The foundational principle upon which the entire law of occupation is based is the principle of ‘inalienability of sovereignty’ through unilateral action of a foreign power.

Accordingly, when a state establishes effective control over foreign territory, its international legal status is conceived to be that of a ‘trustee’ who exercises only ‘temporary managerial’ powers until the occupation ends.

The occupant serves only as ‘administrator’ and ‘usufructuary’ of public monuments belonging to the people of the occupied state/polity.

It must safeguard these public monuments, and administer them in accordance with the rules of ‘usufruct’, avoiding wasteful or negligent destruction of their capital value.

So, an occupying colonial power may not permit a person to lawfully detach/remove any part of the whole, and thereby appropriate the fragment.

Thus, removal of any part of a public monument, i.e. by hacking off a fragment, e.g. part of a ‘frieze’ adorning the monument, is ipso facto unlawful under international law. It must therefore be returned for re-unification with the monument. QED.

In Mediation, the possibilities are only limited by the imagination of the participants and their legal representatives.

Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are
invariably possible.

Negotiation skills are rarely/if at all, taught on undergraduate law courses in UK universities, or on vocational courses for solicitors and barristers. Those lawyers who did not study law at university may not even have studied negotiation skills at all, before entering into private practice at the coal-face, i.e. the ‘real world’.

I cut my baby teeth negotiating contracts around the world and settling disputes for Rolls-Royce and Alstom.

As I mentioned to the late Professor Roger Fisher, co-author of ‘Getting to Yes’, during a short visit to Harvard Law School as a visiting scholar from King’s College London 23 years ago, I educated myself about commercial negotiation skills in my early-twenties by reading his books, and then by applying the principles he wrote about in real life negotiations with a high degree of success around the world.

At the time as far as I can recall, none of my counter-parts in what are now BRICS countries e.g. India and China, had read any of his books. That I think has now changed, and many lawyers in these countries have received a more thorough grounding in negotiation techniques than most lawyers in the UK have.

That is in large measure attributable to the work of the Standing Conference of Mediation Advocates (the ‘SCMA’) and my colleague and fellow author Andrew Goodman.

So, as a result in international commercial negotiation/Mediation Advocacy in a cross-border dispute, these lawyers have acquired a competitive edge over solicitors and barristers in the UK.

Critically, and this is the difference, they have probably become more adept than lawyers in the UK at thinking outside of the box, i.e. at imaginative/creative problem solving.

Lawyers in the UK need to catch up, otherwise in international negotiations/cross-border mediations, these BRICS lawyers are going to eat the City lawyers’ lunch! If as an international law firm you want to survive, this is no time to be arrogant and complacent.

Negotiation is a skill you develop and perfect by doing.

It requires experimentation and life-long learning.

Mediation Advocacy is a specialised form of negotiation, because it is facilitated. So, even if you have studied negotiation, then you may still not know anything at all about Mediation Advocacy. Nor may the partners in your firm, and your lecturers/tutors at University/on vocational training courses.

This is a massive gap in academic/professional training, i.e. a ‘blind-spot’/potentially existential ‘Achilles heel’ for lawyers in the UK.

To learn more about Mediation Advocacy in estate disputes, see the Slides and Speaking Notes on the ‘Mediation Advocacy’ page at www.carlislam.co.uk.

Note the ‘Research Bibliography’ on the ‘Mediation Advocacy’ page at www.carlislam.co.uk & Leathes, Michael (2017) Negotiation – Things Corporate Counsel Need to Know but Were Not Taught, Wolters Kluwer.

What I have am still trying to understand is whether this massive oversight by those who teach law at university in the UK, and on vocational training courses which are supposed to prepare green initiates for the real world of private practice, is the result of ‘academic snobbery’ or ignorance. Perhaps it is a combination of the two?

The ethical principle of ‘beneficence’ is based in part upon the Aristotelian concept that ‘the whole is greater than the sum of its parts.’ So, museum trustees are under an ethical duty, subject to countervailing factors, to collaborate in re-uniting all parts of the cultural artefacts that were affixed to the Parthenon with the monument.

The British Museum (‘BM’) has various tools available for accomplishing this which are discussed on the ‘Mediation of Cultural Property Disputes’ page at www.carlislam.co.uk.

Whatever creative solution is agreed must be approved by Parliament. The Government will need to propose a bill so that the artefacts held by the BM can be de-accessioned.

