Finding Nemo: On the Application of Nemo Non Quod Habet to Cultural Property Law and the Case of the Aramaic Incantation Bowls in the Schøyen Collection

This piece won the 2023 Hutchinson Prize

I. Introduction

Every day, thousands of people visit the Louvre. They enter under Ieoh Ming Pei’s glittering glass pyramid, check their coats and backpacks, and stroll through the museum’s expansive halls and ornate galleries. They smirk at da Vinci’s Mona Lisa, climb to Winged Victory of Samothrace, and adore Alexandros of Antioch’s Venus de Milo. On the ground floor, in the Richelieu wing near the staircase, they may shuffle past a 7-foot-tall stele of black basalt. The stele, inscribed with a sculpted relief and dozens of rows of cuneiform script, is alluring; its polished exterior and looming oblong shape draw the curious passerby in for a closer look. Those who accept the invitation will come face-to-face with the enduring legacy of Hammurabi, the sixth ruler of the First Dynasty of Babylon.¹ The object is the Code of Hammurabi, one of the earliest codes of law in human history, and arguably the most influential. The Code’s provisions may seem outdated and draconian to the modern viewer, but what the Louvre visitor may not notice is that encoded within the lines of cuneiform is a law which governs the very museum they stand in. Indeed, the Code contains the very first codified instance of a law known today as nemo dat non quod habet, and it is this law that forms the conceptual basis for cultural property and repatriation law in the modern day.

In recent decades, the topic of art repatriation has dominated news headlines, looming over the heads of museums and other institutions that house art from around the world. Artifacts that were taken from their home countries and brought to museums in wealthy Western nations, such as the Elgin (Parthenon) marbles in the British Museum, the bust of Nefertiti in the Neues Museum, and the Benin Bronzes scattered across dozens of museums around the West, are the enduring faces of a postcolonial struggle to reclaim cultural heritage. While some museums, including the Metropolitan Museum of Art in New York and various museums in Germany, have agreed to repatriate individual items in their collections to their home countries, others, such as the British Museum, have refused.

This paper centers around the collection practices of the Norwegian collector Martin Schøyen. Schøyen is the owner and head of the Schøyen Collection, a private collection based in Oslo that houses thousands of manuscripts and antiquities from around the world, spanning over five thousand years of history. It was started in 1920 by engineer M.O. Schøyen, who was an avid collector of manuscripts of Norwegian and international origin. From the age of 15, his son Martin Schøyen displayed an interest in his father’s collection, contributing ancient coins, antiquities, early printed books and manuscripts, and other pieces of history, and eventually taking ownership of the collection. Under Martin’s direction, the collection has grown into one of the world’s largest private manuscript collections. It now consists of over twenty thousand manuscripts from 135 countries and in 120 languages, the oldest of which are more than five thousand years old—contemporary with the first known writing systems of humankind. In accumulating thousands of artifacts of cultural, historical, and religious significance, Schøyen’s goal was to place Norway on the cultural map. He has succeeded, making Norway the home of some of the most important manuscripts in human history—but not without controversy.

The Schøyen Collection has for many years been the subject of legal and ethical scrutiny due to the dubious provenances of a large percentage of the collection. This paper focuses on one of the more notorious collections of artifacts, a set of 656 incantation bowls that have been part of the Schøyen Collection since the early 1990s. The bowls, Sasanian Mesopotamian in origin and dating from between the 4^th and 8^th centuries C.E., are painted with incantations in the Aramaic language and were buried under house foundations for apotropaic purposes (to ward off evil).² These bowls shed light on the religious practice of Jewish Mesopotamians, and some incantations painted upon them contain extremely significant religious texts from the Babylonian Talmud. Many of these excerpts cannot be found anywhere else, making the bowls indispensable to the studies of history and religion of the ancient Near East and beyond.³ The Schøyen Collection possesses one of the world’s largest collections of these bowls—656 in total.⁴ The bowls were likely looted as part of a wave of looting and theft of significant cultural artifacts in Iraq during a period of regional instability resulting from Iraq’s invasion of Kuwait in 1990.⁵ Their presence in the Schøyen Collection has thus been the subject of intense legal and ethical scrutiny over recent decades. Despite this, Martin Schøyen has managed to retain ownership of the bowls.

Above: MS 1911 / 1 (The Schøyen Collection)

Recognizing that clues from our past are an invaluable resource for understanding our present, this paper reaches back into ancient Mesopotamia, the home of the first codified legal systems known to humanity, to identify legal paradigms addressing how to treat stolen property. It argues that an ancient principle known today by its Latin name nemo dat non quod habet, which first appears in the Laws of Hammurabi and can henceforth be seen permeating property law throughout history, provides the most ubiquitous and influential legal model to address stolen property. Further elaborated below, the principle of nemo dat dictates that the purchase of an object from a seller who has no ownership right to it denies the purchaser any ownership title. The Schøyen Collection’s acquisition of objects from around the world situates it in a legally pluralistic arena, wherein it is bound by multiple systems of law on local, national, and international scales. The paper will identify principles of nemo dat within the myriad legal regimes which have jurisdiction over the Schøyen Collection, arguing that, contrary to the more common issue of conflict of laws that occurs in overlapping legal systems, these legal regimes are in fact unified by the principle of nemo dat.

The paper thus asks how, despite the unprecedented agreement of every system of law that governs the Aramaic incantation bowls in the Schøyen Collection, Schøyen has managed to legally retain possession of the 656 stolen bowls. To answer this question, it argues that despite the convergence of each legal system on the principle of nemo dat, it is precisely the multitude of laws at play that allows Schøyen to exploit legal loopholes embedded in procedural and technical divergences between the laws. These plural legal systems therefore work at cross purposes in minor ways that prevent the effectuation of the core principle of nemo dat. The paper will conclude by discussing the shortcomings of these legal systems that act as barriers in the legal battle over cultural heritage, including the inherent postcolonial disadvantages facing Iraq and benefiting the Schøyen Collection. An investigation into the Aramaic incantation bowls in the Schøyen collection provides a case study of the shortcomings of overlapping legal systems, colonial legacies, and power imbalances in the global debate over cultural heritage. The principles articulated in this paper may therefore provide insight into such challenges of cultural property repatriation beyond the scope of this case.

II. Definitions

A. Cultural property, source nations, and market nations

Over recent decades, during which repatriation has become a hotly debated legal issue, the definition of “cultural property” has been examined at length. This paper will employ the definition of cultural property outlined in the 1970 UNESCO Convention, as this Convention is the most important overarching framework regulating the antiquity trade and serves as the model for most member nations’ definitions of cultural property in their own domestic legislation. Cultural property is defined in the Convention as “property which, on religious or secular grounds, is specifically designed by each State as being of importance for archaeology, prehistory, history, literature, art, or science.”⁶ In the debate over cultural property, further elaborated below, states from which cultural artifacts are exported (in this case, Iraq) are referred to as “source nations,” while the states to whom those artifacts are imported and thus held in museums or collections (in this case, Norway) are called “market nations.”⁷

B. Provenance

Provenance is vital to archeological study. It is commonly defined as the record of an artifact’s chain of ownership, from its original findspot to its present location. An “unprovenanced” object is one with either unknown or dubious ownership history, often with undocumented excavation details. Provenance encompasses provenience, which refers to the object’s specific location within its archaeological findspot. In archaeological terms, a find’s context or “findspot” is its surrounding environs at the time of excavation. Knowing the provenience of an object is critically important for archaeologists, publishers, and scholars because it provides invaluable information that cannot be gleaned from the object alone. In regard to the looted Aramaic incantation bowls, an expert on looted Iraqi antiquities posited that the bowls in Schoyen’s collection “have already lost about 70% of their archaeological value because they have been removed from their geographical context. They are now chiefly valuable as objects of art history.”⁸ Looting prevents us from better understanding our own history.

In sum, knowing an object’s provenance ensures that it was legitimately excavated, legally exported, and legally transferred. For museum curators and collectors, documentation of provenance provides legal certainty of ownership, while for archeologists, provenance, particularly an object’s findspot and provenience, provides critical contextual information for the object. This paper identifies provenance as the key evidence required to claim title on cultural property and argues that complete provenance is impossible to provide on a looted artifact and therefore legal title cannot be held by the purchaser of such an object.

