This section contains the following articles:
ETHICS, THE ANTIQUITIES TRADE & ARCHAEOLOGY
by James Ede
The art trade has faced increasing scrutiny in recent years. This has focused largely on the subject of ethics, and in particular the standards used by the trade when acquiring objects for which no firm provenance is available. Whilst this scrutiny has applied to the whole art market, the antiquities trade in particular has faced a barrage of criticism, some of it deserved, but much of it based on misinformation and ignorance.
We must address these criticisms, for what is at stake here is the whole foundation on which the art trade is based, namely that the private ownership of art and the connoisseurship which collecting inspires, are desirable in a cultured society. This centuries-old tenet has had an enormously important effect on the way in which the great museums of the world have developed, and this in turn has lead to a much wider appreciation of world cultural heritage.
The International Association of Dealers in Ancient Art (IADAA) was formed in 1993 and from the outset it was clear that one of our most urgent tasks was to address these criticisms. We believe one of our prime functions as dealers is to participate actively in the preservation of the remains of man’s ancient past.
Antiquities have been collected for thousands of years - for example the Romans were avid collectors of Greek sculpture - and in this time, the number of pieces coming onto the market ran to millions. Unfortunately provenances for the vast majority of these works have been lost. War, migration, economic development and sheer indifference have all taken their toll as well. The provenance of large numbers of objects has been discovered by chance, long after they have been sold. It is therefore unacceptable to suggest that lack of provenance means that a particular object has recently been stolen. Very often the source of pieces is deliberately obscured for perfectly legitimate reasons, where, for example, the inheritor of an object does not wish his family to know that he is selling. All these issues serve to muddy the water and to create an environment in which it is possible for those opposed to the trade to maintain the pretence that the majority of objects are on the market illicitly. For these reasons those on the inside know that this is not the case, but it would also be disingenuous of us to suggest that there is not a problem with illicitly excavated or exported material. In fact, these are two separate problems, and in order to address them, we need to understand the historical context.
Most source countries have some form of control over the export of archaeological material; these range from the pragmatic (U.K, Germany, Netherlands) to the draconian (Greece, Turkey, Egypt). The fiercest laws were passed at very different times, but are essentially chauvinistic, and it is interesting to note that in almost all cases they have been enacted at a time of nationalistic revival (in Italy under Mussolini, in Greece following the War of Independence from Turkey, in Egypt under Nasser). These laws have been designed to foster a belief in outside cultural imperialism, and are both a symptom and a source of a deep emotional feeling. Unfortunately emotion is a bad basis for legislation, and though these laws have proved remarkably ineffective, their emotional basis makes it very difficult for the relevant authorities to adjust them in a way which might make them work. These laws are also by no means uniform; for whereas some countries (Egypt, Turkey) have taken the drastic step of ‘nationalising’ all antiquities (even when privately owned for generations), others have allowed private ownership, and dealing, to continue. The latter case usually involves a strict embargo on export, and this has served to produce a false, two-tiered market. IADAA believes that ‘nationalisation’ of legitimately held objects amounts to State theft, and that the second case is also indefensible, especially in the context of the European Union: if Europe is to have any meaning as a single entity, surely its cultural heritage must be regarded as common property? Given that such privately owned objects were removed from their context years ago, and that anti-trade academics therefore regard such objects as worthless, there is no archaeological argument in favour of them being rigidly chained to their country of origin, any more than all Georgian candlesticks should remain within the United Kingdom. By encouraging smuggling, such laws are having a diametrically opposed effect to that which was intended. Adjustment to encourage the legitimate trade would go a long way towards restricting the smuggling routes on which illicit trade depends, and we hold that free trade need not only apply to privately owned pieces. Government storehouses and museums are bulging with objects which have no recorded provenance and which are extremely poorly conserved due to lack of funds. Surely many of these pieces could also be released to the market, since they are believed to have no archaeological value?
