The June 30 House of Lords debate on the Revocation of the EU import licensing regulations within the UK has summarised neatly the problems with this law.
In his statement to his peers, government whip Lord Parkinson of Whitley Bay said the government hoped to bring clarity to what was required under UK law by the changes.
Some of his fellow peers argued that revoking the law in full meant weakening the UK’s defences against crime. However, Lord Parkinson said the EU legislation would create “complexity and confusion” at borders, and two important reasons persuaded the government to go for full revocation.
The first was that “the provision applies to almost all cultural goods created or discovered in non-EU countries, regardless of their age, value or date of export, and because there is no requirement in the regulation for any person to provide evidence to demonstrate either lawful export or unlawful removal from the country of creation or discovery”.
This meant that in the event of a claim of unlawful export, it was not clear where the burden of proof would lie or what evidence would be required.
“These issues could result in cultural goods being delayed or detained at the border, and might deter people from importing cultural goods to sell in the UK art market or museums from lending objects for exhibitions in this country.”
Success of existing legislation
The second reason for revoking the law was that provisions the UK already has in place are proving successsful.
“The effectiveness of our existing legislation was demonstrated very recently, when we returned to Libya a statue which had been unlawfully removed from that country and which was found and detained by HMRC at Heathrow Airport. This is only the most recent example.”
In the latest round of consultations with the EU over the upcoming 2025 enforcement of the import licensing regulations, the ADA and others have been at pains yet again to demonstrate how unworkable the legislation is.
The objection is not to the protection of borders and fighting crime, but to the impossibility of the compliance demands, the net effect of which would be to destroy much of the art market within Europe. It is this aspect that those objecting to the revocation in the Lords do not seem to grasp.
So far the European Commission has signed serious concerns raised in previous consultations, including earlier this year.
Still not resolved is exactly what documents will be required for legal import. Article 8 (1) d of the draft legislation states that “Other types of documents to submit in support of an import licence application may be, but are not limited to the following” before listing 11 different types of document that must be submitted for approval.
Numerous other problems remain within the draft legislation, from uncertainty over the number or location of customs offices to how property would be marked, as well as very onerous compliance measures that would make a vast number of imports uneconomic.
In what is arguably the most significant article on cultural heritage in the past month, Peter Tompa’s Art Newspaper comment on July 22 explains what is wrong with US policy and how to begin to put it right.
Tompa, a cultural heritage lawyer and the executive director of the Global Heritage Alliance, analyses the United States’ approach to cultural policy and how that affects attitudes and the market.
At the heart of his argument is the need to deal with the in-built bias against the market among the advisory and decision-making bodies that help formulate policy in the US. He targets, in particular, Memoranda of Understanding that ramp up import restrictions come up against Constitutional rights.
“These restrictions deeply concern collectors and the trade because they do not focus only on artefacts proven to be illicitly exported, but also embargo any items of a similar type that enter the US from legitimate markets, particularly those in Europe,” Tompa writes.
While this can affect legitimate market activity, dealers and collectors are not the only interested parties here: “…recent MOUs with some Middle Eastern and North African governments, such as Turkey and Egypt, have riled the representatives of displaced minority religious and ethnic groups, whose personal and community property has been seized by those same authoritarian governments.”
Tompa acknowledges that the US rightly has a significant duty to take a leading role in fighting the looting of cultural objects, especially as part of its recognition of ethnic and religious minorities. But he argues that this can be done in a more effective way that is also less damaging to legitimate market interests.
Firstly to broaden the representation on Washington’s influential Cultural Property Advisory Committee (CPAC). Currently, it has no market professional on it. “The sole representative of the trade is a collector, and no dealers have been appointed to the committee for years,” he explains.
Import embargoes are also too broad and bloated rather than targeted at where the potential problem lies, and they do not help protect vulnerable sites. The incoming US Assistant Secretary for the Bureau of Educational and Cultural Affairs, Lee Satterfield, who will oversee this sector “should refocus current import restrictions back to narrow ranges of culturally significant items that have proven to be illicitly exported,” argues Tompa.
His third priority is for the US government to give at least as much consideration in policy formation to ethnic minorities and exiles living abroad as it does to foreign state interests.
“The assumption that nations are great protectors of cultural property is all too often misplaced,” he writes. “In countries where minorities have been driven into exile by authoritarian governments, it makes no sense to recognise the rights of those governments to the material culture of displaced communities.”
How far Tompa’s concerns will be listened to is not clear. What is clear, however, is that cultural property protection is not a standalone issue; it is clearly tied up with international economic and political interests that can dictate policy in what is an area of soft-power diplomacy. Because of this, the valid public interests within the cultural sphere continue to be at risk.
When Eurojust announced that a Belgian collection of nearly 800 Apulian artefacts valued at €11 million had been seized and returned to Italy, it appeared to be a major victory for the Carabinieri and EU law enforcement.
