by ADA | Nov 2, 2022 | News, Uncategorized, Views |
The World Customs Organisation has finally published a new report following the 2019 report, covering two years from 2019-2021, probably delayed because of the Covid 19 pandemic. Its results once again show that global levels of illicit trade in cultural property are far lower than claimed.
In the press release we read: “This year, the analysis provided in this Report is based on data collected from 138 Member administrations. Previously composed of six sections, the Report now covers seven key areas of risk in the context of Customs enforcement: Anti-money laundering and terrorist financing; Cultural heritage; Drugs; Environment; IPR, health and safety; Revenue; and Security.”
It also states: “The analysis contained in this Report is mainly based on the collection of data from the WCO Customs Enforcement Network (CEN) — a database of worldwide Customs seizures and offences”….
“However, the CEN database relies heavily on voluntary submissions by Members hence the quantity and quality of the data submitted to the system has its limitations”…
“However, as part of this new methodology, the data and information sources used to elaborate this Report has been enlarged to include various open sources.”
While the rest of the report might be “mainly based on the collection of data from the WCO Customs Enforcement Network (CEN)”, in the introduction to the Cultural Heritage chapter on page 57, the WCO goes further, admitting: “Unfortunately, the data received through the WCO’s Customs Enforcement Network (CEN) in 2020-2021 being incomplete, the following analysis will be mostly based on open source information.”
Case studies based on media reports rather than primary research
The result for the Cultural Heritage section is that most of the case studies are based on newspaper articles, sometimes even on events that happened decades ago, and have nothing to do with recent trafficking activities. This is alarming as much of the problem with false data plaguing the cultural property sector stems from misreporting in the media. It is even more alarming when the misleading picture created by a surface reading of the chapter will undoubtedly be used as ‘evidence’ in future campaigns against the art market, as past reports have been.
The WCO is supposed to report recent and reliable figures, like figure 3 on page 35, showing that the number of worldwide reported cultural goods cases for 2021 is a mere 156, that is 1.1 case per reporting country….
A newly introduced graph (shown here) in the WCO report (Page 17, Fig. 4) reveals precisely what the ADA and its fellow association IADAA have reported over the past years: the illicit trade in cultural heritage is so small that it barely shows in the statistics. Not only is it the smallest category – so small that you have to look carefully in case you miss it – but the graph also shows that seizures have fallen by around 50% between 2019 and 2021.
Let’s not forget, too, that the Cultural Heritage category is not limited to antiquities, as so many mistakenly believe; it covers 13 distinct sub-categories, including: all forms of art, antiques and collectables, household items, flora and fauna, books and manuscripts. In 2019, the top three categories of recovered item sub-categories were: Fauna, Flora, Minerals, Anatomy & Fossils; Other; and Hand-painted or Hand-drawn articles and works of art. No mention of antiquities, which did not even warrant its own sub-category.
All of this begs the question as to why, in its chapter on Cultural Heritage, the WCO has chosen to focus exclusively on photographs of seized antiquities (at least one of which seems to be a fake) alongside fossils and coins. The choice appears politically charged.Consistent reporting of
The WCO has stated in the past and here that there is under-reporting of crime in the culture sector and that it only counts seizures and cases reported via the Customs Enforcement Network (CEN), the implication being that the problem is much larger.
Figures consistently show low rate of illicit trade in cultural property
However, the miniscule share of illicit trade represented in its reports over the years by cultural property has been consistent, only now augmented by media reports not sourced via the CEN.
It further boosts this chapter of the report with a summary of Pandora VI, the latest in a seven-year campaign of international operations involving mass seizures and arrests. What the WCO, Europol or Interpol have never done, however, is to provide data on how many of their seizures and arrests later prove to be justified and how many were shown to be related to terrorism financing. It is not just the trade asking for these figures, academic investigators want them too to see how effective these operations are.
Previously the WCO has attempted to rebut the ADA and IADAA’s analysis of its reports, stating that the figures cannot be relied on. As our analysis always provides transparent sources for the data emanating from the reports, however, the WCO’s case against our analysis simply does not stand up.
