A Second Italian Case on Cultural Properties Enmeshed in Fishing Nets

1. Introduction

To fortuitously fish cultural properties lying on the continental shelf is an event not likely to occur frequently, even in waters particularly rich in underwater cultural heritage, as those of the Mediterranean Sea[1]. Only twice in the last fifty years cases relating to such a prodigious fishing have been brought before Italian courts. Both instances deserve to be recalled for their peculiarities and for the general questions that they involve.

2. The Melqart of Sciacca

In January 1955, a 38 cm high bronze statue accidentally became entangled in nets being dragged by the Angelina Madre, a fishing vessel flying the Italian flag. The recovery of the artefact occurred on the Italian continental shelf, at about 20 n.m. from the Italian coast south of the island of Sicily.

At first, the statue was not attributed importance. Without dissent of any sort, it was taken by one of the sailors, Mr. Santo Vitale, to his home in the city of Sciacca. It was then displayed for some months in a small grocery shop managed by Mr. Calogero Vitale, father of the sailor. It was later sold to a neighbour, Mr. Giovanni Tovagliari, or perhaps (the point has never been clarified) bartered for some flasks of wine. Mr. Tovagliari was the first to wonder whether the statue might be of historical importance and submitted it for examination to Mr. Stefano Chiappisi, an expert in history. Mr. Chiappisi’s research ascertained that the statue was a very rare historical relic of the Phoenician civilization (9th to 11th century B.C.), representing a deity that was probably Melqart, the god of the sea. It was similar, but perhaps more precious because of its greater height, to the only two other examples in existence in the world: the Adad, or Ba-Al, of Minet el Beida, found in Syria and now exposed in the Louvre in Paris; and the Addad of Pelizeus, or Resef, preserved in the museum of Hildesheim, Germany.

Learning of the fortunate finding, the Superintendent of Antiquities of the Province of Agrigento requested that the Melqart of Sciacca (as the statue came to be called) be handed over to him, as the property of the State. Under Italian legislation[2], all objects belonging to the cultural heritage which are fortuitously found belong to the State, while the finder is entitled only to a reward. But Mr. Tovagliari, to ensure the Melqart for the city’s cultural heritage, donated it to the Municipality of Sciacca. The Municipality entrusted the Melqart to a respected clergymen, Mgr. Aurelio Cassar, who jealously cared for the statue in the historical section of the municipality’s library. As his request had not been satisfied, the Superintendent brought a case before the Tribunal of Sciacca.

At this point, Mr. Michele Scaglione, the owner of the Angelina Madre, intervened in the matter. He maintained that the sphere of application of the Italian legislation on the cultural heritage was limited to the Italian territory and territorial sea (which was, at that time, 6 n.m. in breadth). He asked that the Melqart be declared his property, as a res nullius having been found by his vessel on the high seas.

The subsequent litigation to determine the ownership of the statue involved, on opposing sides, the State, the Municipality of Sciacca, Mr. Scaglione and the heirs of Mr. Tovagliari (the latter maintaining that Mr. Tovagliari, who in the meantime had died, had not donated the Melqart to the Municipality but had only entrusted it for safekeeping). The case was settled on 9 January 1963[3] by an interesting, albeit questionable, decision whereby the Tribunal of Sciacca found that the Melqart belonged to the State.

The Tribunal held that a ship flying the Italian flag is to be considered as a prolongation of the Italian territory. In their turn, the nets of a fishing vessel flying the Italian flag are a prolongation of the vessel and, consequently, a prolongation of the prolongation of the Italian territory. This meant that the Melqart was to be treated as if it had been found in the Italian territory with the consequent application of the Italian legislation which granted to the State the ownership of all the cultural heritage fortuitously found.

Taking into consideration the public interest in protecting the cultural heritage for historical research and exhibition to the public, the practical result obtained by the decision can be appreciated[4]. In facing a case for which no precedents were available, the Tribunal avoided the application of a first-come-first-served or freedom-of-fishing approach which would have only served the personal interests of a private subject.

However, looking at the general aspects of the matter, the application of the flag State law, as decided by the Tribunal, can hardly be subscribed. For instance, if the Melqart had been recovered by the nets (or whatever other machinery) of an American vessel, the United States legislation would have become applicable. The United States courts apply the so-called admiralty law, including the law of salvage and the law of finds, to ancient sunken ships and to objects found at sea. The law of salvage, which appears to be applicable when the owner of the wreck is known, gives the salvor a lien (or right in rem) over the object. The law of finds, which becomes applicable when the owner of the wreck or the removed objects is not known, means that “a person who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession becomes the property’s owner”[5]. This kind of legislation opens the way for the destination of the cultural properties in question to purposes of commercial gain and is an incentive to activities by treasure hunters.