However, dig deeper and all is not what it appears.
At the heart of this case is a stele, which has been part of this collection for decades. It had some missing features that matched fragments on display in a museum in Puglia. The implication? The stele must have been exported illegally: “The missing part enabled authorities to make a link to the artefact displayed during the expositions and led to the Belgian collector,” Eurojust explains.
What came next sounds dramatic: “At his premises, the investigators found the main part of the tombstone and were able to match this to the parts displayed in the Italian museum. During the investigations, a further vast collection of illegally excavated artefacts and pieces of pottery was found, dating to between 600 and 300 B.C..”
Establishing judicial co-operation between the Belgian and Italian authorities led to the entire collection later being shipped to Italy.
However, despite the claims, questions remain over what really happened.
A separate source has told IADAA that far from being shown to be illicit, the collection was shipped to Italy “for further research”, with claims that it was illicit and seized coming only after the shipment had taken place and without any evidence being provided to support the claim. The shipment included artefacts from Turkey, with no explanation as to why they were being seized by Italy.
As CNN reported, “the stele was listed in the catalogue for an exhibition held at the Rath Museum in Geneva, Switzerland, from November 1993 to February 1994, and an exhibition at the Mona-Bismarck Foundation Museum in Paris, France, from March 1 to April 30 1994.”
Applicable laws appear to have been ignored by the authorities
Article 7 of the European Union’s Regulation 93/7, which applied at the time, stipulated that Italy would have one year to file a claim for its return. It did not do so. Even under the updated Regulation 2014/60, which extended the claim period by three years, the current Italian claim is at least 25 years too late.
It is also odd that the authorities state that an investigation helped them identify the collector when the collection had been published and exhibited for decades. The collector had even published his name in association with it in the process.
Regardless of the stele itself, questions remain over other items in the collection. Most notably, the numerous black figure Attic vases have origins that are particularly difficult to establish, making it highly unlikely that any evidence exists to show that they were obtained or exported illegally.
Meanwhile the Art Newspaper’s coverage sheds some more light on what appears to have happened. According to its report, “782 items were identified in the collection that could be considered Italian national heritage, and as such had been exported illegally”.
“Could be considered”? And “as such”?
What this appears to reveal is that the collection – the owner is not a dealer despite the headline – has been deemed illicit because of its quality and importance, not on the grounds of illicit export.
Did the Art Newspaper correspondent ask the authorities what actual evidence they had that the collection was illicit? If so, what was it?
Italy’s first comprehensive cultural heritage law restricting exports (Law No 364/1909) came into force in 1909. Unless the Carabinieri, Eurojust and other law enforcement are in possession of evidence that the items in this collection were exported against the law after that date, the seizure would appear to have been made on no more than supposition. If so, a legitimate collector has been deprived of his long-held collection, valued by the authorities at €11 million, as a result of what would seem to be no more than nationalism and cultural piracy.
At the very least it would seem reasonable for the authorities to publish their evidence in such a significant case.
Due process must be protected: if the collection has been looted, then it has been rightly returned; if not, then significant reparations need to be made and a public investigation launched into how such a miscarriage of justice can not only take place but be promoted by the authorities in such a misleading way.
Following her involvement in the February conference to mark 25 years of the UNIDROIT Convention, ADA chairman Joanna van der Lande was invited to contribute a major article on the history of the antiquities trade, including the issues that have dogged it over the years and how attitudes have developed along the way.
To be published by UNIDROIT later in the year, it has been previewed in three parts by Cultural Property News.
A fascinating seminar hosted by London law firm Maurice Turnor Gardner LLP on April 29 invited legal experts to consider issues arising out of the seizure and return to Iran of the Persepolis fragment in 2017 and 2018. Subscribers can read the background to the case in the Art Newspaper.
What the panellists were there chiefly to debate was conflicting jurisdictions and how to negotiate them. Although at least one of the panellists, Fionnula Rogers (Consultant lawyer in the art and cultural property group at Constantine Cannon and Chair of UK Blue Shield) argued that although the UK courts could have become involved, essentially the case initially appeared to put the Quebec civil code and New York State law on a collision course.
Alexander Hermann, Assistant Director of the Institute of Art & Law, argued that under the former, clear title is likely to have passed to the Montreal Museum of Fine Arts in 1951, thence to AXA Fine Art in 2014 and so to the dealers Rupert Wace and Sam Fogg in 2016. If that law had prevailed, there would have been no case to answer. However, under New York State law, because there is no statute of limitations for theft, title would never have passed from Iran, hence the seizure by the Manhattan District Attorney’s office when the relief was sent for display at TEFAF New York in 2017.
