Illicit Antiquities and International Litigation - the Turkish Experience

Article excerpt

Introduction

This article considers the restitution of stolen, often illicitly excavated and illegally exported antiquities using recent Turkish experience of international litigation as an illustration, including wider policy issues. Turkey is a particularly good example in view of the enormity of the problem of the trade in stolen Turkish antiquities. A single statistic is sufficient to illustrate this fact: between 1993 and 1995, over 17,500 separate official police operations to investigate stolen and smuggled antiquities were conducted (Kaye 1995). The Turkish government has also been very active since the 1960s in seeking to retrieve antiquities which have been illegally excavated or stolen and subsequently illicitly exported. Two restitution suits initiated by Turkey in the US are discussed here: Republic of Turkey v. the Metropolitan Museum of Art,(1) which has served as a landmark in terms of its effect on the art market and collectors in the US; and Republic of Turkey v. OKS Partners,(2)

Discussion of the protection and preservation of the archaeological heritage has naturally been concerned primarily with measures for the in situ protection of sites by rendering unauthorized interference with archaeological remains an of_ fence. This must always be the first line of defence against the many threats to the archaeological heritage which are increasing with the demands of the modern world (Council of Europe 1992: 1). However, illicit excavation and the related antiquities smuggling is a world-wide phenomenon of enormous proportions which has affected many 'artefact-rich' states, a multi-million-dollar business which rivals only the heroin trade in its scale (Norman 1990; Acar & Kaylan 1990: 130). The link between site destruction and the market for antiquities is clear and well-documented (Coggins 1969; Greenfield 1989: 240; Gutchen 1983; O'Keefe & Prott 1989: 37-51; Des Portes 1994). An approach which treats control of the trade in illicit antiquities as fundamental to the protection of sites from criminal interference is essential. International litigation for the restitution of stolen antiquities is one of the mechanisms for confronting this problem and this paper will consider the role it has to play.

International litigation for the restitution of stolen artefacts

The US is of primary interest as the world's leading market for classical antiquities and previous cases there have set important precedents for restitution suits (Church 1993). Of these, two interesting recent examples are: Republic of Cyprus v. Goldberg(3) (henceforth Goldberg) concerning part of a mosaic removed from the 6th-century AD apse of the church of Panagia Kanakaria in northern Cyprus (Byrne-Sutton 1992; Gerstenblith 1995); and Peru v. Johnson(4) (1989) relating to 89 pre-Columbian artefacts seized by US customs on suspicion of their illicit export from their country of origin (Merryman 1994). There is a tendency in US law to favour the original owners in such cases, if the facts of the case support their claim, since the transferor of goods can only convey as good a title as s/he has and so a thief cannot convey good title under any circumstances. This contrasts with certain other jurisdictions in which good title is immediately transferred to a goodfaith purchaser. There remains, however, the major difficulty of satisfying the courts on the facts in the case where undocumented artefacts are involved as well as other legal hurdles which make these cases complex and costly to pursue. The problems which can be faced by potential litigants include: lack of documentation (which is obviously true of illegally excavated items) and the associated difficulty of proving provenance; time-barring of cases under statute of limitation rules, often invoked where items have disappeared from view for many years; and the difficulty of imposing one State's export regulations in the court of the recipient State. …