In the last issue of this journal, a key contribution was the paper by
John Merryman on Cultural Property
Internationalism.1
He made another strong assertion
of his views last year in a publication of
The European Fine Arts
Foundation (TEFAF). These papers are an important restatement of a
position he seems to have been developing for 30 years and are, therefore,
to be seriously studied, since he has been one of the pioneers of academic
discussion of these issues and has inspired and encouraged generations of
students and colleagues to address them. He has set out a conceptual
position that supports dealers and their organizations' views of the
importance, even necessity, of a free market in cultural property, or at
least its great liberalization. He has also clarified the very different
types of objects that need to be considered in any debate on trade or
illicit traffic: In particular his contribution to Article 5 of the
International Institute for the Unification of Private Law
(
UNIDROIT)
Convention on Stolen or Illegally Exported
Cultural Objects 1995, even though he has considerable doubts as to
the final text of that Convention, must not be forgotten, as well as his
efforts to suggest ways of constructive liberalization of the trade.
2 Merryman, “A Licit
Trade,” 2004 The European Fine Arts Foundation (hereafter
cited as TEFAF), 24–5.
In the spirit of rational debate, which John Merryman, one of the
founders of this journal, has always encouraged, I want to put forth an
alternative view. His point that an initial value promoting cultural
property internationalism has gradually disappeared in favor of cultural
nationalism (or “national retention”3
“Mere retention” seems to have appeared first in
Merryman and Elsen, “Hot Art,”
8–11, where it was named as a separate interest from other specified
interests of “exporting nations”, an article written at the
time of the debate on ratification of the 1970 Convention by the United
States. It was developed with an emphasis on the
“retentionism” of national protection or
“hoarding” in the same authors' Law, Ethics and the Visual Arts 1 (2nd ed.
1987), 53–56.
) is based on a reading of the historical and
policy sources that is seriously misleading; I believe that the
terminology of cultural property internationalism itself has to be
questioned. Finally, some of the other arguments that follow from this
view are also challenged.
LANGUAGE AND ARGUMENT
First, it must be said that the choice of terms in which to conduct
such a discussion is unfortunately often predisposed toward a particular
view. For example, protection for Merryman means protection
of the object or protection of the international interest,
whereas he terms the policy of states' protection of objects within
their country, retention. The word
protection in national heritage legislation, however, shows a wide variety
of other interpretations: protection of access, protection of education of
creative artists and of the public in their own cultural traditions,
protection of minority communities' special requirements for the
handling of their cultural creations, as well as protection of the
object.
Similarly, cultural property, in my view, necessarily carries with the
phrase a whole baggage of associations and implications, in particular,
the view in the common law (based on a philosophy broadly shared by the
legal systems of continental European countries) that property and
ownership rights clearly authorize exploitation, alienation (that is,
divestment to any other person at will), and exclusion of others from
access—all elements that, in modern heritage law, may well be
restricted. For this reason, I would argue that heritage should be
preferred, as it is in all recent UNESCO instruments. (I leave aside the
term patrimony, which seems to be a particular United States usage not
reflected in the international instruments, with a single exception in
Article 9 of the UNESCO 1970 Convention, incorporating a United States
proposal and obviously not made consistent with the standard terminology
in the rest of the Convention.) In a discussion of the experts who early
on met to discuss the drafting of the UNIDROIT Convention on Stolen or
Illegally Exported Cultural Objects 1995, Merryman urged the use of
property, and I urged the use of heritage (which has associations of
handing on and guardianship). The term objects in the title and
text of the Convention was finally adopted as a compromise.
While it is perhaps inevitable that there are different
interpretations of these terms, it is important that every scholar spells
out his own usage, and it will be clear from this that there are important
implications attached to the terms currently in use.4
These sometimes unconsciously
steer the discussion into particular tracks.
Hoarding (national retention or “excessive
retention”5
) equally conveys a value judgment.
One might, with an equal, glide from rational discussion to emotional and
speak of “exploitation” rather than “interchange”
by the “social subsystem” that he calls “the cultural
property world”. “A naïve and misguided anti-market
prejudice” attributed to UNESCO, concerned states and archaeologists
is surely less evident than the naive and misguided distrust of the
international governmental system shown by the simple-minded insistence
that private market interests could do it all better.
