by ADA | May 20, 2021 | Views
Reflections on cultural goods with no provenance – A review by IADAA chairman Vincent Geerling
On February 4 and 5, the Fondation Gandur pour l’Art, the University of Geneva and UNIDROIT hosted an international conference on the theme of Orphan Works.
The idea was to begin a free dialogue – unconstrained by the usual taboos – between the various protagonists involved in attempts to shape the future of the art market: collectors, gallery owners, lawyers, historians and archaeologists, curators, judiciary, customs and police. The objective is to find a reasonable long-term solution that balances the interests of preservation, conservation and bona fide property ownership.
Orphan Works are archaeological and ethnographic objects – and more broadly works of art – which are present in private and museum collections, but for which there are neither archives nor material proof of their collecting history. What to do with these works, and what to do with them if the owner wishes to move, sell or lend them?
This conference was one of the rare occasions where art dealers had been invited to join the debate – in contrast to most of the numerous institutional meetings about trafficking and illicit cultural property.
The 26 presentations stretched across the full two days of the conference illustrated clearly just how complex this subject is. Five presentations focused on historical aspect, the first by Marc-André Haldiman (Université de Berne). Among other points, he considered a collection of 3,746 Roman glasses in the Musée d’art et d’histoire in Geneva, of which the provenance of only one glass could be established. ‘Provenance’ here was defined under the ICOM’s Code of ethics for museums Art. 2.3: “Due diligence in this regard should establish the full history of the item since discovery or production.” Ideal though this might be, it is obviously an impossible task for most Roman glasses and other objects from antiquity. Originally this ICOM rule was designed to establish the authenticity of paintings from more recent times. Today in the art trade, the meaning of ‘Provenance’ is the collecting history rather than the history of an object from the point of its creation. So one thing the Orphan Works debate needs to settle on is a clear definition of Provenance.
Six presentations looked at the issue of “works without pedigree”. Four of them focused on the challenges for museums. Marcel Marée (British Museum, Ancient Egypt and Sudan Department) spoke on The Circulating Artefacts platform (CircArt) as a tool for provenance research, and from this we learned that 85% of the objects assessed by the sophisticated software involved were found not to have been demonstrably looted. Those identified as probably recently looted could all be pinpointed to just a handful of sites in Egypt. This raises a serious question about how effectively these sites are being protected. Article 5 of the UNESCO 1970 Convention obliges Egypt to protect its vulnerable sites against looting and trafficking. The vulnerability of the sites involved is worrying, but the fact that all of the apparently looted material came from so few sites also raises the exciting possibility that properly targeted action now could have an extremely effective impact.
Provenance in German museum collections
Markus Hilgert (CEO of the Cultural Foundation of the German Federal States) gave a presentation entitled Provenance Research on Orphan Objects in German Museum’s Collections. This also underlined the complexity of the subject, but gave no indication of the results of his research so far. With a €10 million budget, one would expect something in return at this stage.
Six further presentations concentrated on Trade and provenances. Three of them were given by art dealers. Anna Zielinski (Galerie Sycomore, Genève) explained in her talk, A good provenance, how persistent a dealer has to be to get information about previous owners and that on rare occasions this leads to the discovery of important information, enhancing the value and interest of the object concerned. This illustrates that it has always been in the interest of a dealer to find out as much as possible about an object, but that in most cases they are thwarted by the absence of information because of the passage of time. Anthony Meyer (Galerie Meyer Oceanic Art, Paris) gave a splendid presentation, illustrated with old photographs on which objects could be identified, under the title Provenance has to start somewhere. This shed clear light on the dealer experience, and he vividly talked about some rare but lucky moments of discovery of additional provenance information. Jean-Christophe Argilet (Galerie Fürstenberg, Paris) told a story about one object “Un adopté américain devenu orphelin européen“ for which he finally discovered a very good provenance.
Next came Tracks for solutions?, a series of four presentations, including one from Apolline Sans, a legal expert in cultural heritage, who revealed that a definition for “orphan works” already exists in French copyright law (Article L. 113-10 §1 of the intellectual property code): “The orphan work is a protected and disclosed work, of which the holder of the rights cannot be identified or found, despite diligent, proven and serious research.”
