by ADA | Sep 9, 2024 | Uncategorized, Views
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?
by ADA | Jun 27, 2024 | News
On June 25, The Chalke Valley History Festival played host to a BBC seminar on the thefts from the British Museum. BBC Culture Editor Katies Razzall and her team of investigators shared a platform with whistleblower Dr Ittai Gradel in front of a packed audience as they told the tale of how the thefts came to light and Dr Gradel’s pivotal role in exposing them.
The audience listened spellbound as, accompanied by slides and excerpts from the current BBC documentary series on the issue, the panel unfolded the course of events over a 15-year period.
Dr Gradel started by explaining his background and interest, and the nature of the gems involved, detailing their historical importance and variety, before setting out how his suspicions first arose about the eBay seller from whom he had been acquiring items since 2015.
The turning point came when he spotted direct evidence in the form of flaws in one gem that matched those in the records of the British Museum collection. The thief had largely sold off items that had gone unrecorded but slipped up after years of getting away with it, he added.
The BBC team of investigators told how they had tracked buyers down to the United States and Germany, where one journalist, Darin Graham, found what was arguably the most important missing gem in a public exhibition.
The audience treated Dr Gradel as a hero, especially after learning about the difficulties he had faced trying to get the British Museum management to take his alerts seriously. They were equally clear about how important they considered the museum to be as a British institution.
The BBC has now released a podcast series, Shadow World, currently a series of ten episodes covering the scandal and how it unfolded. It is freely available to listeners.
by ADA | Jun 14, 2024 | News
Leading art market lawyer says new regulation will risk isolating the EU culturally
British trade associations concerned about impending EU legislation that will affect UK exports will brief dealers on the changes at a seminar in London on June 28.
Titled The increasing difficulty in the international movement of ancient coins and objects, the afternoon session is organised by law firm Devonshires, who will host the event at their London offices and online on behalf of the British Numismatic Trade Association and the Antiquities Dealers’ Association.
The session will focus on how to comply with the news EU import licensing regulation (2019/880), which comes fully into force on June 28, 2025, and affects art and objects created and originally discovered outside the EU.
Provenance, due diligence and paperwork are at the heart of concerns as the trade associations argue that the regulation will make it all but impossible to meet its demands.
Of particular concern is the manner in which the regulation reverses the burden of proof for importers to the EU. Instead of the authorities having to show that imported items have been stolen or illegally moved, it will be up to the importers to show that they haven’t.
Martin Wilson, co-chair of the newly formed Art Lawyers’ Association, summed up the challenges in an article published on June 13 titled The New EU Cultural Goods Import Law – Politics over Pragmatism?
Wilson, who is also Chief Legal Officer at Phillips Auctioneers and author of Art Law and the Business of Art, argues that the law is unlikely to prevent the trafficking of cultural property, one of its chief aims: “…the best-case scenario is that trafficking activities will simply be diverted to elsewhere in the world by this law, not stopped,” he writes. Worse, while the legitimate market will face the burden of compliance, traffickers will simply ignore the law, he believes.
“There is a risk that the more difficult it is to import an object legitimately the greater the incentive to resort to smuggling and the greater the rewards for doing so. If that happens trafficking activities will be neither stopped nor diverted – and may even increase,” Wilson warns.
It is also apparent that the EU authorities have significantly underestimated the challenge of establishing an effective electronic registration system for imports – “a mammoth task”, says Wilson – while customs officials are unlikely to have the relevant experience or expertise to deal with applications. The expected clampdown likely to result from this means will mean significant delays, inconsistency in rulings and unjustified refusals, he says.
Wilson concludes: “This complexity and delay – as well as the likely inconsistency of decisions – will likely be a strong disincentive to import art of any kind or origin into the EU. This will lead to fewer imports into the EU of art and fewer EU buyers of art in countries outside the EU. By making it harder to import cultural property, the EU will then risk becoming culturally isolated.”
This is the context in which the June 28 seminar will be conducted.It runs from 3pm to 5.30pm BST, with networking drinks to follow. Those interested in attending in person or remotely can find all the details here.
by ADA | May 28, 2024 | News
Sir John Boardman OBE FBA Hon RA, Emeritus Lincoln Professor of Classical Art and Archaeology at the University of Oxford and an Honorary Fellow of the Magdalene College Cambridge for 40 years, was not just the pre-eminent scholar of Archaeology and Ancient Greece, he also proved to be a remarkable friend to the antiquities trade and collecting.