III. Literature Review

A. Legal Pluralism

Legal pluralism has been the subject of a tremendous amount of study by legal scholars and anthropologists over the past several decades, and it has come to encompass many different meanings.⁹ This paper defines legal pluralism as the coexistence and simultaneous operation of multiple systems of law over one entity—in this case, the Aramaic incantation bowls in the Schøyen Collection. Legal scholars such as Paul Schiff Berman have drawn attention to problems with legal pluralism, such as its tendency towards creating conflicts of law: a situation wherein the various laws in a legally pluralistic landscape have contradictory provisions.¹⁰ I draw on their contributions by introducing an exception to this paradigm, wherein the myriad laws surrounding the Schøyen case do in fact fundamentally agree with one another on the core principle of nemo dat, but minor inconsistencies and points of friction in their procedural and technical provisions prevent the effectuation of this principle.

B. Postcolonialism

Postcolonialism is the cultural, political, and economic legacy of colonialism and imperialism. Postcolonial theory is the critical academic study of this legacy and its manifestations in the modern geopolitical landscape. Scholars such as Steve Niva have studied the effects and consequences of colonialism in the Middle East, particularly in relation to the Gulf War and the U.S.-led invasion of Iraq.¹¹ This paper engages with postcolonial theory by discussing Iraq’s disadvantaged positioning within the hierarchical structures and exclusionary discourses that characterize the postcolonial international system. The paper designates this as a contributing factor to Iraq’s lack of success thus far in securing the return of the incantation bowls. The political situation in Iraq in the 1990s and 2000s cannot be examined outside of a colonial context, and therefore the work of postcolonial scholars informs this paper’s examination of the legal and political barriers Iraq faces in its attempts to secure restitution of the incantation bowls.

C. Cultural Property Debates

The scholarly debate over cultural property can be summed up in two principal philosophies, dubbed “cultural nationalism” and “cultural internationalism.”¹² Adherents to cultural nationalism, such as legal scholar and lawyer Patty Gerstenblith, believe that a nation’s cultural property belongs to the nation in which the object was found.¹³ The repatriation movement thus stems from cultural nationalism, or the belief that objects of cultural heritage should be removed from market nations and returned to their home country. As opposed to a cultural nationalist, a cultural internationalist such as art historian and curator James Cuno would argue that cultural objects constitute the heritage of humanity as a whole, and thus belong not to the source nation but to the global community.¹⁴ As a result, cultural internationalists argue that cultural property belongs wherever it can be accessed by the most people and afforded the best care.

There are two main criticisms of the internationalist line of thought. The first is postcolonial: the museums deemed acceptable by cultural internationalists are exclusively Western. Not only does this promote the idea that Western institutions are inherently better or more equipped to protect artifacts of cultural, artistic, and historical significance, but it disregards centuries of colonial history perpetrated by the countries in which the museums are located. It further disregards the emotional connections between modern cultures and their objects of heritage that make repatriation issues emotionally charged and high stakes for the source nation. Second, as explained above, the looting of objects from their original context is detrimental to the study of past cultures. An unprovenanced object in the Schøyen Collection is therefore of significantly less academic value than a provenanced object in an Iraqi institution. This fact seriously discredits the idea that all objects are safer and more contributive to the study of human history when lifted out of their home countries and housed in a foreign museum or collection.

Martin Schøyen is an outspoken proponent of cultural internationalism. His internationalist leanings and cavalier attitude towards cultural property debates paint him as a modern-day colonialist, bolstered by his ability to capitalize on his advantageous position in a postcolonial international system to maintain possession of his artifacts. His statements to this effect will be  examined later in this paper.

D. The Schøyen Collection

While the Schøyen Collection is notorious among scholars, particularly those of the ancient Near East, academic scholarship on this collection pales in comparison to scholarship on public institutions such as the British Museum, the Getty Museum, and the Berlin Museum conglomerate. The scholarship that does exist on the Schøyen collection is primarily concerned with uncovering his collection practices, as his movements and business contacts have been shrouded in mystery for decades. Scholars such as Josephine Rasmussen, Christopher Prescott, Morag Kersel, Atle Omand, and Neil Brodie have published a number of articles tracing the chain of events and hidden operations involved in Schøyen’s movements. In addition to academic scholarship, the 2004 Norwegian Broadcasting Corporation (NRK) documentary Skriftsamleren (The Manuscript Collector), exposed Schøyen’s questionable acquisition practices, raising public awareness of the provenance of his collections.¹⁵

To these authors, and to NRK, I am indebted, as Schøyen’s commitment to secrecy has made uncovering any of his dealings a difficult and time-consuming task. I hope to build on their contributions to the field by accumulating the information known about the case of the Aramaic incantation bowls and investigating it from a legal angle. I aim to propose an explanation for why, despite near-ubiquitous legal conditions prescribing otherwise, Schøyen has retained possession of the bowls. I additionally combine the fields of law and ancient history to look back to ancient Mesopotamian law as the source of the fundamental principle governing cultural property law. In doing so, I draw a connection between the ancient artifacts that are the subjects of immense legal contestation in the modern day and the geographical region and culture to which they once belonged.

IV. Hammurabi and the Foundations of Nemo Dat

To uncover the core legal principle that governs repatriation law today, let us travel back to the alluvial plains of Babylonia, a thriving state in the 18^th century BCE in southern Mesopotamia—what is now central Iraq. The Amorite king Hammurabi, having consolidated control over the entire region from his capital city of Babylon, sought a means not only to enforce his rule over the newly subjugated populations, but also to unify the diverse peoples now brought under one yoke. He compiled the Laws of Hammurabi, a set of more than 282 rules inscribed on a monumental black stele which set forth basic laws governing all spheres of life including marriage and family, crime and punishment, property, and commercial interactions. The Laws of Hammurabi constituted one of the first written codes of law in human history and laid the foundation for modern legal ideology by placing emphasis on standardization and evidence— factors that contributed to the facilitation of a larger, diversified society no longer feasibly managed via kin relationships and intimate social bonds.¹⁶ One of the basic principles set forth in the Laws is that a buyer does not have legal title to stolen property—a core principle underlying the many legal regimes regulating repatriation. Sections §9-11 of the Laws address this:

§9 If an awīlum (free man) who claims to have lost property discovers his lost property in another awīlum’s possession. (if) the awīlum in whose possession the lost property was discovered declares: “A seller sold it to me, I purchased it in the presence of witnesses,” and (also) the owner of the lost property declares: “I can bring witnesses who can identify my lost property,” (if then) the buyer produces the seller who sold it to him and the witnesses in whose presence he purchased it, and the owner of the lost property produces the witnesses who identify his lost property,The judges shall examine their cases, and the witnesses in whose presence the purchase was made and the witnesses who identify the lost property shall state the facts known to them before the god.¹⁷ Then it is the seller who is the thief, he shall be killed. The owner of the lost property shall take his lost property and the buyer shall take from the seller’s estate the amount of silver that he had weighted and delivered.

§10 If the buyer does not produce the seller who sold (the lost property) to him or the witnesses before whom he made the purchase, (but) the owner of that lost property does produce witnesses who identify his lost property, it is the buyer who is the thief. He shall be killed. The owner of the lost property shall take his lost property.

§11 If the owner of the lost property does not produce witnesses who identify his lost property, he is a liar, he has indeed spread (var. “spoken”) malicious charges, he shall be killed.¹⁸

In the situation outlined in these provisions, a free person (let’s call him Person A) owns property. We assume Person A’s property came to him through demonstrable legitimate means, such as a legal transaction or inheritance. Person A’s property is found in the possession of Person C. However, Person C claims that he did not steal or find Person A’s property; rather, he purchased it from Person B with full due process. Here we have a dilemma: both Person A and Person C have claimed rights to the property. Who, then, is the legal owner?

These provisions place a clear emphasis on the burden of proof. Each party (original owner, seller, and buyer) who claims to have ownership over the property must prove so by producing documents and/or witnesses who were present at the transaction and can thus substantiate the legitimacy of possession. While the punishments for failure to produce witnesses seem harsh to modern readers, they reflect a legal system that was critically concerned with legitimization and record-keeping—values still held today in modern legal frameworks. This case produces three possible outcomes:

1. If Person C fails to provide witnesses who can attest to the legality of the transaction in which he acquired Person A’s property, then he is assumed to be the thief.
2. If Person A cannot produce witnesses who can attest to his original ownership of the lost property, then he is assumed to be a liar (in some cases, worse than a thief). 
3. If both parties can produce witnesses who prove their claims, then Person B is confirmed as the thief.