What the presentations had in common was the high value of the objects researched; the orphans problem, however, largely concerns lower value items. I estimate that at least 95% of objects in circulation for decades or longer that have no documented collecting history are of a low value. These presentations set this dichotomy in context, showing how time-consuming detailed provenance research is, and therefore how impractical it is from an economic standpoint in the case of low value objects where the chances of success are minimal. We have to keep in mind that these are the sort of objects that attract collectors, thereby helping to maintain a live interest in helping to preserve the vast numbers of legitimate cultural objects in circulation. This is important because, understandably, no museum is interested, willing or able to spend time, space and money to preserve these thousands of less important works.
Collector’s proposal for database
At the end of the conference, one of its sponsors, Jean Claude Gandur, made an interesting proposal: the creation of a database for Orphan Works, to be maintained by a neutral institution. Once an object has been in that database for some years, without being claimed by a possible country of origin, he argued, it could be “legitimised” and traded without hindrance from then on. Possible claims for restitution by source countries should be dealt with by the courts, based on existing laws and international conventions, he added.
This fits with provisions for fair and just compensation for the innocent owner under both UNESCO 1970 and UNIDROIT. It would also protect collectors, innocent owners who bought objects in good faith, thereby avoiding long and costly court cases. If a practical solution for the vast number of orphans could be found, it would be a major step in the fight against the illicit trade!
Opposing sides in this debate will continue to champion their own causes, but this event is a positive step in the right direction and a credit to the Fondation Gandur, UNIDROIT and the University of Geneva. Whatever else, it acknowledged that the issue of Orphan Works is not a simple matter of right and wrong, but a complex challenge that needs to be debated seriously.
Marina Schneider, Principal Legal Officer of UNIDROIT and a major contributor to seeking a solution, has informed us that there will be a follow-up event. Before we embark on that, it would be sensible to agree on definitions for the following: ‘Orphan Work’, ‘Provenance’, ‘Provenience’, ‘Due Diligence’, ‘Cultural property that is of importance for art history etc.’ (UNESCO 1970 Art 1).
Agreeing on precise definitions for these terms would save a great deal of time and misunderstandings, and accelerate the search for practical solutions. In this way, we can all secure the future of all these innocent objects that have lost their history in the course of time.
by ADA | Apr 30, 2021 | Uncategorized, Views |
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.
by ADA | Jul 1, 2020 | Uncategorized, Views |
The secretary general of the largest trade federation for art and antiques dealers hits back at what she regards as “zombie statistics.”
When the entire German art and antiques trade is at stake, it is important to get the facts right.
A recent study into the illicit trade of antiquities has recommended that the German government clamp down even harder on the beleaguered German art market. But shockingly, the study’s conclusions are based more on suspicion and prejudice than scientific research.
Amid concern that Germany was a hub for international cultural property crimes, the country’s Federal Ministry of Research began the ILLICID study in April 2015. The €1.2 million project was carried out over three years. The resulting 50-page report, published last month, identified no trafficked items or any evidence whatsoever that the sale of antiquities helped finance terrorism.
But, I would argue, the German ministry that commissioned it has manipulated the results to support an anti-trade agenda. As the secretary general of CINOA, the largest trade federation for art and antiques dealers, who has been campaigning on their behalf in the European Union and elsewhere for years, I have seen firsthand how statistics can be manipulated to suit political agendas and are often accepted without being checked.
Not a Multi-Billion-Dollar Business
Before we get into the specific flaws of the report, it is important to acknowledge that even its motivation is built on a false premise. Over the years, there have been repeated claims from officials that the illicit trade in antiquities is a multi-billion-dollar industry. But after much debate, trade and anti-trade campaigners alike have concluded that these estimates are not only unfounded, but clearly wrong, and part of the trend now dubbed “zombie statistics”—that is, pieces of information that are frequently cited by experts and institutions, despite having no basis in research or reality.
There have been various attempts to trace where this mistaken belief about the value of the illicit trade in antiquities originated, and sources invariably lead back to several media reports from the early ’90s that cited it as a “belief” held by some experts—but gave no evidence to support that belief.
The authors of the ILLICID report weren’t the only ones taken in by faulty reasoning, which leads to faulty counting. The international criminal police organization, Interpol, removed similar claims from its website just last year, acknowledging the lack of evidence to support them—but not before they had informed some European policies.