A third area which deserves consideration is the problem of chance finds. It is inevitable that a large proportion of excavated material will be found during the course of normal agricultural and economic activity. Draconian laws result in the destruction of the archaeological record unless a proper system of reward exists, since the finder will usually channel such objects into an illicit market. Anecdotal evidence suggests that the penalties for doing so are now so severe that finders are deliberately destroying pieces rather than run the risk of being caught with them. This is an absurd situation. In this respect the laws of the U.K, whilst far from perfect, offer a solution. There a finder has an inducement to declare his discovery. Either the state takes ownership and pays a reward equivalent to the market value, or, if the piece is not of particular importance, ownership is granted to the finder. Either way, the archaeological information is preserved.
One further point needs to be made perfectly clear: IADAA firmly believes that every country has a right (and indeed a duty) to preserve in public ownership the most important cultural objects, and should have a pre-emptive right over new finds.
Nevertheless the hundreds of thousands of objects already unearthed should have a voice too, and dealers and collectors help them to speak. Never forget: we are among the foremost guardians of our world heritage. We too have a voice, and one which should be listened to.
© James Ede
Statement of IADAA at the Conference on "Governance of Cultural Property: Preservation and Recovery" - Basel, September 29-30, 2009
Introduction
The international Association of Dealers in Ancient Art (IADAA) was founded in 1993. One of the most important aims of the Association was to draw together those leading dealers who shared an understanding of the importance of ethical considerations for the trade. To that end, a stringent Code of Ethics was drawn up which forms a seminal part of the rules of membership. The most important provisions of the code referring to cultural property issues are:
1.) The members of the IADAA undertake to the best of their ability to make their purchases in good faith.
2.) The members of the IADAA undertake not to purchase or sell objects until they have established to the best of their ability that such objects were not stolen from excavations, architectural monuments, public institutions or private property.
3.) The members of the IADAA refuse to dismember and sell separately parts of one complete object.
4.) The members of the IADAA undertake to the best of their ability to keep objects together that were originally meant to be kept together.
7.) The Members of the IADAA undertake to the best of their ability to inform the Administrative Board about stolen goods and thefts. They also undertake to co-operate with international and national agencies involved in the recovery of stolen goods.
8.) All members undertake to check objects with a purchase value of Euro 3000 or over (or local currency equivalent) with the Art Loss Register unless the item has already been checked.
9.) IADAA condemns the illegal use of metal detectors.
All dealers in second-hand goods are vulnerable to the possibility of buying objects, which have arrived on the market illicitly, but it is not only true that honorable dealers will take steps to avoid this, but that the trade is also vital in combating traffickers. Tackling the problem with purely legal, prescriptive means ignores this importance. This paper explores these two themes, which are implicitly supported by the IADAA Code of Ethics.
Background
It is vital that legislators and other interested parties understand the difficulties which dealers face on issues of provenance when trying to identify and avoid stolen and illicitly excavated material. Millions of antiquities have been traded and collected for centuries. The vast majority, perfectly legally on the market, have either never had, or have lost documentary evidence of provenance. All of you here might like to consider how much paperwork you could produce to prove the date of purchase of art and antiques you have at home. Even where such paperwork exists it is often hopelessly vague. An IADAA member, James Ede, acquired the Mustaki Collection consisting of over 6000 artworks exported from Egypt in 1947. The licence granted (and such paperwork was rare in those days) refers to ‘30 cases of antiques’. It is because of this lack of proof that a workable code of ethics is so important; it places a great onus on the dealer to buy responsibly and with care. Such care requires the exercise of due diligence, which is the concrete result of signing up to a Code of Ethics.
Due diligence when making purchases
The dealer’s role starts at the moment at which he considers a prospective purchase. He must first consider the seller. Does he know him/her? If so, he should obviously not deal unless he is sure of the other party’s honesty. He should then ask for as much information as possible about the provenance of the piece. Such information should form a signed part of the purchase documentation. Two things must be recognized in this regard. Firstly that client or commercial confidentiality may well not allow divulgence of the name of a previous owner. For example a collector might not wish his family to know he is selling his collection; similarly the object might form part of a larger group, which the seller is hoping to acquire at a later date, the source of which must therefore be kept secret. Secondly that a very high proportion of objects will have been through auction at some stage, and auctioneers will never divulge the name of a consignor unless expressly given permission to do so.