The ‘National importance’ test may provide a precedent, e.g. the Derynaflan Treasures, see (Webb v. Ireland [1988] Irish Reports 353 (High Court), 373 (Supreme Court), per the Chief Justice at [383]).

Another solution, which I innovated is split legal and beneficial ownership using a trust, whereby (i) Legal title to the Parthenon Marbles (‘PM’) is vested in both BM and Greek National Trustees; and (ii) The PM is beneficially owned by (a) Greece; and (b) Mankind.

A ‘trust’/’fiduciary’ custodial solution might for example involve the transfer of the PM to a bespoke trust created by statute for the benefit of: (i) the people of Greece; and (ii) mankind, involving the appointment of both BM and Greek T‘s, and the conferring of a power on the T‘s to deliver the PM to Greece for permanent display.

Outcome – Indivisible legal title to the PM is jointly held by: (i) the BM T‘s; and (ii) the Greek T‘s.

The PM is beneficially (i.e. actually owned) by: (i) the people of Greece; and (ii) Mankind (including the people of Great Britain).

The PM are delivered to Athens for permanent display.

There is no loan.

So, to an extent, this is a practical win/win solution for both the BM T‘s and Greece.

As the French Archaeologist Salomon Reinach famously remarked, ‘The sea is the largest museum in the world’.

In particular, ancient ship-wrecks are a record of human evolution.

Therefore, I would argue that they are part of the consciousness and collective memory of mankind, e.g. because ancient shipwrecks and the ‘stuff’ found inside them on the seabed in the Mediterranean, provide evidence of when the Roman Empire reached its peak in terms of size and geographical extent, i.e. in the mid-2nd century.

So, these ship-wrecks tell us when the Roman empire began to decline. This knowledge is of value and benfit to all humanity, i.e. because of the lessons that history can teach us today.

Since what marine archaeologists and historians can learn from ancient ship-wrecks is of value to humanity, do ‘fiduciary duties’ attach to these underwater sites and ship-wrecks under international law?

For centuries, international lawyers and statesmen have endorsed the principle that a state’s sovereign authority is held in trust for the benefit of its people.’ So, by extrapolation, what duties are or should states be under to preserve and protect underwater archaeological sites around the world for the benefit of mankind?

My Question for Dr Taco Terpstra who is giving an online webinar tomorrow at the Cambridge Centre for Geopolitics about ‘Trade and Economic Growth in the Ancient World Economics, Trade’, is:

‘You are the author of “Trade in the Ancient Mediterranean: Private Order and Public Institutions” and “Trading Communities in the Roman World.”
The subject of your books reveals that people from different religions and cultures can co-exist in peace through international trade, provided there is a sophisticated and stable underlying political infrastructure/world order/network. Today international law and institutions are in tatters. The liberal world order is nearing collapse. However, a new “multi-polar” world order is emerging amongst members of the Global South – BRICS. So, what can history teach us about “Geopolitical convergence through international trade” and what lessons can the architects of BRICS derive from the ancient world about geopolitical convergence?’

Preface to my question:

International trade and finance engenders trust and co-operation between trading partners in different states. That is because interests converge through participation in a common commercial venture which has risks that must be shared and allocated between those who can benefit. This requires the creation of a financial infrastructure. For example, later in history, in medieval long-distance trade – whether it traversed international boundaries or whether it moved within the vast expanse of the medieval Islamic domain, required substantial investments of capital to cover the cost of acquiring goods at distant points, and of transporting them and caring for them until they were disposed of. The perilous conditions of both sea and land travel, the arbitrariness of political and military authorities and the unpredictable market conditions exposed such investments to grave risks. In Islam, it was the partnership and commenda contracts which were the two basic legal instruments through which the economic functions of the provision of capital resources for the formation of commercial investments, and the sharing of the risks of commercial ventures could be accomplished. However, we possess no documents or actual contracts of commenda and partnership arrangements for the first three Islamic centuries.

For information about the webinar see:

https://lnkd.in/eUJxrYhv

‘In this webinar, Taco Terpstra will speak on trade in the ancient world. He will further discuss premodern economic growth, and how to measure and achieve it, distinguishing between Smithian and Schumpeterian theories. His talk will address Roman innovation in the production process, including the role that slavery might have played. Taco will be joined by the Centre’s deputy Director, Professor Bill Hurst, who is convener of the Ancient Geopolitics series.’

