The media was abuzz with claim and counter claim over the row concerning Christie’s sale of the 3,300-year-old quartzite head of Tutankhamun in early July.
Initially, the Egyptian government said it would call for the head’s return if it could be shown that it had been stolen and illegally exported, but this soon changed to a simple demand for it to be handed over regardless. The country’s former head of antiquities, Zahi Hawass, was reported as stating that the law didn’t matter and it should be returned on moral grounds alone, later adding that it had been stolen from Karnak after 1970, but failing to provide any evidence of this.
Appeals to the British Government to intervene fell on deaf ears, presumably because the Egyptians had provided no evidence to support their claim and nothing emerged to show that Christie’s were acting unlawfully.
That did not stop numerous media reports implying that Christie’s were acting improperly, however. Typically, they led on how Christie’s were pressing ahead ‘despite’ objections from Egypt, but without explaining that the objections were groundless owing to lack of any evidence.
Events were soon overtaken by an article by Owen Jarus in Live Science. Headlined Exclusive: Controversial King Tut Statue Has Sketchy Origins. Now Christie’s Is Selling It, it claimed that one of those listed as a previous owner, the late Prince Wilhelm von Thurn und Taxis, never possessed it or any antiquities collection. Jarus’s June 25 article attributed the claims to the prince’s son and niece, although the latter believes the head may have been owned by the prince’s cousin Prince Raimondo Torre e Tasso. The Live Science article stated that a family spokesperson said Raimondo never owned it either.
Having said this, Live Science also noted that Egyptologist Sylvia Schoske, who is the director of the State Museum of Egyptian Art in Munich and studied the head and published an article in a book on it in 1986, cautioned that “questions concerning the provenance of objects were not so much in the focus 30 or 40 years ago as they are today”.
In response to Live Science’s claims, Christie’s reported that it had confirmed the provenance to the prince.
Claims amount to no more than unprovable hearsay
What the claims amount to, then, is hearsay based on memories dating back several decades that can be neither proved nor disproved because they are based on establishing a negative.
If Jarus and Live Science believe that Christie’s should not have gone ahead without incontrovertible proof of when and how the head was exported legally from Egypt, it is not a standard they applied to themselves in another recent article.
On June 5, Live Science published an article by Jarus under the headline ‘Blood Antiquities’ looted from war-torn Yemen bring in $1 million at auction – a very serious claim indeed. Read the article, however, and not only does it not provide any evidence of this, but it does not even make the headline’s claim in the article itself, something neither Live Science nor Jarus have seen fit to correct at the time of this article being posted almost six weeks later.
The introduction states: “At least 100 artifacts from Yemen have been successfully sold at auction for an estimated $1 million in the U.S., Europe and the United Arab Emirates since 2011, according to a Live Science investigation into the country’s so-called ‘blood antiquities’.”
By the third paragraph, the article concludes: “Some of the artifacts have detailed provenance information that suggests they were taken out of the country decades ago, while others have little or no provenance information, raising the question of whether they were recently stolen or looted.”
This is as far as it goes in establishing any criminal activity – in other words, nowhere – yet this has been translated into the compelling headline listed above.
The article continues by noting a surge in shipments of artefacts, antiques and art from Saudi Arabia (“a country that borders Yemen and is involved in the conflict”) since 2015, with just under $6m worth of them shipped to the United States.
Quite apart from the fact that this does not show that the items came from Yemen, it also fails to consider that other reasons may explain the exports. Jarus is reduced to claiming nothing stronger than the items are “potentially smuggled” – in other words, as with the Tutankhamun article, his “evidence” is no more than speculation, with nothing credible to substantiate his claims at all.
It is difficult to see how this lends any credibility to either Jarus or Live Science. Nevertheless, the claims have been repeated, unqualified, by Yahoo News and others. Far from being scientific, this amounts to fake news. Bearing this in mind, how much credibility should be given to Jarus’s article on the Tutankhamun head?
Protestors’ claim over history fly in the face of facts
The Art Newspaper, meanwhile, scooped other media outlets with a photograph of protestors outside the auction. The protestors reportedly came from a group calling itself Egyptian House and described as a “community-based organisation”.
