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A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin

  • Derek Fincham (a1)


Blanket ownership laws, export restrictions, and the criminal law of market nations are the default legal strategies currently used by nations of origin to prevent the looting of archaeological sites. Although they have been remarkably successful at achieving the return of looted objects, they may not be the best strategies to maximize the recording and preservation of archaeological context. In England and Wales a more permissive legal regime broadly applied and adopted by the public at large has produced dramatically better results than the strong prescriptive regime of Scotland, which can be easily ignored.

This article attempts to clear up any misconceptions of the cultural policy framework in England and Wales. It accounts for the legal position accorded undiscovered portable antiquities, and describes how this legal framework is perfected by a voluntary program called the Portable Antiquities Scheme (PAS). This approach stands in stark contrast to Scotland, which has used a legal strategy adopted by most other nations of origin.

The domestic legal framework for portable antiquities in England and Wales is unique and differs from the typical approach. Coupled with the PAS, this legal structure has resulted in a better cultural policy, which leads to less looting of important archaeological sites, allows for a tailored cultural policy, and has produced more data and contextual information with which to conduct historical and archaeological research on an unprecedented scale. Compensating finders of antiquities may even preclude an illicit market in antiquities so long as this compensation is substantially similar to the market price of the object and effectively excludes looters from this reward system. Although the precise number of found versus looted objects that appear on the market is open to much speculation, an effective recording system is essential to ensure that individuals who find objects are encouraged to report them.