I completed the final draft of the 2nd Ed of the Contentious Probate Handbook for publication by the Law Society on Friday. If approved that just leaves laying-out & proof-reading.

Since June, to sharpen my mediation advocacy i.e. negotiation skills ‘saw’, I have been reading books about negotiation.

In October I am giving an online talk about this to a worldwide audience of mediation advocates [‘MA’s’].

In my free time between now & then, I am writing an article for publication in a leading global journal for trust & estate practitioners about ‘Mediation Advocacy’.

In the article I posit that mediation is a game & ask myself what are the rules for players? Here are some of the rules:

(a)   Follow the Mediator’s [M’s] ‘cues’: acknowledge the existence of litigation risk and be prepared to explore the existence of an alternative i.e. ‘third-way’ to litigation, by entering into a constructive exploration of the existence of common-ground, which first requires M to enquire about your lay client’s wishes, needs, priorities, and reasons.

(b)   Be ready to not only negotiate, but also to structure and document the terms of a deal – which may be complex.

(c)   You must be ready and willing to work side by side with the other MA’s without their lay clients being present, in order to isolate constraints and work out solutions, that they can sell to their lay client(s), and vice-versa.

(d)   This requires the establishment of a ‘working relationship’ between the MA’s, through M, whereby in each other’s eyes, the MA’s are not rival competitors, but partners, working together to find a way of dealing with their lay clients’ ‘differences’, by seeing these differences as a common ‘challenge’.

(e)   So, the MA’s must work with M to bring about this paradigm shift in thinking.

(f)    This requires the development by each participant [‘P’] of a ‘settlement range’ [‘SA’] ahead of the Mediation Day.

(g)   The extent to which each P’s SA overlaps with the SA of the other P/P’s = common ground [‘CG’].

(h)   In a Trust/Estate dispute CG may be capable of expansion before division and distribution.

(i)   Thus, before the mediation day each MA must have a candid discussion with their lay client i.e. P, about how much is ‘enough’, i.e. about what is the ‘price of doing a deal on the day?’

(j)   That conversation should be prefaced by reminding their lay client about what they advised during their very first conference, i.e. that litigation always involves an unquantifiable element of litigation risk for all parties involved.

(k)  So, the commercial question for their lay client to answer for themselves is – ‘at what point is the candle no longer worth the flame?’

(l)   Then each P can make an informed and calibrated commercial decision about when ‘to deal’ and ‘when walk away from the table’, before they come to the table and engage as a ‘player’, in the ‘Mediation Game’.

‘The power to make “ex-gratia” payments already exists in section 106 of the Charities Act 2011, but the new legislation would expand this in two important ways. The first is by allowing trustees of institutions otherwise prevented by statute from disposing of property (e.g. national museums) to seek authorisation for such disposals when these are motivated by a moral obligation, with the approval of the Charity Commission, courts or attorney general. This change specifically overrides the 2005 High Court decision in Attorney General v. The Trustees of the British Museum. The second change will allow trustees to make ex-gratia disposals of low value trust property without the requirement for approval, the value of which is to be measured along a sliding scale based on the gross income of the charity. Both of these new powers will enable institutions in England and Wales to act much more confidently in pursuing the restitution of objects in their collections when there is a strong moral case for doing so.’ (‘Museums, Restitution And The New Charities Act by Alexander Herman, Art Antiquity and Law, Vol XXVII, Issue 3, October 2022). However, ‘the Government became concerned that the extension of the power to statutory charities (e.g. the National museums) might result in it being used to affect transfers of property which their governing statutes currently prevent – for example, returning cultural artefacts to their countries of origin on moral grounds. The government has clearly decided this needs further consideration before it is implemented meaning that the provisions are now in a state of limbo, with the implementation plan saying only that they are “under further consideration prior to commencement”.’ (‘The Charities Act 2022: changes in relation to ex-gratia payments out of charity funds’, Farrer & Co, 20.12.2022).

Instead, why not use ‘Med-Expert Adjudication/Arbitration’ to obtain a non-binding recommendation by the Mediator(s)/Arbitrator(s) to the Government for legislation to be proposed to amend the National Museum’s statute, and thereby provide for deaccessioning of the artefact?

If the parties and the Government agreed to participate in such an bespoke and ad-hoc ADR process, then a political decision could be made about return irrespective of the value of the artefact.

This would involve a 2 part process whereby: (i) applicable ethical principles were proposed discussed and agreed during the 1st ‘Mediation stage’; followed (ii) by the application of agreed ‘ethical principles of repatriation’ by an expert panel of jointly-appointed expert adjudicators/arbitrators.