If the dealer does not know the seller he must take even greater care. Firstly the identity of the seller must be established, if necessary by the production of ID. The attitude of the seller to requests for information will often be revealing, and if in doubt the dealer should not proceed. The object itself may help. Pieces which have been in private hands for some time can acquire an ‘old collection’ patina. This is not foolproof; sometimes objects may have lain untouched for many years and have a very fresh appearance, but it is a guideline. IADAA also recognizes that theft – say from a museum – can produce objects with this patina. Particular occasions will require care. For that reason we have for example warned our members to be particularly careful with Mesopotamian material, which might have come from the Baghdad Museum and to avoid purchase without documentary support of provenance.
The dealer should also check the object with the Art Loss Register (ALR) as soon as possible, and certainly before resale. IADAA was the first association to have a formal agreement of collaboration with the ALR, and it is a rule of membership that all objects above a certain value threshold (at present € 5000) must be so checked. This price limit exists not only because of the cost implication, but because lesser value objects are likely to have been mass-produced and therefore hard or impossible to identify.
Finally, payment must be made via a traceable route.
After the purchase, further research will be undertaken for parallels and cataloguing purposes. Even with all possible safeguards it is often not until this point that stolen pieces are recognized.
Impact on the market
There is no doubt that the increasing importance of provenance has had a marked impact on the market. This has resulted in a dramatic decrease in the amount of dubious material being offered in the market and a steep rise in the price of objects with demonstrable provenance as against the price of the equivalent piece without. Much of this change has been driven by the trade itself – the trade after is the ultimate arbiter of value, but it must be acknowledged that new laws – or often more accurately, the effective application of old laws – has contributed too. Although there is often much talk about the UNESCO convention of 1970, never let it be forgotten that source countries did little until recently to enforce their own laws. Many source countries also quite properly allowed the export of antiquities after this date. For example, the Cairo Museum had a shop selling authentic objects until 1976.
But the application of draconian export laws – many source countries such as Italy and Greece still allow an internal market, with all the distortions to trade that that entails – has never been successful on its own. It could even be shown to have been counter-productive. An open market has always been an effective tool against illicit traffic and it is the legitimate market, operating under a Code of Ethics that has done much to change things. In the last five years, members of IADAA have been responsible for identifying and returning stolen objects on a number of occasions. The most recent involved the return to Samos of a Greek bronze kouros, which had been stolen during the Second World War.
Such successes would be much more frequent however if more information about stolen art was made available to the trade. At present we have to rely entirely on the ALR. This is a very important and helpful organization, but it is not always given all the information it needs by police and other anti-crime forces. This surely needs to change if the trade is to play its role to the full in the fight against art crime.
A change in attitude is also required. Instead of lambasting the trade constantly it would be enormously helpful if our critics felt able to acknowledge the changes we have undertaken, and to reciprocate our offer of help for the future. We are not the problem; we are part of the solution.
© IADAA
RESTITUTION AND THE ART TRADE - THE PROBLEM OF ORPHANS
by James Ede
I am not a lawyer, but as a classicist and dealer in antiquities I am interested and a little alarmed by the way in which sound legal principles of ownership and good faith appear to have been supplanted by an almost Socratic approach to restitution resting on moral imperatives. Ethics make good foundation for law, but are not a substitute. We must remember that ethical viewpoints change, but laws of ownership have stood the test of time and must be protected. Nonetheless moral imperatives have been pushed to the fore and in the short time available I want to touch on one indirect result of this shift, and the effect which it is having on the trade.
Antiquities have long been the subject of restitution claims, mostly without any merit in law, many of which drift on as I speak without really getting anywhere. This has largely been restricted to iconic objects such as the Elgin marbles, or more recently the Rosetta Stone. In recent years claims on relatively minor objects, particularly from some American museums, have been more successful. I do not have time to consider the merits of these claims, which may have been considerable other than to remark that rarely has proper proof of illegal excavation or export been produced to support them; they have relied for their success on moral pressure both applied directly and through the media. Threats of non-cooperation in archaeological projects and of banning archaeologists from excavating have also been employed. As a result, in a small number of high profile cases, antiquities have been returned to their (putative) country of origin. Many of the returns have ignored one of the central tenets of international treaties dealing with the return of cultural property to the country of origin. All set time limits within which claims can be made. In the case of the UNESCO Convention this is set at five years from the time the claimant was aware of the object; in the case of the European Directive of 1993 the time limit is one year, and thirty years even if the piece has never been published:
Article 7
1. Member States shall lay down in their legislation that the return proceedings provided for in this Directive may not be brought more than one year after the requesting Member State became aware of the location of the cultural object and of the identity of its possessor or holder.
