Is it legal to buy antiquities?

Yes, provided they are not stolen, looted or faked and you adhere to the various laws governing their sale and distribution, which are set out under the question What rules or laws govern the trade in antiquities? Every country will preserve in public ownership their most important cultural objects but the antiquities we are selling are in most instances already more than amply represented in public collections. Sourcing from a reputable dealer who is fully conversant with export and other legislation is strongly advised.

Where do you get your material?

Most of the material members source and deal with comes directly from old collections, many of which were formed in previous centuries. These could be collections that were formed by individuals of some standing or by amateur antiquarians with small personal collections that were perhaps accumulated over the years and passed on to family members. Dealers also buy directly from public auction as well as other dealers.

How do you know an object is genuine and not stolen or looted?

Whenever we acquire an object we carry out due diligence to ensure that it is not a fake, has not been stolen or looted and complies with relevant export regulations. Buyers should always purchase antiquities from a reputable dealer who belongs to a trade organisation and will consequently be bound by a strict code of conduct guaranteeing authenticity and good title.

What are the requirements that dealers have to fulfil when buying antiquities?

Dealers must carry out due diligence. Due diligence is the accepted system of checks that trade professionals need to complete to ensure items they acquire are not faked, looted or stolen. Apart from using their own specialist knowledge and ‘eye’, this might include checking the object against an online database of stolen items, such as the Art Loss Register or Art Recovery, and collating any associated paperwork recording the item’s ownership history. As when buying any item, it is important for the customer to receive full details of the transaction including a warranty and receipt of payment. If export licences are needed then the customer should be made aware of these requirements.

What is provenance and why is it so important?

Provenance in this respect simply means the ownership history of a particular item. It is important because the more information we have about an item’s ownership history the more certain we can be about where it came from, and consequently whether it was obtained in questionable circumstances. In turn this allows collectors to judge the legality, morality and the investment potential of an item.

How reliable is provenance?

We find it useful to split provenance into three categories, which have an increasing level of quality:

 

Hearsay Provenance

  • This is when a dealer gives a rather vague provenance, probably restricted to date and location, for instance ‘collected in the 1930s, Munich private collection’, or such like. This is a weaker form of provenance because there is nothing to back up these kinds of claims. However, there are many valid reasons why this type of provenance may be given: Items may have been dispersed following a collector’s death, no invoices may have been kept, the collector may wish to remain anonymous or the item may have been bought from a secondary dealer who does not wish to disclose the name of the source collector.
  • Conclusion: This is the most common form of provenance given for lower value items, and buyers may expect it as a minimum. Dealers will often give this kind of provenance in good faith, but it is open to abuse by the unscrupulous. Responsible dealers will not hesitate to provide reference to this information on their invoices, providing some accountability when an item is guaranteed ‘as described’.

 

Named Provenance

  • This is when a person or collection is stated, such as ‘Howard Carter Collection’. This form of provenance is stronger because it allows a buyer to trace back to a place and time the ownership history of an item – in theory allowing the buyer to check to see if the claims the dealer has made are correct. The weakness of this provenance is that not all collections are well inventoried, so in practice it may be hard to check the dealer’s claims.
  • Conclusion: This form of provenance is harder to abuse for the reasons already stated and is therefore stronger. Buyers may still wish to ensure such claims are referred to in the invoice for future reference and by way of a guarantee.

 

Documentary Provenance

  • This is the strongest form of provenance and consists of evidence of provenance in publications such as scholarly journals, export licences, old invoices and old auction catalogues. This is stronger because it is hard to refute a dealer’s claims when a third party has documented proof of the existence of an object in place and time. The only weakness here is the unlikely event that provenance is faked by an unscrupulous individual. Whilst this is impossible for actual publications, there is the remote possibility that items such as invoices and export licences can be forged.
  • Conclusion:Provenance of this type will often add significant value to items.
What is the best provenance?

In terms of quality, the obvious answer to this is documentary provenance. However, the issue this question raises is an important one. The best provenance will come down to the particular item you are buying. If you are collecting comparatively cheap ancient coins it is unlikely that these will have been published, or even photographed in auction catalogues, so to expect documentary provenance would be totally unrealistic in the current market. On the other hand, if you are buying an impressive ancient Egyptian sarcophagus of high value, you could reasonably expect an old named provenance to substantiate the legitimacy of the item. The point is that just because an item lacks strong provenance does not mean the item is looted or illegal; a collector will need to assess all of the circumstances when deciding what standard of provenance is reasonable for each particular item.

