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
TIMES HAVE CHANGED, BUT SO HAS THE ANTIQUITIES MARKET. ITS CRITICS NEED TO RECOGNISE THIS AND WORK WITH IT FOR A BETTER FUTURE
By Joanna van der Lande
The inclusion of the art trade in this debate is crucial, both to explain the complexities of dealing in often small movable objects that frequently lack demonstrable provenance, and to explore ways to find a workable solution to this conundrum.
I started working in the art market discipline known as ‘Antiquities’ nearly 30 years ago. Prior to this I read Ancient History & Archaeology at university. I have been immersed in the ancient world and the art world for over half of my life but the word ‘provenance’ was not one I routinely used until relatively recently. My focus here is largely, but not exclusively, on the antiquities market because archaeology is politically in the spotlight, but complexities with provenance concern the entire art market.
WHAT DOES THE ART MARKET UNDERSTAND BY PROVENANCE
My first Concise Oxford Dictionary from 1976 defined the word ‘provenance’ simply as ‘place of origin’.
But the 2018 Oxford Dictionary is more expansive, extending the definition of the meaning beyond this, to include, ‘A record of ownership of a work of art or an antique, used as a guide to authenticity or quality’.
The International Foundation for Art Research (IFAR) notes that it was with the legal claims arising from looted or otherwise misappropriated artworks of Holocaust victims as well as by claims of “source” countries that awareness rose of the need for provenance research in the process of due diligence checks when acquiring works of art.
When the art, antiques and antiquities trade talk about provenance we are referring to an object’s ownership or collecting history.
The antiquities trade does not differ from the art and antiques trade in this respect. When talking of provenance we are generally not referring to its in situ find spot, which is rarely known, although where this information is available it should be noted as part of the provenance.
The last 20 or so years has seen an increase in the use of the word ‘provenance’.
This has been particularly noticeable in the antiquities trade. In the 1990s and early 2000s ‘provenance’ rarely appeared in a saleroom catalogue but gradually increased until, between 2005 and 2010, the three big auction houses selling antiquities had adapted their business practices, so that by 2010 every lot noted some sort of ‘provenance’. Provenance research forms part of what is known as due diligence, which can be defined as “reasonable steps taken by a person to avoid committing a tort or offence”, by obtaining enough information to enable a buyer to establish both the licit nature and the authenticity of an object.
WHAT DOES WE MEAN BY THE ANTIQUITIES TRADE?
The art trade is divided into different disciplines, of which the antiquities trade is one. It does not cover all ancient archaeological artefacts but only those from Egypt, Europe, the Near East and the Classical World from the earliest man-made objects of prehistory up until approximately the 8th– 10th century AD, the latter dates overlapping with other disciplines. ‘Ancient Art’ is a term used interchangeably with ‘antiquities’. This trade makes up less than 1% of the global art and antiques market. So when we read newspaper headlines such as ‘Hong Kong must shut door on illicit trade in antiquities before it can emerge as global art hub’ (The Peak Magazine, March 2018) or ‘Kapoor’s Assistant Pleads Guilty to Possession of Illicit Antiquities’ (Paul Barford blogspot, December 2013) this is nothing to do with the antiquities trade, but instead refers to what the industry would categorise as Asian Art.
Arms & Armour, Asian Art, Islamic & Indian Art, Ceramics & Glass, Ethnographic, Jewellery, Numismatic and Works of Art, are all disciplines in the art trade that can sell items of an archaeological nature. However, it is important to understand that they do not regard themselves as part of the antiquities trade.
When archaeologists, journalists, bloggers, governments, NGOs and even Wikipedia talk of the antiquities trade, they are generally referring to the exchange of ancient artefacts from all around the world and not to those from a specific geographical region. This differs from the art trade’s understanding of the antiquities trade. The Channel 4 Dispatches Programme: Isis and the Missing Treasures, aired in April 2016, inaccurately included a 19th century Ottoman Koran as an antiquity; an antiquity is defined as an object, building, or work of art from the ancient past which is usually at least 1000 years old.
These misunderstandings of definitions and disciplines of the art market are highly misleading and confusing when it comes to talking about and addressing the issues that we face in the market today, making it very difficult to analyse data.
WHY GREATER CLARITY IS ESSENTIAL
It can be extremely difficult to accurately track the movement of antiquities across international borders because they fall into several Customs categories without being clearly defined by any of them. For example, Code 9703 covers original sculptures and statuary, in any material; Code 9705 covers collections and collectors’ pieces of archaeological, ethnographic and numismatic interest, but also of zoological, botanical, mineralogical, anatomical, palaeontological and historical interest; meanwhile Code 9706 covers antiques of an age exceeding 100 years, which could include antiquities.
The World Customs Organisation has recognised the problems this creates and is currently conducting a review of the coding system with a view to introducing new sub-categories within the 97 classification in order to bring more clarity, but there should be discussion with the art trade before further classifications are finalised to ensure an effective outcome.
The overly free use of the term ‘cultural property’ in this context also causes enormous problems. The term ‘cultural property’ is defined as “art, artefacts, etc., of cultural importance or interest, especially those regarded as belonging collectively to a particular country or people”. A German judgement of the 7th Senate on the 31 May 2017 states that when applying and interpreting the provision of Article 30 of the Treaty Establishing the European Community, the administrative court correctly assumes that the law on the return of cultural property requires the EU Member State to designate the claimed subject-matter as a national treasure by law. The ruling goes on to state that designating all archaeological objects (more than 100 years old) as national treasure does not meet those requirements.
