The SAAL of Stolen Antiquities: Standard Form Leases as a Solution for Looted Artifacts
In 2018, a report commissioned by French President Emmanuel Macron estimated that between 90% and 95% of Africa’s cultural heritage is held outside of Africa; the extent to which African cultural treasures have been looted, stolen, and otherwise acquired and removed reaches far beyond high-profile examples such as the Rosetta Stone at the British Museum and the Bust of Nefertiti at the Neues Museum. Notwithstanding the work accomplished by the International Community with the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in 1970 (the “UNESCO Convention”) and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (the “UNIDROIT Convention”), 90% of Africa’s cultural heritage being held outside of Africa strongly suggests the need for a different solution. A framework for leasing cultural property could provide a mutually beneficial solution. However, leasing can present challenges, including the need for complex agreements and potentially high costs that are insurmountable for many museums. This blog proposes standardized form agreements for leasing artifacts, a Simple Agreement for Artifact Loans (“SAAL”), to solve those challenges in leasing regimes.
Problems with the Existing UNESCO and UNIDROIT Framework
The UNESCO Convention drove important developments regarding the protection of cultural heritage. Under Article 7(b)(ii), state parties to the convention agree to “take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned” at the request of the state party from where the property originates. However, Article 7(b)(ii) also makes clear that the requesting country must, among other things, supply the evidence supporting its claims. Under these obligations, it can be difficult to provide any sort of evidence regarding an item that was looted in an illegal excavation and smuggled to a different country. The lack of an export permit is not demonstrative, either, since many pieces are either part of or claimed to be part of old collections taken before the UNESCO Convention. Proving an item was illegally exported and that it was after the UNESCO Convention resembles proving a negative.
The UNIDROIT Convention attempts to make it easier for member parties to get items returned. However, a similar problem persists: it only applies to items stolen after 1995, the year the convention entered into force. More problematic, the UNIDROIT Convention only has 54 Parties, and notable absences include France, Germany, the United Kingdom, the United States, and Switzerland. Without market states, the list of UNIDROIT parties bears a close resemblance to a list of countries wanting their cultural heritage back. The proof is sadly in the pudding: the UNESCO Convention does not present a workable solution, and the UNIDROIT Convention, aiming to provide a framework for the return of artifacts, presents a solution that has not attracted participation from market states.
Benefits and Challenges of a Leasing System
Although repatriation has a strong moral argument, perhaps unsurprisingly, the proposition of exchanging something for nothing has not yet caused the en masse return of cultural property. Leasing could provide an effective alternative, and some parties have already experimented with the practice. For example, in 2002, France and Nigeria reached an agreement where Nigeria agreed to a 25-year lease of several statutes, already in Paris, in exchange for France’s recognition that Nigeria was the rightful owner of the statues.
The large number of artifacts with questionable provenances causes a problem for a leasing regime. In March of 2023, the International Consortium of Investigative Journalists discovered that over 1,000 pieces in the Met’s collection have links to figures involved with trafficking and looting. While that number may seem relatively small number compared to the Met’s entire collection, negotiating 1,000 bespoke leasing agreements would prove time consuming. Even if the pieces could be sorted into lots, leasing would still entail numerous agreements.
Dozens or hundreds of agreements can be costly because legal services are expensive. Big law billing rates have been significantly increasing, with partners at certain large firms nearing the $2,000 per hour mark, and two firms even crossing the $2,000 line. The high price of legal services, coupled with the time required for negotiating separate agreements, would likely price many market participants out. According to an estimate from 2014, there are over 35,000 museums in the United States alone. Even with less expensive legal representation, legal costs could easily become more expensive than lease payments for lower-profile items. Surely, most museums could not afford the legal fees that would result from negotiating bespoke agreements for every lease. Even for wealthy museums, the time and money required for bespoke agreements might only make sense for the most valuable items.
Standardized Form Agreements Can Alleviate Some Drawbacks of a Leasing System
A solution for this problem could be based on a method of resolving similar issues in the venture capital space: the Simple Agreement for Future Equity (“SAFE”). A SAFE is a form document for an investment that resembles a simplified version of convertibles. Barring the use of the versions with a valuation cap or a discount rate, the only open terms in a SAFE are the names of the parties and the dollar amount. The lack of open terms encourages efficiency as nearly the whole agreement is boilerplate. Creating a similar, widely-accepted standard form document for leasing artifacts, the SAAL proposed by this blog, could lead to a legitimate international public market with low barriers to entry.
In a SAAL, the open terms might only be the names of the parties, the item being leased, and the dollar amount being paid for the lease. The term, conditions for renewal, conditions precedent and subsequent, covenants, and other ancillary terms would be standard and therefore there would not be a need to renegotiate them every time. Even at the smallest museum, a museum curator could negotiate a lease for an item with a counterpart.