6 Accusations that those who support stronger market controls indulge in
“rhetoric”7
also seem to me an argument that
can be made on both sides. Is it any less rhetorical to call worries about
the commodification of art “an effete prejudice”?
8 Talking about an object as “guilty until proven
innocent” is seriously misleading to those lay persons who do not
know the difference between civil and criminal law (or perhaps between
persons and objects?).
9 This terminology has been
widely used by nonlawyers opposed to the UNIDROIT Convention 1995, but I
would not expect to see such sloppy use from lawyers. To be fair to
Merryman, one should assume that his paper for
TEFAF is more in the nature of a statement of
conviction addressed to persons of the same persuasion, than of legal
analysis.
What is Cultural Property?
Merryman is also critical of the definitions of cultural property or
cultural objects used in the UNESCO 1970 and UNIDROIT Conventions (this
“pallid definition”10
). Both of these speak of
objects “which, on religious or secular grounds,” are
“of importance for archaeology, prehistory, history, literature,
art, or science and which belongs to the following categories.”
11 UNESCO Convention 1970 Article 1; UNIDROIT
Convention 1995 Article 2.
“What else is there?” he
asks. The reasons for this word drafting were clear. First, this was the
phrasing used in the majority of national legislations on the subject, so
there was wide agreement on it. Second, the variety of objects regarded as
important cultural property is intriguing, and every culture should be
able to protect what is essential cultural heritage for them. This means
that in Samoa, orators' fly-whisks are protected; in Namibia and a
number of other countries, petroglyphs; in South Africa, meteorites; in
many others, ceremonial masks; in Bolivia, historic textiles; and so on. A
more restrictive definition would be one that allows some countries to
include in their protective system objects that are of importance to them
but may not be recognized as of cultural importance in other
countries.
Finally, it has been pointed out that the 1970 Convention, which was
the first to use this phrasing, was designed to be exhaustive, describing
the ambit within which objects are to be selected for export and import
control; not exemplary, as was the case with the Hague Convention, which
could be further expanded by the participating states12
and where the definitions in
Article 1(a) and (b) of the Convention both use the phrase
such
as. It may be that regional groups such as European countries could
decide on a more explicit definition, but it would have been, at least
until recently, very difficult to do at the universal level; this may
gradually be cured by a better knowledge and acceptance of the versatility
of culture in the diverse societies of the world.
Merryman prefers to speak of cultural property as “the sorts of
things that dealers deal in, collectors collect, and museums acquire and
display: principally works of art, antiquities and ethnographic
objects” that are “the foci of a social subsystem we can call
‘the cultural property world’ that is populated by artists,
collectors, dealers and auction houses, museums and their professionals,
art historians, archaeologists and ethnographers, and source nation
cultural officials.” Tellingly missing from this list are those
groups not comfortable with having their cultural objects considered as
commodities for the market: tribal and indigenous communities and creators
of various sorts not regarded within their communities, or regarding
themselves, as artists but as bearers of a communal tradition.
A similar viewpoint emerges from the suggestion that cultural
internationalism is an observable fact because of the activities of London
and Berlin ethnographic museums, the Metropolitan Museum (New York),
Japanese and Swiss dealers, and Dutch and German collectors, who deal in,
exhibit, and collect “important art and antiquity collections of
works from Europe, Africa, East and South Asia, the Middle East” and
both Americas. The one-sidedness of this kind of cultural internationalism
is evident—it looks far more like cultural imperialism,
based as it seems to be on the activities of those from wealthy countries
with each other and with poorer states whose cultural resources are
flowing in one direction, without an equal exchange. It is an observable
fact that far more is flowing in the direction of wealthy countries than
the reverse; it is far from an exchange and, indeed, looks rather more
like exploitation.