So what numbers can we count on? The FBI valued all cultural property crime at around $4 billion in 2013, including crimes relating to everything from contemporary art to antique furniture. This figure was largely made up of domestic burglary and crimes such as fraud and vandalism.
The most reliable figures relating specifically to illicit trade currently available come from the World Customs Organization, whose latest Illicit Trade Report, published in December 2019 and covering 2018, stated that cultural property (including all art and antiques, not just antiquities) accounted for 0.08 percent of trafficking seizures reported through its network. In 2018, a total of 314 trafficked archaeological items were seized globally and reported via the network, down from 703 in 2017.
Unrealizable Provenance Requirements
The ILLICID report examined more than 300,000 items and valued the objects it studied (note: not illegal objects, but all objects) in Germany at around €850,000 per year for the course of the study. A lack of access to criminal evidence means that the report does not even mention illegal excavations, looting, or terrorist financing.
The authors identified a total of four suspicious transactions, but concluded that “potential money-laundering cannot be excluded, however neither is it inevitable.” In one of these cases, it appears that the object in question was a “sleeper,” as in, a misattributed masterpiece whose true significance was simply not recognized by the German auction house that catalogued it.
But perhaps the most sensational figure, widely repeated in media headlines, was that around 98 percent of Eastern Mediterranean antiquities sold in Germany were of questionable origin. This, however, is a skewed interpretation of the facts.
Fewer than two percent of the items studied—a total of 6,133 objects—“potentially” came from regions of interest around the Middle East, and it was 98 percent of that slice deemed to be of questionable origin. So the conclusion might be more accurately framed as: just under 0.02 percent of all of the items studied are of “questionable origin.”
The suspicion about origin is largely based on what the researchers see as incomplete provenance history, including the absence of previous owners’ names, despite the fact that data protection rules prevent this in many cases. The absence of full documentation for antiquities that have been circulating in the market for years is not only commonplace, but the norm.
Countries of origin often had no export licensing system when items were exported originally and, even where they did, detailed invoices were rarely required. Family heirlooms often do not come with paperwork that pinpoints their trade histories. None of these scenarios gives rise to suspicion of crime, yet the ILLICID report—and the ministry recommendations arising from it—act as though it does.
A German law introduced to protect cultural assets, passed in August 2016, ignores these reasonable factors and instead demands proof of legal export from a country of origin before it will allow import. But this is impossible in the majority of cases. Believe me—dealers would love to have an unbroken provenance for everything they sell. It would not only make their lives much easier, but would also add to the value of what they trade in.
If ILLICID deems such objects as failing to meet the requirements of the law, then it simply shows how misguided that law is and how little those in power understand the market or even care to do so. In the end, absence of evidence is not proof of guilt.
Even with all of this, ILLICID notes that only 10.9 percent of the objects it studied lacked any provenance at all. The remaining 87 percent have information, but the study does not consider it sufficient.
No Terrorist Financing
This is not the study’s only flaw. There is also a lack of evidence to support its claim that antiquities sales significantly finance terrorism and, principally, the activities of IS. The recommendations offered assume that IS control of any given region, and the increasing vulnerability of cultural heritage amid the political instability, means that it financed itself significantly through the looting of antiquities.
But the UN Security Council’s monitoring team reported in 2019 that the IS had not systematically used cultural assets as a source of funding. A 2017 study by Deloitte ordered by the EU Commission to justify stringent new import licensing regulations found that none of the 28 EU member states could identify the financing of terrorism through cultural property at all. King’s College, London concluded its research in the same year with the view that financing terrorism via the antiquities trade is unlikely.
Grasping at straws for evidence to back its recommendations, the ministry called on a 2005 article in the German magazine Der Spiegelthat claimed the lead terrorist in the 9/11 attacks financed the operation by selling looted Afghan artifacts. But in reality, while Mohamed Atta had asked a professor where such pieces might be marketed, and was referred to Sotheby’s, nothing ever came of this.
A suffocating bureaucracy
It is quite frankly scandalous that despite the failure of the ILLICID study back up its initial assumptions with hard evidence, the Federal Ministry of Research appears now to have manipulated the results to pursue its original agenda.
I am shocked by the recommendations for numerous measures to be taken against a market already brought to its knees by earlier misconceived legislation, which itself was imposed as a result of political ideology rather than to solve a proven problem.