Setting any public disputes about who knew what and when in the process of the dealers consulting academics on the status and history of the relief fragment, and the fact that it had been publicly displayed in the museum and then at fairs in London and the Netherlands over a period of decades, Rogers noted that Iran may have waited to act until it was sent to New York because the chances of a successful legal outcome would have been greater there than elsewhere.
She cited an example where the owner of another disputed piece won her case in London because the UK court had decided to apply French law rather than Iranian law. This was because the disputed piece had been sold in France, under the application of whose law in her case she had acquired title regardless of the original theft contrary to Iranian law.
Dealers volunteered to return the relief fragment
In the end, the 2017/18 New York case never concluded as the dealers voluntarily ceded the relief fragment to Iran in the face of clear evidence of its being located in Persepolis after Iran’s 1930 cultural protection law would have prevented its legal export without official sanction.
However, as the panellists also noted, just as interesting were the arguments over the levels of due diligence carried out by the dealers. While this had been extensive, the DA’s office argued that it had been insufficient under New York standards, even though the transaction in which the dealers had acquired it had taken place elsewhere. Was it reasonable to have expected the dealers to have taken into account many or all other jurisdictions across the world in approaching due diligence at the time of buying it, Rogers asked. She suggested that although many countries have still not ratified the convention, UNIDROIT’s standards here might well help.
Also of interest was the role of the Oriental Institute in Chicago, among whose digital files the relevant photos of the fragment in situ in Persepolis eventually surfaced.
Wace and Fogg had been criticised for not checking the archive properly. However, as Rogers pointed out, when the Oriental Archives reported the 2011 theft from the Canadian museum, they themselves did not make the connection between the relief fragment and what was in their archives even though they were in the process of digitising them at the time. And it was also noted that the time and effort required to source the images in the archive was not as simple as had been assumed.
Rogers, Hermann and their co-panellist, Ed Powles, Partner and Head of Art & Heritage at Maurice Turnor Gardner, then looked at what the trade could do to avoid being caught up in these complex situations of conflicting laws. Hermann advised buyers and sellers to protect themselves with contractual clauses covering warranties of title and implied warranty of quiet possession. Rogers suggested adding a warranty of marketable title to cover situations where any challenges could delay or interfere with transactions, while all three agreed that contract terms should stipulate whether they applied to just the jurisdiction of the transaction or other jurisdictions as well. Title insurance would also be a good idea, advised Hermann.
Powles argued that the relief fragment case showed that title may not always be the robust concept that it sounds and that there is no universal concept of title.
Moral and ethical arguments took precedence
Ultimately, moral and ethical considerations overtook any legal arguments in returning the relief fragment, they agreed, but along with the changing cultural heritage landscape globally, the case pointed to the need for clarity on what constitutes reasonable due diligence across jurisdictions.
Hermann stressed that increasing regulation, such as the European Union’s new import licensing laws, would have prevented such a case arising today because it would not have been possible to import the relief into the EU (including the UK at the moment, which has enacted part of the law) without an export licence or clear evidence showing legal export from Iran.
Powles concluded that we have reached a point in time where different standards may start to apply as cultural heritage issues increasingly occupy stage centre in the political and legal sphere.
Rogers approved of UNESCO’s recent pledge to work more closely with the market in search of solutions as a more constructive way forward.
The seminar was especially successful at showing in microcosm the frequent flashpoints between the market, countries of origin, academics and others as they argue over conflicting rights.
Iraq is having a problem encouraging young Iraqis to train as archaeologists, according to the country’s internal media. The cause? Those who train cannot find work.
This is an astonishing state of affairs bearing mind the crying need for new domestic talent and expertise, a long-term plan for conservation and preservation, in keeping with the country’s Article 5 obligations under the UNESCO 1970 Convention and the vital importance of cultural heritage tourism to the future of the county’s economy.
“Many of Iraq’s world heritage sites lie in ruins three years after the collapse of the Islamic State and thousands of mounds conceal remnants of ancient cities,” says Al-Fanar Media. “The sites are under threat of looting and need teams of experts to unveil their treasures. But fewer young people want to study archaeology in what is regarded as the cradle of civilization, and jobs are scarce for those who do.”
Meanwhile field excavations continue, led by teams from the United Kingdom, the United States, France, Italy, Germany and the Czech Republic.
The experiences of one candidate explains their discouragement: “The graduates’ situation is painful,” Al-Obaidi said. “There are no public or private jobs for us. It has become a joke for an archaeologist to apply for jobs.”
The extent of the problem is illustrated by the University of Mosul intake: “only 28 students out of 17,000 students joined the College of Archaeology this year, according to its president, Kossay Al-Ahmady.”
“Usama Adnan, an assistant professor of history at Al-Mustansiriyah University, says the admission of only a handful of students in some of Iraq’s archaeology schools stems from “a lack of archaeological awareness.”
Al-Ahmady believes that poor pay is one of the reasons that put potential archaeologists off. Others experts give their reasons too.