THE HISTORICAL SOURCES OF CULTURAL
INTERNATIONALISM
The suggestion that Grotius was the first since classical times to
argue for moderation in destruction of cultural property, is not borne out
by research into the ideas of other cultures. Both Muslim and Hindu rulers
made rules against it many centuries before the West began to catch
up.13
Merryman's reliance on Quatremère de Quincy's protest
against the Napoleonic takings14
has been criticized by
Turner,
15 who points out that far from an argument to let the
market regulate movement, the French author argues for a rationally
planned exchange and in particular, points out the importance of the
cultural historical context, the requirements for training creative
artists, the unity of the cultural landscape, and the harmony with the
natural landscape, which have located the objects in the country
concerned. Quatremère sees these as the universal principles
accepted by the scholarly world, not as those of a national state.
The Marquis de Somerueles case cited does not seem to give
greater support than Quatremère. True, Dr. Croke makes some fine
pronouncements such as this:
The arts and sciences belong to all Europe, and are no longer
the exclusive property of one nation… It is as a member of this
universal republic of the arts and sciences, and not as an inhabitant of
this or that nation, that I shall discuss the concern of all parts in the
preservation of the whole.16
However, the very fact that the phrase “not the property of one
nation” is used by Dr. Croke to insist on the artworks in question
being restored to the arrangements made by their owners is not to excuse
their taking. Further notable is that he appears to equate “the
universal republic of the arts and sciences” with “civilized
Europe”—a position that hardly commends itself as a basis for
assessing the problems of illicit trafficking among the 192 states of the
contemporary world. Finally, after his study of Quatremère and
Croke, Merryman's suggestion is bizarre that the conflict between the
humane internationalist ideal to which he appealed and the nationalist
glorification of military campaigns that the French under Bonaparte had
embraced “persists today in the international law of cultural
property;” there is no conflict about the wrongfulness of
destruction of cultural property in wartime—a number of
international treaties assert it, and its principle is now one of
international customary law. These authors were not attempting to solve
questions of trade and trafficking between nations at peace, and to use
their arguments to justify ignoring the efforts of countries to preserve
access to cultural heritage for their cultural communities is an argument
that goes beyond interpretation. Moreover, an attentive reading of the
penultimate paragraph above will suggest that Quatremère's
words can equally be used, with a similar interpretive stretch, as a
justification for precisely the opposite position.
Similar arguments can be made about Merryman's use of the later
precedents from United States scholars, which were focused on protection
in wartime. One dangerous statement, however, is that the Roerich
Pact “is in practice a dead letter.” I am not aware that
it has been denounced by any of the parties to it (10 Latin American
states and the United States), and it is therefore all the more important
that no doubt be cast on its current validity, since a number of parties
to it, including the United States, have refrained from becoming party to
the Hague Convention and its protocols. No doubt many believe that the
principles of the Roerich Pact are sufficient to protect them,
assessing warlike threats from other parts of the world as unlikely.
During the 1970s, suggestions were made that the Hague Convention itself
was a dead letter; the emergence of new local conflicts has made its
relevance very clear, and the fact that 113 states are now party to it is
evidence of its vitality.
THE HAGUE CONVENTION 1954 AND CULTURAL
INTERNATIONALISM
In support for his internationalist view, Merryman cites the wording
of the Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict 1954: “cultural property is ‘the
cultural heritage of all mankind.’ ”17
Merryman, “Cultural Property
Internationalism,” 11. To be fair, he quotes the article in
full on p. 19, but fails to analyze it in detail or to relate it to the
later provisions of the Convention and Protocol.
. It is important
to note the whole sentence (in paragraph 2 of the Preamble) in which these
six words occur:
Being convinced that damage to cultural property
belonging to any people whatsoever means damage to the cultural heritage
of all mankind, since each people makes its contribution to the culture of
the world
The phrases “belonging to any people” and “each
people makes its contribution to the culture of the world” add an
emphasis that is integral to this paragraph on the importance of culture
to each people as well as to the heritage of mankind. They also assume
importance in view of the content of the Convention, which requires
states' parties to “support the competent national authorities
of the occupied country in safeguarding and preserving its
cultural property” (Article 5(1)—emphasis added), to refrain
from requisitioning it (Article 4(3)), and to prevent its exportation
(Protocol (1954) Article 1). It seems a strange interpretation to use this
as the justification for wider market access. As Turner points out, the
effect of the preamble is to provide that “the interests of the
states possessing cultural objects are also seen as interests of the whole
of the world community”18
and to exclude an ethnocentric view
that certain cultures need not be given equal value (an understandable
reaction to the destruction of Jewish and Slav heritage by the Nazis).
