It is astonishing that so many of the high level art market seminars and conferences being held across the world – and notably in the UK and Europe – fail to address what is likely to be the biggest issue for those concerned next year.
For all the talk of AI, the rise of the Middle East as an art hub and the role of art advisors, no one seems interested in the one thing that might bring the whole transnational market across Europe to a juddering halt: the enforcement of EU Reg 2019/880 on the import of cultural goods.
Nominally introduced to fight terrorism financing (for which there has been no evidence) and money laundering, the unrealistic demands of the regulation when it comes to import documentation mean that honest market professionals will find themselves unable to send works they have bought or sold to the EU.
By now, member states within the EU should be on top of this law. They need to know what impact it will have on their resources when it comes to assessment and Customs, and they need to have a clear idea of exactly how they will enforce the law so that the roll-out across the 27 EU countries will be uniform or at least harmonised so that they do not unwittingly create weak spots for entry that might attract criminals.
Guidelines promised in September have still not appeared. Behind closed doors, industry professionals are horrified at the state of affairs and find themselves unable to submit to the legal liabilities that signing off import documents will bring.
Advice from the authorities in Brussels has been conflicting – and those receiving it do not know if what they are being told is simply the interpretation of officials or binding law.
Too many questions remain unanswered as we approach the New Year, with an enforcement date of June 28. We are promised a set of guidelines before Christmas, but will they be enough?
Key questions that need answers now
Here are some key questions that still need to be settled:
– Who must sign off on the terms and conditions of import? The buyer? The seller? An intermediary such as an auction house?
– How can a buyer who has not personally inspected the goods they are importing, or does not have absolute knowledge of the accompanying documentation and its reliability prior to import, accept legal liability for its validity – to the point of risking criminal prosecution if it is not?
– Why would an auction house expose itself to such liability on behalf of a buyer or seller?
– Will the EU and its member states, including their Customs teams, accept third-party affidavits as sufficient evidence of legal export in order to solve the issues set out above?
– The regulation separates antiquities from archaeological artefacts and applies differing rules to each. However, it does not define how they are different. Will it accept the standard difference as set out in the complementary EU export law (116/2009)?
– How does the regulation distinguish between antiquities and antiques? This also remains unclear.
– Existing Customs codes do not distinguish between non-EU origin items, to which the new regulation applies, and EU-origin items which are exempt. How will Customs officers, who do not have relevant expertise in this area, decide what to do?
While some of the above may seem fairly technical, these questions go to the heart of the import process. The lack of clarity means deep uncertainty over whether goods will be blocked or even seized at the border, or delayed, in some cases for up to five months.
Just as uncertain will be the costs involved, while the administrative burden for those completing the paperwork is daunting. As one leading insurance broker concluded: “This would be a total non-starter for the art market.”
Already some members of the trade have said they will not import to the EU. While that may mean more business for non-EU art market centres like London, it would be a disaster for Paris, which has seen an uptick in its global share since Brexit. Ultimately, though, as a global industry, a law that proves insurmountable in a leading market jurisdiction will be bad news for us all.
If you want to get an idea of how enforcement might work under the European Union’s new import licensing regulation after June 28, 2025, here is a cautionary tale.
Earlier this year, a dealer in Paris bought two fairly inexpensive canopic jars from their California-based owner, whose great grandfather – a friend of the celebrated Egyptologist and finder of the tomb of Tutankhamun, Howard Carter – had had them in his possession for many years.
The jars were despatched to the dealer in Paris at the beginning of May. The dealer was soon notified of their arrival in Paris, but they never made it as far as the gallery.
It turned out that they had been held by Customs for inspection, and the dealer duly offered Customs all the paperwork they had for them. The Customs officials did not require the paperwork, wanting only proof of purchase, which was duly supplied. They continued their inspection and checks, which included contacting the Egyptian authorities to see whether the jars had been listed as stolen or illegally exported.
After two months, satisfied that jars had been legally sold and imported to France, Customs released them back to the courier service, but again they never arrived.
Having heard nothing, at the end of July the dealer contacted the courier service to find out what was going on, only to be told that they would soon be delivered but that delays were due to the shipping agent being on holiday.