I am not aware of any literature in which such a hybrid ADR process has been discussed as a potential road to repatriation of cultural artefacts, i.e. based upon an ethical case. If you are aware of any precedents in other jurisdictions please let me know.

An alternative lens through which museum trustees may evaluate the merits of a moral claim for restitution is whether an artefact [‘A’] belongs in a particular place or setting e.g. tribal lands occupied by an indigenous source people/community. In other words, does A have a ‘Cultural Home/Homeland.’

This is a matter of moral philosophy and there may be historical precedents which date as far back as antiquity to validate the concept because of art restitution practice in the ancient world. This will of course need to be researched.

The concept of a Cultural Home for an artefact [‘H’] is linked to the concepts of:
·       a ‘Lex Originis’;
·       the ‘legitimacy’ of a place where A should be located (‘Patrie’ – i.e. the
cultural ‘homeland’ of A);
·       the applicable law being that of H – and what state law applies in
default if the law of H is not a unified, i.e. recognised body
of law in jurisprudence;
·       the sovereignty of indigenous peoples and their human rights; and
·       the concept of the creation for public display, i.e. in a museum/gallery, of a ‘unity of art.’

The concept of a ‘unity of art’ is a double-edged sword.

On the one hand the idea is an argument in support of repatriation for display in that A will be displayed along with other cultural artefacts, thereby enhancing the collection(s) by adding to knowledge about the source community/civilization. On the other hand, the museum from which return is sought could argue that the unity of its own collection(s) by be diminished by returning it, and so it is under a duty to mankind as a whole to retain it for research and display in a place where it can be accessed. So, how does a museum trustee square the circle?

Logically, these arguments may be measured through an ethical equilibrium of beneficence, i.e. by evaluating harm in retaining A v. benefit in returning A. Of course, and particularly where the margin between relative benefit v. relative harm is small, they may cancel each other out, in which case the merits of retention v. return are likely to be perceived as being almost equal. In which case, museum trustees are likely to favour maintaining the status quo, because that is likely to be less controversial with their own stakeholders, than returning A to the people from whom A was misappropriated.

However consideration of ethical arguments is only dimension of lawful decision-making by museum trustees, which in the case of state actors/entities is also linked to jus cogens and erga omnes norms under international law.

This is an area of decision-making by museum trustees that appears to have been almost entirely neglected in the academic literature on trustee decision-making by public bodies, and is an area I will research in relation to my next book – ‘Art Restitution Claims – A Practical Handbook for Claimants & Museums.’

Data Protection Act 2018, Schedule 2, Part 4, paragraph 19 provides:

‘The listed GDPR provisions do not apply to personal data that consists of—

(a) information in respect of which a claim to legal professional privilege or, in Scotland, confidentiality of communications, could be maintained in legal proceedings, or

(b) information in respect of which a duty of confidentiality is owed by a professional legal adviser to a client of the adviser.’

Privilege is a right to resist the compulsory disclosure of information, and in particular documents which:

(i) contain legal advice; or
(ii) were created for the dominant purpose of obtaining information or advice, in connection with actual or contemplated litigation.
(Shlosberg v. Avonwick Ltd [2017]).

Under English law, whether or not a communication is privileged is a procedural question and thus governed by the law of the forum (see further Dicey, Morris and Collins, paragraph 7-022).

The primary forms of legal professional privilege are:

(i)    ‘legal advice privilege’, which attaches to certain communications between a lawyer and a client; and

(ii)    ‘litigation privilege’, which attaches to certain communications between a lawyer or client on the one hand and a third party on the other.

A lawyer, in-house or external, must be acting in their professional capacity before privilege will attach to any legal advice delivered.

The content of the communication must be ‘legal advice’.

For ‘legal advice’ which is not about litigation, the communication will only be privileged if made between lawyer and client.

Where ‘legal advice’ is sought or delivered through an agent, i.e. as a conduit, what may look like a communication between a lawyer and a third party which would not attract legal advice privilege, may in fact be a communication between a lawyer and an agent of the client.

Privileged material may be shared without loss of privilege.

However, once confidence in a communication is lost, privilege falls away because confidence is an essential ingredient of privilege.

Common interest privilege allows a client (‘A’) to share information with a third party (‘B’).