Why does this all matter? Because when it comes to statistics and analysis, as well as unhelpful headlines, this can result in disproportionate, mistaken and damaging regulation.
For example, when it comes to multi-national law enforcement initiatives like Operations Pandora and Athena, it is clear from media comments and responses from the authorities that they assume all the seized ‘cultural property’ is antiquities, when in fact very little of it is at all. In Operation Pandora, 1000 of the 3500+ items seized were rusted cartridge cases and rifle stocks dating to the Second World War, taken from a single illegal metal detectorist in Poland, where such items are deemed ‘cultural property’. Despite Europol confirming to the ADA that not one item seized during Operation Pandora came from a conflict zone, its findings have been used as a central plank in attempts to legislate within Europe against trafficking in antiquities that might be funding terrorism.
Until there is clarity of definition, all statistics quoted should be treated with caution.
WHY WAS PROVENANCE INFORMATION SO RARELY PROVIDED UNTIL RECENTLY?
By 2010, the big three auction houses with Antiquities departments had evolved their practices so that every lot noted some sort of ‘provenance’, by which we mean collecting or ownership history.
In earlier years, when private collectors or collections were mentioned only sporadically in auction and dealer catalogues, more often than not it was with the name of someone of note. The remainder of the items had nothing but a description or perhaps an academic reference and perhaps not even a photograph. Unless the previous owner or circumstances of ownership were thought to be of possible interest to the buyer and would therefore enhance its value, it was not thought worth noting.
Of course, this is now deeply frustrating for us. Gone are the days when auction houses printed the sale results with the name of the buyer. As awareness of the importance of passing on provenance has grown, so more details of an object’s history have appeared. In many respects we should be grateful for the last 20-plus years of debate on this subject because we are discovering great stories about the recent history of some of these objects.
Other art market disciplines are making ever-increasing efforts to note provenance as well. The fact that a solid documentary provenance can also add to the value of an item for sale is one of the most important factors in the increasingly widespread addition of historical detail to catalogue descriptions. In short, best practice is good for business.
DIFFERENT TYPES OF PROVENANCE AND WHAT THEY MEAN
Nonetheless, even if some documentation is available, one must always ask how strong it is as proof of provenance.
What is the value of a provenance when it says ‘Collection Monsieur B.V, Paris, prior to 2000?’ While it might well have belonged to this individual, the ownership chain cannot be certain, even with an initialled letter from Monsieur B.V. himself. But who is or was Monsieur B.V? Can we verify this provenance as true? When did he buy the item – how do we know if there is no proof?
This is what we call anecdotal provenance with nothing to back it up, just the word of an individual, perhaps accompanied by a signed statement. There are many valid reasons why this type of provenance may be given – firstly because it is true but these dates can be used to fit in with a date that will enable an item to be accepted for sale. This could be masking an illicit action, or because the applicant genuinely doesn’t know and understandably wants to be able to sell something they acquired in good faith many years earlier.
A stronger provenance is when a person or collection is named and which can be possible to verify. The weakness is that many collections were not inventoried, so in practice it may be hard to verify the claim or even the date.
The strongest form of provenance is documentary provenance with evidence in publications such as scholarly journals, export licences, old invoices and old auction or dealer catalogues. It proves the location of an item at a given place and time.
The issue remains that an unscrupulous individual could falsify an old document. Whilst this is unlikely for actual publications, invoices and export licences can be and are forged by individuals, including corrupt state officials.
In terms of the most valuable form of provenance, the obvious answer is documentary provenance. But if you are collecting comparatively cheap ancient coins, antiquities, prints, china, paintings, books, furniture etc it is unlikely that these will have been published, or even photographed in past auction or dealer catalogues.
So to expect named or documentary provenance for everything would be unrealistic or, if it does exist, it’s frequently not possible to prove it relates to a given item because the standard of detail included in invoices and export licences in the past was often poor.
More often than not the only form of available provenance will be anecdotal – this applies across the art market in all disciplines.
On the other hand, if you are buying an ancient Egyptian sarcophagus of high value, or a painting by a well-known artist, you could reasonably expect an old named provenance. In the absence of a strong provenance it does not mean the item is looted or illegal; it could just mean the ownership chain has been lost; an individual, be they a private collector, dealer or auction house specialist, will need to assess all the circumstances when deciding what standard of provenance is reasonable to expect for each particular item.
WHY ARE ARCHAEOLOGICAL ITEMS DIFFERENT FROM THE REST?
Archaeological items differ from other objects in the art market in one crucial respect: they were once buried. The ownership of archaeological items is often vested in the State itself who are unlikely to know the circumstances of discovery or even export.
However, we are now seeing seizures and lawsuits, particularly in the USA, over antiquities that have been on display in museums for decades and perhaps published repeatedly. The Guennol Stargazer figure sold at Christie’s in 2017, had previously been referenced more than eight times in museum catalogues and academic publications (some involving authors connected to the Turkish ministry) and was also displayed for lengthy periods at the Metropolitan Museum of Art in New York, stretching back many decades. In its defence, the Republic of Turkey has argued that it cannot reasonably have been expected to find every stolen object taken out of the country illicitly the moment it surfaces in a book or at a museum. How then can a collector be expected to trace the lineage back decades to a country that doesn’t know an item is missing?