Knowing that they were about to leave on holiday, the dealer advised the courier service that they should ensure the packages be delivered no later than August 4. Although reassured that this would happen, they did not arrive by the deadline.
Service proves ‘undeliverable’
When the dealer checked again with the courier service, they said that they had attempted to deliver them but the address was wrong. The dealer then confirmed the delivery address but asked for the packages to be held until their arrival back from holiday at the end of August, a request registered with the tracking service. Despite this, three further attempts were made to deliver the packages without any effort to try to contact the dealer, and the packages ended up back in storage. On August 20, the shipping company deemed the packages ‘undeliverable’ and decided to send them back to the USA.
By coincidence, a shipping agent at the airport in Paris who had been involved in the earlier Customs checks had spotted the packages being returned and stopped them, contacting the dealer by email on September 2 to let them know, and confirming that they would be returned to the courier service once more for delivery the following day.
Again, the dealer heard no more and the packages never arrived.
Contacting the courier service once more, they learned that the packages had been dispatched to the airport again for return to the USA.
This time the dealer emailed the same shipping agent, who said that they would try to get them off the plane, later confirming that they had managed to do so. Refusing to leave anything further to chance, the dealer then went to the airport to pick up the packages in person but found that one was missing. They were told it had probably already been sent back to the USA. On inspecting the other package, they found that Customs had not repacked it properly and its contents were broken.
So despite clearance from Customs after inspection and contact with the Egyptian authorities, one package has now been returned to the USA where, according to the US Memorandum of Understanding with Egypt, it risks being seized at Customs and sent back to Egypt, while the other has been mishandled and, far from being protected under the Customs process, has instead been destroyed.
This is just one example of the problems faced by art market professionals when importing to the European Union. What will it be like after June 28, 2025, when Customs will have to check a vast number of additional packages it has not had to deal with before?
Deals between countries to protect cultural property are not all that they seem
The United States has just signed off on its latest cultural property bilateral agreement, this one with India. These Memoranda of Understanding seek to protect cultural patrimony and confound crime – at least that’s what the headline is. In reality, they serve a less publicised purpose: oiling the wheels of international diplomacy and geopolitical influence. In doing so, the rights of innocent private citizens are subsumed to what is questionably viewed as the wider interest.
Note the conditions of this latest MoU, as reported by Indian media outlet uktarsh.com:
“Under the Cultural Property Agreement the USA government will return to India any Indian artefacts which have been mentioned in the Designated list of the USA government as per the Cultural Property Agreement.”
What is on that Designated List?
Identified archaeological material from 1.7 million years ago to 1770 Common Era (CE); and
Identified ethnological material, such as religious, civic, and royal architectural material, religious material and ceremonial items, and manuscripts, from the 2nd century BCE (Before the Common Era) to 1947 CE.
India banned the export of archaeological objects under its Antiquities and Treasures Act, 1972, which was updated in 1976. Further restrictions came into force under the Foreign Trade (Development and Regulation) Act, 1992 and the Import-Export Policy 2015-2020.
India also ratified its state membership of the 1970 UNESCO Convention on cultural property on January 24, 1977.
Anything found to have been exported illegally under these laws would understandably be subject to recall. Official statements and media reports relating to the MoU refer to it in terms of reclaiming only illicit material smuggled out of India. The US Embassy in India confirmed this in its official statement: “Cultural property agreements prevent the illegal trade of cultural property and simplify the process by which looted and stolen antiquities may be returned to their country of origin. The United States has been unwavering in its commitment to protect and preserve cultural heritage worldwide and to restrict trafficking in cultural property.”
However, cultural exports took place legally for centuries before these laws ever existed. The problem with the MoU is that it intends to reclaim those items too. This will happen at the point of entry to the USA, where, under the terms of the MoU, Customs will have the power to seize any item on the Designated List (see above), wherever it is being imported from at this stage, and regardless of whether it was originally sold and exported legally from India.
How these bilateral agreements really work
So let’s be clear about what this means.