Why do antiquities have special legal protection?

Ancient artefacts, including ancient coins, owing to their extreme age, are generally found in the ground, unlike other antiques which may be passed down from person to person. This may seem obvious but it is an important fact. Modern archaeologists place great importance on an artefact’s context, that is to say its geographical find spot and association with other objects/finds. Through careful excavation and consideration of an artefact’s context, archaeologists may discern valuable information about how/why/when an object was used, and in so doing can learn more about the people that created that object.

As any visitor to major museums will be aware, most major objects on display have little if any contextual information.

Archaeological norms, as well as the law, have moved on in the years since our major western museums and major collections were formed. Although in the past the authorities in many countries sanctioned the removal and export of artefacts without any form of recording or excavation, this is no longer acceptable.

International and national laws exist to protect objects from opportunistic removal (looting), and the resultant loss of context.

Although a majority of the antiquities circulating on today’s market will not have been recently looted, various levels of legal protection exist to stop illicit objects from entering into and circulating within this market. We aim to provide an overview below.

What rules or laws govern the trade in antiquities?

There is no short answer to this question; each country has reacted to this issue in its own way. However, most countries have been able to agree on some basic principles, which are enshrined in the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The important points are as follows:

  • The Convention is a piece of international law and therefore governs the relationship between countries rather than the people within those countries. This means it is down to each individual country to decide how to comply with their obligations under the Convention.
  • The Convention might be seen as a ‘trend setting’ or ‘normative’ piece of law, which, while not directly enforceable against individual persons, creates an environment whereby countries strengthen protection for cultural property.
  • Important provisions include Article 6(b), which requires countries to control the exportation of cultural property from their territory, and Article 7(b), which requires countries to prohibit the import of cultural property stolen from a museum, or similar institution.
  • Article 9 allows countries whose cultural property is in jeopardy to call upon other countries for assistance through measures such as export controls. This is the mechanism through which the USA forms bilateral agreements (see below).

Conclusion: The main point to draw from this is that the detail of particular legal protection is left to individual countries. This is apparent when we look at how two major commercial hubs for the antiquities trade have chosen to meet their obligations under the convention: The United States and the United Kingdom.

See also: BAMF Guide to UK Legislation as it Affects the Art Market

What UK law do I need to know about?

The UK decided that it needed no new legislation to comply with the Convention. However, to complement the existing law, it passed the Dealing in Cultural Objects (Offences) Act 2003.

The DCOA makes knowingly acquiring tainted cultural objects illegal, where tainted means an object has illegally been removed from a building or place of historical/archaeological interest.

This is not limited to the UK, i.e. the object can be tainted overseas.

There is a maximum 7 years imprisonment and an unlimited fine.

Under the Theft Act 1968 it is an offence to handle stolen goods for another’s benefit. This offence carries the higher penalty of 14 years in jail.

Following Council Directive 2014/60/EU, cultural objects classed as ‘national treasures possessing artistic, historic or archaeological value’ are liable to be returned to other Member States of the EU if they have been removed from that State unlawfully. After a Member State becomes aware of the location of an object, and the identity of its owner, there is a time limit of three years to make return requests. Claims cannot be made after an absolute time limit of 30 years unless the item formed part of a public collection.

Objects originating from Syria are subject to restrictions as required by (EU) Council Regulation No. 1332/2013 of 13 December 2013 amending (EU) Council Regulation No. 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria. The Iraq (United Nations Sanctions) Order 2003 prohibits the importation or exportation of any cultural property illegally removed from Iraq since 6 August 1990.

A UK export licence is required to export any archaeological artefact found in UK soil.

Where the archaeological artefact has not been found in UK soil but is located in the UK, an EU licence is required to export it outside the EU.

However, numismatic items of a standard type, as well as other objects possessing no “special features” and valued at less than £65,000, are excluded from the above requirement. This is because the UK has exercised its discretion to exclude them under Article 2(2) of the Regulation on the Export of Cultural Goods (EC 116/2009).

These and other items can be exported under the Open General Export Licence.

 

For further reading on this complex area, consult the Museums, Libraries and Archives Council website

What US law do I need to know about?