The Egypt Independent later reported that the Egyptian Antiquities Association had organised the protest, although there is no indication of the nature of that organisation, which was listed in a July 3 article by the Egypt Independent as The British Association for the Preservation of Antiquities.
One protestor named as Magda Sakr was quoted as saying “Egypt would never willingly sell our history”, although, of course, that is exactly what it did, as the article goes on to report in quoting IADAA chairman Vincent Geerling. Reminding readers that “Christie’s has long been co-operative with the Egyptian authorities and this piece has been widely published before without the Egyptians making any challenge over it”, he added that “the Egyptians have provided no evidence at all of the piece having been stolen or trafficked, having said that they would insist on the claim if they could do so”.
He continued: “It should be remembered that the Egyptian government licensed the sale of antiquities through dealers and benefited from the income for more than 150 years. More than 100 licensed dealers were active in Egypt, including a saleroom in the Cairo museum, and they shipped out antiquities under licence by the crate-load. This trade was legal under Egyptian law right up until 1983.”
The New York Times also covered the story, making reference to the Live Science article before quoting Mr Geerling.
Tatiana Flessas, an associate professor of law at the London School of Economics, who specializes in cultural property, told the NYT that Christie’s sale of the Tutankhamen head was a significant moment. “It showed that a claim like Egypt’s continues to be open to dispute,” she said. “Not every antiquity is cultural property.” She added that Egypt’s call for the return of the sculpture was a “nationalistic claim, an anticolonial claim, with a moral rather than legal justification”.
• Following the sale of the head for $6 million, the Egyptian Government said it would take legal action against Christie’s. Nearly six weeks later, all is quiet on that front.
Now the European Union has adopted new import licensing regulations for cultural property, what will it mean for the art market?
First, it is important to understand why this measure has come in. Initially, what drove the European Commission import licensing proposals was the belief that ISIS-looted artefacts from conflict zones were making their way onto the European market to fund terrorism and this had to be stopped. The Commission ordered two studies to look into just how bad the problem was. The second has yet to report back, but the initial study by Deloitte, consulting all 28 EU Members States, found no evidence at all of this happening. Despite this, the Commission, Council of Ministers and European Parliament decided to legislate anyway, putting forward new arguments that the proposals would harmonise regulation across the EU and act as preventative measures for the future.
This change in direction is extremely important because it alters not just the premise for adopting the legislation but also the balance of interests between public security and the international art market. As the EU consistently promised, any adopted measures should be proportionate and not unduly damage the legitimate market. It may be reasonable to argue that the art market must accept the burden of highly restrictive legislation in order to stop an existing crimewave of terrorism funding, but, equally, measures to mitigate the risk of something that mightor might nothappen in the future – a lower risk level, in other words – should acknowledge that the balance of interests must fall closer to those of the market.
In scrutinising this process over a long period of time, the International Association of Dealers in Ancient Art (IADAA) together with CINOA argues that while the premise for the measures may have changed, the balance of the proposals has not moved with it and we have been left with regulation that is disproportionate and will, indeed, unduly damage the market. This regulation, that will have power of law in all EU Member states immediately, (overruling local laws), has been rushed through parliament in an unprecedented way in just one reading. The result is an unworkable, costly and flawed regulation that is at odds with international law.
So what will happen?
In brief, once the European Commission has introduced a fully operational, new-built electronic system for administering and recording imports in accordance with the regulation (expected by 2025 at the latest), cultural property encompassing art, antiques, antiquities and other artefacts entering the EU will be subject to a two-tier “licensing” process.
Essentially, items deemed at high risk of having been looted and “funding terrorism”– antiquities and pieces of monuments aged over 250 years and originating outside the EU regardless of value – will have to pass a test to prove that they have been exported legally. While applying for an “import licence”, importers will have to provide paperwork showing legal export from the source country under the laws of that country at the time of export. It should be remembered that this does not just apply to artefacts from ISIS-plagued states like Iraq, Syria and Libya, but also to Asian art, Islamic art and Tribal art of all types, from the Oceanic art of the Pacific to the native tribal art of North and South America, as well as Australia.