In situations 1 and 3, where Person A can prove his original ownership of the property, the outcome results in the return of the property to Person A—even in situation 3 where Person C is proven to have obtained it in a legitimate transaction. Therefore, the core principle exhibited in LH §9-11 is that property ownership cannot be legally conferred by a party that does not hold title to that property. Since the property was not transferred from Person A to Person B through legitimate means, Person B did not hold title to the property and thus could not have transferred the title to Person C. Though first appearing conceptually in these provisions from the Laws of Hammurabi, the Roman period gives this legal principle a name: Nemo dat non quod habet.¹⁹ In layman’s terms, this means that “no one may give what they do not have.” For two millennia, this principle has been codified into law around the world, from domestic property legislation to international legal frameworks.

A key concept at play in these sections is the liability of the purchaser of the stolen goods. The reason these provisions exist at all is because there may arise a situation in which the possessor of the stolen goods purchased them in “good faith,” meaning they did not know at the time of the transaction that the goods were stolen. The Laws of Hammurabi are seen here attempting to manage the tension between protecting the original owner and the good faith purchaser and settle on the conclusion that no matter how the property came by Person C, it is still liable to be returned to Person A. However, the laws conclude that if Person C can prove through evidentiary documentation or witness attestation that the property was purchased in good faith, they are entitled to compensation for the loss. This issue is key to the principle of nemo dat and to the case of the Aramaic incantation bowls.

In true archaeological fashion, this paper seeks to unearth the principle of nemo dat as the core foundational principle underlying various legal regimes governing repatriation, using the Aramaic incantation bowls in the Schøyen Collection as a case study. It argues that the principles of nemo dat and of repatriation are one and the same, in that they require the return of stolen objects to their original owner—in this case, the source nation. Provenance can be conceived of as the burden of proof that the possessor must produce to prove their legal claim to the property. Therefore, according to nemo dat and to the legal regimes that enshrine it, museums and collectors of unprovenanced objects cannot be the legal owners thereof. When manuscripts, antiquities, and other items that fall under the umbrella of “cultural property” are illicitly trafficked from their home countries, it is impossible to construct a chain of legal transactions leading from their removal to their possession, and therefore impossible to claim a legal title.

The paper will, so to speak, “excavate” principles of nemo dat in international legal frameworks that have bearing on the Aramaic incantation bowls, such as the 1970 UNESCO Convention as well as in the domestic cultural property laws of Iraq, the United Kingdom, and Norway. In situating the principle of nemo dat within the various laws impacting these bowls, the paper aims to highlight a fundamental quandary: underlying all of these diverse legal regimes is a common and ancient principle. According to this principle, Martin Schøyen has no legal claim to the incantation bowls. However, in spite of the unanimous conclusion of every relevant law that he has no legal title, Martin Schøyen has been able to retain possession of the bowls.

V. Finding Nemo: Legal Pluralism and Nemo Dat

The Schøyen Collection exists in a legally pluralistic landscape: its role as a collector of artifacts from around the world situates it in a legal arena wherein it is bound by local, national, and international laws. The overlapping of legal regimes often creates a conflict of laws, where an entity is bound by various legal systems that differ from or even contradict one another. However, what makes the case of the Aramaic incantation bowls in the Schøyen Collection unique is that in core principle, the myriad legal systems surrounding the case between Iraq and Schøyen do not disagree with one another; in fact, each law governing the procedure for stolen cultural property is characterized by its adherence to the principle of nemo dat non quod habet. This section will untangle the myriad laws at play in the case and locate nemo dat in each in order to illustrate their fundamental agreement.

A. International Legal Frameworks

The most important international framework to address illicit antiquities trading is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The purpose of the convention was to develop a cooperative legal framework based on the principles of prevention, restitution, and international cooperation that would serve to apply international pressure to prevent the illicit exportation and transfer of cultural property. The Convention itself is not legally binding; however, Article 5 obliges Member States to enact legislation that reflects the provisions and principles of the document, providing that they must contribute to “the formation of draft laws and regulations designed to secure the protection of the cultural heritage and particularly prevention of the illicit import, export, and transfer of ownership of important cultural property.”²⁰

Principles of nemo dat can be seen throughout the Convention. Article 7(b)(ii) obliges States Parties “at the request of the State Party of origin, to take appropriate steps to recover and return [stolen or illegally exported] cultural property.”²¹ This provision reflects the overarching emphasis of the Convention on restitution. By stipulating that stolen or illicitly exported cultural property must be returned to its country of origin, the Convention enshrines the principle of nemo dat. 

As in the Laws of Hammurabi, burden of proof additionally plays an important role in the Convention. Per Article 7(b), the requesting state must begin the restitution process by providing evidence legitimizing its claim to the property: “The requesting Party shall furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and return.”²² Once this requirement has been fulfilled, the Convention shifts the burden of proof to the possessor to prove the objects were acquired in good faith, in which case “the requesting State shall pay just compensation to an innocent purchaser.”²³ The Convention thus follows in Hammurabi’s footsteps and enshrines the principle of nemo dat, settling on an outcome that necessitates the return of stolen property to the original owner but provides just compensation to an innocent purchaser.²⁴ In its treatment of the burden of proof and the good faith purchaser, however, the Convention places the requesting state at a disadvantage.

Firstly, due to the inherent nature of illicit antiquity trafficking, wherein objects are often looted directly from the ground and then transported abroad, it is often impossible for the requesting state to provide documentary proof that stolen cultural objects were once accounted for. The burden-of-proof requirement requesting states must fulfill in order to initiate a restitution process is therefore a significant barrier. 

Second, recall in the Code of Hammurabi that if the buyer of stolen property is proven to have done so in good faith, “the buyer shall take from the seller’s estate the amount of silver that he had weighted and delivered.”²⁵ In this case, the seller of the stolen property (and the proposed thief) provides compensation. However, once again due to the nature of illicit trafficking, it is often impossible to identify the chain of events and actors that led from the object’s looting to its purchase. Therefore, the Convention settles on a solution that places the burden of compensation on the requesting state. These two stipulations place the requesting state at a major disadvantage in the restitution process. Finally, critical to the case of the Aramaic incantation bowls is the fact that per the provision’s emphasis on objects “imported after the entry into force of this Convention,” it cannot be applied retroactively and therefore is only binding in Member States after the date of national ratification.²⁶

A second international legal framework relevant to this case is the United Nations Security Council Resolution (UNSCR) 661 of August 6, 1990. In response to the 1990 invasion and occupation of Kuwait by Iraq, the United Nations Security Council (UNSC) imposed a trade embargo on all goods in and out of Iraq—including antiquities—after the date of the resolution. Member States to the UNSC were, from that date, called upon to prevent the “import into their territories all commodities and products originating in Iraq or Kuwait exported therefrom.”²⁷ These provisions were later reemphasized in 2003 with UNSCR 1483, which stipulated that member states must “facilitate the safe return to Iraqi institutions objects of Iraqi cultural property” that were illegally removed from Iraq since the adoption of UNSCR 661.²⁸ While UNSCR 661 may be interpreted as an attempt to preempt the necessity of nemo dat by preventing the illegal acquisition of Iraqi cultural property in the first place, UNSCR 1483 enshrines nemo dat through its emphasis on restitution. UNSCR 1483 briefly addresses issues of the burden of proof and good faith purchasing by prohibiting Member States from trading in or transferring items for which “reasonable suspicion exists that they have been illegally removed.”²⁹ In this case, restitution of Iraqi cultural objects is required only if “reasonable suspicion” suggests that the objects are of Iraqi origin, and a purchaser or acquirer of those objects must therefore prove that they had no such suspicion at the time of acquisition.

B. Domestic legal frameworks

As the incantation bowls are of Iraqi origin, it is the laws of Iraq that were first broken when the bowls were removed from the country. In Iraq, the treatment of cultural property is governed by the Antiquities Law no. 59 of 1936, which was amended in 1974 and 1975 following Iraq’s acceptance of the UNESCO Convention. Article 3 states that “all antiquities in Iraq whether movable or immovable that are on or under the surface of the soil shall be considered to be the common property of the State…No individuals are allowed to claim the ownership thereof.”³⁰ Article 26 states that “taking any antiquity outside Iraq is prohibited notwithstanding.”³¹ Article 60 outlines the penalties for transgression against these laws:

“Whoever smuggled or helped in smuggling antiquities, against the provision of article twenty six of this Law, should be sentenced to imprisonment…and the confiscation of the antiquities, in respect of which the crime has been committed, as well as all antiquities in his possession even if they are registered.” ³²

These provisions in the Iraqi Antiquities Law reflect principles of nemo dat by designating legal ownership of all antiquities found on (or in) Iraqi soil as that of the state of Iraq, prohibiting nonstate actors from claiming ownership thereof, and stipulating that objects found elsewhere after the enactment of the law must be returned to Iraq, unless a legitimate transfer of ownership endorsed by the Iraqi government has occurred.

