Withers Worldwide

A blow to international counter measures against the illicit trade in antiquities.

On 29 March the English court delivered judgment on two preliminary issues in this case. It concerns 18 ancient artefacts which it was assumed were illegally excavated in the Jiroft region of south-eastern Iran and are held by an antiquities dealer in London.  The Judge held (on the first issue) that the relevant laws of Iran, while affording the Iranian state an "immediate right of possession" to them when the items were in Iran, were insufficiently clear to ‘vest' original ownership of the items in the Iranian state so as to enable it to bring an action for ‘conversion' in the English court.  He went on to hold (on the second issue) that even if Iran's laws on the point were crystal clear, the claim was not ‘justiciable' in the English courts, since the foreign state was making a claim to ‘enforce' its ‘public laws'.

On the first issue, Iran's immediate right to possession derives from its legislation requiring any finder of an ‘antiquity' to submit it to agents of the state. There is some English authority to the effect that while for a claim in ‘conversion' (otherwise known as wrongful interference with goods, and equivalent to the American claim of replevin) a claimant need show only that it has a better right of possession than the defendant, a ‘proprietary element' to the right of possession is required.  The Judge decided that such an element was absent here.

As concerns ‘justiciability', the Judge was faced with a decision of the Court of Appeal from November 2006 which, after considering numerous previous decisions involving claims of foreign states, held that the court will not ‘enforce' a claim based on a law where the rights it confers are not available to a private person.  If this is correct, it means that a State may not bring a claim in England to antiquities illegally excavated in its territory, where its own laws provide that all antiquities found in its soil belong to the state (and on that ground).  This is distinct from a claim brought, for example, by a private person whose title derives from a state which acquired its original title under exactly the same laws.

The Judge stated that a foreign state would be able to bring a claim if it had acquired ownership of an antiquity (or anything else) by gift or purchase, which had then, for example, been stolen from it, but not if its claim derives from its own legislation.

The decision on this second issue is potentially extremely serious for those states (of which there are many) which have such laws. Moreover, it is contrary to the views held (until now) by the UK Department for Culture Media & Sport, on the basis of which the UK Government has considered that its laws conform to its obligations under the 1970

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property which the UK finally accepted in 2003. It would appear that unless this decision is overturned on appeal, London's place as a centre of the illegal antiquities trade may revive with civil impunity, to the grave detriment of archaeologically rich nations.

We understand that the Court of Appeal decision of last year may be appealed to the House of Lords.  Meanwhile, Iran has filed an appeal in this case to the Court of Appeal.

Superseded - see update