For the hundreds of thousands of objects that have been legitimately on the market for decades or even centuries, providing such proof will be impossible because of how far back in time the original export might have taken place, the difficulty in identifying when that was, the likelihood that no information exists on what relevant laws applied at the time and the almost certain lack of paperwork.
Where this is the case and either a valid export licence from the source country or other paperwork establishing legal export are not present, the regulations allow for a derogation in two very limited exceptional circumstances as long as it can be shown that an item was legally exported from the last country where it had been located for an unbroken period of more than five years. The first is where the source country cannot be reliably identified, while the second is where it can be shown that the item in question was exported from its source country before April 24, 1972, the first enforcement date of the UNESCO Convention.
The latter condition ignores the fact that the accession dates of respective countries to the Convention were all years, if not decades, later, and so introduces more restrictive measures than the source countries themselves have ever agreed to. It is likely that most of these countries are not aware of this EU decision. This alone calls the notion of balance into question.
How legal objects could be made unfairly illegal
What this also appears to mean, in effect, is that anything legally exported from source countries after April 24, 1972 would not be recognised as licit for the purposes of import to the EU unless actually accompanied by a valid export licence. Take, for example, Egypt, which continued to export artefacts legally until 1983. Under the new regulations, an item legally exported from Egypt in 1978 accompanied by reasonable paperwork showing this, but not an actual export licence, might still be deemed illicit for the purposes of import to the EU because it was later than April 24, 1972.
Paragraph 7 of the new regulations makes it clear that the definition of cultural property adopted is based on the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. However, while the UNESCO Convention restricts itself to items “…specifically designated by each State as being of importance”, the terms of the new EU regulations are far wider; “Art 2: ‘cultural goods’ means any itemwhich is of importance for archaeology, prehistory, history, literature, art or science as listed in the Annex”.
This will render the import of many licit items uneconomic, while the extensive customs processing period of several months will also prove a problem for dealers standing at fairs or both dealers and auctioneers selling on to clients.
For everything else – items deemed less of a risk – from paintings and drawings to sculpture, historical items, flora and fauna and so on, importers will need to provide importer statements warranting legal export from the source country, backed by the relevant documentation, if the item in question originated outside the EU, is more than 200 years old and valued at more than €18,000. Again, this is likely to have implications for dealers, auctioneers and collectors for the reasons given above.
The sting in the tail for importer statements
Importer statements may seem like a softer option, but the risk in using them could actually be greater. This is because the declarer takes on legal responsibility for the statement they issue and the status of the item being imported. This means that where an importer acts in good faith, providing the relevant paperwork to support the statement, they could still be held liable under the new regulations if it is later discovered that the item had been stolen or illegally exported at an earlier time, before it came into their possession. The authorities have made it clear that sanctions for those who breach the new regulations will be severe. Retrospective liability of this kind is the curse of the modern legislative process across the board these days.
What makes this all so unnecessary is that effective restrictions already apply within the EU when it comes to Syria and Iraq*; it would have been much simpler and cost-effective to extend them to cover Libya, Yemen and any other source countries identified as being at risk, and this would have easily fulfilled the EU’s self-expressed commitment to proportionality when it comes to the legitimate market.
Even after taking all of the above into account, it is not clear how the licensing process will adequately comply with potentially conflicting legislation addressing consumer privacy and data protection, although counter-terrorism measures tend to outweigh other considerations. Still, importers will be understandably nervous of vague reassurances on this front, so whatever the rules, they will have to be absolutely clear.
What is clear is that the paperwork involved is unlikely to be easy or brief. Talk of adopting Object ID – the international standard for identifying items – and adding “appropriate supportive documents and evidence”, including (but not exclusive to) export certificates or licences, ownership titles, invoices, sales contracts, insurance documents and transport documents, is just the beginning, as the final amendment for Recital 10 of the rules explains. Recital 11 refers to a “standardised document”, recommended by UNESCO but does not explain how long or detailed this might be. Experience tells me that it is unlikely to be short and clear.