Merryman's statement that “the international interest in
protecting cultural property from the hazards of war began to expand into
a more general cultural property internationalism” seems, therefore,
to make a hazardous leap from a philosophy designed for a particular
purpose to embrace first, a particular interpretation of the philosophy of
the Convention, and second, to assume that the universalism of the
European Enlightenment is the natural basis of any protective scheme,
whereas protection first at the local level might seem to be a priority.
It can also be argued that the protection from exploitative removal by
military power expanded naturally in peacetime to protection from
exploitation of economic or political power and has the same
result—an interpretation of the Convention that is certainly equally
valid.
THE MANDATE OF UNESCO
Merryman's discussion of UNESCO's mandate again reveals a
particular view. UNESCO's constitution does not, in fact, mention
cultural property. The full text of the relevant provisions is:
(c) Maintain, increase and diffuse knowledge:
By assuring the conservation and protection of the
world's inheritance of books, works of art and monuments of history
and science, and recommending to the nations concerned the necessary
international conventions;
By encouraging cooperation among the nations in all branches
of intellectual activity, including the international exchange of persons
active in the fields of education, science and culture and the exchange of
publications, objects of artistic and scientific interest and other
materials of information;
Merryman argues that something is missing from this mandate; namely
“preservation,” which he describes as protecting the object
and its context from impairment. In any event, the words conservation and
protection seem quite adequate to cover the concept of preservation and
have certainly been applied in that sense. Merryman's discussion of
protection seems to leave out the interest of a community in the
continuance of its cultural traditions. For example, an anthropologist
might see the use of an object by its traditional community as a primary
way of preserving centuries of traditional use and the vitality of rituals
and practices of that community. The object's ultimate impairment and
replacement, as has occurred since time immemorial for that community, may
be a price that has to be paid. This problem is not solved by his emphasis
on access; access to a museum collection (even when the museum is in an
accessible locality, which is often not the case) does not ensure
appropriate treatment of that object for that community. In fact, in the
case of objects from wide swathes of humanity, it almost certainly ensures
its inappropriate treatment. Such an object, even if displayed rather than
hidden in a museum reserve collection, has lost its place in the cultural
life of that community.
Merryman has argued for a “related triad of regulatory
imperatives”19
: preservation, the quest for knowledge (the
scientific, cultural, and aesthetic truth the object and its context can
provide), and optimal access to scholars for study and to the public for
education and enjoyment. These he sums up as “preservation, truth
and access.”
However, truth for many does not reside only in contextual information
but in the community's continued re-endorsement of value by use
within that community. Scholars and the general public from wealthy
countries can now have access to virtually any country in the world.
Access to the universal museums of the West is denied simply on economic
grounds to many communities distant from them. Private collections are, of
course, not accessible to them at all.
So Merryman's triad of preservation, truth, and access leaves out
substantial interests of large parts of the world's population.
There is also a universal concern to protect cultural diversity, and
UNESCO in recent years has had no difficulty in reading this into its
mandate. This concern builds on the need to preserve multiple human life
styles (parallel to the concern to preserve as much biological diversity
as possible) and to respect other people's cultural traditions in
order to avoid conflict. The display in many museums or dealers'
windows of items that are of a sacred or secret nature to their makers
does not engender intercommunal harmony. It is also a general concern that
the care of an object be associated with its original creators, and this
means fighting to keep their cultural traditions alive. How can a
community continue to build boats when every major ocean-going vessel has
now been out of their country for decades, as is the case of a once
vibrant tradition in the Cook Islands? How can contemporary Easter
Islanders have any idea of the unique and vigorous carving of their
ancestors and adapt their skills to their current place in the world, when
every major piece (numbering hundreds, if not thousands) are in museums
remote from this distant community? In other words, whole chapters of a
cultural tradition can be lost by inordinate trade and outright illegal
acquisition. In these cases, exchange, even if it were to be more
balanced, would not preserve or restore cultural traditions.