SAALs could be used to negotiate future exchanges between museums, but they could also work toward remedying the issue of cultural artifacts that have already been removed. The final benefit of SAALs is that they do not require official participation from market states, which has hurt the UNIDROIT Convention. It requires participation from source nations and museums in market nations, which cuts out the need for approval from the governments of market nations. An international convention might hasten the adoption of SAALs as a solution. But because SAALs would be a contract between two parties, a multilateral framework is not necessary if the document itself is attractive enough to market participants.
The development of SAALs could be done under the aegis of UNIDROIT since SAALs fit under its goal of coordinating and harmonizing private law. UNIDROIT could follow the process the Loan Market Association follows to create its form documents, which entails consulting market participants and lawyers in the relevant field. The creation of a standard form agreement for leasing cultural artifacts could create a solution agreeable to source nations and market participants where source nations can receive some benefit from antiquities that, under the status quo, are in other countries.
Felwine Sarr & Bénédictine Savoy, Rapport sur la restitution du patrimoine culturel africain – Vers une nouvelle éthique relationnelle [Report on the Restitution of African Cultural Heritage – Towards a New Relational Ethic] 3 n.5 (2018) ↑
See, e.g., Silvia Beltrametti, Museum Strategies: Leasing Antiquities, 36 Colum. J.L. & Arts 203, 241 (2013) (proposing a leasing framework and discussing its implications). ↑
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property art. 7(b)(ii), Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter 1970 UNESCO Convention]. ↑
See, e.g., Barry Meier & Martin Gottlieb, LOOT: Along the Antiquities Trail; An Illicit Journey Out of Egypt, Only a Few Questions Asked, N.Y. Times, (Feb. 23, 2004), https://www.nytimes.com/2004/02/23/world/loot-along-antiquities-trail-illicit-journey-egypt-only-few-questions-asked.html (following the journey of a stele that was taken from the Upper Egypt city of Akhimin, smuggled to Europe, and ended up in a New York City apartment). ↑
See, e.g., id.; William Grimes, The Antiquities Boom – Who Pays the Price?, N.Y. Times, (July 16, 1989), https://www.nytimes.com/1989/07/16/magazine/the-antiquities-boom-who-pays-the-price.html (discussing the increase in interest in antiquities for private collectors and its consequences). ↑
See International Institute for the Unification of Private Law [“UNIDROIT”] Convention on Stolen or Illegally Exported Objects, June 24, 1995, 34 I.L.M. 1322, available at http://www.unidroit.org/ english/conventions/1995culturalproperty/1995culturalproperty-e.htm [hereinafter UNIDROIT Convention]. ↑
See id. art. 10 ↑
See State Parties to the Convention on Stolen or Illegally Exported Cultural Objects, UNIDROIT https://www.unidroit.org/instruments/cultural-property/1995-convention/status/ (last visited Mar. 12, 2023). ↑
Jane Warring, Comment, Underground Debates: The Fundamental Differences of Opinion That Thwart UNESCO’s Progress in Fighting the Illicit Trade in Cultural Property, 19 Emory Int’l L. Rev. 227, 293-94 (2005). ↑
Malia Politzer, Delphine Reuter, Namrata Sharma & Spencer Woodman, More Than 1000 Artifacts in Metropolitan Museum of Art Catalog Linked to Alleged Looting and Trafficking Figures, Int’l Consortium Investigative Journalists (Mar. 20, 2023), https://www.icij.org/investigations/hidden-treasures/more-than-1000-artifacts-in-metropolitan-museum-of-art-catalog-linked-to-alleged-looting-and-trafficking-figures/. ↑
Roy Strom, Big Law Rates Topping $2,000 Leave Value ‘In Eye of Beholder’, Bloomberg Law, (June 9, 2022), https://www.bloomberglaw.com/product/tax/bloombergtaxnews/business-and-practice/X6E5TREK000000?bna_news_filter=business-and-practice#jcite. ↑
Government Doubles Official Estimate: There Are 35,000 Active Museums in the U.S., Inst. Museum & Libr. Servs. (May 19, 2014), https://www.imls.gov/news/government-doubles-official-estimate-there-are-35000-active-museums-us. ↑
Kyle Westaway, Understanding SAFE Agreements: Benefits and Risks for Startups, Forbes (Jan. 6, 2023), https://www.forbes.com/sites/kylewestaway/2023/01/06/understanding-safe-agreements-benefits-and-risks-for-startups/?sh=203815b03433. ↑
Statute of the International Institute for the Unification of Private Law art. 1, Mar. 15, 1940, 15 U.S.T. 2504 (as amended); A.T.S. 1973/10 (as amended). ↑
Documents & Guidelines, Loan Mkt. Ass’n, https://www.lma.eu.com/documents-guidelines/documents (last visited Mar. 26, 2023). ↑