Assuming the system eventually works, one advantage is that a standardised record will be shared electronically between all EU Member States, which may be of help to
the market when it comes to moving registered goods again in the future (export licensing).
None of the above begins to explore the additional burden on both the art trade and customs and what that might mean in terms of extra cost, starting with a new and complex electronic system for all Member States.
Taking all of this into account, IADAA intends to continue working with stakeholders – including undertaking a legal review of the adopted terms – to ensure that the measures are adapted to a more workable formula prior to enforcement.
*Regulations (EC) No 1210/2003 and (EU) No 36/2012
The European Union passed its proposals for the import licensing of cultural property on April 9, confirming the decision in its official statement and publication of the new regulations on April 17. What was eventually passed remains highly controversial and will undoubtedly cause problems. This is because despite more workable and reasonable measures being agreed on as recently as February following consultation with Member States and their legal advisers, the adopted version appears to have ignored their wishes and reverted to an earlier set of proposals instead.
What are the salient points of what has been adopted?
Importers of any archaeological artefacts aged over 250 years originating from outside of the EU will have to provide paperwork showing legal export from the source country under the laws of that country at the time of export regardless of the items’ value. It should be remembered that this does not just apply to artefacts from the Levant or North Africa, but also to Asian art, Islamic art and Tribal art of all types, from the Oceanic art of the Pacific to the native tribal art of North and South America, as well as Australia.
In many (if not most) cases it is likely to prove impossible to provide such proof because of how far back in time the original export might have taken place, the difficulty in identifying when that was, the likelihood that no information exists on what relevant laws applied at the time and the almost certain lack of paperwork. Where this is the case and either a valid export licence from the source country or other paperwork establishing legal export are not present, the regulations allow for a derogation in two very limited exceptional circumstances as long as it can be shown that an item was legally exported from the last country where it had been located for an unbroken period of more than five years. The first is where the source country cannot be reliably identified, while the second is where it can be shown that the item in question was exported from its source country before April 24, 1972, the original enforcement date of the UNESCO Convention. This latter condition ignores the fact that the accession dates of respective countries to the Convention were all years, if not decades, later, and so introduces more restrictive measures than the source countries themselves have ever agreed to. It is likely that most of these countries are not aware of this EU decision.
What this appears to mean, in effect, is that anything legally exported from source countries after April 24, 1972 would not be recognised as licit for the purposes of import to the EU unless it is actually accompanied by a valid export licence.
Take, for example, Egypt, which continued to export artefacts legally until 1983. Under the new regulations, an item legally exported from Egypt in 1978 accompanied by reasonable paperwork showing this, but not an actual export licence, might still be deemed illicit for the purposes of import to the EU because it was later than April 24, 1972.
Sting in the tail of importer statements
Paragraph 7 of the new regulations make it clear that the definition of cultural property they adopt are based on the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. However, while the UNESCO Convention only addresses items of importance, the terms of the new EU regulations are far wider ranging, encompassing all archaeological artefacts regardless of value. This will render the import of many licit items uneconomic, while the extensive customs processing period of several months will also prove a problem for dealers standing at fairs or both dealers and auctioneers selling on to clients.
For everything else, from paintings and drawings to sculpture, historical items, flora and fauna and so on, importers will need to provide importer statements warranting legal export from the source country – backed by the relevant documentation – if the item in question originated outside the EU, is more than 200 years old and valued at more than €18,000. Again, this is likely to have implications for dealers, auctioneers and collectors for the reasons given above.
Importer statements may seem like a softer option, but the risk in using them could actually be greater. This is because the declarer takes on legal responsibility for the statement they issue and the status of the item being imported. This means that where an importer acts in good faith, providing the relevant paperwork to support the statement, they could still be held liable under the new regulations if it is later discovered that the item had been stolen or illegally exported at an earlier time, before it came into their possession. The authorities have made it clear that sanctions for those who breach the new regulations will be severe.