It is an irony that at the recent UNESCO conference in Paris (March 2018), Engaging the European Art Market in the fight against the Illicit Trafficking of Cultural Property, a frequent complaint from NGOs speaking was that lack of documentation and information on cultural property made it far more difficult for them to identify illicit items, thereby making their work much harder. Yet this is precisely the argument these same people dismiss from the art market when demanding detailed documentary provenance for every object.
There are ongoing difficulties with the group of photographs of what have become known as the Medici and Becchina Archives as well as the Schinoussa archive from the Symes/Michaelides case. These are not publicly available and auction houses, dealers as well as museums and collectors are repeatedly caught out and accused of not having done their due diligence when an item from the archive appears on the market. How can due diligence be effective when the tools to do so are not made available? The accusations are generally made publicly to maximise embarrassment.
Again, at the UNESCO conference it was argued that the archives cannot be made public for fear of compromising serious on-going investigations. While that may be the case, those putting it, offered no solution to this Catch 22 situation for the art market.
IT’S IMPORTANT TO APPRECIATE HOW PROVENANCE ISSUES RELATE TO EACH OF US
We all have treasured possessions. Some of us even own something archaeological. Ask yourself where your possessions came from. Were they purchased in antique or other shops, perhaps at a flea market at the weekend or acquired through inheritance or as a gift?
How many of you have invoices and any proof of where, when and how you acquired your possessions? What is the quality of this evidence if you do have any? Does the invoice say who the previous owner was? How easy would it be to find out who the previous owner was, from the shop or gallery you bought it from?
How can I prove where and when the three worn and valueless Roman bronze coins or the small Roman silver cosmetic implement came from that I own? Given to my mother by her mother, who in turn inherited them from her French-Italian and English parents who were born into Levantine families in Turkey in the 19thcentury? How can I prove the Roman coin I was given by my Dutch and English grandparents was bought on their honeymoon in Rome in 1929? How can I prove the pottery twin-handled vessel dating to the 3rdMillennium B.C. came from a now deceased friend who lived in Beirut between 1968 and 1973? I have no proof and I can give you no proof, but that is their provenance.
We own a number of paintings, original works by a now deceased family member. Some are unsigned. How do we prove they are the particular artist’s work and that they were given to us by the artist? All anyone has to go on is our word. I own furniture and jewellery – many of them given as gifts or inherited. Most of them have no receipts and no ownership history.
My experiences of acquisition and ownership will not differ much from your own. If challenged to do so, how many of us could provide detailed documents giving a solid provenance back to its origins for everything of value we own?
We need to ask this question because that is what lawmakers, NGOs, academics and archaeologists are now demanding of the antiquities trade.
IN WHICH COUNTRY WERE YOUR POSSESSIONS MADE, FOUND OR BOUGHT?
When we talk of a source country or country of origin what do we mean? Is it a country where the object was created or its final resting place? How can you determine the final resting place of an object?
The Geneva Responsible Art Market Initiative (RAM) proposes that before handling or acquiring cultural property, you should aim to establish:
- the country of origin of the object;
- when and how it left its country of origin and any intermediate country.
How practical is it to expect provenance to extend back to the moment it left the country it was created in or was found? Many objects were created to be traded or for people who moved from place to place.
How easy is it to identify the source country? The answer is, not as easy as we might hope. Historic boundaries are not the same as modern ones. Antiquity saw a thriving cross-border trade. War and its aftermath have seen the removal of monuments, artworks and everyday possessions from one country to another in antiquity and more recently, in part as a result of looting, pilfering and as trophies while others with refugees or through the natural movement of peoples and their families.
Many books, for example, were designed specifically to be taken away from their point of purchase, as souvenirs or as maps/guides. Is their source country where they were created or their final resting place?
For example, the print runs of incunables in 15th-century Venice were sometimes as much as 2000-3000: there was no local market on anything like that scale, so they were intended for export around the world.
Take, for example, an early 15th century Book of Hours made for the English market. An illuminated manuscript on parchment, partly dated 1409, it is a rare documented example of the export trade in books made in the southern Netherlands for sale in England. The English binding dates from the second or third decade of the 16th century. What is its source country?
The world of numismatics is based on a tradition of using as well as collecting coins dating back thousands of years. Their origin is unlikely to be their final resting place. According to the German judgment of the 31 May 2017, German legislature had generally wanted to exempt coins as ‘archaeological mass products’. Of course many thousands of antiquities, as well as coins are ‘archaeological mass products’.
The Silk Road only existed to trade goods and exchange knowledge and culture. The Kushan Empire was at a strategic point on the Silk Road, stretching from Afghanistan to northern parts of south Asia and was influenced by many cultures, having diplomatic links to the Roman, Sasanian and Han Chinese empires. These exchanges are reflected in their artwork so it can be difficult or impossible to identify the ‘source’ country of an artefact.
THE CONUNDRUM OVER CHARLES I AND HIS COLLECTION
One of the most important art collections ever assembled was that of King Charles I. When he was executed in 1649, his collection was sold and dispersed throughout Europe. Although many works were repossessed by Charles II during the Restoration, others are now core to the collections of museums such as the Louvre and the Prado. Some were painted by foreign artists working in England, like the Dutch artist van Dyck, others obtained abroad, but they became part of the Royal Collection that was then sold, clearly not with the agreement of the Royal family, but under the instruction of Parliament. How would this be viewed today? Would the source country be where a painting was created or, due to the historic nature of the collection, would it be regarded as England? Perhaps it should be considered a Dutch treasure, bearing in mind the nationality of the artist?