The United Kingdom (UK) became involved in the legal battle over the bowls when University College London (UCL) housed the bowls for study for a period of about ten years. UNSCR 1483 is written into UK law in the form of Statutory Instrument (SI) 1519, which requires anyone “who holds or controls any item of illegally removed Iraqi cultural property” to relinquish the item to law enforcement “unless he proves that he did not know and had no reason to suppose that the item in question was illegally removed Iraqi cultural property.”³³ Principles of nemo dat are evident in the law’s emphasis on forfeiting the item to law enforcement, which will then initiate the process of restitution to Iraq. The protection of the good faith purchaser is evident in the law’s stipulation that all transgressors will be punished by the law unless they can prove that they acquired the goods without knowing they were of Iraqi origin.

As the Schøyen Collection is based in Norway, it is additionally bound by Norwegian law. Norway’s primary law on the protection of cultural objects is the 1978 Lov om kulturminner (Cultural Heritage Act). Originally written to protect Norway’s own cultural artifacts from illicit export, it was amended to prohibit illicit import in 2007 when Norway ratified the UNESCO Convention. Section 23 of this law was enacted in accordance with Article 5 of the UNESCO Convention, which obliged signatory states to enforce legislation enshrining the Convention. Section 23(b), which focuses on the return of cultural objects and compensation, stipulates that “a cultural object which is located in Norway and which has been unlawfully removed from the territory of a state shall be returned to that state.”³⁴ By requiring the return of objects that have been illicitly imported into Norway, the Cultural Heritage Act enshrines the principles of restitution that are foundational to nemo dat.

The law additionally addresses the issue of the good faith purchaser in Section 23(b): “The owner or rightsholder who is in possession of the object shall, upon return, receive reasonable compensation from the requesting state if such a person acquired the object after it was unlawfully removed and has exercised due care in connection with the acquisition.”³⁵ This passage places some responsibility on the possessor of the property in proving he exercised care in determining whether the objects were legally imported, but the initial burden of proof falls on the requesting state, as the law necessitates “a document [from the requesting state] describing the cultural object and establishing its status as a cultural object,” as well as “a declaration by the appropriate authority in the requesting state that the cultural object has been unlawfully removed from the state’s territory” in order to initiate the restitution process.³⁶ This placement of the burden of proof on the requesting state echoes the UNESCO Convention and places Iraq in a disadvantaged position in the battle over the stolen antiquities.

In summary, the case of the Aramaic incantation bowls in the Schøyen Collection is one that is entangled in a complicated web of legal systems, although unusually, they all agree with each other on one fundamental principle: that of nemo dat. They concur that legal title cannot be claimed on a looted object. They further agree that burden of proof rests on both the requesting state and the possessor of the object: the claimant must initiate the restitution process by proving the objects belong to it and the possessor must then prove the object was acquired in good faith. The laws finally agree that restitution is the absolute outcome, even if the object was acquired in good faith. Despite the agreement of all of these laws on these core concepts, the Schøyen Collection has retained possession of the looted incantation bowls.

VI. How Does the Schøyen Collection Present its Ownership Title?

A key aspect of nemo dat non quod habet is the requirement of the possessor to prove that the stolen property was purchased in a legal transaction and that the possessor had no knowledge that it had been stolen. It is for this reason that provenance is so critically important in the sphere of cultural property and repatriation law. In order to dispel doubt over legal ownership, it is now common practice among museums, collections, and comparable institutions to provide transparent documentation of provenance for the artifacts in their collections.³⁷ This section will show that despite its obligation under nemo dat to provide legal documentation for its artifacts, the Schøyen Collection is more concerned with defending its ownership against critics than actually providing hard or conclusive evidence of provenance. It relies on vague statements, references to other unprovenanced collections and museums, forceful language and ad hominem attacks against scholars, and cultural internationalist rhetoric strongly based on Western colonial idealism to justify its possession of a large portion of the collection.

Having been the subject of no small amount of investigation and criticism, the Schøyen Collection has released numerous statements on its website in regard to the provenance of its collections and the legality of Mr. Schøyen’s ownership. The website contains a general “Statement of Provenance” where various archaeological sites are listed, as well as various museums and private collections.³⁸ Though the incantation bowls are mentioned in the URL link, interestingly, no information about their provenance can be found on this page. Additionally, for specific incantation bowls listed on the website, for example, MS 2053/196, no provenance information can be found; under “Place of Origin,” only “Near East” is provided.³⁹ Other issues with the provenance statements across the entire site abound: the information published alongside a certain artifact is sometimes at odds with information contained evenwithin the same publication volumes and in Schøyen’s private catalogue; the dates of acquisition are sometimes inaccurate; and even in situations where provenance information is written, any explicit proof, such as export licenses or similar documentation, is not listed.⁴⁰

Another characteristic of the provenance statements is frequent reference to other museums and collections. For example, Schøyen’s Statement of Provenance webpage states:

In most cases the original findspots of tablets that come on the market in the 1890s-1930s and later are unknown. Therefore great parts of the holdings of most major museums in Europe and the United States are without archaeological provenance. This also applies to the Schøyen Collection.⁴¹

In statements such as these, the Schøyen Collection attempts to redirect attention to other collections in order to justify its possession of unprovenanced materials. From an argumentative standpoint, emphasizing that other institutions are engaging in similar behaviour does not legally justify ownership of illicitly trafficked materials. In addition to drawing attention towards other institutions, statements on the Schøyen Collection website turn the suspicion onto scholars who questioned the legality of the collection:

Despite outrageous claims, all the items in the Schøyen Collection have been legally acquired. The suggestion that Martin Schøyen’s ownership needs to be ‘legitimised’ reveals an ideological bias against private collectors and private collections and is a false rewriting of the legal situation, seeking to anticipate legislative and regulatory changes in which some activists are engaged in promoting. The Schøyen Collection is wholly legitimate. End of story.⁴²

Schøyen’s statements likely refer to common criticisms of the UNESCO Convention that target its placement of the burden of proof on the requesting state, which makes initiating the restitution processes difficult and even sometimes impossible for those countries. However, Schøyen’s argument that the burden of proof lies primarily on the requesting state is taken beyond a logical interpretation of the Convention, apparently arguing that he is under no obligation whatsoever to provide evidence that he acquired the objects legally.

Schøyen further argues that the Collection is the best home for the objects, both in regard to their safety and maintenance and to the opportunities afforded by the Schøyen Collection for further research. The Collection takes a clear cultural internationalist stance, stating that the manuscripts in the collection “are the world’s heritage, the memory of the world. They are felt not really to belong to the Schøyen Collection and its owner, who is the privileged keeper, neither do they belong to a particular nation, people, religion, or culture, but to mankind, being the property of the entire world.”⁴³ Through this rhetoric, the Schøyen Collection diverts attention from the countries from which the artifacts originated in favor of portraying them as being the property of all humanity. This ideology paints Schøyen not as the possessor of stolen property, but as the guardian and protector of the world’s shared heritage. Schøyen himself has shared sentiments to this extent, veering into strongly Western colonialist rhetoric about the stability of the regions from which many of these objects originated. In 2003, Schøyen declined an offer of 110 million USD to purchase the collection, revealing to the public only that the offer had been made by a “Muslim country.”⁴⁴ When asked if he had declined the offer out of concern for the Christian manuscripts in the collection, Schøyen replied: “Yes, and all the other religions too. I’ve put together a collection that represents all the world’s religions and cultures precisely to create understanding across borders. In the long term one can never know what will happen in a Muslim country.”⁴⁵ This statement portrays “Muslim countries” as not only politically, socially, and economically unstable, but on the whole intolerant of other religions (namely Christianity) to the point of destroying objects of religious and historical significance. Additionally, Schøyen’s statement paints himself as the steward and owner of the collection to “create understanding across borders,” a responsibility he seems to have conferred upon himself from a position of perceived superiority over non-Westerners.