Ultimately, its figures must be indicative of the global state of affairs; if they are misleading, why publish them?
by ADA | Jan 26, 2022 | News
ADA chairman Joanna van der Lande has written the first in a series of articles on issues concerning antiquities and the art market for distribution within the European Parliament and to representatives at the recent Davos summit.
The article appears in MACE, a Brussels-based political magazine whose purpose is to raise issues of cent and spark debate among politicians, civil servants and other people of influence within the EU machine.
Articles will follow by IADAA chairman Vincent Geerling on data, fake news and how they help create misguided policy, and Ivan Macquisten on the wider implications of how this is affecting the art market.
The objective is to encourage deeper understanding of the challenges the market faces, with a view to establishing better relationships with decision makers on the political stage.
by ADA | Oct 6, 2021 | Views
Martin Wilson is the former Chief General Counsel for Christie’s, the auction house at the centre of this case. Now as Chief General Counsel for Phillips, who do not trade in antiquities, his interest in the subject is academic. Here he shows a firm grasp of the relevant arguments at hand in a detailed article published on Linked In.
Wilson gives the back story to how Turkey ended up launching a legal claim for the return of the Guennol Stargazer, an Anatolian marble figure dating to around 3,000 BC. It also explains why Turkey lost its claim in the District Court. A lack of evidence to support its claim combined with its failure to act for years when it could have done so weakened Turkey’s case beyond hope here.
Arguably Wilson’s most important observation is as follows: “It is sometimes assumed that, because of the complex ethical, political and historical issues which surround them, cultural restitution claims are not subject to the same evidential requirements and rules of justice which apply to other claims or at least that these rules should be applied less rigidly. This ruling illustrates that this will not be the approach where the parties bring their dispute before the US Courts. It confirms that in common with any ordinary civil ownership dispute, a party claiming restitution must, if it hopes to prevail in a US court of law, be able to satisfy the evidential burden of proving the facts necessary to establish ownership in accordance with the requirements of the law.”
This may also explain why Italy has avoided going to court in its claim against Alan Safani.
Wilson notes the increasingly commonplace arguments used by source countries in their attempts to reclaim artefacts: “It is not uncommon for the parties on either side of the debate in cultural property restitution cases to assume bad faith and wrongdoing. The Turkish government followed a line of argument which is commonly used in cultural restitution cases – that an antiquity outside of its country of origin without evidence of how it came to leave that country should be treated by collectors as a red flag and that there is a presumption of illegal export or excavation which arises in such circumstances.”
Fortunately, although source countries’ attempts to reverse the burden of proof in this way may work under the terms of their Memoranda of Understanding with the United States, it is a different matter when these claims go to court, as this case shows.
Wilson also reminds us that statutes of limitation do count, although they are constantly overlooked.
Crucially, he concludes with some sound advice: “While the judgment does not say so, the outcome of the Stargazer case highlights the shortcomings of the debate over cultural property being expressed as a question of “ownership”.” Certainly, while source countries continue in their attempts to ride roughshod over individuals’ legal rights, no one will be satisfied.
by ADA | Aug 31, 2021 | News, Uncategorized
The June 30 House of Lords debate on the Revocation of the EU import licensing regulations within the UK has summarised neatly the problems with this law.
In his statement to his peers, government whip Lord Parkinson of Whitley Bay said the government hoped to bring clarity to what was required under UK law by the changes.
Some of his fellow peers argued that revoking the law in full meant weakening the UK’s defences against crime. However, Lord Parkinson said the EU legislation would create “complexity and confusion” at borders, and two important reasons persuaded the government to go for full revocation.
The first was that “the provision applies to almost all cultural goods created or discovered in non-EU countries, regardless of their age, value or date of export, and because there is no requirement in the regulation for any person to provide evidence to demonstrate either lawful export or unlawful removal from the country of creation or discovery”.