Take for example a fourth-generation Indian family living in the UK whose heirlooms include antique cultural items brought over from India legally by the original immigrants at the end of the Second World War. Since that time, some members of the family have emigrated to the United States. There, a descendant has inherited one of the heirlooms from a grandparent in the UK. As they import it to the US, it is seized at Customs and, under the terms of the MoU, returned to India.
Now note the officially stated objectives of the MoU, as set out above and repeated here: “Cultural property agreements prevent the illegal trade of cultural property and simplify the process by which looted and stolen antiquities may be returned to their country of origin. The United States has been unwavering in its commitment to protect and preserve cultural heritage worldwide and to restrict trafficking in cultural property.”
In this case, the property was not looted, stolen or trafficked; it was the legal property of the family in question. So where is the justification for the seizure?
Under Article 17.2 of the Universal Declaration of Human Rights, to which the Unites States is a signatory, “No one shall be arbitrarily deprived of his property”. But what does “arbitrarily” mean here?
With no evidence to show a crime, and under the general principles of law, can it really be argued that the item in question should be seized, especially when those introducing the MoU have clearly stated that its purpose is to restore stolen and trafficked items? Wouldn’t such actions be arbitrary and so in breach of the UDHR?
In February this year, Cultural Property News published its in-depth analysis of the background against which the USA’s MoU with India was established. This shows just how many questions remain unanswered in this debate, including why source countries’ are increasingly allowed to rely on such undemocratic bilateral agreements in place of acting responsibly and fulfilling their own obligations in this context.
A telling point in the CPN analysis is as follows: “Virtually all the objects named on the proposed Designated List for India were made for trade as much or more than for domestic use. Is it the intent of the CPIA to reverse the trade of centuries, even millennia, and claw back trade goods made between 75 and 2000 years ago?”
One of the reasons that MoUs remain popular – and the US now has around 35 of them relating to Culture – is that few understand their true consequences. While their stated aims may be laudable, in practice their terms and execution can be anything but.
In an article published by Cultural Property News on August 26, collector, lawyer and campaigner Peter Tompa considered the problem of returning cultural goods to failed states under US policy: “If the point is to protect cultural heritage, a MOU with Lebanon makes absolutely no sense,” he quoted the late Presidential candidate Bob Dole in his criticism of the State Department over the issue in the 1980s. Debating the problem with Senator Daniel Patrick Moynihan at the time, it is clear that Dole had a firm grasp on how the credibility of seemingly well-intentioned transnational agreements like these can fall apart at the slightest scrutiny.
It’s worth remembering that delay: 52 years plus three weeks.
And it’s well worth revisiting the terms of the Convention because so many people these days misinterpret it for their own ends.
As its articles set out, it was designed to protect exceptional objects – national treasures specifically designated as important in published lists by the countries where they originated (Article 1). Today those campaigning against the art market argue that it covers every last commonplace artefact: it doesn’t. What’s more, few if any States Parties have submitted such lists of important works.
States Parties to the Convention make seven pledges under Article 5. These include a further commitment to keeping an updated national inventory of protected property (few, if any do); organising the supervision and protection of archaeological excavations (few do); and ensuring that interested parties such as curators, collectors and the market observe the principles of the Convention (these parties tend to do this themselves).
Article 6 commits States Parties to introducing a system of export licensing that includes the issuance of an export certificate or licence (only some do).
Article 7.b(ii) introduces one of the key elements of the Convention: “The States Parties to this Convention undertake: at the request of the State Party of origin to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.” [emphasis added].
The words highlighted here in Article 7.b(ii) are vital. They show that the terms of the Convention only apply to a State Party after it has adopted them into its national legislation either automatically or via ratification. So, in Kenya’s case that is May 15, 2024.
Who signed up to the Convention and when?
The adoption list shows that the first countries to adopt the Convention were Bulgaria, Ecuador and Nigeria, which did so on the first day of enforcement, April 24, 1972.
Apart from Kenya, countries that have ratified or accepted the Convention much more recently include Switzerland (2004), Afghanistan (2005), Germany (2008), The Netherlands (2009), Austria (2015), Ethiopia (2018), Yemen (2019) and Malawi (2022). Many countries in Africa and Asia did not accede to the Convention until the 21st century.