This time, the recommendations include a transparency register in which all archaeological cultural assets that can be legally traded must be recorded. But this inflicts more work on dealers while failing to acknowledge the impossibility of the task. If accepted, the recommendations will also mean yet another database being set up for known or allegedly counterfeit cultural goods. It also recommends digitizing all trade publications after 1945, but fails to provide any budget by which already struggling dealers could do so.
The list of regulations already in place or proposed covers every eventuality already. These include—but are not limited to—the new EU import licensing laws, which also cover export licenses from source countries; UN sanctions specifically targeted at Syria and Iraq; and, perhaps most importantly, the EU’s fifth anti-money laundering directive, which explicitly targets the art market and comes into full force at the beginning of 2021, with severe penalties for those who break the rules.
Germany has little more than a handful of antiquities dealers these days, and most are micro-businesses. How are they going to cope if this latest set of ridiculous measures is adopted? And what are the implications for the rest of the market? It is a suffocating bureaucracy that is undermining an already vulnerable trade.
This commentary piece first appeared in Artnet News
by Antiquities Dealers' Association | Aug 14, 2019 | Uncategorized, Views |
The media was abuzz with claim and counter claim over the row concerning Christie’s sale of the 3,300-year-old quartzite head of Tutankhamun in early July.
Initially, the Egyptian government said it would call for the head’s return if it could be shown that it had been stolen and illegally exported, but this soon changed to a simple demand for it to be handed over regardless. The country’s former head of antiquities, Zahi Hawass, was reported as stating that the law didn’t matter and it should be returned on moral grounds alone, later adding that it had been stolen from Karnak after 1970, but failing to provide any evidence of this.
Appeals to the British Government to intervene fell on deaf ears, presumably because the Egyptians had provided no evidence to support their claim and nothing emerged to show that Christie’s were acting unlawfully.
That did not stop numerous media reports implying that Christie’s were acting improperly, however. Typically, they led on how Christie’s were pressing ahead ‘despite’ objections from Egypt, but without explaining that the objections were groundless owing to lack of any evidence.
Events were soon overtaken by an article by Owen Jarus in Live Science. Headlined Exclusive: Controversial King Tut Statue Has Sketchy Origins. Now Christie’s Is Selling It, it claimed that one of those listed as a previous owner, the late Prince Wilhelm von Thurn und Taxis, never possessed it or any antiquities collection. Jarus’s June 25 article attributed the claims to the prince’s son and niece, although the latter believes the head may have been owned by the prince’s cousin Prince Raimondo Torre e Tasso. The Live Science article stated that a family spokesperson said Raimondo never owned it either.
Having said this, Live Science also noted that Egyptologist Sylvia Schoske, who is the director of the State Museum of Egyptian Art in Munich and studied the head and published an article in a book on it in 1986, cautioned that “questions concerning the provenance of objects were not so much in the focus 30 or 40 years ago as they are today”.
In response to Live Science’s claims, Christie’s reported that it had confirmed the provenance to the prince.
Claims amount to no more than unprovable hearsay
What the claims amount to, then, is hearsay based on memories dating back several decades that can be neither proved nor disproved because they are based on establishing a negative.
If Jarus and Live Science believe that Christie’s should not have gone ahead without incontrovertible proof of when and how the head was exported legally from Egypt, it is not a standard they applied to themselves in another recent article.
On June 5, Live Science published an article by Jarus under the headline ‘Blood Antiquities’ looted from war-torn Yemen bring in $1 million at auction – a very serious claim indeed. Read the article, however, and not only does it not provide any evidence of this, but it does not even make the headline’s claim in the article itself, something neither Live Science nor Jarus have seen fit to correct at the time of this article being posted almost six weeks later.
The introduction states: “At least 100 artifacts from Yemen have been successfully sold at auction for an estimated $1 million in the U.S., Europe and the United Arab Emirates since 2011, according to a Live Science investigation into the country’s so-called ‘blood antiquities’.”
By the third paragraph, the article concludes: “Some of the artifacts have detailed provenance information that suggests they were taken out of the country decades ago, while others have little or no provenance information, raising the question of whether they were recently stolen or looted.”
This is as far as it goes in establishing any criminal activity – in other words, nowhere – yet this has been translated into the compelling headline listed above.