After signing up to the UNESCO Convention, the USA passed the Convention on Cultural Property Implementation Act 1983 to fulfil their obligations under the Convention.

This enables the USA to enter into so-called ‘bilateral agreements’ with other countries, which are simply agreements to restrict the importation of certain items into the USA.

Bilateral agreements are currently in place with Bolivia (2001), Cambodia (2003), Canada (1997), China (2009), Colombia (2006), Cyprus (2002), El Salvador (1995), Guatemala (1997), Honduras (2004), Iraq (2004), Italy (2001), Mali (1997), Nicaragua (2000) and Peru (1997).

Buyers may wish to consult these individual agreements when an item originates from one of these countries, particularly if the item left the country after the date of the agreement (in brackets).

There are US trade restrictions which currently prohibit the import of Iranian and Persian origin artworks, with no exemptions.

Other than this there are few export/import restrictions on cultural property, unless it has been stolen.

Under the National Stolen Property Act it is illegal to import stolen goods into the USA if the importer has knowledge that the item has been stolen.

This is particularly relevant when an artefact originates from a country with cultural patrimony laws, that is laws which vest all cultural property in the ownership of the state (e.g. Egypt).

Are there any cut-off dates I should know about?

This is an area that attracts much debate in the art world. Dates can be important, but placing an undue amount of reliance on certain dates can be misguided. The first point to make is that most laws are not retroactive, so they will only affect actions and events which happen once the law has been passed. So the dates of the aforementioned bilateral agreements will be important because it will only be after the date these agreements came into force that importation of certain objects into the USA is controlled.

The widespread adoption of the UNESCO Convention has however led to talk of a ‘1970 threshold’. This is a policy, initially led by some museums, to use the date of the UNESCO Convention itself as a cut-off point. Under this policy, artefacts without verifiable provenance dating prior to November 17, 1970 should only be acquired by the museum if they have proof of legal exportation from the country of origin.

The 1970 date is an arbitrary cut-off point, which has no legal basis/enforceability.

Collectors should treat this “threshold” in the same way they treat provenance in general – pragmatically and with a view to all the circumstances. Generally speaking, museums that use this date in practice are collecting antiquities of exceptionally high quality and importance. The vast majority of collectors will not be.

Just as museums have numerous policy reasons for adopting this cut-off, so the average collector has similarly justifiable reasons for not using it in every circumstance.

Nevertheless, collectors at the very top end of the market who may wish to bequeath their collection to a major museum should be mindful of this date when buying.

Where can I find out more?

The best place to start for basic information is government websites; both the USA and UK have explanatory information available and UNESCO provides a similar service.

In terms of ethics there are diverse opinions and readers may wish to search for relevant blogs to get some idea of the debate.

How do you find a reputable dealer?

We would advise using a member of the Antiquities Dealers Association (ADA) or a dealer who is a member of another recognised association that abides by a Code of Conduct as rigorous as that of the ADA, such as the International Association of Dealers in Ancient Art (IADAA). Their members will have a wealth of expertise and knowledge on the subject. These trade bodies set a strict Code of Conduct by which all members have to abide. You should use your own common sense and be mindful of the fact that there may be illegal antiquities on the market. Pay special attention to an item’s provenance when making the decision to buy.

What documentation is needed for an object?

Any dealer selling you an artefact should provide you with a detailed invoice describing the object and including information as to its age, materials, likely place of origin and giving any known past history of ownership, together with any other relevant information available and a certificate of authenticity. When buying any item it is important for the customer to receive full details of the transaction including a warranty and receipt of payment. If export licences are required then the customer should be made aware of these requirements.

The extent of the detail given may be limited because of factors described under the answer to the question What is provenance and why is it so important?

Do the objects need special care?

Any collectable needs a degree of care, but because of their age, materials and fragility, antiquities may often need more specialist care. The major factors that can lead to damage are temperature and humidity changes, strong light – especially direct sunlight, chemical exposure and physical stress.  

For most situations a glass or perspex (plexiglass) enclosed cabinet, out of direct sunlight, will provide adequate protection and minimise sudden changes in temperature and humidity. Cabinet lights should not be left on for extended periods, as this will increase the temperature and decrease the humidity. It is advisable to consult the dealer from whom you purchase your artefact as to what special care you should take of it.

Are antiquities a good investment?