3. The Victorious Athlete

By two decisions taken respectively on 12 June 2009, as regards the question of jurisdiction, and on 10 February 2010, as regards the merits, the Tribunal of Pesaro ordered the confiscation of a bronze statue of a victorious athlete, attributed to the Greek sculptor Lysippos (born about 370 BC). In August 1964 the statue had been found enmeshed in the nets of the vessel Ferruccio Ferri, flying the Italian flag and fishing in an area of high seas in the Adriatic Sea. It was introduced in Italy and kept for a certain time hidden in the cities of Fano and Gubbio. It was then exported in breach of the Italian legislation on cultural properties and moved to various localities (to Munich, to London, perhaps to Brazil and, after having entered in 1977 the United States, to Boston and to Denver). Finally it was bought by the J. Paul Getty Museum of Los Angeles, where it is now exhibited. It seems that the American museum paid the price of 3,950,000 US$ to acquire the statue from a corporation having the nationality of Luxembourg that purported to be the owner of it.

Four judgments have been taken in the past by the Tribunal and the Court of Appeal of Perugia, the Court of Cassation and the Court of Appeal of Rome to deal with criminal actions brought by the prosecutor against people accused of crimes connected with the movements of the statue. The last of these decisions, taken in 1970, acquitted the accused due to the lack of evidence that the object had been found in the Italian territory. This is why the most recent proceedings before the Tribunal of Pesaro were confined to the only question of the confiscation of the statue.

The two decisions by the Tribunal make a thorough analysis that cannot be reviewed hereunder as to the applicable rules of Italian criminal law and the judicial precedents on confiscation. The Tribunal moves from the assumption that the confiscation of certain categories of things is compulsory and does not necessarily depend on the conviction of those who have been accused of a crime. As regards the existence of the Italian jurisdiction, the Tribunal concludes that the statue had been very likely found in an area of “non territorial waters”, as it could be inferred from the statements made by the fishermen concerned, the analysis of the incrustations of molluscs broken off the statue[6] and the study of the morphology of the seabed.

Making use of the precedent established by the decision on the Melqart of Sciacca[7], the Tribunal confirms that Italian law applies to objects found on the high seas by a ship flying the Italian flag. This entails the consequence that, as provided for by Italian law, the statue became the property of the State since the moment when it was found. The same conclusion can by reached considering that the object was subsequently introduced into the Italian territory and that Italian law provides for a right of preemption by the State in case of transfer of ownership of cultural properties or in case of export of cultural properties located in the national territory. This right could not have been exercised by the State due to the clandestine nature of all the passages in which the statue was involved.

According to the Tribunal, the special provisions of Italian law on the inalienable character of properties belonging to the public demesne have priority over the general provisions of the civil code on the rights of the good faith buyer (Art. 1153) and acquisitive prescription (Art. 1161). This conclusion confirms several precedent decisions taken by Italian courts in cases of confiscation of cultural properties stolen or illegally excavated.

The Tribunal subsequently deals with the simple, but thought-provoking question of explaining why an order of confiscation could be issued as regards an object which was already the property of the State. The response is that, being the statue located abroad, the right of ownership could not be exercised by Italy through measures of self-protection and there was a need to adopt a formal deed to be transmitted to foreign authorities for recognition.

Addressing the rule that properties cannot be confiscated if they belong to a person not involved in the crime, the Tribunal concludes on the basis of a detailed analysis of the relevant facts that the managers of the J. Paul Getty Museum had been at least grossly negligent in buying the statue, if they had not been fully aware of its illicit origin. They had acquired a work of inestimable value without making any serious control on the legality of its provenance and without having asked to check the title under which the seller had the possession of it. They had relied only on a legal advice given by the lawyers of the seller who had an evident interest in concluding the sale, without taking the care to ask the Italian authorities about the legality of the export of a work which had been the subject of a criminal proceeding before Italian courts. The Tribunal adds that the museum in question is an institution particularly competent and qualified from which a higher degree of diligence has to be expected.

It remains to be seen whether the order of confiscation issued by the Tribunal of Pesaro will be executed by the American authorities.

4. The Merits of the 2001 UNESCO Convention

Most of the questions relating to the protection of the underwater cultural heritage in the Mediterranean Sea, including the problems posed by the “fishing” of cultural objects, could be addressed and solved if the Convention on the Protection of the Underwater Cultural Heritage[8], negotiated within the framework of UNESCO and signed on 6 November 2001 in Paris[9], were applicable among all the States concerned. For the time being, the Convention has entered into force on 2 January 2009 and is binding on thirty-one States, including ten Mediterranean States[10].

The regime set forth by the CPUCH for the heritage found on the continental shelf is based on a three-step procedure (reporting, consultations, urgent measures).

As regards the first step (reporting), the CPUCH bans secret activities or discoveries. States Parties must require their nationals or vessels flying their flag to report activities or discoveries to them. Information is also provided to the coastal State if the activity or discovery relates to the exclusive economic zone or on the continental shelf of another State Party (see Art. 9, para. 1, b)[11]. States Parties must also notify the discovery to the Director-General of UNESCO who must promptly make the information available to all States Parties.