Artworks in every country form part of the national narrative, whether or not that was their country of origin.
When a country of origin can be identified and agreed on, how can it be proved when an item left that country?
Was it exported legally then and would that be regarded as legal now?
Were any export laws enforced or enforceable at the time?
These are all questions that need to be addressed, even if they cannot be answered satisfactorily.
If the country of origin is identified, how did the object leave? Was it the coin purchased on a honeymoon in Italy in 1929? Was it an Egyptian antiquity purchased from a Cairo dealer? Was it a painting bought in Rome?
Is there an invoice or an export licence to prove it?
Which are the source countries and what are their laws?
Moreover, at what point were these laws effectively enforced?
EGYPT’S LONG-LASTING ANTIQUITIES TRADE
In Egypt, it was legal to export antiquities under licence until 1983. There were over 100 licensed dealers in Cairo, with the highest known licence No. 127 still active in the early 1980s. In addition, Egyptologists became key agents to collectors and museums, who could buy directly from the Director of the Antiquities Service, while the Egyptian Museum in Cairo operated a saleroom from 1888 until the 1950s-60s.
Export licences were controlled by levying a tax; invoices were issued on crates that had been officially sealed but not always inspected. The licence, as such, was not kept with exported items, and the invoices, where they still exist, make it hard or impossible to identify the objects it lists, because they tend to lack detail. There was no requirement for the buyer to retain paperwork and there were no photographs.
Is it possible to link these invoices with objects in circulation?
In the Lebanon export licences were issued for antiquities up until 1988. The system did not differ much from that of Egypt, with official stamps on invoices listing items that would now be impossible to identify. No photographs accompanied them. Crates were officially sealed with no export licence accompanying the exported objects. In Cyprus, individual items had lead export tags attached to them. Did these export tags remain permanently attached to the antiquity? Only sometimes.
When an artwork is exported from the UK, does the export licence remain with the exported item? No. In France a passport can remain with an item. But is this for every single artwork? No, only those above a certain value threshold and only for certain art market disciplines.
Is it practical to keep a paper passport with small and sometimes tiny movable objects? How long are these passports valid? Will that piece of paper remain with the object for the next 100 years and beyond?
WHAT IF THE PAPERWORK SIMPLY ISN’T THERE?
If the documentation is available, we are only too happy to use it, but what if is simply isn’t?
Dealers are expected to be able to produce an export certificate or other documentation that either never remained with the object or was not retained by the owner; perhaps it never existed or, if it did, was just a list of unidentifiable items.
What can reasonably be expected by way of paperwork and proof that an item has been legally exported from its country or origin?
These questions do need to be addressed with pragmatism, or legitimate trade will become impossible.
Over my career, spanning three decades, the antiquities market has changed a great deal and continues to do so, after many centuries of collecting. The process continues to evolve through education, publicity and the adaptation and enforcement of laws and regulations.
But how far can this process go?
When provenance information is lacking, what is sufficient evidence to prove legitimate ownership?
This is the heart of where the difficulty lies. How do we now find out who the previous owner was, bearing in mind there is generally no legal obligation to keep business records beyond 7 to 10 years and for private buyers there is no legal obligation to keep any paperwork at all? How do we go about establishing the collecting history of an object with sparse information?
Much of this is through inter-auction house contact and with dealers all over the world trying to piece together an object’s history. This is highly problematic. There are data protection issues, only becoming more difficult to navigate with the introduction of General Data Protection Regulation (GDPR) on the 25 May, 2018, combined with differing non-EU national compliance regulations.
So we rely on the goodwill and co-operation of trade competitors to contact their clients or former clients all over the world, often with a language barrier to compound this difficulty; many clients are no longer contactable, let alone alive, and memories fade with age or illness. Deceased estates seldom come with any information. If there is a response, there are often legal as well as cultural reasons why initials are given instead of a name.
WHY IS 2000 CONSIDERED AN IMPORTANT CUT-OFF DATE?
2000 is often used by the auction houses as a date after which an object must have provable provenance. It’s an arbitrary date and was initially unofficially introduced by one auction house with the best of intentions, later to be adopted by others and more recently by the Art Loss Register. It was intended as a line in the sand, but not an official line and not one publicly announced or collectively agreed in 2000; so for many, this has effectively been applied retrospectively. It was not until 2005-10 that the three main auction houses stated provenance with each lot in Antiquities catalogues.
Elsewhere antiquities are still being sold without printed provenances. Quite often this is because it is immensely time consuming. It is also because the less experienced do not always fully appreciate the importance of asking for this information, or they feel very uncomfortable asking too many details of their client, feeling it is an invasion of their privacy. This is where education is important.
There is a particular issue with the many objects of low value, where time spent on researching an item has to be balanced with what it is actually worth. Many archaeological items and coins are of little value, as are numerous art and antiques.
So how can provenance information be provided when it was not practice to publish it or to keep this information in the first place?
The answer is: with difficulty, or not at all.
With difficulty in obtaining provenance information back to 2000, how much more difficult or impossible is it to obtain provenance information back to 1993 (the date of the European Council Directive 1993/7/EEC of 15 March 1993 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State) or to 1970, the oft-quoted date of the UNESCO Convention, which actually only came into force in April 1972, though countries became signatories at different dates, the UK, for example, only in 2003 and the Netherlands in 2009. It should also be noted that in order for UNESCO to be effective, each signatory country has to implement it into their national law. Fewer than 10 countries out of the 134 signatories have done so.