The stated purpose of these regulations is to prevent items that might have funded terrorism from entering the EU. Given that no member state, nor the European Commission’s own research for the purpose of drawing up these regulations has found any evidence at all of this happening, the measures fail to meet the EU’s own standards of proportionality when taking the possible ensuing damage to the international art market into account. Bearing in mind that existing stringent sanctions relating to Syria and Iraq already apply within the EU for this purpose, it would have been much simpler and cost-effective to extend them to cover Libya, Yemen and any other source country identified as being at risk.
Our fellow association, the International Association of Dealers in Ancient Art (IADAA), intends to continue working with stakeholders – including undertaking a legal review of the adopted terms – to ensure that the measures are adapted to a more workable formula prior to enforcement, which cannot take place until the European Commission has introduced a fully operational electronic system to manage the process, and this is not expected to happen for another five or six years. It will be at least two years before the EU confirms whether funding for the electronic system will even be in place. The money will only be forthcoming if it is deemed a priority in the EU’s 2021-27 budget.
The World Customs Organisation published its latest report into illicit trade in December.
The size of any problem can be assessed under four variables: the number of cases, the number of seizures, the volume of seized material and the value of that material. As the ADA and IADAA have always argued, by any of these variables, Cultural Heritage – of which Antiquities form only a part – barely registers as a problem area among the risk categories listed.
IADAA has conducted its own potted analysis of the 205-page WCO report as a user-friendly guide to the findings, which includes a direct link to the original report for verification purposes.
As the analysis and the original report show, at one end of the scale Drugs-related cases make up 47.7% of global trafficking; at the other, Cultural Heritage represents 0.2%. Likewise, when it comes to the number of seizures, Drugs accounts for 42.8%, while Cultural Heritage covers 0.2%. The next smallest category in each of these measures is Environmental Products, which accounts for 2.7% and 2.3% respectively. Even these figures are, respectively, 16 times and 14 times larger than the Cultural Heritage measures.
All of the above also needs to be taken in the context of a more proficient international Customs operation that is better able to cope with Cultural Heritage than ever before, according to the WCO, with twice as many countries submitting data as the previous year (25 compared with 13). Despite this, the number of cases has slightly fallen, while the number of seizures has only risen from 158 to 167. Compare that to over 40,000 cases and over 43,000 seizures involving Drugs.
An exact assessment of values is not possible because the information is simply not available – although the report estimates the global illicit trade in Environmental Products to be worth between $91 billion and $250 billion. What is clear, however, is that, Cultural Heritage aside, the value of material seized in every other category must be worth at least in the hundreds of millions of dollars if not more.
When it comes to Cultural Heritage, although the number of cases has fallen and the number of seizures has only risen slightly, the number of items seized has increased from 9,931 to 14,754. These include all types of items across the range of categories covered by Cultural Heritage, from books & manuscripts and paintings to household items, jewellery, weapons, engravings and lithographs, as well as film and sound archives, the last of which makes up a very large number of items seized (3,169, according to the WCO report).
Antiquities make up 8725 items, a rise from 8005 in 2016.
It is reasonable to assume that the WCO will include images of its most important seizures in the report. If so, then the quality of what has been seized is generally very low grade indeed. Bizarrely, they include a haul of long playing records seized in transit from the Netherlands to Turkey. As it is not illegal to export LPs from the Netherlands, it is not clear why they were seized.
The overwhelming majority of Antiquities items pictured are broken potsherds and coins – items that would not be covered by the UNESCO Convention.
As the IADAA analysis points out: “The only items of significant value pictured in the report have nothing to do with customs work, nor were they seized, but voluntarily returned when their owners/holders discovered that they might be tainted, so it is misleading for them to have been included”.
In summary, although this is not a scientific assessment, if the images used to illustrate the quality of antiquities seizures in the WCO report are anything to go by, a generous over-estimate of the value of items seized would be around $500,000. To put that in context, that is around 0.001% of the value of the next smallest category at most.