The article continues by noting a surge in shipments of artefacts, antiques and art from Saudi Arabia (“a country that borders Yemen and is involved in the conflict”) since 2015, with just under $6m worth of them shipped to the United States.
Quite apart from the fact that this does not show that the items came from Yemen, it also fails to consider that other reasons may explain the exports. Jarus is reduced to claiming nothing stronger than the items are “potentially smuggled” – in other words, as with the Tutankhamun article, his “evidence” is no more than speculation, with nothing credible to substantiate his claims at all.
It is difficult to see how this lends any credibility to either Jarus or Live Science. Nevertheless, the claims have been repeated, unqualified, by Yahoo News and others. Far from being scientific, this amounts to fake news. Bearing this in mind, how much credibility should be given to Jarus’s article on the Tutankhamun head?
Protestors’ claim over history fly in the face of facts
The Art Newspaper, meanwhile, scooped other media outlets with a photograph of protestors outside the auction. The protestors reportedly came from a group calling itself Egyptian House and described as a “community-based organisation”.
The Egypt Independent later reported that the Egyptian Antiquities Association had organised the protest, although there is no indication of the nature of that organisation, which was listed in a July 3 article by the Egypt Independent as The British Association for the Preservation of Antiquities.
One protestor named as Magda Sakr was quoted as saying “Egypt would never willingly sell our history”, although, of course, that is exactly what it did, as the article goes on to report in quoting IADAA chairman Vincent Geerling. Reminding readers that “Christie’s has long been co-operative with the Egyptian authorities and this piece has been widely published before without the Egyptians making any challenge over it”, he added that “the Egyptians have provided no evidence at all of the piece having been stolen or trafficked, having said that they would insist on the claim if they could do so”.
He continued: “It should be remembered that the Egyptian government licensed the sale of antiquities through dealers and benefited from the income for more than 150 years. More than 100 licensed dealers were active in Egypt, including a saleroom in the Cairo museum, and they shipped out antiquities under licence by the crate-load. This trade was legal under Egyptian law right up until 1983.”
The New York Times also covered the story, making reference to the Live Science article before quoting Mr Geerling.
Tatiana Flessas, an associate professor of law at the London School of Economics, who specializes in cultural property, told the NYT that Christie’s sale of the Tutankhamen head was a significant moment. “It showed that a claim like Egypt’s continues to be open to dispute,” she said. “Not every antiquity is cultural property.” She added that Egypt’s call for the return of the sculpture was a “nationalistic claim, an anticolonial claim, with a moral rather than legal justification”.
• Following the sale of the head for $6 million, the Egyptian Government said it would take legal action against Christie’s. Nearly six weeks later, all is quiet on that front.
by Antiquities Dealers' Association | Jun 7, 2019 | Views |
Having spent decades as a journalist and much of the past five years and more investigating fake news in relation to the international art market, I have made some fairly shocking discoveries.
Fake news is created in a number of ways:
• The deliberate dissemination of propaganda
• Marketing posing as news
• The accurate reporting of the above two without fact checking
• The inaccurate reporting of facts – journalistic error
As the internet has made reporters of us all, it is hardly surprising that untrained ‘news’ outlets unintentionally add to the fake news trail. Diminishing resources to fund proper journalism is another problem. Well-paid print journalists once had adequate resources to check facts and conduct in-depth investigations, funded by display advertising and – especially with local newspapers – a core income arising from classified, property, recruitment and motor ads. Those revenue streams have largely now gone online to specialist sites that do not fund the media, so journalism has suffered.
However, it is not just the public and the dying art of journalism that leads to fake news. The really shocking discovery is that, either by design, incompetence or complacency, other sources can include some of our most trusted and respected institutions, from parliament and international law enforcement to NGOs and academia.
My latest article, written for Cahn’s Quarterly and just published, lifts the lid on what has happened in one of the most sensitive corners of the art market, the international antiquities trade, and how fake news has even contributed to the formulation of new laws within the European Union.
You can read it here. see pages 4-6.
Ivan Macquisten
by Antiquities Dealers' Association | Jun 7, 2019 | Uncategorized, Views |
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.
Vincent Geerling
Chairman
IADAA
*Regulations (EC) No 1210/2003 and (EU) No 36/2012
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