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.
by ADA | May 20, 2021 | News, Uncategorized
Following her involvement in the February conference to mark 25 years of the UNIDROIT Convention, ADA chairman Joanna van der Lande was invited to contribute a major article on the history of the antiquities trade, including the issues that have dogged it over the years and how attitudes have developed along the way.
To be published by UNIDROIT later in the year, it has been previewed in three parts by Cultural Property News.
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