On the re-politicisation of cultural property

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by Björn Schöpe

January 3, 2013 – On September 4, 1997 American Stuart Hersh was severely wounded in a suicide bombing in Jerusalem. As indemnity US courts adjudicated him $12m. A sum to be paid by the state of Iran being the alleged mastermind behind the Hamas attack. Iran did not pay, naturally.
Recently Iran’s President Ahmadinejad resided in New York while attending the UN General Assembly. Mr Hersh’s lawyer thought this to be a good occasion for claiming his client’s money: He demanded all the money from Warwick Hotel that was paid by Iran for their delegation’s accommodation. After the court had denied that move the lawyer expressed his deep regret about the fact that ‘the hotel has done the legwork of Iran finding a hyper-technical loophole’ in the lawsuit. Probably only a jurist can understand how it is a ‘hyper-technical loophole’ when someone does not refund money which they received for a service only because those who paid may be in debt with someone else.

This logic is dangerous, though, and particularly when meeting another harmful fad: the concept that a country may claim automatically whatever has been found on its soil during history or whatever may be linked to it in some way. This is demonstrated most brilliantly by another US lawsuit as well.

Besides Mr Hersh the tragic Jerusalem attack had numerous other victims, too. They are attending an overall $70m payment and have been trying to get this money for years. Currently their lawyers are benefitting from a politicisation of cultural property.
Though, the lawyers of the attack’s victims have been suing various museums and research institutions for a couple of years. They intend seizing Iranian cultural property. Quite similar to the reasoning of Mr Hersh’s lawyer they consider these institutions – in case they do not collaborate – to be doing Iran’s ‘legwork.’ Alongside Iran quite illustrious institutions like the Museum of Fine Arts in Boston, the University of Chicago’s Oriental Institute, and the museums of Harvard University stand in the dock.
We encounter a well-trodden argument: the proprietors allegedly cannot prove that these objects do really belong to them since the state of Iran may claim rights on these ‘Iranian’ cultural objects in the first place (that we are dealing, as a matter of fact, mainly with Persian items, we may tacitly assume that this is legally speaking nothing else than a ‘hyper-technical loophole’ …). Iran, however, has never claimed anything regarding these objects. But whoever would ask a rogue state like Iran anything about anything?
Actually, part of these disputed objects are long-term loans from Iran. The greater part was excavated before 1930 or legally purchased later, though (according to the plaintiffs this happened illegally, since we do not know any detail of how they found their way abroad). A district court judge sided with the appellants as for Iran having to detail all its assets in the USA – a federal appeal court eventually set this judgment aside.
Basically things seem to be quite simple, not following a legal logic. Either the objects belong to the museums. In that case there is no reason why they should be taken away from the museums. Or they belong to Iran (as may be the case with the long-term loans). Then they cannot be seized according to US and international law. But at this point certain special terms of the Terrorism Risk Insurance Act are called into action. The immunity of objects being part of cultural exchange is not applicable in that case, according to the plaintiffs’ lawyers, since they deem this exchange a ‘commercial activity.’ At the moment, the plaintiffs are engaged in an absurd linguistic analysis: they are trying to demonstrate that ‘of’ does not designate only propriety interpreting that the objects must not necessarily belong to Iran for giving the possibility of attaching them as ‘cultural property of Iran’ …

Parts of these lawsuits were referred to the Supreme Court, went back, and so on. You are reminded instinctively of the fictional inheritance court case Jarndyce & Jarndyce in Charles Dickens’s splendid novel ‘Bleak House’ – a fictional case which was based, alas, on real life cases. An enormous inheritance arose desire among many people since the deceased unfortunately had made various and conflicting wills. Those who claimed their portion of the inheritance passed this claim on over generations. This interminable case created its own world where court and lawyers lived at the expense of a large number of the plaintiffs’ futile hopes who stayed alive solely for this case, absorbed by it and without realising the world around. In the end, by the way, the large Jarndyce estate at stake was devoured entirely by the legal costs …

Those who are seeking such long-lasting cases today must understand that they are playing a dangerous game. If they really succeed in plundering museums they will hit innocent parties. Additionally an international academic cooperation between countries whose governments are in conflict will hardly be possible in future. Long-term loans would not even be protected by laws and hence, they would no longer be given to localities where potentially absurd lawsuits could endanger them.
In the long run research, academics and culture will be politicised and, in a gloomy future, could loose all their autonomy. At that point we are not so far away from a world where researchers are dictated how to reconstruct the own past in order to ensure that it was really more glorious than the history of the hated enemy.

No art collector desires that although the collectors could be those who might be glad most likely. At least the ‘Iranian objects’ have to be transformed into money in some way. But could it not be a risk to purchase one of these items? What if you wish to sell your Persian relief legally bought in the USA? It is an intriguing question whether such an action would be internationally considered legal – or even in other US states. However, nobody ever wishes to become that threatening idea a reality. Except of certain lawyers and their clients, of course.

Iran Times reported on the attempt to claim the money from the Warwick Hotel which they had received from Iran for the UN delegation’s accommodation.

Here we reported on Belize claiming rights of using objects which are allegedly originating from there.

Information particularly on the problems regarding the objects at the University of Chicago offers the Wikipedia article University of Chicago Persian Antiquities Crisis.

You are curious about the legal meaning of ‘of’? Read this text.

More detailed reports of the lawsuit offers the Cultural Heritage Lawyer here, here and here.

And by the way, you can find Dickens’s ‘Bleak House’ as part of the Gutenberg Project.