As part of its self-imposed duty to foster knowledge and understanding, the Schøyen Collection website emphasizes the value of studying unprovenanced materials. A statement on the website stresses “the importance the publication of texts, even without archaeological context, holds for the fields of Assyriology and Near Eastern history and archaeology.”⁴⁶ This statement attempts to portray the Schøyen Collection as benefiting the field of ancient Near Eastern studies by publishing unprovenanced texts, whereas, as this paper has discussed, engagement with unprovenanced material is in fact detrimental to the field. Summing up the Schøyen Collection’s Western-centric colonialist rhetoric in regard to the study of ancient materials is a quote from Jens Braarvig, Schøyen’s close collaborator and the previous head-of-research of the Schøyen Collection: “At the risk of not being absolutely politically correct, I dare to assert that in our day and age it is the European intellectual tradition that is most concerned about safeguarding ancient cultural treasures.”⁴⁷

The purpose of this section has been to bring attention to the provenance statements that the Schøyen Collection has used to justify its ownership of its collections. The vagueness of the information provided, frequent reference to other collections, forcefully worded denunciation of critics, and cultural internationalist “savior” rhetoric employed by the Schøyen Collection are clear attempts to divert attention away from the legal basis of Schøyen’s ownership title. The fact that the Schøyen Collection repeatedly emphasizes that its collections are “legal” and “legally acquired” without providing proof suggests that the legal status of the objects is murky at best. While the Schøyen Collection is notorious for its possession of unprovenanced artifacts across the collection, arguably one of the most controversial and highly publicized cases is that of the Aramaic incantation bowls from Iraq.

VII. The Case of the Aramaic Incantation Bowls in the Schøyen Collection: Part I

In 1996, the Department of Hebrew and Jewish Studies at University College London (UCL) agreed to house 654 Aramaic incantation bowls from the collection of Martin Schøyen for the purposes of further research by specialists at the College—namely Mark Geller, the head of the department.⁴⁸ The bowls remained at UCL for study until 2004, when the Norwegian Broadcasting Corporation (NRK) aired Skriftsamleren, a two-part documentary shedding light on Schøyen’s collecting practices. The second part of the documentary focused on the bowls and claimed to have uncovered evidence that they had been found in Iraq during the massive wave of looting following the 1991 Gulf War. It alleged that the bowls were illegally excavated in Iraq between the years of 1992 and 1993, in direct contradiction with the Iraq Antiquities Law of 1936, which states that no one may excavate antiquity or heritage material without a written permit from the Iraq State Board of Antiquities and Heritage.⁴⁹ Furthermore, the bowls were subsequently illicitly transported out of Iraq in contradiction of the same law, whose Article 26 states plainly that “[t]aking any antiquity outside of Iraq is prohibited notwithstanding,” and of UNSCR 661 which prohibited the export and import of Iraqi cultural property after August 1990.⁵⁰ From there, the bowls passed through a trade network that included stops in Amman and London. Once the bowls arrived in London, Schøyen allegedly purchased them for NOK 25 million (2.4 million USD).⁵¹

The first part of Skriftsamleren, which had come out several months earlier and focused on Schøyen’s acquisition of a corpus of Buddhist manuscripts from Afghanistan, had already caused a massive wave of criticism against the Schøyen Collection.⁵² Thus, the Collection was at this point already under significant scrutiny from the scholarly community as well as the general public, so the second part of the documentary that focused on the bowls was extremely influential—a major concern for the involved parties, in particular, UCL. Though UCL first denied their involvement in the retention of the bowls, it was later discovered that the bowls had been kept by Mark Geller and collaborators at UCL facilities for study without the knowledge of the administrative board.⁵³ After a response from Schøyen in which he denied Skriftsamleren’s account and claimed that the bowls had been out of Iraq since the 1960s⁵⁴—which would still have been in breach of the 1936 Iraqi Antiquities Law—UCL announced on October 10, 2004, that it had alerted the Metropolitan Police of the incantation bowls in its possession, and that it would review their provenance and rightful ownership.⁵⁵

 UCL’s decision to alert the police of its possession of the bowls was required under UK Statutory Instrument 1519, which required the possessor of Iraqi cultural property to transfer it to a constable. Interestingly, the 2004 statement claimed that it had turned the bowls over to the police, but that they had been returned to UCL on the basis that there was “no objection to the return of the material to Mr. Schøyen.”⁵⁶ Having been advised by the police to return the bowls to Schøyen, UCL was in theory under no legal obligation to further investigate the bowls. However, the 2004 statement went on to say that “UCL’s possession has now entered the post-2002 era when new principles and policies have emerged and attitudes have changed.”⁵⁷ The significance afforded to the 2002 date was a result of the UK’s 2002 accession to the 1970 UNESCO Convention. The UNESCO Convention had no retroactive power, and since the bowls had been in the UK since 1996, UCL was under no obligation to repatriate the bowls to their rightful owner under the provisions of that document. However, by 2004, the influential principles of the UNESCO Convention—and thus of nemo dat—were already being written into law and best-practice guidelines (what became known as the “1970 rule”) across the UK, and as a premier institution of archaeological research, UCL was put into the uncomfortable position of arbitrator regarding the ownership of the bowls.⁵⁸

In 2005, it was announced that UCL had put together an independent committee of inquiry, with the cooperation and consent of Schøyen, to determine the provenance and rightful ownership of the bowls.⁵⁹ UCL additionally announced that “subject to obligations of confidence,” the conclusions of the review would be made available to the general public.⁶⁰ In July of 2006, the UCL committee submitted its report, and a copy was made available to Schøyen, though the findings were not made public. In March 2007, Schøyen initiated legal proceedings against UCL for the return of the bowls, claiming that the “Schøyen Collection has become frustrated with the waste of time and money caused by a lengthy and inconclusive inquiry into their provenance.”⁶¹ Following litigation from Schøyen, in June 2007, a joint UCL/Schøyen press release stated that after investigation by a panel of experts, “UCL is pleased to announce that no adverse claims to the Schøyen Collection’s right and title have been made or intimated.”⁶² The press release went on to state that “UCL has now returned the bowls to Schøyen and has agreed to pay a sum in respect of its possession of them.”⁶³ The agreement for the return of the bowls and the payment to Schøyen appears to have been the result of an out-of-court settlement, in return for which Schøyen ended legal proceedings against UCL. Despite repeated appeals from various scholars, including the submission of a Freedom of Information Act, UCL refused to release the committee of inquiry’s report, having signed a non-disclosure agreement (NDA) with Schøyen.⁶⁴ 

However, in October 2007, an article in the online publication Science leaked a small part of the report’s contents, including a section wherein it was concluded “on the balance of probabilities” that the bowls had been removed illegally from Iraq sometime after August 1990, therefore in direct contravention of both the Iraq Antiquities Law of 1936 and UNSCR 661.⁶⁵ If this is the case, then UCL, operating by principles enshrined in the 1970 UNESCO Convention, UNSCRs 661 and 1483, and SI 1519, should have returned the bowls to Iraq rather than Schøyen. After the suppression of the report and the publication of the article in Science, a resulting flurry of criticisms of both UCL and the Schøyen Collection caused Schøyen to release a statement that focused on the provenance of the bowls and denied the allegations that they had been looted.⁶⁶ 

Two years later, in November 2009, the report found its way onto WikiLeaks.⁶⁷ The leaked complete report confirmed what had already been revealed in the Science article, as well as further findings from the provenance investigation. The report made several critical conclusions and recommendations:

1. The committee concluded, “on the balance of probabilities,” that the bowls were removed from Iraq in violation of both Iraqi law and UNSCR 661 / UNSCR 1483. They further concluded that the importation of the bowls into the UK was “at least a potential infringement of UK law.”
2. The committee recommended that although UCL had in the past proposed to return the bowls to Schøyen, the College should only do so if Schøyen could convincingly demonstrate that he has immediate rights to the possession of the bowls.
3. The committee concluded that “by any ethical standards the bowls should be returned to Iraq,” and that within one month of the release of the report, UCL should “return or cause the return of” the bowls to the Department of Antiquities of the State of Iraq.⁶⁸

These conclusions were reached through an expert analysis of the bowls themselves, the operative laws surrounding the bowls, and the provenance documentation provided by Mr. Schøyen.

In testimony before the UCL investigatory panel, Schøyen claimed that the bowls came from the collection of Jordanian collector and dealer Ghassan Rihani, who had close ties with the Jordanian royal family as well as with Schøyen. He claimed that Rihani had supplied the bowls with export licenses confirming that the bowls had been in Jordan since the 1960s and had been exported to London in the 1980s. However, the legitimacy of these documents is contested, as the two copies of the license from the Jordanian Department of Antiquities produced by Schøyen were not identical; the original Arabic copy from 1988 did not actually specify what objects were included and was merely a permit to export the objects, not an export record.⁶⁹ The actual export appears to be recorded by the second document, an English translation dated  October 1992.