How Interpol are adding to the problem
If Customs are much more efficient and twice the number of countries – from all regions – are submitting data, where is the massive haul of cases and seizures one should expect if Cultural Heritage trafficking is the problem that anti-trade campaigners, politicians and others would have it? As the WCO itself concluded in its 2016 report: “As Customs officers become increasingly proficient in seizing both large and small shipments of cultural objects, the data can suggest that illicit trade is on the rise when, in reality, levels of trafficking may be holding constant or even decreasing.”
This also gives the lie to Interpol’s claim (as published on its Works of Art Crime home page) that “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods” – a claim it confusingly contradicts on the FAQs accessed via the same page. This is important because the European Commission and Parliament, among others, have used this headline claim by Interpol as evidence justifying the introduction of stringent new import licensing regulations in the EU.
IADAA was able to demonstrate during the consultation and negotiations over the import licensing proposals that even the European Commission’s own researches failed to find any problem at all, yet it insisted on pressing ahead with unnecessary and damaging legislation.
This summary analysis is being forwarded to those conducting the follow-up study commissioned by the European Commission after it expressed doubts about its original research. Hopefully these WCO statistics and other findings will make a difference.
The ADA has been working closely with IADAA to contribute important last-minute contributions to the Trilogue negotiations in Brussels on the import licensing issue.
The talks must settle on a proposal that compromises between proposals and amendments from the European Commission, Council of the European Union and committees within the European Parliament.
We still have significant concerns over compromise amendments being put forward for the final vote and so have joined with IADAA, CINOA and the European art Market Coalition (EAMC) to present a series of comments and objections for the art market to the office of Daniel Dalton MEP, rapporteur of the proposals, at his request, for consideration.
Key areas of concern included potential human rights breaches occasioned by proposals to restrict how owners may keep antiquities; further rights breaches based on proposals to reverse the burden of proof in showing an item to be untainted; inconsistencies with the application of the UNESCO Convention; value thresholds for qualifying works; delays in processing of licence applications and importer statements; and concerns over possible enforcement prior to a compulsory electronic system being fully operational.
A number of important questions remain on top of this, such as who will provide the necessary expertise for customs and how valuations will be conducted and confirmed. At present, the proposals are so complex and confusing that in places they contradict each other, which will not aid compliance. We have asked for any final proposals to be made simple, clear and user-friendly.
For some time now, anti-trade campaigners, NGOs, politicians and even international law enforcement agencies have stated that trafficked antiquities are the third largest source of terrorist financing after trafficked drugs and weapons. These claims have always been unsubstantiated and although Interpol quotes a similar claim on its Art Crime page (“The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods”), it then contradicts this in detail in the Frequently Asked Questions on the same page.
Now, however, the World Customs Organisation has included figures for trafficked cultural property, including antiquities, in its annual report for the first time and this gives us a clearer picture of what the situation really is. In summary, this is what it says:
Number of Seizures
Weapons and ammunition: c.4500
Cultural property: 146
Of which antiquities (mostly coins, seals and jewels): c.70
So in terms of the number of seizures across these three areas, drugs account for 90.6% of seizures, weapons and ammunition 9.1%, cultural property 0.3%, of which antiquities account for 0.14%.
Although there is no direct correlation between the three areas in terms of volumes seized, summary totals give some indication of comparative scale:
Drugs: c.1.5 million kilos
Weapons and ammunition: c.2.5 million pieces
Cultural property: 8483 items
Of which Antiquities: c.6600 items (including coins)
- Drugs: 1 million kilos of cannabis, 180,773 kilos of cocaine, 99,000 kilos of khat, approx. 200,000 kilos of opiates, psychotropic and other substances. Total c.1.5 million kilos. Number of seizures: c.45,000.
- Weapons & ammunition: number of pieces seized c.2.5 million. Number of seizures: c.4500.
- Cultural Property: 8483 objects seized (Of which Antiquities c.6600). Number of seizures: 146. (Of which Antiquities c.70)
Also included in the report are figures for seizures linked to environmental (i.e. animal and plant) products. Again, exact comparisons are not easy, but the number of seized items alone rises towards the 750,000 mark, while the total number of seizures reported was 2225.