• Reese Waters

The Antiquities Trade and Problems of Provenance

The antiquities trade constitutes the largest unregulated market in the world. This market consists of both legal transactions of provenanced artefacts as well as illegal dealings of stolen or looted cultural property. Provenance is defined as “the history of the ownership of an object as it passes through time”. Up until recently, the purchase of looted materials was considered by many to be an acceptable price to pay for preserving artefacts from the ancient world. This sentiment of entitlement has resulted in numerous museums and private collectors turning a blind eye to objects that lack legitimate provenance.

Although many institutions and collectors have sought to downplay the seriousness of trading in looted artefacts, this process of destruction has been detrimental to preserving the cultural heritage of many source countries rich in archaeological material such as Greece, Italy, Mexico, and Iraq. When cultural heritage objects are looted from sites they are taken out of their original context, meaning their historical significance is forever damaged. In addition to damaging the academic value of artefacts, looting has also contributed to the funding of criminal groups. For example, the large demand for Assyrian artefacts looted from the Middle East has contributed to funding terrorist organisations such as the Islamic Militant State.

Since the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, policy-making bodies have attempted to stress that trade in illicit antiquities constitutes a serious criminal activity. This Convention was intended to serve as a turning point in the legal protection of cultural heritage objects. It lays out suggested means for preventing the illicit exchange of antiquities, for example through enforcing inventories and export certificates. The Convention also provides provisions for the restitution of stolen cultural property.

Although the Convention marked a serious change in how cultural property would be treated by international legislation - claiming that no more acquisition of unprovenanced artefacts would be allowed, its general vagueness resulted in little actual change taking place. This is due to the fact that many museums continue to practice a relaxed disposition towards the Convention.

One of the major flaws with the 1970 Convention was that its regulations put considerable emphasis on limiting illicit antiquities trade by regulating source countries. They intended to do so by creating state ownership rights and employing border controls. For example, in Egypt, all newly discovered antiquities are considered property of the state, making the looting of these objects an act of stealing from the state of Egypt. This policy aided Egypt when New York art dealer Frederick Schultz was indicted for conspiring to purchase looted Egyptian artefacts. While on trial, Schultz argued his innocence on the grounds that looted archaeological material is not stolen in the common legal sense of the word. However, because these artefacts were legally considered the property of the Egyptian Government, Schultz was found guilty of possessing stolen property.

While this focus on increasing legal regulations in source countries has had some positive benefits, this approach is ultimately hindered by the fact that most source countries of archaeological materials are affected by substantial political instability which makes widespread looting almost impossible to curtail. Furthermore, the individuals trafficking illicit antiquities in these countries make only a small fraction of the profits that dealers and collectors make in consumer countries. As a result, many experts on cultural heritage law have suggested that consumers of looted antiquities should be primarily targeted.

The 1995 UNIDROIT Convention on stolen or illegally exported cultural objects met to build on the UNESCO 1970 Convention by adding new legal rules on the restitution and return of cultural objects. This newer Convention placed more accountability on countries purchasing antiquities to repatriate objects obtained illegally. This increase in regulation on purchasing countries was further echoed by the United Kingdom’s Dealing in Cultural Objects (Offences) Act of 2003. This Act prevents buyers from knowingly purchasing a looted cultural object. While this legislation was a positive step towards protecting cultural heritage, the vagueness of policy again hindered restrictions on trading looted objects. Individuals, for example, who purchased a stolen object with reasonable suspicion were not considered to have violated the law as they still did not knowingly purchase a stolen artefact.

In addition to the vagueness of legal policies, the protection of cultural heritage is further hindered by the ease with which documentation of provenance can be forged. It is common for looted or stolen artefacts to be placed in storage at various freeports where they can be hidden from the public eye until they are forgotten about and provenance documentation can be forged. With law enforcement organisations understandably lacking substantial training in art history and archaeology the international movement of stolen artefacts is hard to restrict.

Moving forward, the best means of protecting cultural heritage seems to be through holding museums and collectors accountable. These pressures have led to many museums employing provenance researchers to determine if an object has been obtained legitimately. The University of Pennsylvania has suggested that provenance researchers follow the example of the Native American Graves Protection and Repatriation Act when dealing with cultural property that has been wrongly obtained. This policy proposes that intersectional research be conducted through engagement with experts to determine where repatriation is appropriate. Most notably, this legislation realises that repatriation should not be restricted to the political groups of today as many ancient civilisations do not follow these borders. In cases with multiple claimants, tribes must agree among themselves to where repatriation is appropriate. In following the practices of the NGPRA, policymakers around the world should strive to hold museums and collectors accountable while continuing to repatriate items that have been obtained illegitimately.

Regulation is needed and a greater degree of clarity and precision is necessary in order to protect the cultural heritage of all countries and the artefacts that represent them.