As regards the second step (consultations), the coastal State is bound to consult all States Parties which have declared their interest in being consulted on how to ensure the effective protection of the underwater cultural heritage in question (Art. 10, para. 3, a, and Art. 9, para. 5). The CPUCH provides that any State Party may declare such an interest and that this “declaration shall be based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned” .

The coastal State is entitled to coordinate the consultations, unless it expressly declares that it does not wish to do so, in which case the States Parties that have declared an interest in being consulted shall appoint another coordinating State. The co-ordinating State must implement the measures of protection which have been agreed by the consulting States and may conduct any necessary preliminary research on the underwater cultural heritage.

As regards the third step (urgent measures), Art. 10, para. 4, of CPUCH provides as follows:

“Without prejudice to the right of all States Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with international law to prevent immediate danger to the underwater cultural heritage, including looting, the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. In taking such measures assistance may be requested from other States Parties”[12].

The right of the coordinating State to adopt urgent measures is an important aspect of the CPUCH regime. It would have been illusory to subordinate this right to the conclusion of consultations that are normally expected to last for some time. It would also have been illusory to grant this right to the flag State, considering the risk of activities carried out by vessels flying the flag of non-parties or a flag of convenience.

The CPUCH clearly sets forth that in coordinating consultations, taking measures, conducting preliminary research and issuing authorizations, the coordinating State acts “on behalf of the States Parties as a whole and not in its own interest” (Art. 10, para. 6). Any such action shall not in itself constitute a basis for the assertion of any preferential or jurisdictional rights not provided for in international law, including the UNCLOS.

As regards regional co-operation, Art. 6 CPUCH opens the way to a multiple-level protection of underwater cultural heritage:

“1. States Parties are encouraged to enter into bilateral, regional or other multilateral agreements or develop existing agreements, for the preservation of underwater cultural heritage. All such agreements shall be in full conformity with the provisions of this Convention and shall not dilute its universal character. States may, in such agreements, adopt rules and regulations which would ensure better protection of underwater cultural heritage than those adopted in this Convention.
2. The Parties to such bilateral, regional or other multilateral agreements may invite States with a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned to join such agreements”.

This corresponds to what has already happened in the field of the protection of the natural environment where treaties having a world sphere of application often co-exist with treaties concluded at the regional and sub-regional level. The key to co-ordination between treaties applicable at different levels is the criterium of the better protection, in the sense that the regional and sub-regional treaties are concluded to ensure better protection than those adopted at a more general level. The possibility to negotiate regional agreements should be carefully considered by the States bordering enclosed or semi-enclosed seas which are characterised by a particular kind of underwater cultural heritage, such as the Mediterranean, the Baltic, the Caribbean.

On 10 March 2001, the participants at an academic conference held in Palermo and Siracusa, Italy, adopted a Declaration on the Submarine Cultural Heritage of the Mediterranean Sea[13]. It stresses that “the Mediterranean basin is characterized by the traces of ancient civilisations which flourished along its shores and, having developed the first seafaring techniques, established close relationships with each other” and that “the Mediterranean cultural heritage is unique in that it embodies the common historical and cultural roots of many civilizations”. The Mediterranean countries were consequently invited to “study the possibility of adopting a regional convention that enhances cooperation in the investigation and protection of the Mediterranean submarine cultural heritage and sets forth the relevant rights and obligations”.

Two years after, the final round table of an International Conference on “Cooperation in the Mediterranean for the Protection of the Underwater Cultural Heritage”, held in Siracusa, on 3-5 April 2003, was devoted to the discussion and definition of feasible proposals in the field of international cooperation for the protection of the underwater cultural heritage in the Mediterranean. At the round rable, which was reserved for the representatives of the governments of the countries bordering the Mediterranean, Italy presented a draft Agreement on the Protection of the Underwater Cultural Heritage in the Mediterranean Sea[14]. The Mediterranean draft is only a tentative text, remaining subject to all the improvements and modifications resulting from the discussion held in Siracusa and further consideration by the countries concerned.

The provisions of the Mediterranean Draft aim at bringing an added value to the CPUCH[15]. For instance:

• the application of the law of salvage and the law of finds is completely excluded;
• in the case of sunken State vessels and aircraft located in internal waters or territorial sea, a closer cooperation is sought between the coastal State, the flag State of the wreck and other States having a verifiable link with it;
• Specially Protected Areas of Mediterranean Cultural Importance can be established[16];
• the establishment of an International Museum of Mediterranean Underwater Cultural Heritage is envisaged;
• the organization of periodical training courses is foreseen;
• in order to stress to special responsibility of Mediterranean States, it is provided that only those States which are Parties to the future Mediterranean Agreement, or which agree to co-operate with the Parties in applying the measures established by it, shall have the right to engage in activities relating to the Mediterranean underwater cultural heritage.

It is however to be regretted that no further steps towards the negotiation and finalization of an agreement on the Mediterranean underwater cultural heritage have so far been made by the countries concerned.