Like all other collecting disciplines, values may rise or fall with time, but many antiquities have proved to be excellent investments because they have several of the qualities that most affect value, such as age, rarity and provenance. Having said that, we would always advise buyers to acquire objects primarily because they like them and are happy to live with them.

What are the benefits of buying antiquities for my private collection?

Antiquities have a great number of qualities that enhance the collector’s understanding of, and fascination with, the past. It is rare, indeed, to be able to handle such items or see them close up at any time – for the most part people are only able to view artefacts in museum cabinets. By becoming actively involved as a collector, you also contribute to the wider trade and world of antiquities, including museums and academia, which are inextricably linked in fostering scholarship, research and the preservation and conservation of artefacts. There is also the issue of value, but we only mention that in context of the caveats we set out under the question Are antiquities a good investment?

How does the trade in antiquities help the preservation of cultural heritage that wouldn’t find a place in a museum?

By placing a monetary value on artefacts, more care is shown towards them, they are seen as worthy of preservation. In some countries, historically, ancient sites were robbed for their raw materials. Once it was realised that these objects had value, the destruction often turned to a brisk trade, the governments usually the main beneficiaries. Artefacts were sold, museums were founded. The storerooms in most museums are still full of objects, some of high monetary value and others of low value. They often do not have the space, staffing or means to exhibit everything in their collections. Private collectors can aid in this preservation by owning and caring for pieces that would otherwise be placed in storage or hidden from public view if kept in a museum. Many dealers nowadays actively aid in preservation by fundraising for museums, by hosting their own private events and lectures and by contributing to research and scholarship. Many private collectors publish their collections as well as lend them to museums and institutions for further research, exchanging ideas and expertise with academics and the public alike.

Is it easy to export an antiquity from the UK?

A UK export licence is required to export any archaeological artefact found in UK soil.

Where the archaeological artefact has not been found in UK soil but is located in the UK, an EU licence is required to export it outside the EU.

However, numismatic items of a standard type, as well as other objects possessing no “special features” and valued at less than £65,000, are excluded from the above requirement. This is because the UK has exercised its discretion to exclude them under Article 2(2) of the Regulation on the Export of Cultural Goods (EC 116/2009).

These and other items can be exported under the Open General Export Licence.

The dealer or auction house you purchase from will inform you if an export licence is needed. Generally however it is relatively easy to export antiquities from the UK.

Is it easy to import an antiquity into another country?

With most countries and with objects of more modest value it is relatively easy to import into another country, although there are certain restrictions on the importation of antiquities in the USA see question What US law do I need to know about?. The dealer you purchase from will inform you of any import restrictions that might apply.

Are there restrictions on trading in ivory?

CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora) is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. Both the UK and the USA are parties to this Convention. There are both import and export restrictions applied to any antiquity containing ivory. Members of the ADA will advise you on licence applications if they are required.

https://cites.org/sites/default/files/eng/disc/CITES-Convention-EN.pdf

https://www.gov.uk/guidance/cites-imports-and-exports

https://www.gov.uk/government/news/uk-leads-global-crackdown-on-illegal-wildlife-trade

How can you tell where an artefact was found originally?

The type and style of object, including its materials, design and decoration, are likely to be associated with a known location or region, which an expert with specialist knowledge should be able to identify. Dealers will have a record of provenance or ownership history, for most objects and this may also include where the object was originally found. This is especially true for British antiquities and numismatic hoards, which will often be found by metal detectorists or members of the public.

Why is it okay to sell antiquities that were found a long time ago?

The short answer is that sometimes it is and sometimes it isn’t. The age of the object is not the determining factor. Instead, what matters is when it was first acquired and then circulated on the wider market. As opinions changed and adapted, so did the laws in many countries and gradually national and international laws and conventions have led to the reduction of newly found antiquities circulating on the market. Vast numbers of antiquities have been in circulation for many years and some for hundreds of years, providing the basis for what can or cannot be sold now. However, the reality is that the original export documentation and often the invoice are no longer available. It is only relatively recently that a fuller understanding of the importance of retaining paperwork has been appreciated. Many countries that at one time permitted the controlled export of antiquities issued a single licence for a crate full of antiquities with only the most basic listing of its contents. Invariably these documents have in the vast majority of cases were never seen as important enough to retain or they have been lost.

Do all antiquities held in museums have a good provenance?