Is it reasonable or practical to have provenance information for art, antiques and antiquities stretching back to these dates and in the case of certain categories, for every single item regardless of value? In any event, how much comfort can these dates bring when objects are being seized with provenance stretching back decades?
WHY DOES THE MARKET APPEAR SECRETIVE ABOUT WHO OWNS WHAT?
No auction house or dealer is permitted to pass on private information about a client without the express written consent of that client or unless there is a legal imperative to do so. This is no different from other sectors. Parents are not even allowed to know what medication their child is taking over the age of 16.
Everything requires the verbal or, more often, written consent for information to be shared. GDPR will strengthen and unify data protection for individuals within the European Union, not reduce it. It is quite likely to conflict with an ever-greater need for transparency in due diligence processes.
A collector/consignor may wish to remain anonymous for perfectly legitimate reasons. Or the item may have been bought from a secondary dealer who does not wish to disclose the name of the source collector. Ultimately, people have a right to some privacy. There are also commercial reasons. It is a well-known fact that art works circulate within the trade. Sometimes they remain on sale for a long time and it makes an item commercially unattractive to know that it has been on the market for a while. So the earlier more interesting provenance is likely to be noted rather than the fact it has been circulating on the art market for some time. There are laws to protect against fraud, but there must be protection for legitimate commercial practices.
HOW DOES LACK OF AVAILABLE PROVENANCE AFFECT DUE DILIGENCE CHECKS?
The most significant impact relates to the Art Loss Register (ALR).
An ALR Search agreement states that it does not guarantee the provenance of any designated item, so the client cannot solely rely on the results of any search or enquiry by the ALR as sufficient evidence of due diligence and/or good faith on the part of the client in investigating the provenance.
In spite of this caveat, the ALR will either not search or will not issue a certificate unless documented ownership history dating back to 2000 is made available to it. Often this information is often not available, for reasons set out above. So objects are either not searched or no certificate is issued and this can compromise the applicant’s ability to obtain an export licence.
The refusal to issue the certificate, despite the lack of any evidence to show that an item is tainted in any way, can affect the movement of items between countries, particularly when import restrictions are becoming ever-more stringent when importing cultural property into the US, Switzerland and, in all likelihood, the EU.
It appears we are relying on a single commercial entity to issue certificates for a fee, and the absence of these certificates can prevent the free movement of goods. This effectively gives the ALR a quasi-legal status, which has not been sanctioned by anyone. The ALR has a right to dictate its own terms of business, but another solution needs to be found for those items it refuses to check.
Perhaps an internationally accepted form of self-certification confirming the item does not appear on the Interpol stolen art register would do it? Or perhaps the ALR could re-visit its expectations of what is an acceptable form of provenance from an applicant, bearing in mind its search certificates offer no guarantee of provenance and cannot be counted as proof of evidence of due diligence on the part of the client.
LACK OF PROVENANCE ALSO HINDERS THE EXPORT LICENCE APPLICATION PROCESS
For archaeological items, the due diligence process requires an Art Loss Register or other similar certificate (which includes searches on the Interpol or ICOM databases). I have already outlined the difficulties the trade is confronted with if there is not sufficient provenance available to meet the requirements of a search with the ALR, as well as the difficulties with lower value items.
In order to confirm the cultural goods are within the EU on a legal and definitive basis, the licence issuing authority can be required to contact an auction house in the process of checking provenance after 1992.
As I have mentioned earlier, it has only been in the last decade or so that record keeping for provenance has been more diligently noted. A marked difference remains between how the antiquities trade note provenance in auction catalogues and how other art market disciplines note provenance in auction catalogues. So how realistic is it to expect full provenance dating back to 1st January 1993? If something was bought in 2008, now 10 years ago but 25 years after 1993, what level of information is likely to have been retained? Is it reasonable to expect an auction house to state definitively that an item was within the EU as of that date? Clearly it can’t. Equally, if the information is not available it is not reasonable to refuse a licence on these grounds.
As a basic minimum the auction house can try and contact a consignor, but this does not always bring the required answer and is a very time-consuming process. The auction house is unable to divulge the details of the consignor without the consignor’s express permission. And the further removed we become from the 1stJanuary 1993, the more difficult it will become to declare knowledge of whether an item was in the EU from that date.
An additional problem in the licensing process arises for items imported from another EU Member State within the past 50 years when the application should be accompanied by an export licence from that Member State or if no export licence was required, then confirmation or proof it wasn’t required.
Such proof is not readily available. Export licence applicants are expected to contact culture departments in different EU Member States, navigating language and cultural differences in the process. This includes some countries where more than one administrative sector has to be contacted in order to obtain confirmation that a given item did not appear on a list of items restricted for export.
All of this information should be made available centrally online via an EU portal with laws and information kept up-to-date, including contact names and details of the different departments and staff responsible for providing this information and in all EU national languages.
The temptation in the face of the current barriers is for exporters to tick boxes and sign affidavits without certain knowledge – this cannot be the desired outcome.
SO WHAT CAN THE MARKET DO UNDER CURRENT CIRCUMSTANCES?
When there is little if any available provenance or proof of export from the country of origin, what else can the market do to establish whether it is legally circulating on the market? I have already outlined the types of provenances we have to assess, but if these are anecdotal at best, what else can we rely on when trying to buy an item or accept it on consignment? Here is what we advise:
- Establish a relationship with the customer.
- Ask questions about where, when and how they acquired it.
- Ask yourself how the price being asked relates to its market value? Does this raise any suspicions?