Therefore, the objects could have left Iraq at any time before that date and could therefore have been exported after August 1990 in contradiction of not only Iraqi law but also UNSCR 661.⁷⁰ Recalling the latter provision of UK Statutory Instrument 1519, UCL would have been guilty of an offense unless the university could prove that it had no reason to suppose that the item in question was illegally removed Iraqi cultural property — essentially, that UCL acted in good faith receiving and retaining the bowls. The vagueness of the Rihani export documents appears to have been just enough to absolve both Schøyen and UCL of a bad faith purchase. Despite the fact that the export document from Jordan was dated to 1992 rather than 1988, leaving a period of two years during which the bowls could have been illegally removed from Iraq and exported to the UK in violation of UNSCR 661, it was not definitive enough to conclude that this was the case. This plausible deniability enabled the legal permissibility of the out-of-court settlement between UCL and Schøyen that resulted in the bowls’ return to the Schøyen Collection, a monetary payoff to Schøyen, and the suppressing of the committee report.

The UCL controversy illustrates how the Schøyen Collection retained possession of the Aramaic incantation bowls despite Iraqi domestic law, UN sanctions 661 and 1483, and UK legislation prescribing their return to Iraq. In spite of the agreement of each law on the principle of nemo dat and therefore the conclusion that the bowls should be returned, major roadblocks caused by the differing procedural guidelines of the laws impeded the restitution process. The fact that the UNESCO Convention, once ratified, cannot apply retroactively is a major loophole that we will see Schøyen exploit more than once. However, the same restrictions do not hold true for SI 1519, which applies to any person in possession of Iraqi artifacts imported to the UK after August 1990. These restrictions further do not hold for Iraqi law, under which the removal of the bowls was illegal, even if the Rihani documents accurately attested to the bowls’ presence in Jordan since the 1960s. Therefore, a disparity between the legal regimes regarding the timeline of legal culpability confused the case: the bowls were not entitled to be returned to Iraq under the UNESCO Convention because they came to UCL before 2002, but they were entitled to be returned to Iraq under SI 1519 if they could be reasonably assumed to have entered the UK after 1990. The dating on the Rihani export documents was just vague and inconclusive enough to secure Schøyen the benefit of the doubt and to prevent UCL from reaching a conclusive answer on whether the bowls had entered the UK illegally. UCL’s extended retention of the bowls in its attempt to unravel the legal and ethical web surrounding them provided Schøyen the opportunity to open litigation against the university, which then ended in an out-of-court private settlement benefiting Schøyen.

Throughout this discussion of the UCL controversy, Iraq has been noticeably absent; at no point during the unfolding of the case did Iraq make a formal claim to the incantation bowls. In the 2000s, while the case between Schøyen and UCL was unfolding, the state of Iraq was emerging from devastating wars and was unable to exert claims against Schøyen or UCL for the bowls.⁷¹ It did not have the bandwidth in money, time, or resources to compile a formal request and to construct a legal case. Schøyen was therefore able to exploit the weaker position of Iraq in order to sue UCL for the possession of the bowls. While not engaging in the proceedings between UCL and the Schøyen Collection, Iraq was soon to take a more active role in the battle over the bowls.

XIII. The Case of the Aramaic Incantation Bowls in the Schøyen Collection: Part II

A. The Raid

During the development of events at UCL over the early 2000s, while Iraq did not make a formal request, an adviser to Iraq’s government made clear that Iraq would pursue diplomatic and legal action in order to secure the restitution of the bowls. The Norwegian Minister of Culture at the time, Anniken Huitfeldt, agreed that Iraq’s cultural heritage had been violated, and promised that the government would cooperate with inquiries made by the Iraqi authorities.⁷² In 2019, four culture ministers later, the bowls had yet to be returned. In September 2019, Iraq’s embassy in Oslo sent yet another letter to the Ministry of Culture (MoC) in which they urgently asked for assistance in the restitution of the bowls to Iraq. However, this time, it was not just the bowls they sought.⁷³ After investigating Schøyen’s website, the Iraqi authorities believed he was in possession of more than 760 items of Iraqi origin, including clay tablets in the Sumerian and Akkadian languages, as well as the 654 Aramaic incantation bowls.⁷⁴ Iraq’s embassy invoked international legal conventions, requesting that the Norwegian MoC “support the Iraqi authorities’ efforts in returning the Iraqi archaeological objects according to the [UNESCO Convention] and the [UNSCR 661].”⁷⁵

In response to the Iraqi request, the MoC enlisted the services of the National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim), Norway’s central unit for fighting economic and environmental crimes. This was Norway’s first application of Section 23(c) of the Norwegian Cultural Heritage Act.⁷⁶ The section stipulates that Norwegian authorities “shall help the requesting state to trace a cultural object and prevent its withdrawal from the return procedure,” and that coercive measures may be applied to trace the objects “even if no-one can be penalized for importation, possession, or other involvement with the cultural object.”⁷⁷ Pursuant to Section 23(c), Økokrim raided the collection on August 24, 2021. The seizure was aimed at 107 cuneiform tablets of Mesopotamian origin, as well as any of the 656 incantation bowls suspected of being stored on the Schøyen premises.⁷⁸ During the search, a total of 83 of the requested objects were seized and taken to the Museum of Cultural History (KHM) for investigation. Of these items, one incantation bowl was included (MS 1911). 655 other bowls were being stored at Schøyen’s residence in London, and one bowl was unaccounted for.

The materials underwent a thorough assessment by KHM staff, through technical analysis and extensive research of the Schøyen Collection publications. On March 6, 2022, the KHM released a report detailing its findings and recommendations regarding the seized items. The report went into detail on every object seized from Schøyen’s collection and reached the same conclusion for most of them: “Schøyen has failed to provide documentation of legal removal from Iraq and the evidence on balance otherwise indicates modern looting, smuggling, and illicit trading. The object should be returned to Iraq.”⁷⁹ On the Aramaic incantation bowl included in the seizure, MS 1911, the report reached a similar conclusion, referencing the UCL investigatory panel’s report from 2006 as well as important dates of the 1936 Iraqi Antiquities Law and the UNSCR 661:

The bowl derives from Iraq. There is no evidence that this bowl is exported in accordance with Iraqi legislation. It is probably exported after 1990, and certainly after 1936. In short, this report concurs with [the UCL investigatory report] that the bowls are looted in Iraq, probably not long before they turn up in London in 1994. They are property of the Iraqi government and there is no evidence of legal export from Iraq.⁸⁰

It concluded that MS 1911, as well as the other 655 bowls in the Schøyen Collection, should be returned to Iraq. In July 2022, four months after the release of the report, the legal representatives of the Schøyen Collection wrote a letter in response to the Museum of Cultural History, contesting the legality of the report and threatening the institution with legal action.

B. Schøyen’s response

Schøyen’s response to the KHM report hinged on an argument that the seizure and resulting report violated his right to due process. By invoking Norwegian constitutional and statutory civil rights protections, he used Norway’s own civil rights law against Økokrim’s enforcement of the Cultural Heritage Act Section 23(c). Additionally, he relied on the same major loopholes found in the UNESCO Convention that were instrumental in his victory over UCL; namely, that the Convention requires burden-of-proof evidence from the requesting state and that it cannot apply retroactively.

The first point the letter made was that the KHM director, Håkon Glørstad, deprived Mr. Schøyen of the right of reply and ignored the evidence that was provided as to the provenance of the bowls.⁸¹ However, the document does indeed address the evidence provided by Schøyen at length. The export documents from the Rihani collection provided by Schøyen initially in the UCL inquiry and again to the KHM were reconsidered, and again deemed to be inconclusive and an insufficient source of evidence that the transfer of the bowls was not illicit. In regard to Schøyen’s “right of reply,” there is no indication in the Norwegian law that the right of reply was a necessary aspect of the seizure and its ensuing report. The compiled report was a detailed expert assessment of all the objects that were seized, based on information that Schøyen had previously provided or that was available in his published volumes, which were then released. As no legal action was leveled against him besides the enforcement of Section 23(c), which explicitly states that items may be seized “even if no-one can be penalized for importation, possession or other involvement with the cultural object,” there is no reason that Schøyen needed to be afforded a response before the release of the report.⁸² We need not spend much time on the second accusation: that the report exhibited “unquestioned reliance” on the opinions of scholars such as Christopher Prescott, whom the letter argued was “clearly legally incompetent in relation to Schøyen.”⁸³ Christopher Prescott has earned significant ire from Schøyen over the years for his investigation into the acquisition practices of the Schøyen Collection. The accusation that the report relies heavily on the opinion of this scholar is unfounded, as the report goes into heavy detail not on the opinions of scholars but on the provenance information and publication history of Schøyen’s own records, as well as analysis of the objects themselves. The letter earlier accused the KHM of “ignoring” evidence provided by Schøyen of Rihani’s export documents and here accuses the report of relying entirely on scholarly opinion; for reference, “Rihani” is mentioned 73 times in the document, and “Prescott” is mentioned once, in a parenthetical credit for a translation from German into English.⁸⁴

