust responses to the protection of cultural artefacts in states that are subject to armed conflict, occupation, and annexation. Without appropriately strong protections, the cultural heritage of a significant proportion of states will cease to exist, and the knowledge, art, and consciousness of many previous generations will be lost. This matter requires multilateral efforts, which calls for a greater degree of public and international attention.
LL: Any pearls of wisdom to new entrants in this wondrous field?
AA: Some people regard archaeology as the study of the past…. Archaeology is a fascinating discipline that enables you to explore the depths of history and broaden your awareness of current events. Simultaneously, it empowers you to foresee the future. It resembles school and life, as you acquire something new every day. The most splendid aspect of cultural heritage is that it is an inseparable part of us and, as vital as it is for investigating and comprehending the past, it is essential for constructing the future…. In Syria, for instance, tangible cultural heritage will be one of the pillars of building the future due to the role it performs in reconciling and establishing peace among the constituents in Syria, irrespective of their ethnic, religious, and cultural diversities…. Therefore, striving to preserve it will act as a safeguard for the future of Syrians and a warranty for building peace in the present and the future.
TS: In my experience, academics and even practitioners sometimes ask themselves what the sense of dealing with law is, and whether we can have at all a positive impact through our scholarly or practical activity. Everyday legal practice is often about quibbling. But, on the contrary, addressing legal issues related to cultural property has a real significance that is not motivated only by financial interests. The involvement in the creation, application, and scholarly interpretation of legal rules on cultural heritage can clearly contribute to preserving values for this and future generations. The law can undoubtedly have a positive impact here.
LT: It is essential to have a broad understanding of the basics across the whole field of cultural property law and then to identify an aspect or aspects of it where you consider you can make a meaningful impact and where the issues that arise excite you. If you are genuinely intrigued and curious about an area of study this will undoubtedly come through in your research in an abundance of ways, leading you to uncover aspects of the law yet to be discovered and giving your research a touch of originality.