- Seek out any old photographs of the item or if it has been listed on an insurance inventory, shipping documents, in a will or in any other correspondence?
- Check whether it has been published in an academic journal or in a previous auction or dealer’s catalogue?
- Establish a paper trail of your researches and financial transactions.
- If the item is from a region where there are special measures in place due to war or conflict, exercise additional caution with guarantees the object was circulating prior to the date a measure was implemented.
- Insist on a signed document confirming legitimate title while also confirming the identity of the seller.
- Without sufficient provenance, in certain categories, the ALR will not search their databases (including Interpol) or will not issue a certificate once searched. This makes it more difficult to conduct an important part of the due diligence process for a vulnerable section of the art market.
- The Interpol database lists 51,000 stolen items and is available to registered users only. How practical is it for individuals to check a database with this number of items?
- Be aware of the ICOM Red Lists, but this lists entire categories of items at risk, not actual stolen items. This makes it only a guide to raise awareness rather than a searchable database.
- Gut feeling is a strong indicator.
- It’s important to walk away if you feel uneasy and to report suspicions of illicit activity directly to the appropriate authorities.
- Make sure any transaction is compliant with money laundering regulations.
HOW DO WE RESPOND TO THE QUESTION OF VALUE AND THE MATTER OF OBJECTS IN LIMBO?
The art market is made up of many small and medium-sized businesses or small departments in auction houses. Can the same level of due diligence be expected for all items whatever their value? Realistically, how much time can be spent on researching an item worth £5, £50, £500 or even £5,000?
In short, lack of clear and available provenance is not good for business.
I know where some end up – in police or other warehouses, with the owner no longer wanting to recover them, even if there is no legal claim to an item. An object is unable to be imported back into whichever country it came from and the ‘source’ country has no proof it is theirs and has not made a formal claim. This laves the item in limbo. In fact, they can be disclaimed, then sometimes re-appear on the market, only for the same cycle of accusations to recur, as happened with a Swiss dealer exhibiting at Frieze Masters in London in 2017.
These seizures put everyone, including museums, in a most vulnerable position. But if you are a dealer or auctioneer with your livelihood and, of course, reputation at stake, these recent cases, deliberately designed to de-stabilise the market, are of enormous concern and take the provenance debate to a whole new level. Nothing appears safe anymore.
There are objects that nobody can sell because they have become tainted or they are not tainted but simply do not have sufficient paperwork to enable them to obtain an ALR certificate or perhaps an export licence orfor them to be accepted for sale by an auction house or dealer.
What will become of these ‘orphan’ objects that have been bought in good faith by collectors from Ireland to Australia?
BEWARE THE TRAMPLING OF PROPERTY RIGHTS IN THE PURSUIT OF CRIMINALS
Article 17 on the Right to Property – in The Charter of Fundamental Rights of the European Union (2000/C 364/01), states that:
- Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
It could even lead to the falsifying of provenance and ultimately to the disappearance of art, antiques and antiquities to other parts of the world.
The Chinese are increasing their market share and have just overtaken the UK as the second largest art market in the world.
The burden of responsibility to protect the cultural heritage of each country cannot be placed on the art trade. Under Article 5 of the UNESCO Convention there are obligations for each signatory to the Convention to ensure the protection of their cultural property against illicit import, export and transfer of ownership. The States Parties to this Convention are obliged to set up services within their territories for the protection of cultural heritage, and to list important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage.
How many countries which are signatories to the UNESCO Convention comply with Article 5?
WHAT ARE THE SOLUTIONS FOR PROTECTING CULTURAL HERITAGE AND PREVENTING CRIME?
- Funding should be made available for the establishment of proper structures within designated and vulnerable ‘source’ or possible ‘intermediate’ countries to prevent illicit material entering the market and to make sure each signatory country has the resources to comply with Article 5 of the UNESCO Convention.
- We have an armoury of existing laws already protecting goods, ownership and vulnerable countries. Resources should be used to make sure these are appropriately enforced.
- All agencies – be they customs, enforcement, legal or heritage should work with the art, antiques and antiquities market to align our perceptions and to create a clear definition of terms.
- All countries are source countries, but it is seldom clear exactly which country an object was either produced in or found. For measures involving the art market, there needs to be a clear definition of what is intended by the use of the term ‘source country’ or ‘country of origin’. If we are worried about certain vulnerable countries, these should be named and treated differently. Otherwise, the practical solution would be to focus on export countries.
- The EU should have an efficient web portal accessed by the relevant department in each Member State – with contact information, national export laws and confirmation of what is restricted for export. This should be kept up-to-date and in all EU languages.
- There needs to be a proper understanding of the different level of participants in the art, antiques and antiquities trade, with high-end dealers or auction houses having different resources from medium and small businesses.
- The same provenance expectations as well as the amount of time and resources spent on due diligence cannot be the same for objects valued at £5, £50, £500, £5,000 or £500,000. Expectations should vary according to value thresholds.
- Internet-only sales through eBay and other selling and social media platforms including WhatsApp and Facebook should be regarded as separate from the established and more accountable art, antiques and antiquities trade with resources provided for tracking illicit activity.
- A solution needs to be found for so-called ‘orphan’ objects. What should happen to those without sufficient provable provenance? If the ALR will not search them on their databases, there needs to be an effective mechanism for independently checking them against the Interpol database at least.