An interesting case in point is Egypt, which did not accept the Convention until July 5, 1983. Up to that time, not only had Egypt overseen a system of licensed dealers selling antiquities for legal export, it even ran a saleroom from the Cairo Museum. The picture here shows a visitor inspecting items for sale there around 1965.
Why is this important? Because under numerous proposals now being made – in particular via Regulation (EC) 2019/880 within the European Union – a widespread attempt is being made to enforce the terms of the Convention on a global basis from April 24, 1972.
This means imposing its rules on States Parties that have not agreed to such a move. In Egypt’s case, it will effectively outlaw any item sold and exported legally from Egypt in the 11-year period between 1972 and 1983 for which documentary proof to the standards demanded today cannot be provided to show that the purchase and export were legal. In reality, that will mean just about everything, because the export licence, which it would be essential to produce today, probably no longer exists and, in the extremely rare cases where it did, it would probably not have sufficient identifiable detail to meet the exacting standards now imposed for import.
It should be remembered that in 1980, for instance, no requirement would have existed to retain an export licence once used – indeed it would have expired. (Even today no requirement subsists to retain such licences once used and expired.) In many, if not most cases, a single export licence would have covered multiple items, and so would not have stayed with any or all of them once the export/import process had been completed. Items then sold on to new owners legally would not have been accompanied by the export licence, and many of these items would have changed hands several times since.
The challenge for the private citizen
How would a current owner supply the required proof under such common circumstances?
The retroactive application of the 1970 UNESCO Convention terms by national law enforcement bodies such as customs would effectively outlaw objects that have been exported and traded since entirely legitimately. Such an imposition would be in direct contravention of human rights conventions (as well as basic principles of international law) to which the countries imposing these new rules are signatories. As a reminder, Article 17.2 of the Universal Declaration of Human Rights states: “No one shall be arbitrarily deprived of his property,” while Article 1 of the Protocol to the European Convention of Human Rights states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
‘Arbitrary’ has a meaning that includes “unrestrained and autocratic in the use of authority”, while “general principles of international law” include the concept of innocent until proven guilty.
By retroactively outlawing legitimate activity and doing so in a way that an individual cannot demonstrate their innocence, the authorities effectively breach the human rights conventions, yet this is what is proposed.
It should also be remembered that the articles of the UNESCO Convention were drawn up specifically to prevent such an imbalance of interests, as noted by one of its architects Mark B. Feldman in his 2023 book Footnotes to History.
Under Article 7.b(ii) of the Convention, in Kenya’s case, its terms should only apply from May 15, 2024, not 52 years ago.
As we celebrate the 52nd birthday of the UNESCO Convention on the means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, it is timely to remind those who support its aims that they should follow its terms and not abuse it for their own undemocratic ends.
Published last year and highlighted in a recent talk is the fascinating book by Mark B. Feldman, Footnotes to History: Law and Diplomacy.
Feldman has been engaged in U.S. foreign relations law and transnational litigation since 1965, including 16 years at the U.S. Department of State, where he played a pivotal role in developing the concept of the bilateral treaty and the 1970 UNESCO illicit cultural property Convention.
More than 50 years on from his work on the UNESCO Convention, he shares his thoughts on its origins and objectives, as well as what he thinks now.
When the idea of the convention arose, Feldman noted how museums, collectors and dealers feared that a clampdown via UNESCO “would lead to demands for the repatriation of the great collections of ancient art in the United States and Europe”.
He clearly saw his role as balancing interests, describing how he brought together stakeholders across the American art world – archaeologists, art museums, antiquities dealers, and attorneys – later co-authoring a report, which addressed a bilateral treaty with Mexico; an Act of Congress prohibiting the import of Pre-Columbian sculptures from Latin America without the permission of the country of origin; and a multilateral UNESCO Convention based on the principle of non-retroactivity with import controls on archaeological materials threatened by pillage.
Original objectives of the Convention lost over time
Feldman was precise and targeted in his approach. On the pre-Columbian Act of Congress, he writes: “It was the first step by any art importing country to address illicit trade in stolen cultural property, but the reciprocal obligations ‘to recover and return’ were limited to pre-Columbian and colonial objects ‘of outstanding importance’ [and official archives] that had become government property in the other country.”