Why is this important? Because in the words of the Hague Convention,
“each people makes its contribution to the culture of the
world.” As anthropologists and others have pointed out, it is not
clear that agrarian and industrial societies (very recently developed, as
measured against the lengthy survival of traditional hunter/gatherer
communities) will survive a technological disaster or the exhaustion of
resources. The life skills of those from nonindustrial, even nonagrarian,
societies may prove to be essential for our descendants. Even a regional
disruption of industrial products on which, in a globalized world, people
in every community are increasingly reliant, could cause disaster: boats,
fishing nets, and string bags will be needed when steel and plastic are no
longer available.
THE UNESCO 1970 CONVENTION
Strangely, in view of his acceptance of the need for source nation
regulations to protect the cultural heritage when it is fragile or of
religious/ritual importance, to prevent dismemberment of monuments or
the destruction of context, or to ensure a representative collection of at
least the most important categories of its own cultural heritage,20
Merryman
finds “an apparent inconsistency between promoting international
interchange and enforcing national export controls.” Yet export
controls are an important means of meeting that need. They have,
therefore, a significant place in ensuring preservation both of objects
and of cultures.
Merryman deprecates leaving states free to make “their own
self-interested decisions,” and also the way the Convention
“condones and supports the widespread practice of overretention or,
less politely, hoarding of cultural property.”21
The reasons for the breadth
of the definition within which states must work have already been
discussed earlier.
There are other issues that market supporters sometimes appear to be
particularly unaware of. The push for the 1970 Convention came after
decades of colonial exploitation and abuse of positions of power practiced
on the emerging states. The policies that Merryman finds overretentive are
in most cases a reaction against the losses that have already occurred
when communities were unable, for one reason or another, to resist them.
These events have created resentment and suspicion. The exposure of
contemporary conspiracies to corrupt their officials and subvert their
laws, such as the cases involving the London dealer Tokeley-Parry22
〈http://www.mcdonald.cam.ac.uk/IARC/cwoc/issue10/investigation.htm1〉
(accessed 25 February 2005)
and the New York dealer Schultz,
23 United States v. Schultz 178 F.Supp.2d 45
(2003); 333 F.3d 393 (2003).
make such countries unlikely to be
convinced by arguments on the basis of cultural property internationalism,
which are made by theorists and dealers in the states with the most
powerful markets. This is compounded by the intransigence of some of the
great museums to open a dialog on these historical events and the
resultant gaps in the collections of the newly independent states,
showing, according to an African commentator “a residual
colonization of thought and cultural structures.”
24 If countries with strong export prohibitions over all or most
categories of cultural property are to loosen those prohibitions, it will
not be as a result of accusations of hoarding. There is a need for a
substantial effort to understand the important feelings involved and the
arguments these countries make, while seeking to show that there are real
advantages in the exhibition of, and resulting interest generated in,
their culture in other countries. There are few countries that would not
be proud to have their culture valued by others. Unfortunately, successful
exhibitions such as that of Te Maori (New Zealand)25
The successful Te Maori exhibition
opened at the Metropolitan Museum of Art in New York in 1984, then toured
several other United States cities. While the taonga (treasures) were
created many generations ago, they are regarded as tupuna (ancestors) to
whom Maori are personally linked, and so the taonga were appropriately
accompanied by traditional rituals. Consequently, each exhibition of the
taonga became an expression of te ao Maori (the Maori world) as a vibrant,
living culture.
have in many cases led to increased thefts and
illicit exports from the countries concerned: hardly an encouraging
result.
In some of his other writings, Merryman has sought to confront some of
the arguments of those supporting other countries' export
prohibitions. For example, in several articles,26
he deals
with a painting by Poussin sold by the owner but, according to France,
illegally exported to the Cleveland Museum in the United States. He asks,
where is the injury to a significant French cultural interest? We might as
well ask, who is in the best position to make that judgment? Is it a
foreign museum? Or would it be the experts who have to assess whether this
artist, undeniably of great importance in the French cultural tradition,
is adequately represented within France? Another case he mentions is that
of the
Afo-a-Kom, a revered wooden figure illegally taken from a
tribal society in Cameroon and offered for sale in the United States.