Schøyen further argued that the report compiled by KHM did not provide procedural documentation for Iraq’s request for the seizure and additionally lacked burden of proof evidence that the seized items originated in Iraq, as required by Norwegian legislation and the UNESCO Convention. While it is true that Iraq was not able to provide evidentiary documentation that the artifacts had originated in the country, this lack of evidence once again highlights the glaring issue with the burden-of-proof requirement of the UNESCO Convention: due to the inherent nature of illicit trafficking, wherein an object can be illicitly transported all the way from underground to its final destination, it is often impossible for a requesting state to prove that a specific artifact originated within its borders. However, one could argue that the expert analysis carried out by the UCL investigatory panel, which concluded that the bowls originated in Iraq and emphasized that very few, if any, Aramaic incantation bowls have ever been found outside of Iraq, was sufficient evidence to prove that the bowls were of Iraqi origin.⁸⁵

Schøyen’s final accusation was that KHM transgressed the scope of the Cultural Heritage Act Section 23(c) by attempting to apply it retroactively. This argument is rooted in the fact that the 1970 UNESCO Convention, and therefore the Cultural Heritage Act Section 23, cannot be applied retroactively to items that were acquired prior to Norway’s ratification of the Convention in 2007. Furthermore, even if the 1970 Convention did apply retroactively, Schøyen points out that Article 97 of the Norwegian Constitution stipulates “that no [Norwegian] law must be given retroactive effect,” adding yet another law to the arsenal of Schøyen’s legal representation and further complicating the spectrum of laws at play.⁸⁶

Despite dubious argumentation, Schøyen’s legal challenge proved to be a success, and in September of 2022, the seized objects were returned to the Schøyen Collection. In spite of the fact that the UNESCO Convention, UNSCR 661, and Norwegian domestic law all agree in principle that the bowls should be returned to Iraq, Schøyen identified procedural points of friction between these laws such as UNESCO’s burden of proof requirement, the Cultural Heritage Act’s procedural documentation requirement, and the Constitution’s decree that laws cannot be applied retroactively to construct a successful legal argument for the return of the bowls to the Schøyen Collection. In the article on the Schøyen Collection website reporting that the seized objects had been returned, Martin Schøyen was quoted as saying:

This case is said to be the first time the Norwegian Cultural Heritage Act Section 23c has been used. Sadly, the way it has been handled is shining a light on how the Norwegian legislative system is being abused by people who have a particular political agenda or academic position to maintain. It is time for neutrality and the due process of law to be exercised.⁸⁷

This statement demonstrates the tendency exhibited in the Schøyen Collection’s provenance statements to shift the focus from the collection itself to an unelaborated “political agenda” or idealistic position that is being waged against Schøyen and the collection at large. He frames the politicization of the issue as a threat to due process, drawing an idealistic distinction between politics and the law, and further attempting to justify his legal claim to the bowls in the face of what he characterizes as legally unfounded political attacks.

This case provides ample evidence of the legal arsenal available to Martin Schøyen as a result of the multitude of laws at play, despite the fact that the common underlying principle of nemo dat unites all the laws. The UNESCO Convention, the Norwegian Cultural Heritage Act, and UNSCR 661 / 1483 are all unified by the fundamental idea that the possessor of stolen property is obligated to return it to the rightful owner. However, through technical loopholes such as retroactive inapplicability and procedural missteps, the Schøyen Collection has repeatedly come out on top of a legal battle for the ownership of the contested incantation bowls. Martin Schøyen has at every turn jumped at the chance to open litigation for the bowls, knowing that the tangled web of international and domestic laws surrounding cultural property has left several routes open through which a case can be won. While in a standard case of legal pluralism, legal manipulation may be enabled by a conflict of laws, the case of the Schøyen Collection and the Aramaic incantation bowls may be instead understood as a case of too many laws saying the same thing. When multiple laws on varying scales addressing the same concept exist, they naturally will all have slightly different variations in technicalities, timeframes, and procedural rules. It is in this “devil in the details” limbo that the Schøyen Collection operates, and it is by way of these blind spots and points of friction between laws that stolen Iraqi objects remain, at least for now, undisturbed in a millionaire’s home in Norway.

IX. Conventions and Colonialism

A. The Failure of the UNESCO Convention and the Promise of the UNIDROIT Convention

One of the fundamental issues in the case of the Aramaic incantation bowls is that even though all of the relevant laws contain a common fundamental principle, they differ slightly in technical provisions and procedural guidelines, which provide exploitable legal loopholes. A partial explanation for this is the fact that the 1970 UNESCO Convention, which formed the basis for most domestic cultural property legislation, was not actually legally binding. It therefore required member states to enact legislation that merely enforced the general principles embedded in the document, resulting in a diversity of technical and procedural minutiae across the laws. Diversity across the laws exists additionally in the interpretation of key concepts such as the Convention’s protection of the good faith buyer.

Throughout the case of the incantation bowls in the Schøyen Collection, the issue of “good faith” purchasing has been relevant several times, particularly in UCL and KHM’s inability to rule out a good faith purchase despite the obviously dubious legitimacy of the export documentation provided by Ghassan Rihani. This case is therefore an example of the fact that recovery of illicit material under the terms of the 1970 UNESCO Convention is complicated by member states’ varying treatment of the good faith purchaser. Some domestic civil law codes place more protection on the innocent purchaser of stolen goods, whereas others are adamant that the original possessor of stolen property must be protected over all else.⁸⁸ The lack of specificity in the UNESCO Convention, as well as the fact that its requisite integration into the domestic law of member states allowed substantial room for interpretation, led to a situation in which the protection of the good faith purchaser was a major obstacle in repatriation efforts.⁸⁹

In the years after its entry into force and respective implementation in member states, UNESCO recognized this fundamental issue and asked the International Institute for the Unification of Private Law (UNIDROIT) for assistance in resolving this point of difficulty. The result of many years of deliberation was the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (the 1995 UNIDROIT Convention).⁹⁰ Like the UNESCO Convention and its iterations in domestic laws, the UNIDROIT Convention strongly embodies concepts of nemo dat, and is arguably the most true to the core principle exhibited in the Code of Hammurabi. The core principle of restitution is stated plainly in Article 3(1): “The possessor of a cultural object which has been stolen shall return it.”⁹¹ The absolute outcome of restitution is outlined by an introductory statement to the Convention: “If a cultural object has been stolen, it must be returned — restitution is an absolute duty. The only question that arises is whether compensation must be paid.”⁹²

The answer to this question relies on the proof of a good faith purchase—arguably the main concern of the Convention. In the introductory document to the Convention, the undefined status of the good faith buyer is identified as a “chief obstacle to the international recognition by some States of rules [in the area of international restitution claims].”⁹³ To address this obstacle, the UNIDROIT Convention places enhanced scrutiny on the purchaser of illicitly exported materials. Article 4(1) states that “[t]he possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object.”⁹⁴ Whether the purchaser exercised “due diligence” is determined by a holistic evaluation of all the circumstances of the acquisition, including but not limited to the character of the parties involved, the price paid, and whether the purchaser consulted relevant documentation, including export documents. The absolute emphasis on restitution in the UNIDROIT Convention is a preventative measure that seeks, as the Code of Hammurabi did, to avoid a situation in which a moral judgment is made between the original possessor (the requesting state) and a good faith buyer, the two of whom necessarily cannot be afforded the same protections. By enshrining the principle that restitution must be the outcome, no matter the circumstances, the Convention places the responsibility on the prospective purchaser of cultural objects to ensure that they are participating in lawful trade on pain of a) having to return the objects and b) doing so without compensation. Purchasers are thus motivated to do their research, with the overall goal of not acquiring stolen objects and the insurance of compensation if they do turn out to be stolen, so long as they can prove that they vetted the object to the best of their ability.