This meant that in the event of a claim of unlawful export, it was not clear where the burden of proof would lie or what evidence would be required.
“These issues could result in cultural goods being delayed or detained at the border, and might deter people from importing cultural goods to sell in the UK art market or museums from lending objects for exhibitions in this country.”
Success of existing legislation
The second reason for revoking the law was that provisions the UK already has in place are proving successsful.
“The effectiveness of our existing legislation was demonstrated very recently, when we returned to Libya a statue which had been unlawfully removed from that country and which was found and detained by HMRC at Heathrow Airport. This is only the most recent example.”
In the latest round of consultations with the EU over the upcoming 2025 enforcement of the import licensing regulations, the ADA and others have been at pains yet again to demonstrate how unworkable the legislation is.
The objection is not to the protection of borders and fighting crime, but to the impossibility of the compliance demands, the net effect of which would be to destroy much of the art market within Europe. It is this aspect that those objecting to the revocation in the Lords do not seem to grasp.
So far the European Commission has signed serious concerns raised in previous consultations, including earlier this year.
Still not resolved is exactly what documents will be required for legal import. Article 8 (1) d of the draft legislation states that “Other types of documents to submit in support of an import licence application may be, but are not limited to the following” before listing 11 different types of document that must be submitted for approval.
Numerous other problems remain within the draft legislation, from uncertainty over the number or location of customs offices to how property would be marked, as well as very onerous compliance measures that would make a vast number of imports uneconomic.
by ADA | Jul 30, 2021 | News, Uncategorized
In what is arguably the most significant article on cultural heritage in the past month, Peter Tompa’s Art Newspaper comment on July 22 explains what is wrong with US policy and how to begin to put it right.
Tompa, a cultural heritage lawyer and the executive director of the Global Heritage Alliance, analyses the United States’ approach to cultural policy and how that affects attitudes and the market.
At the heart of his argument is the need to deal with the in-built bias against the market among the advisory and decision-making bodies that help formulate policy in the US. He targets, in particular, Memoranda of Understanding that ramp up import restrictions come up against Constitutional rights.
“These restrictions deeply concern collectors and the trade because they do not focus only on artefacts proven to be illicitly exported, but also embargo any items of a similar type that enter the US from legitimate markets, particularly those in Europe,” Tompa writes.
While this can affect legitimate market activity, dealers and collectors are not the only interested parties here: “…recent MOUs with some Middle Eastern and North African governments, such as Turkey and Egypt, have riled the representatives of displaced minority religious and ethnic groups, whose personal and community property has been seized by those same authoritarian governments.”
Tompa acknowledges that the US rightly has a significant duty to take a leading role in fighting the looting of cultural objects, especially as part of its recognition of ethnic and religious minorities. But he argues that this can be done in a more effective way that is also less damaging to legitimate market interests.
His advice?
Firstly to broaden the representation on Washington’s influential Cultural Property Advisory Committee (CPAC). Currently, it has no market professional on it. “The sole representative of the trade is a collector, and no dealers have been appointed to the committee for years,” he explains.
Import embargoes are also too broad and bloated rather than targeted at where the potential problem lies, and they do not help protect vulnerable sites. The incoming US Assistant Secretary for the Bureau of Educational and Cultural Affairs, Lee Satterfield, who will oversee this sector “should refocus current import restrictions back to narrow ranges of culturally significant items that have proven to be illicitly exported,” argues Tompa.
His third priority is for the US government to give at least as much consideration in policy formation to ethnic minorities and exiles living abroad as it does to foreign state interests.
“The assumption that nations are great protectors of cultural property is all too often misplaced,” he writes. “In countries where minorities have been driven into exile by authoritarian governments, it makes no sense to recognise the rights of those governments to the material culture of displaced communities.”
How far Tompa’s concerns will be listened to is not clear. What is clear, however, is that cultural property protection is not a standalone issue; it is clearly tied up with international economic and political interests that can dictate policy in what is an area of soft-power diplomacy. Because of this, the valid public interests within the cultural sphere continue to be at risk.
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