The bilateral treaty with Mexico was “in practice” a one-off, and has been superseded by “more aggressive actions by U.S. agencies”.
He is enlightening on just how ambitious original plans for the UNESCO Convention were, explaining that the Secretariat “proposed a comprehensive scheme, brutal but coherent, that would have required all parties to refuse import of any cultural property, broadly defined, not accompanied by an export certificate from the country of origin”.
Needless to say, art rich countries blocked measures that they considered would destroy the international art market.
The United States continued to take the lead, drafting a compromise convention.
“The most fundamental points were two: first the convention would not be retroactive – acquisition guidelines would be forward looking – and two, import controls would be limited to cultural property stolen from museums and to specific categories of archaeological interest threatened by pillage to be determined by agreement among the countries concerned.”
Even at that point, however, the antiquities trade was alert to potential abuses. Feldman describes how dealers were “always doubtful about the convention” and “opposed import controls because they feared the State Department would use that authority as a bargaining chip for diplomatic purposes unrelated to protecting the cultural heritage…”. Prescient indeed.
How the concept of bilateral treaties backfired
The U.S. market was also concerned that as it abided by the terms of the convention, others would not, putting it at a competitive disadvantage, leading to Feldman proposing that the State Department “make bilateral agreements for import controls with countries damaged by pillage of their cultural heritage”.
Next came the establishment of the Cultural Property Advisory Committee (CPAC). The idea was for it to be a bulwark in defence of the art market, but, as history, has shown, if anything its role has been the opposite.
“Over the years the State Department has negotiated dozens of bilateral agreements and there have been numerous complaints that State has abused the process for diplomatic reasons as the dealers originally feared,” Feldman accurately observes, as he acknowledges that times have changed, and the behaviour of the trade and wider market “has got a great deal better.”
He also considers that current U.S. policy on cultural heritage protection in relation to foreign patrimony is out of step and “contrary to the U.S. position negotiated in UNESCO in 1970 and adopted by Congress in 1983.”
Many in the market hope that the State Department will take as much notice of what Feldman has to say today on these matters as it did in the late 1960s.
•The false claim that illicit trade in cultural property is third only to that in drugs and weapons
So many conflicting claims have been made about Interpol’s art crime figures, including the looting and trafficking of antiquities, that it is difficult to know what to believe these days.
Part of the problem was that for years Interpol published conflicting claims on the Art Crime home page of its website, as the screenshots here show:
Headlining was the claim that “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods”. Earlier claims by Interpol valued the global illicit market in cultural property at around $4 billion to $5 billion annually.
This has never been true, and recent figures in the World Customs Organisation’s annual Illicit Trade Reports demonstrate this clearly. In fact, cultural property crime, which includes categories such as household goods is, by a very long way indeed, the smallest risk category.
The admission that Interpol has never had any figures to demonstrate its headline claim, nor is ever likely to obtain such figures, appeared in a click-through section lower down on the same page (see above).
Unfortunately, bodies such as the European Commission, the Carabinieri and UNESCO have promoted the headline claim while ignoring the admission lower down, leading to the widespread dissemination of what amounted to a false claim. This matters because the false claim has directly influenced new policy and further restrictions on the art market.
Fortunately, after having the discrepancy pointed out to it for several years, Interpol finally removed the conflicting claims from its website in March 2019. However, the headline claim’s pervasiveness, in what amounted to a long-term viral online campaign against the art market, means that it is still widely quoted and believed to this day.
Transnational operations (Operation Pandora etc)
For the past decade and more Interpol has co-ordinated with Europol and national police forces in dozens of countries on an annual basis to mount operations aimed at stemming the flow of illicit cultural property that might be involved in money laundering and terrorism financing.
With names such as Odysseus, Athena and Pandora, these huge operations target individuals, households, business and transport. The resulting media releases enumerate vast numbers of seizures, as well as arrests, while also providing examples, including photographs of important items that have been seized.