- Resources should be put into digitally recording archaeological items already in circulation, whether they have an established provenance or not. The British Museum is piloting a database programme for Egyptian Antiquities funded by the Cultural Protection Fund with the intention of uploading images and known provenance details of all Egyptian items in circulation from 1970 to the present. It would act as a research tool with different levels of access depending on sensitivities relating to ownership information. This would be in association with a UK-based training programme for Egyptians. (The British Council Press release does not fully explain the intentions of the database or mention the trade stakeholders. A British Museum announcement is due to be made in the coming weeks – https://www.britishcouncil.org/arts/culture-development/cultural-protection-fund/projects/circulating-artefacts )
- This needs to be rolled out far beyond Egyptian antiquities to cover all vulnerable disciplines. It would not be practical to cover all mass-made or non-uniquely identifiable objects. Where no substantive claims are made, processed within strictly defined protocols, any “orphan” objects appearing on the database could eventually be granted an amnesty, giving the owner repose of title. Similar suggestions have been made by a number of people including Gary Vikan (formerly Director of the Walters Art Museum Baltimore). Nevertheless this puts the trade in a vulnerable position in relation to identifying items that may have an illicit provenance and could be claimed, but the trade are aware there must be a way forward, ultimately to create more confidence within the market, and are showing good faith by being prepared to co-operate with this project if it is rolled out in the manner agreed.
- As Michael Lewis, Head of Portable Antiquities & Treasure at the British Museum says, “Antiquities law in Great Britain is amongst the most liberal in Europe. Searching for antiquities is legal…..In England and Wales, it is the landowner, not the State, that normally has best title to anything found on their land. It might seem that this situation puts at risk the historic environment, but in fact the story over the last 20 years is more positive. Although there are unscrupulous individuals, many people searching for archaeology, most being metal-detectorists, work within the law and report their finds.” (for the full text of the article see this article – http://iadaa.org/wp-content/uploads/2018/02/Micheal-Lewis-Preserving-the-Past-CQ-1.2018.pdf)
The online database of the Portable Antiquities Scheme (PAS) encourages the recording of detailed information about where and when an archaeological item was found. This is a voluntary scheme and once the information has been noted, the majority of items are free for sale, with other requirements, as well as financial rewards, if objects fall under the category of Treasure. Could some aspects of this model be used to allow the circulation of lower value antiquities in other countries? The legitimate sale of minor antiquities could contribute to the solution.
Does European Society want all cultural property to end up in public museums? As we know, in the UK only 3% of its 2.3 million objects are actually on display at the Victoria & Albert Museum, with only 1% of the 8 million objects on view at the British Museum. I doubt this picture differs dramatically in the national museums of other countries.
Those engaged in the legitimate market may not be museum curators and academics, but they have a staggering wealth of knowledge with a history of contributing to public institutions both in terms of time and money for the conservation of our cultural heritage.
In 1914, the Egyptologist Flinders Petrie wrote in his journal Ancient Egypt, “The entire prohibition of all export of antiquities in Turkey and Greece, only produces a permanent and well-organised, though hidden, route to every European museum. The bar on exportation from Italy is almost as effective in maintaining a systematic transport…”.
The art and antiquities trade has not helped itself over the years. All walks of life have dishonest individuals who spoil it for the majority; the art trade is regrettably no different. But as the quote suggests, some of these activities are not new and were how many museums acquired at least parts of their collections.
The operation of a different set of standards is required for the 21st century; the art, antiques and antiquities market has reached a crossroads.
Workable solutions are only possible with the co-operation of art market participants, as well as museums and academics supported by intergovernmental funding.
Ultimately, we want an art market where participants are honest about the provenance of objects and not one where people feel the need to cover up provenance because they bought something in good faith but the goalposts have subsequently changed and the auction house or dealer they originally bought it from will no longer sell it.
The digital age, terrorism, as well as modern sensibilities have changed how the public view us and how we view ourselves. But we should use 21st century technology to re-think how best to capture provenance for the future, something that will last the next 100 years when the dates of 1970, 1993 and 2000 will be history. Few paper documents helping to verify provenance will survive in the long run. We need to use the resources we have and the strength of our collective will to create something really worthwhile for the future.
Joanna van der Lande
Antiquities Dealers’ Association
From the text of an address on about the provenance of cultural property made at the 4th meeting of the Project Group on Guidance for customs controls at the export of cultural goods, the Arts Council, Monday, 16 April 2018
The link below to the US-based Committee for Cultural Policy addresses many of the questions raised here, as well as proposed solutions.
COMMENT: A perceived lack of regulation, the rise of art as an alternative asset class and conflict in the Middle East present a triple whammy for an unprepared art market. What has happened to the market? And what must happen now? asks Ivan Macquisten
Antiques Trade Gazette’s current report on how the trade is fighting back against misperceptions and propaganda.
The international trade in antiquities has been the focus of sustained criticism over the past few years as a result of the wars in Syria and Iraq. Anti-trade campaigners – academics, archaeologists, politicians and others – who have been trying to shut down the legitimate trade for years, have seized this opportunity to lobby hard for new regulation, ever-tighter restrictions on trade and more draconian punishments for even slight infringements. There have been calls for the private ownership of antiquities to be made socially unacceptable.
The dissemination of biased or badly conducted research and questionable relationships with the media, much of which appears complicit, or at least complacent, has not helped. This is part of the widely recognised ‘fake news’ issue, as 24-hour rolling reporting combined with declining resources within the media – particularly in the press – rob journalists of the opportunity to investigate in any depth or check facts. This makes them increasingly vulnerable to unscrupulous interests that want to present propaganda as news. Outlandish figures relating to the size of the problem of looted material coming out of Syria, for instance, have been widely accepted as utterly unfounded by all sides in the debate for some time now, yet continue to be peddled by a number of quite prominent sources.