If B has a common interest in the subject matter of the communication then B can also claim privilege in it. (See further, ‘Fiduciaries and legal professional privilege’ by Gareth Tilley, Barrister, Serle Court, London, Trusts & Trustees, Vol 24, No.3, April 2018, 243-249).

SRA Guidance states:
‘Paragraph 6.3 of the Code of Conduct for Solicitors, RELs and RFLs and of the Code of Conduct for Firms (referred to collectively as (“the Codes”) requires you to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.
This duty of confidentiality exists as an obligation under both common law and data protection legislation as well as being one of the core professional principles set out in section 1(3)(e) of the Legal Services Act 2007 and professional standards in our Codes.
The Courts have stated that the duty to preserve confidentiality is unqualified, in that it is a duty to keep the information confidential, not merely to take all reasonable steps to do so. It is not limited to the duty not to communicate the information to a third party. …
The duty of confidentiality applies to information about your client’s affairs irrespective of the source of the information. …
Confidentiality will attach to all information given to you, by your client or a third party, in connection with the retainer in which you or your firm are instructed. Should you have information unrelated to the retainer this may not be covered by your duty.’

NB also the Freedom of Information Act 2000 s.36(2)(b) which provides:

‘Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

(b) would, or would be likely to, inhibit—

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation …’

Imagine an ancient sculpture in 3 fragments.

On part is in the British Museum, another inside the Louve & the 3^rd part in a state museum in Athens.

Are the governance bodies of these museums (let’s for convenience call them trustees), under a duty to collaborate in the re-unification of the 3 parts i.e. in order to make the sculpture whole again?

That is a legal & ethical Q. I will research next year with reference to:

• International Cultural Heritage Law &
• the Philosophy of International law.

Now:

• There is international recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities, Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2008](CA).
• A corollary of this proposition is that museum trustees should assist each other to reunite all of the parts of a sculpture in their possession which were unlawfully removed – no matter by whom, where or when.
• A corollary of the proposition that a National Museum owes a duty to preserve art and cultural heritage treasures for the ‘benefit of all mankind, is that such institutions also owe a wider duty to strive to be better ‘collaborative custodians’ of world heritage.

Since aesthetically, the whole of the sculpture ‘is greater than the sum of its parts’ (Aristotle), then as a legal custodian of a part, each museum appears to be under an ethical duty to enter into a repatriation dialogue whereby the parts may be reunited to make the sculpture whole again for the benefit of all mankind.

If the sculpture was not a fixture, then for the benefit of mankind possession must be shared i.e. for public exhibition, in museums around the world.

If the trustees transform legal ownership of each part into joint-custodianship of the whole, then they can share and enjoy possession of the sculpture in its entirety.

This blog highlights 2 issues for museum trustees:

– Are they under an ethical duty to collaborate in order to serve a greater good/higher aesthetic purpose?

– As ‘custodians’ of cultural heritage for all mankind are they also under a fiduciary duty to humanity to collaborate in making an ancient artwork whole again?

Anoher ethical principle which supports the existence of an ethical duty of collaboration is ‘Solidarity.’ The principle recognizes that we all have a shared humanity and an interest in furthering common goals and tolerating differences that respect fundamental human rights. Mutual respect, understanding and cooperation promote solidarity by fostering goodwill and a recognition of our shared humanity. This principle emphasizes the importance of rising above our differences to find common ground, co-operation and consensus. It would be reflected by seeking to find a consensus in relation to competing claims over cultural property that all parties can accept. The principle therefore encourages mediation in repatriation disputes. The ethical sources of the principle include human rights under international law, i.e. international humanitarian law, which is a compoenent of international cultural heritage law.

The following interntional norms also support the existence of such a duty:
– The recitals to the UNESCO Underwater Cultural Heritage Convention 2001 convention:
‘Believing that cooperation among States, international organisations, scientific institutions, professional organisations, archaeologists, divers, other interested parties and the public at large is essential for the protection of underwater cultural heritage.’
–  International Council of Museums Code of Ethics, Art.6.
– Recent normative activities within UNESCO relating to interntional cultural heritage. At its 30th session, the General Conference of UNESCO adopted a resolution in which it invited the Director-General to study “the advisability of regulating internationally through a new standard-setting instrument, the protection of traditional culture and folklore.” … The importance of the principle of international cooperation in safeguarding ICH was emphasised as well as the need for an obligation to be placed on parties to safeguard ICH that is not listed under the convention framework.