While this all looks impressive, what neither Interpol nor Europol have ever done is to follow these data up with the crucial information about how many of these seized items later turned out to be illicit and linked to money laundering or terrorism financing. Nor do they ever publish conviction rates for those arrested.
The ADA and IADAA have twice asked Europol for these figures.
The first occasion was in February 2017, when Europol told us: “As your questions are very detailed and some are focused on particular countries, I suggest you get in contact with the countries involved. We can only communicate on a general level and don’t hold all the details of the different participating countries.”
The second occasion was in May 2023, when Europol told us: “Unfortunately, we won’t be able to help as we do not have these figures. Europol is not a statistical organisation – Europol’s priority is to support cross-border investigations and the information available is solely based on investigations supported by Europol.”
Interpol has published numerous media releases on the same subjects and has included operational results in separate reports, including its 2020 report, Assessing Crimes Against Cultural Property.
This included data on Operation Pandora V, which took place across 32 countries and resulted in more than 56,400 cultural goods being seized and 67 arrests. 27,300 of the items seized came in a single haul in France where Customs officers arrested a man who had been illegally digging up archaeological pieces.
The leading publicised highlight from the operation was a set of three gold coins that “could have been worth up to €200,000 on the black market”, which were recovered after the arrest of two men in Spain.
Data in the Interpol report relating to global crime referred to arrests, but shed no light on convictions or how much of what was seized later proved to be illicit. No mention of terrorism financing was made.
Page 14 of the report revealed that of the 567,465 items seized in Europe, 83% (or 472,933) were library materials. This single category of library items accounted for 55% of the global total of 854,742 objects seized for the whole of 2020.
Ongoing issues
Despite supposedly cleaning up its act with the 2019 relaunch of its website, Interpol has continued to promote false and unsubstantiated claims.
In the introduction to its 2021 report it stated: “The illicit trafficking of cultural property is a major source of revenue for organized crime groups and terrorists alike…” (see page 4) – It is clear from Interpol’s other statements on data that it has no evidence to show cultural property to be a major revenue source for terrorists.
Following these conflicting claims and lack of vital intelligence, what does Interpol publish on its website in 2024?
Despite providing no data, and having admitted that it has never had it, nor is ever likely to obtain it, Interpol’s headline claim on its Cultural Heritage home page is: “Trafficking in cultural property is a low-risk, high-profit business for criminals with links to organized crime.”
Click through to the section on Crimes: The issues – cultural property, and it is largely populated by general statements. The one hard claim is that “the majority of thefts are carried out from private homes”.
The related news section at the bottom includes links to other news, including the most recent release on a transnational operation, Pandora VII, from May 2023, which again limits data to arrests and seizures, but gives no information on outcomes.
Nowhere on its website does Interpol provide clear data as to the scope and value of illicit cultural property.
However, despite admitting that it does not have the data, and despite WCO and other figures showing it not to be true, and despite updating the Art Crime home page, Interpol still promotes false claims via an out-of-date video from 2015 on its web page How we fight cultural crime.
Worse still is that the person making the claims in the video is Interpol’s Secretary General Jürgen Stock, who states that the illicit trade in cultural property is as lucrative as those for drugs, weapons and counterfeit goods, and then directly links them to terrorist financing, even though no evidence of this happening has been provided beyond the very limited Abu Sayyaf case of May 2015. In doing so, he directly links these purported crimes to the international art market, despite providing no evidence to support this.
The Secretary General makes his claims based on UN sanctions relating to Syria (2199) and Iraq, but these are preventive measures, not evidence of executed crimes. At the time of adoption in 2014, the sanctions’ text stated that terrorists were benefiting from trade in cultural property but gave no examples of this happening. As noted above, the Abu Sayyaf raid in 2015 – after the sanctions were introduced – remains the only cited example of this happening, and the sums involved were small and not clearly identified.
It is not clear from the website that the video is from 2015, so viewers may think this is current thinking at Interpol. Mr Stock must surely know better now nine years on from this recording and should remove it from the website. The ADA and fellow trade association IADAA have contacted him directly recently and asked him to update the website, but so far we had no reply.
To repeat: Nowhere on its website does Interpol provide clear data as to the scope and value of illicit cultural property
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