Sir John, who died on May 24, aged 96, published numerous notable works, including The Greeks Overseas (1999), Persia and the West (2000), World of Ancient Art (2006), and Archaeology of Nostalgia (2002).
Born in 1927, and educated at Chigwell School and Magdalene College, Cambridge, his early career included three years as Assistant Director of the British School of Archaeology at Athens, while later he served as an Assistant Keeper in the Ashmolean Museum, Oxford, and then Reader in Classical Archaeology and Fellow of Merton College, Oxford.
By 1963, Sir John had become a fellow of Merton College, Oxford, going on to succeed John Beazley as Lincoln Professor of Classical Archaeology and Art. Having been knighted in 1989 and frequently cited as “Britain’s most distinguished historian of ancient Greek art”, he retired in 1994, his long life bringing him another 30 years of research, study, and influence.
This influence included the development of a simple, logical and compelling assessment of the ancient world as being divided into three geographical zones, with accompanying characteristics that did much to inform their art. These were the nomadic peoples of the north, the farming and city peoples of the temperate zones and the inhabitants of the hotter zone at the tropics. As the Telegraph obituary noted: “Nomads, he found, whether in Asia, Europe or America, tend to have an art based on small, portable figures, often animals; monumental architecture is largely confined to the temperate zone, while in the tropics art largely based on the human form, with an emphasis on ancestors.”
He took part in excavations in Smyrna, Crete, Chios and Libya, and his awards included the Kenyon Medal (1995) from the British Academy and the Onassis Prize for Humanities (2009).
Sir John was especially concerned with the art and architecture of ancient Greece, particularly sculpture, engraved gems, and vase painting.
When it came to the sensitive and combative debate surrounding antiquities in the context of Middle Eastern conflict – especially over the past ten years – Sir John was a robust defender of the trade and argued that we all have a responsibility to prevent looting and smuggling, including those nations from whom artefacts are removed. Article 5 of the 1970 UNESCO Convention puts the primary burden on the country of origin, as he reminded us. As the Convention summarises: “It is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations,” he said.
In recent years he considered the merits of antiquities whose find context could not be traced and the relentless drive towards the reversal of the burden of proof when it came to the legitimacy of objects.
In 2017, he wrote an article for Cahn’s Quarterly, titled Academic Censorship, that touched on the subject, beginning: “A majority of the books published in the last fifty years about ancient art have depended on illustration of objects which are not from controlled excavations, and to pretend that they are therefore illegal, useless and misleading is, of course, absurd, yet this is the logical conclusion to be drawn if the extreme view about ‘academic’ or ‘moral’ integrity is accepted, and all objects not from controlled excavations are ignored.”
In the article Sir John argued that it was very doubtful whether sites could ever be controlled effectively. As an example of an artefact that is out of context but useful, he gave a silver chalice of no known provenance in the Bible Lands Museum, Jerusalem of around A.D. 500.
“It is no doubt from the Palestine area and its Latin inscriptions show it to have been made for a Eucharist ceremony – “Holy is God, holy the mighty one, holy the immortal one, have mercy on us” – typical for the Eastern Orthodox Church. Its lack of detailed provenance cannot disqualify it as a record of Antiquity.”
Unlike so many other academics, Sir John proved himself impartial in search of history and the truth: “Some years ago it was said that in Turkey boys who found antiquities on an ancient site could sell them to dealers who would then supply them with forgeries to sell on to tourists/collectors. Yet the recent publication of some 500 Roman seals, gems and rings, picked up over some 30 years by a family walking over the fields concealing the ancient city of Caesarea (S. Amoral-Stark & M. Hershkovitz, Ancient Gems, Finger Rings and Seal Boxes from Caesarea Maritima: the Hendler Collection, 2016) shows how much is still on the surface, and no less valid as evidence than excavated material.”
Demonstrating just how relevant the study of Ancient Greece remains to this day, less than 24 hours after Sir John’s death, a new study using volunteer marines from today’s Hellenic Forces to test the effectiveness of Greek Bronze Age body armour revealed just how good it would have been in protecting Mycenean soldiers 3,500 years ago.
Longstanding ATG columnist and former Christie’s specialist Richard Falkiner still owns a Greek scarab that Sir John published when he first became acquainted with him in 1963.
“He was very easy to have discussions with, even those to those who knew infinitely less than him,” he said.
by ADA | Apr 24, 2024 | Views
Fifty-two years ago today, the UNESCO 1970 Convention on the prevention of illicit trade in cultural property first came into force. Nine days ago, Kenya became the latest country to finally ratify the Convention, adopting it into domestic law. It comes into force there on May 15.
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.
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