Such proceedings may, at all events, not be brought more than 30 years after the object was unlawfully removed from the territory of the requesting Member State.
[Council Directive 93/7/EEC of the 15th March 1993 on the Return Of Cultural Objects Unlawfully Removed From The Territory Of A Member State]
The consequence of this has been damaging. Some museums, naturally anxious to ensure that such issues do not recur, have decided not to acquire objects unless demonstrable provenance is available to prove they were on the market before a certain date. In most cases the date chosen has been 1970. The year is arbitrary but has gained wide acceptance because it was that in which the UNESCO Convention was drawn up (although the convention itself only came into force for participating countries in 1972). It takes no account of the fact that most source countries have had since then, and continue to have, antiquities dealers operating and it certainly takes no account of the extremely lax way in which most source countries have historically applied their export controls. A personal anecdote shows that this is still the case. A couple of years ago I was invited to Rome to present a paper at a Carabinieri Art Squad symposium on stolen art. Thinking I could kill two birds with one stone, I decided to come back via Geneva in order to deliver a piece of Roman glass to a client. I rang the Italian embassy to learn how I could legally temporarily import the piece to Rome for the duration of the conference. After two hours, an attaché rang back with the helpful advice that they had no idea of the correct procedures and that he suggested I should do what ‘everyone does; put it in your pocket’.
The date chosen is only half of the problem however. The other is proof.
Antiquities have been collected for thousands of years - the Romans were avid collectors of Greek sculpture - and in this time, the number of pieces coming on to the market ran to millions. For example, Sir William Hamilton, husband of the Notorious Emma, amassed a collection of over 3000 Greek vases in three years when acting as envoy to the Kingdom of Naples; one sanctuary (among hundreds) excavated in Sicily in the 1800s produced over 30,000 terracotta statuettes, the majority of which were sold to dealers. I could go on. The documentation attached to these pieces was poor in the first place; a collection of over 10,000 Egyptian antiquities purchased by me was exported under licence from Egypt in 1947 - a document which read ‘thirty cases of antiques’. It is remarkable that the piece of paper survived at all; in the vast majority of cases no paper trail exists. Even the British museum admits that it has no paperwork of any kind for the bulk of its collections.
This fact applies to almost any second-hand goods other than vehicles. The owners of millions of antiques (objects defined as over 100 years old) would find it hard to produce written evidence to support a pre-1970 ownership trail. The problem is exacerbated by deliberate suppression of previous ownership history for commercial reasons ( the protection of the identity of a collector with more to sell for example). Sometimes the antecedents of a piece are deliberately obscured for other perfectly good reasons, where, for example, the inheritor of an object does not wish his family to know that he is selling.
But perhaps most importantly these new guidelines take no account of the condition of the objects themselves. Pieces with 18th or 19th century restorations, or historic mounts, or even simply with patina that makes it clear they have been in collections for decades if not centuries, are arbitrarily tainted. This is manifestly unjust and actively suppresses scholarship and public education.
We are therefore potentially left with a huge body of objects which are perfectly legitimately on the market and which museums should be able to acquire but are unable to. We call them orphans, and they need looking after. I propose the following.
It is only very recently - the last 20 years or so- that provenance has come to have importance. Since then the change has been remarkable. Provenance information is assiduously collected and protected. Objects with demonstrable provenance command much higher prices at auction than their less fortunate, unprovenanced equivalents. This sea change must be recognized, and one answer (and by far the simplest) to the orphan problem is to follow the European Directive; in that way goods which have been on the open market for, at the maximum, thirty years would be protected from arbitrary claim.
© James Ede, Spring 2010 - Based on a paper given by James Ede at a conference on Restitution of Works of Art hosted by the law firm Farrer's in London on 4th May 2010.