This has led to criticism from anti-trade campaigners themselves. Dr Neil Brodie’s article for the European Union National Institutes for Culture, says the propagandists exaggerate the problem to attract government attention and more funding. This leads to inappropriate policy, which in turn damages the very nations and cultural heritage institutions they seek to protect.
Even government research and publications, in the US, Germany and elsewhere fall short of the standards that should be expected. Recently, Homeland Security Today, the news and views website for the eponymous US department, published my critique of Homeland Security’s report last October, Cash to Chaos, dismantling ISIS’ financial infrastructure.
The report’s small section on antiquities was riddled with inaccuracies, the footnotes quoting out-of-date and long-discredited media articles as primary sources of evidence to support the claims. In some cases, the reports mentioned in the footnotes did not contain any of the evidence referred to at all. If this can happen with Homeland Security, whose report was leapt on by campaigners as further proof of the antiquities problem, who else can be trusted?
Many of those who want to see an end to any trade, legitimate or not, dedicate most of their working lives to this cause. They tend to be very well funded and organised, and have the ear of governments, law enforcement and NGOs, which do not appear to appreciate the distinction between those who trade lawfully and those who do not.
The effectiveness of these campaigners is not to be underestimated, especially as the antiquities sector in particular and the art market in general have been woefully unprepared to tackle such unrelenting criticism.
All of this is not helped by the perception that the wider art market is fairly lawless. True, it is not directly regulated in the way that finance, health, insurance and the law are, but there is direct regulation, and plenty of it (see the British Art Market Federation’s list of regulation. A dealer’s liability under the new Cultural Property [Armed Conflicts] Bill is a case in point: potentially, they can be jailed for up to seven years for even unintentionally breaking the law.
How it all changed in 2008
What the art market has failed to understand until quite recently is that everything changed in 2008. When the markets crashed and pulled the rug out from under gilts and bonds, those traditional safe havens of wealth, the relative risk of art as a store of value diminished, making it much more attractive as an alternative asset class. The banks and wealth managers started to advise clients to diversify their portfolios.
Where money heads, attention follows – and not just from investors. Regulators, governments and criminals also turned their gaze on the art market as a significant influx of cash created the potential for money laundering, market manipulation and other undesirable activities. Transparency became the buzzword of any discussion about the market, but transparency is just the outward manifestation of the real problem: lack of trust.
The market generally was unused to such scrutiny and ill equipped for what it would mean: media attacks, tighter controls, new laws and wider attempts at regulation. Many continue to bury their heads in the sand, but others have realised they must act now to build confidence with the authorities and public before it is too late.
Despite this, most have still not accepted that such a programme requires a significant investment of money and time, the sort of commitment on which the other side in the debate has long been able to rely.
Against this background, and the emerging Syrian conflict, the antiquities trade found itself in the front line. What makes life even harder for the trade is the role antiquities now play in international diplomacy. Nation states are using cultural property or heritage as a political tool in negotiations, to curry favour with other countries or to burnish their credentials as virtuous campaigners for the greater good.
The trade fights back
Around two years ago, the Antiquities Dealers Association (ADA) in the UK and then the International Association of Dealers in Ancient Art (IADAA) recognised that they needed to fight back. As such, they realised they must revisit their own codes of conduct and improve procedures and methods of communication, whether via their websites, direct mail, PR and media opportunities or their relationships with the various authorities.
They have been very effective in doing so, leading the way in raising wider art market standards – as parliament has recognised – and shaping debate with lawmakers, law enforcement and the media at national and international levels.
Their success can be attributed in part to their thorough research and presentation of arguments supported by independently verifiable evidence, in part to the dedication of their representatives, and in part to the fact that the anti-trade campaigners have not been used to having their propaganda challenged and so are sometimes inattentive when it comes to detail.
Nonetheless, rich and powerful anti-trade interests – supported by countries such as Egypt that wish to reclaim their cultural property, regardless of whether it now rightly belongs to others – have persuaded governments to introduce major changes in the law in Germany, the UK and the United States, laws introduced as a result of mistaken views of where problems lie.
The rather less well-funded antiquities trade is fighting an effective rear-guard action, but very much against the odds. What the trade does have is a network of knowledgeable experts, a sophisticated strategy and a wealth of evidence and data to support its case; it is also getting better organised, with disparate groups in the USA coming together to fight for better understanding and a fairer deal. It needs better financial and strategic support as the trade improves its own relationships with decision-makers further and continues to fight for recognition in national and international debate.
Trade organisations have already tried to engage with their fiercest critics, but the signs so far are that campaigners have no intention of giving any ground. I can understand this: they have had unrivalled success so far and can’t see any reason to compromise. It is clear that many simply believe that any trade whatsoever means providing cover for the crooks. What may surprise them is that legitimate trade is the arch-enemy of the crooks, as criminal activity damages the reputation of those who trade lawfully.
The wider art market needs to wake up fully to its challenges, as demonstrated so clearly already in the microcosm of the antiquities market. That means better self-regulation in the form of codes of conduct, ethical behaviour and transparency, as well as a more effective public charm offensive, with the trade associations taking a prominent role.
This article first appeared in the July/August 2017 issue of the RICS property Journal
See also www.imacq.com