The UNIDROIT Convention explicitly states that legal pluralism resulting from the myriad legal regimes governing cultural property has historically hindered restitution efforts. The Convention intends to “make it possible to shift the responsibility onto the only person likely to be caught: the final purchaser, who so far has been able to hide behind the diversity and incoherence of existing legal systems in order to appropriate stolen objects.⁹⁵ Thus, this Convention acknowledges the legally pluralistic arena surrounding the illicit antiquities trade, and it was written in an attempt to eliminate confusion and act as an all-encompassing and legally binding document for member states. This Convention, distinct from the UNESCO Convention in that it is legally binding and therefore does not need to be written into domestic law, aims to solve the issues of the UNESCO Convention through standardization by binding signatories to the document itself rather than to its general principles which can be interpreted loosely in domestic legislation.

Finally, the UNIDROIT Convention addresses the other major issue area in the UNESCO Convention: the burden of proof requirement placed on states requesting restitution of illicitly traded cultural artifacts. As seen in the Schøyen case, a major problem with the 1970 Convention is that it places the majority of the burden of proof on the requesting state, requiring documentation that the object was at one time accounted for and that it had been stolen. This is highly unrealistic for countries such as Iraq which are subject to looting directly from the ground and illicit trafficking through smuggling networks across borders, and is inherently incompatible with the general nature of the illicit antiquities market. It is therefore a significant barrier to source nations’ ability to initiate a restitution process for stolen cultural objects. To address this issue, the 1995 UNIDROIT Convention’s Article 3(2) stipulates that “a cultural object which has been unlawfully excavated shall be considered stolen.”⁹⁶ This article addresses the problem of unprovenanced material by allowing it to be defined as stolen and therefore alleviates from Requesting states some of the burden of proof which had previously made it impossible to achieve restitution through the UNESCO Convention.

Having addressed the ways in which the UNIDROIT Convention improves upon the UNESCO Convention, it seems almost too good to be true. In some ways, this assessment is accurate. Like the UNESCO Convention, the UNIDROIT Convention does not apply retroactively. Therefore, even if both Norway and Iraq had signed on to the Convention in 1995, it is dubious that it could have addressed Martin Schøyen’s acquisition of the incantation bowls in the early 1990s. The greater factor, however, is that while Norway ratified the Convention in 2002, Iraq has yet to sign on. Therefore, the protections and benefits that the Convention affords countries seeking restitution of stolen cultural objects are not afforded to Iraq.

It is clear through the case of the Aramaic incantation bowls in the Schøyen Collection that the 1970 UNESCO Convention is a flawed model of standardization when it comes to procedural guidelines for dealing with illicit cultural property. While at the end of the day, the 1995 UNIDROIT Convention has no bearing on proceedings between Norway and Iraq, it is still important to mention as it addresses the issues prevalent throughout the UNESCO Convention and builds upon its principles to create a document that better standardizes cultural property laws in an inherently legally pluralistic arena.

B. Postcolonial barriers

Setting aside their myriad shortcomings, the UNESCO and UNIDROIT Conventions, both groundbreaking at the time of their inception, are representative of an international consensus involving cultural and legal shifts away from colonialism and towards recognizing the rights of postcolonial countries to their cultural patrimony. Throughout this paper, concepts of colonialism have repeatedly appeared in the legal frameworks, such as UNESCO, that place a heavy burden on the requesting state, in the cultural internationalist rhetoric of the Schøyen Collection and Schøyen’s cavalier and defensive attitude in regard to his right and title to the bowls, and in Schøyen’s continued success in private litigation for possession of the bowls. UCL’s consideration of both legal and ethical implications in its assessment of what to do with the bowls, as well as the weight it afforded to the UNESCO Convention, despite the fact that it did not legally apply, is representative of the reality that it is not just the law at issue in modern cultural property discourse; rather, this complicated web of laws overlays a normative, anti-colonialist vision of property ownership. Of course, the anti-colonialist leanings of the UCL investigatory panel were undermined by UCL’s eventual return of the bowls to Schøyen, but this is again indicative of a postcolonial power balance in that Iraq was, at that time, unable to make a formal claim to the bowls. Iraq, as a postwar nation deeply embroiled in economic and political instability as a result of the Gulf War and the 2003 U.S. invasion, was not in a position to expend the requisite time, money, or resources to compile a formal request.⁹⁷

This reality contradicts Schøyen’s repeated insistence that politics and the law are separate spheres and that politics should not have a bearing on the law, as it is in large part due to the regional and international politics of the postcolonial Middle East that Schøyen was able to retain possession of the bowls. Schøyen, who controls massive amounts of wealth and resources and is backed by a robust legal team, had the political advantage over Iraq in that he was simply more equipped to engage in legal proceedings over the bowls. Schøyen’s legal arsenal is evident in the fact that he has repeatedly pitted laws against each other in order to sue for the possession of the bowls and won. Through his ability to expend time, money, and resources identifying and exploiting inconsistencies in the frameworks of cultural property law, Schøyen has managed to basically nullify these laws. His success is representative of the postcolonial advantage of Western market nations in the legal battle over cultural heritage. Therefore, while emblematic of a positive global ideological shift towards cultural nationalism, the critical postcolonial theory of the UN Conventions has, at least in the case of the Aramaic incantation bowls, been unsuccessful in preventing the illicit export, import, and ownership of stolen cultural property.

X. Back to Babylonia

It is fitting to end this paper in the place where it all began: the alluvial plains of southern Mesopotamia. Having studied the case of the Aramaic incantation bowls, one understands Hammurabi’s desire to implement an ubiquitous legal system and further understands why it proved so difficult to standardize a practice alongside pre-established laws and norms of nomadic and urban societies. The tension between the legislator’s desire for standardization and the strength of diverse practices has been a constant feature of law in the ancient Near East and has demonstrably persisted into the legal systems of the twenty-first century.⁹⁸

The protection of the good faith purchaser, one of the key complicating factors of the case between Norway, the United Kingdom, and Iraq, proved to be a struggle for Hammurabi thousands of years ago as well. Noticeable disparities in the punishments for those involved in sections §9-11 in the Laws of Hammurabi illustrate a compromise between the law and various conflicting interests, wherein the provisions on the monumental stela offer the innocent purchaser a choice of tactics.⁹⁹ Contemporary documents indicate a loose interpretation of these provisions, allowing the innocent purchaser to pursue a variety of legal recourses for the forfeiture of the stolen property. This goes to show that this key issue is not easily solved, and the tension between the protection of the original owner and of the innocent purchaser remains unresolved even after millennia.

As the Laws of Hammurabi illustrate, legal pluralism has been a reality of our world ever since the first written laws were put to stone. It may therefore be unrealistic to hope for an all-encompassing, ubiquitous, standardized system by which to govern the trade and transport of cultural objects. However, as this paper has shown, the current systems, at least as they pertain to Iraq and the Schøyen Collection, are inherently flawed and have given way to multiple routes through which the Schøyen Collection has been able to maintain possession of stolen artifacts. Despite their failure thus far to alleviate postcolonial pressures and disadvantages of source nations in the battle over cultural property, more recent legal frameworks such as the 1995 UNIDROIT Convention provide a strong foundation for moving forward by fleshing out the basic principles of nemo dat and making them more standardized, and thus more universally applicable. As the dialogue about cultural property moves increasingly towards cultural nationalism and a mission to return stolen artifacts to their home countries, legal frameworks should be recognized for their potential to facilitate dialogue and restitution processes between nations. Therefore, although his law code is over three thousand years old, and we may see its provisions as archaic and draconian, by codifying the first instance of the principle of nemo dat non quod habet, Hammurabi’s legacy may yet be instrumental in ensuring the safe return of many cultural treasures to the place he called home.
 

Timeline of Events

Before 1992, date unknown — Bowls looted from Iraq and exported internationally 

October 1992 — Bowls exported from Jordan to London, purchased in London by Schøyen 

1996 — Bowls deposited at UCL for study

2002 — UK signs onto 1970 UNESCO Convention (no retroactive power) 

September 2004 — Skriftsamleren is released, casting doubt on bowls’ provenance 

October 2004 — UCL alerts police and releases report

May 2005 — UCL announces investigatory committee

July 2006 — UCL releases part 1 of report

February 2007 — Norway signs onto 1970 UNESCO Convention (no retroactive power)

March 2007 — Schøyen takes legal action against UCL for the bowls

June 2007 — Joint UCL / Schøyen press release and return of bowls to Schøyen 

October 2007 — Science article published leaking first part of UCL report 

November 2009 — Full UCL report posted on WikiLeaks

2019 — Iraqi authorities identify objects in Schøyen Collection and enlist help of Økokrim 

September 2021 — 83 objects seized and taken to Museum of Cultural History (KHM) 

March 2022 — KHM report released

July 2022 — Schøyen’s legal representatives write letter to KHM

September 2022 — Seized items are returned to Schøyen Collection