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Bauer, Alexander A.New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates.” Fordham International Law Journal 31 (2008): 690.
Bland, Roger. “Rescuing Our Neglected Heritage: The Evolution of the Government's Policy on Portable Antiquities in England and Wales.” Cultural Trends 14 (2005): 257.
Bland, Roger. “The Treasure Act and Portable Antiquities Scheme: A Progress Report.” Journal of Art, Antiquity and Law 4.3 (1999).
Carey Miller, David L. “Treasure Trove in Scots Law.” In Summa Eloquentia: Essays in Honour of Margaret Hewett, 7589, 2002, South Africa: University of South Africa.
Carey Miller, David L. “T.B. Smith's Property.” A Mixed Legal System in Transition. Edinburgh: Edinburgh University Press, 2005: 173–98.
Carey Miller, David, and Sheridan, Alison. “Treasure Trove in Scots Law.” Art, Antiquity & Law 1 (1996): 393406.
Cheek, Annetta L. “Protection of Archaeological Resources: History of the Archaeological Protection Act.” In Protecting the Past, edited by Smith, George and Ehrenhard, John E., 1991. (accessed May 10, 2008).
Chippindale, Christopher, and Gill, David. “From Malibu to Rome: Further Developments on the Return of Antiquities.” International Journal of Cultural Property 14 (2007): 205–40.
Coggins, Clemency. “United States Cultural Property Legislation: Observations of a Combatant.” International Journal of Cultural Property 7 (2005): 94.
Council of Europe. Metal Detectors and Archaeology. Report of the Committee on Culture and Education (Doc. 4741). Strasbourg: Council of Europe, Parliamentary Assembly, 1981.
Cuno, James. “Art Museums, Archaeology, and Antiquities in an Age of Sectarian Violence and Nationalist Politics.” In The Acquisition and Exhibition of Classical Antiquities, edited by Rhodes, Robin F.. Notre Dame: Notre Dame University Press, 2008.
de Bracton, Henry. De legibus et consuetudinibus Angliae, Vol. 2 (Thorne, Samuel trans.). 1977, Cambridge, Mass.Belknap Press of Harvard University Press.
Delafons, John. Politics and Preservation: A Policy History of the Built Heritage, 1882–1996. London: Spon Press, 1999.
Department for Culture, Media, and Sport. The Treasure Act 1996 Code of Practice (2nd rev.). London: DCMS, 2002.
Department of National Heritage. The Treasure Act 1996. Code of Practice (England and Wales). London: Department of National Heritage, 1997.
Dobinson, Colin, and Denison, Simon. Metal Detecting and Archaeology in England. York: English Heritage; Council for British Archaeology, 1995. Available at (accessed May 10, 2008).
Doyal, Stephanie. “Implementing the UNIDROIT Convention on Cultural Property into Domestic Law: The Case of Italy.” Columbia Journal of Transnational Law 39 (2001): 657–77.
Drake, Cathryn. “Italy Awaits Biggest Ever Trial of Tomb Robbers.” Art Newspaper, January 28, 2008. Available at (accessed May 10, 2008).
Felch, Jason. “Raids Suggest a Deeper Network of Looted Art.” L.A. Times, January 25, 2008. Available at,0,101198.story?page=1 (accessed May 10, 2008).
Fincham, Derek. “Why Federal Criminal Penalties for Dealing in Illicit Cultural Property are Ineffective and a Pragmatic Alternative.” Cardozo Art and Entertainment Law Journal 25 (2007): 597645.
Fincham, Derek. “Rejecting Renvoi for Movable Cultural Property: The Islamic Republic of Iran v. Denyse Berend International Journal of Cultural Property 14 (2007):111–20.
General Accounting Office. Problems Protecting and Preserving Federal Archaeology Resources. GAO/RCED-88–3. Washington, DC: General Accounting Office, 1987.
Gerstenblith, Patty. “Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past.” Chicago Journal of International Law 8 (2007): 169–95.
Hicks, Robert D. Time Crime: Protecting the Past for Future Generations.” FBI Publications, 1997. (accessed May 10, 2008).
Hill, George. Treasure Trove in Law and Practice. Oxford: Clarendon, 1936.
Merryman, John Henry. “Cultural Property Internationalism.” International Journal of Cultural Property 12 (2005): 1139.
Moore, Malcolm. “Tourists ‘Stripping Ancient Rome Bare.’” The Telegraph, 2008. (accessed March 3, 2008).
Normand, Andrew. Review of Treasure Trove Arrangements in Scotland. Edinburgh: Scottish Executive, 2003. Available at (accessed May 10, 2008).
Palmer, Norman. “Treasure Trove and the Protection of Antiquities.” The Modern Law Review 44.2 (1981): 178–87.
Palmer, Norman. “Title to Antiquarian Finds: Perpetuating the Impenetrable.” Journal of Art, Antiquity and Law 1 (1996).
Portable Antiquities Scheme. Annual Report 2006. London: Department of Culture, Media and Sport, 2007.
Prott, Lyndel V.The International Movement of Cultural Objects.” International Journal of Cultural Property 12 (2005): 225.
Povoledo, Elisabetta. “Collector Returns Art Italy Says Was Looted.” New York Times, 2008. Available at (accessed May 10, 2008).
Renfrew, Colin A., “Foreword.” In Trade in Illicit Antiquities: The Destruction of the World's Archaeological Heritage, edited by Brodie, Neil, Doole, Jennifer, and Renfrew, Colin, xi. Cambridge: McDonald Institute for Archaeological Research, 2001.
Salt, Alun. “The Portable Antiquities Scheme and the Indifference of Government.” Archaeoastronomy, 2008. (accessed May 10, 2008).
Saville, Alan. “Treasure Trove in Scotland.” Antiquity 76 (2002): 796802.
Schiffman, Lisa. “Riding for the Brand.” Archaeology, 2005. (accessed May 10, 2008).
Valdés, Juan Antonio. “Management and Conservation of Guatemala's Cultural Heritage: A Challenge to Keep History Alive.” Art and Cultural Heritage (2006): 94.
“Viking Treasure Hoard Uncovered,” BBC News, BBC, published July 19, 2007. Available at (accessed May 10, 2008).
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International Journal of Cultural Property
  • ISSN: 0940-7391
  • EISSN: 1465-7317
  • URL: /core/journals/international-journal-of-cultural-property
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