A massive and complex legal and historical wrangle is putting a stranglehold on the Sevso Treasure as parties entrench themselves in the New York courts over their respective claims to the fabulous Roman hoard valued by Sotheby’s at up to £100 million. The case is certain to lay open a catalogue of deceit, conspiracy and covert dealing in the history of the treasure whose very existence, until its unveiling to much fanfare in February last year, was virtually unknown. But in the meantime the treasure is again hidden from view in a bank vault somewhere in New York City.
Sotheby’s announced the sale of the “Collection from Late Antiquity” with a lavish catalogue but, somewhat alarmingly, also sent out a Press release admitting not only difficulties concerning the origins and provenance of the treasure but also over title. Sotheby’s stated that it had, on behalf of the legal owner (the Trustee of the Marquess of Northampton Settlement), “exercised an exhaustive process of enquiries to ensure that any prospective purchaser will have good and undisputed title to the treasure and that no other claims will be made following the sale”. Checks had been made with all twenty-nine countries which had been, all or in part, within the borders of the Roman Empire in the fourth century AD, as well as with the major international agencies including Unesco, Interpol and the International Council for Museums. The find spot for the treasure was indicated as the Lebanon and Sotheby’s declared they had “absolute confidence” in the Lebanese export licence produced. However, within days of the launch and the exhibition of the treasure in New York, the few declared facts concerning the origins of the treasure and its recent history disintegrated as rumours were replaced by criminal investigations and Court proceedings.
The hoard was apparently found in a large copper alloy cauldron (also being sold as part of the collection) and the exceptional ornamentation and craftmanship of the fourteen pieces showed that they were made in the fourth and fifth centuries and, as regards location, somewhere within the boundaries of the Roman Empire. The origins of the treasure are not only fascinating from an art historical point of view but critical in determining current ownership. The Lebanon, immediately followed by Yugoslavia, have laid claims to the treasure on the basis that it was smuggled out of their own territory in the last forty years.
The Lebanese, naturally, support their own country as the place of discovery (the Bekaa Valley) but reject the export licence as a forgery. However, another compelling account (see The Art Newspaper No. 11, October 1991, p.1) reports the allegation that the treasure had been concealed in a disused copper mine at Barbariga on the Istrian Peninsula in Yugoslavia until its discovery in the 1950s
The mystery concerning where and how the cache was found has been compounded by the failure of either Lord Northampton or Sotheby’s not only to give any public statement, as yet, of how and where the pieces came to be purchased, but, more importantly for the countries now pursuing their claims, the previous history of the treasure prior to its acquisition by the Settlement.
The Supreme Court of the State of New York, in considering a motion for an interim injunction by Lebanon, surprisingly received almost nothing by way of evidence from either Sotheby’s or Lord Northampton concerning title to the treasure and how Lord Northampton acquired ownership. Judge Carol E.Huff referred to the “extremely sparse” affidavit and the fact that the allegations put forward by Sotheby’s AG to counter Lebanon’s claims were, from an evidential point of view, “unconfirmed, conclusory and self-serving”. Since the start of the case, further evidence has now been proferred by the defendants, although none of this has, as yet, been made public.
Lord Northampton’s agent, Rainer Zietz, who acted on the acquisition of the pieces in 1980-87, has not publicly commented on where and how the treasure was acquired and why the treasure was rejected by the Getty Museum when it was offered to it in 1984. Sotheby’s and Lord Northampton have been content simply to declare that the trust does own the treasure. Equally, either Yugoslavia or the Lebanon must therefore prove beyond reasonable doubt that the treasure had indeed been found in their territory and then smuggled out and that, accordingly, the Trust has never acquired good title. Scientific tests are likely to form a major part of the evidence. Lebanon have the advantage since it was clearly stated in Sotheby’s catalogue that the silver did originate from the Lebanon, and they can prove the original export licence to be a fake.
Surprisingly, international law is an extremely equivocal guide as to who might own the treasure. There are no international rules for the clear ascertainment of ownership; this depends in part on the domestic laws of the different countries involved (for instance, has the buyer acquired “good” title?), and in part on international conventions, primarily the 1970 Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. These laws inevitably clash and, in order to reconcile the position a group of rules called “conflict of laws” are used; depressingly, these are usually applied by the various countries in different ways.
Under US law, as under British (with one exception), even a purchaser in good faith has to hand back a work of art to the original owner if it has been stolen at any time in the past.
Further, the USA has reciprocal relations with Yugoslavia (but not Lebanon) for the handing back of any cultural property which has been illicitly exported from or imported to any of the countries which are signatories to the 1970 Convention. The introduction of the Yugoslavian claim is unfortunate for Lord Northampton, since that country (unlike Lebanon) can implement the convention and require the US courts to order the return of the treasure if it can prove that the hoard had been smuggled out of Yugoslavia.
However, a potential obstacle to the treasure returning is that the USA only ratified the convention in 1983; it may be that the New York courts will take the generally accepted international view that the signing of such a convention does not have retroactive effect. In other words, if the hoard was smuggled out before 1983, the Unesco convention may in any case be deemed to be inapplicable. Nigeria, for instance, was not able to recover a rare terracotta sculpture of the ancient Nok tribe (valued in 1981 at $650,000) which ended up in Canada because Canada only became a signatory to the Unesco Convention after the time of the illicit export.
The onus is on Yugoslavia and the Lebanon respectively to prove its case rather than merely relying on a presumption that the treasure must have been found somewhere within the Roman Empire and must therefore have been illegally exported. After almost two years, however, neither the Head Public Prosecutor of Yugoslavia nor the Lebanese Embassy in Washington (who are litigating the claims on behalf of their respective countries) has yet disclosed any verifiable evidence, scientific or otherwise.
This may change if full details of the investigations, carried out by Lord Northampton’s lawyers, Allen & Overy, when the treasure was acquired by the Settlement, were to be disclosed as part of the depositions which are to close on 3 July 1992— this would allay at least some of the speculation surrounding the treasure but would certainly give the countries the leads they so desperately need.
Swiss Law generally recognises title based on a mere seven years ownership by a bona fide purchaser, even if it is shown that the item may have been stolen in the past. The legal owner mentioned in the documents of this case, the Trustee of the Marquess of Northampton 1987 settlement, is based in Guernsey and therefore the treasure would not normally be subject to any of the legal claims which are to be litigated at present in New York and which have effectively frozen the treasure. The decision therefore to permit the Sevso Treasure to be delivered to New York for exhibition (as opposed to Zurich or London) could be seen as a disastrous blunder, given the claims on ownership that can now be made in the USA. In explanation, Sotheby’s insist that it was essential for there to be a complete check on all possible claims to the treasure, and that these must be cleared prior to the fabulous treasure again being offered to the world. Such claims they say, have to be confronted now rather than being sidestepped by utilising favourable ownership laws in a country like Switzerland.
What Lord Northampton may not have counted on is the US judicial system, which permits specious claims, with little evidence, to be litigated with no liability to pay the massive legal costs if the action is lost—a major factor which inhibits such claims in London and most of Europe. It is that unfortunate decision that has lost Lord Northampton his treasure for the time being as a succession of countries now step forward to chance their claim in New York.
The writer is art lawyer with Stephens Innocent, London
Originally appeared in The Art Newspaper as 'The treasure trail ends here'