Museums all over the world house artefacts from other countries. These objects portray civilisation and the fruits of our human endeavour, some of which may have been acquired by our forebears at times of colonial expansion, war and expeditions and during periods where there was no, or very little regulation on the acquisition of antiquities. However, it is these objects that form the basis of many museum collections.

 Although the UK has not yet ratified the Hague Convention, as an Association we abide by the tenets of this Convention, believing it to be of the utmost importance to protect heritage vulnerable to looting during times of conflict.

 There are a number of museums that have volunteered to be custodians of looted artefacts until such time as they can be safely returned to their country of origin. The ADA is fully supportive of these attempts.

How has an object of such great antiquity survived for so long?

The survival of an antiquity sometimes seems remarkable, but there are millions of objects that have been buried in the ground or in caves, lost by their owners but have now been found. The location, soil type, humidity etc. will have governed how well the item has been preserved.

Why not just all agree on the UNESCO 1970 cut-off date?

As explained under What rules or laws govern the trade in antiquities?, each country has reacted to this Convention in its own way. The list of all countries that accepted, ratified or stated notification of succession for this Convention is available here.

 Furthermore, under What UK law do I need to know about?, a brief definition of a cultural object (‘a national treasure possessing artistic, historic or archaeological value’) is stated. However, in the EU, what is a cultural object is ultimately defined by a Member State under national legislation rather than an all-encompassing international convention. Thus, every state has the right to decide for itself and choose not to have UNESCO Convention as a cut-off date, while still accepting the principles of the Convention.

 A number of archaeologically rich countries were enacting their antiquities legislation and export laws long after 1970. For instance: Egypt (1983), Israel (1978), Lebanon (1988) and Spain (1985). An all-encompassing ban on the circulation of antiquities dating back to 1970 does not have sufficient legal basis to make it either a legally binding date or a practical solution. The Handbook of national regulations concerning the export of cultural property (1988) is one of the most comprehensive documents available for advice and further research.

 An all-encompassing agreement for a cut-off date would have an additional impact on the circulation of many UK finds. Many items discovered in the UK are not deemed to be national treasures since they do not comply with the so-called Waverley criteria; that is: them being closely connected with our history and national life, having an outstanding aesthetic importance or having an outstanding significance in scholarship. (http://www.artscouncil.org.uk/media/uploads/Guidance_for_exporters_issue_2_2015.pdf) These antiquities can be everyday objects of lesser quality and with little or no scientific significance.

 The UK has one of the most effective and internationally respected mechanisms for recording archaeological finds that is deemed to be fair to the finder, landowner and national institutions alike. There is no benefit in a 1970 cut-off date for UK finds. For further information on how UK finds are recorded and what is regarded as treasure for which compensation may be available, please follow the guidelines provided by Portable Antiquities Scheme.

Isn’t it better to ban trade on items without proper documented provenance than to allow fakes and looted objects to slip through the net?

Documented provenance is simply one part of what constitutes due diligence (see What are the requirements that dealers have to fulfil when buying antiquities?). There are different types of provenance that might be weaker than the documented provenance, such as hearsay provenance (see How reliable is provenance?) but these other types of provenance can be strengthened using additional methods of due diligence. Documented provenance is the strongest type of provenance (for more details on this refer to What is the best provenance?), yet it is reasonable to discern that the cheaper, more frequently found and low-quality artefacts will not have articles published about them or an exhibition history.

Banning the trade in artefacts without documented provenance would not solve the appearance of fakes and looted items. The trade exists because there has been a centuries-long tradition of collecting in the UK as well as abroad. There will always be individuals who will look to obtain antiquities for their collections and it is better to allow an open, regulated market, rather than to let it become a clandestine activity dominated by the unscrupulous.

 It would also lead to a further devaluation of the artefacts and to their destruction in the ground unless it is of a precious material, which could be re-used in a different guise. There needs to be a pragmatic approach to the protection of cultural heritage. Outright bans do not work and the criminalisation of the law-abiding does not prevent criminal activity but only serves to erode our democratic freedoms.

 The ADA has a robust Code of Conduct and has the expectation that its members will conduct their business using the highest standards of due diligence with sanctions in place if the Code is breached. The ADA is in regular contact with the authorities and we will continue to work hard to ensure that our organisation reflects the high standards expected of us.