"Stolen, illegally excavated or illegally exported"

I have earlier commented on the use of the word "stolen" as it relates to antiquities. My list was not intended to be exclusive, and it was not providing a definition of "stolen" from a legal perspective. It was a comment on my personal use of the word. I am grateful to Washington attorney Peter Tompa for pointing out that my usage, as previously outlined, was overly restrictive and does not accord with the legal definition of “stolen” established in the U.S. courts. Nor does it accord with the U.K. law. My personal position, as a British citizen, is informed by UK legislation and in particular The Dealing in Cultural Objects (Offences) Act 2003. (Note: the Act does not cover Scotland.) The guidance notes to the Act make it clear that the legislation was created to make

"a criminal offence of trading in cultural property in designated categories from designated countries which had been stolen, illegally excavated or illegally exported from those countries" (3).

So let me take a hypothetical example. Imagine a fourth century BCE cemetery in Italy ripped apart by mechanical diggers in order to obtain some Apulian pots. (I am not sure "illegally excavated" quite describes the process.) The Apulian pots are then illegally transported across the Italian border to Switzerland. In the next stage the pots are offered for sale in, say, London. My understanding is that anyone knowingly dealing in such objects would be committing an offence under The Dealing in Cultural Objects (Offences) Act 2003. The pots had been removed in an illicit way from their archaeological context and then been removed from their country of origin. Tompa points to the Archaeological Institute of America's comment,

many countries that are rich in archaeological resources have enacted national ownership laws. This means that any antiquity in the ground at the time the ownership law was enacted is the property of the nation. If such an artifact is dug up and removed from the country without permission it is stolen property, and remains so even after it is brought to the United States. Those objects should be dealt with in the same way as one would treat any other stolen property.

These principles are derived from the decision, United States v. Schultz. The issue is helpfully explained by Patty Gerstenblith, "The McClain/Schultz doctrine: another step against trade in stolen antiquities", Culture Without Context 13 (Autumn 2003). She drew attention to the importance of United States v. McClain, a case relating to antiquities from Mexico. The more significant case was United States v. Schultz linked specifically to archaeological material from Egypt. The issue, as Gerstenblith has presented it ("Recent developments in the legal protection of cultural heritage", in Neil Brodie, Morag M. Kersel, Christina Luke and Kathryn Walker-Tubb (eds.), Archaeology, Cultural Heritage, and the Antiquities Trade (University Press of Florida, 2006) 71), can be summarised as follows:

After two lengthy hearings on these questions, the court issued its opinion in January 2002, holding that property taken in violation of a national ownership law is still stolen property, even after entering the United States.

There were implications for those who dealt with recently surfaced archaeological material. The court made a statement (333 F.3d, at 410 quoted in Gerstenblith, "Recent developments", 72-73):

Although we recognize the concerns raised by Schultz and the amici about the risks that this holding poses to dealers in foreign antiquities, we cannot imagine that it "creates an insurmountable barrier to the lawful importation of cultural property into the United States." Our holding does assuredly create a barrier to the importation of cultural property owned by a foreign government. We see no reason that property stolen from a foreign sovereign should be treated any differently from property stolen from a foreign museum or private home. The mens rea requirement of the NSPA will protect innocent art dealers who unwittingly receive stolen goods, while our appropriately broad reading of the NSPA will protect the property of sovereign nations.

I respect the US court decision in the way that it interprets the word "stolen". Where do we move from here? The debate needs to revolve around how to safeguard our cosmopolitan past. Let me close with a further quote from Gerstenblith ("Recent developments", 74):

The clear message that [the Schultz] decision sends to the art market community should decrease the desire to trade in undocumented antiquities and thereby reduce the incentives for the initial looting of sites.

I share that desire.