… what is the proper response to claims by tribal
groups … for the return of ritual, ceremonial, or religious
objects? In many cases the objects, if returned, will be exposed to the
elements or consumed or otherwise destroyed or, if protected, will be kept
in secret places, available for viewing only by a select few or on
infrequent occasions and generally inaccessible for scholarly purposes or
public enjoyment. Should the objects be returned … even though
object-related values will consequently be seriously impaired? And if the
answer is yes, what justifies this sacrifice of object-related values?27
The answer is, of course, person-related values. The damage done to
the intangible heritage and the complex beliefs and practices of tribal
peoples in this situation can produce a sense of desecration of sacred
objects that has a profound effect on a society whose beliefs should be
respected. By what moral principle does one justify values related to an
object (which is, in any case, a value much more highly respected in
commercial societies) above those related to people and central to their
well being? By what right should an object meant by its creators to be
seen only by authorized persons be made accessible to the public at
large?
His redefinition of a licit trade in that same article28
is a laudable attempt to distinguish
different categories of objects that could be acceptably traded, and I
agree that distinctions can be made between them. However, it ignores the
historical and political legacies of the past, and unless these are
brought into consideration, the chance of reaching agreement with
resentful communities is unlikely to happen.
Merryman also argues that in “poorer countries, the orderly
marketing of surplus cultural objects could pro tanto displace
the black market, while providing a significant source of income to the
source nation and its citizens.”29
Unfortunately, history does
not bear out this optimistic view. Both Egypt and Syria previously had a
system where licensed dealers were able to handle certain categories of
materials legally. The situation, however, became impossible to police,
and so rife was the substitution of restricted items for licit items, that
the resulting burden of policing each dealer became enormous. Of course,
policing a complete ban is burdensome also but at least not further
complicated by the effort of showing that each particular item being
offered for sale by a dealer is not one allowed as licit by the
legislation. Several years of experience of the more liberal system
convinced the authorities in both countries to move to the more
restrictive system of today
30 Egypt's
Law No. 117 on the Protection of Antiquities 1983 forbids trade in
antiquities (ss. 6–7), replacing the system of the previous Law on
the Protection of Antiquities No. 215 1952 ss. 22 ff. Syria repealed
Chapter 5 ss.56–65 of its Ordinance No. 222 26 October 1963 in
1986.
.
OTHER UNESCO INSTRUMENTS
Merryman criticizes three other UNESCO instruments, the
Recommendation Concerning the International Exchange of Cultural
Property 1976, Recommendation for the Protection of Movable
Cultural Property 1978, and Convention on the Protection of the
Underwater Cultural Heritage 2001 as providing no place for private
collectors or an active art trade, no scope for a licit market, and no
recognition of the historic roles of collectors and dealers in supporting
artists and promoting their work in building private collections that
ultimately enrich museums, or in pioneering the collection of objects that
eventually are recognized for their cultural importance. There seems no
recognition that all these advantages are seen from the sole viewpoint of
persons in wealthy, commercially oriented societies where artists are
individually (not communally) responsible for their creations, where there
are dealers who promote the role of creators in that society and ensure
their adequate representation, and where there are wealthy collectors who
can afford private collections and indulge their personal tastes. Which
are the museums that are enriched? Such arguments must sound hollow to
many creative artists who do not regard their work as a commodity and who
need and wish to respect communal rules as to how their creations are
used, as was the case in Milpurru v Indofurn,31
Intellectual Property Reports (Australia, 1994)
209.
where the Aboriginal artists were personally responsible to
their tribe for improper and unconsented use of their artworks by the
defendant. The arguments must sound equally unconvincing to those whose
chief contact with foreign dealers has been illegal entry, corruption of
locals, and commissioning of thefts.
32 All those advantages listed by Merryman seem to
accrue, once again, to wealthy commercial societies.
These arguments may be better appreciated among those countries where
at least some artists live on the proceeds of their art and intend to sell
at least a proportion of their output as a commodity. But even within the
European Union (EU), Council Directive of 15 March 1993 on the Return
of Cultural Objects Unlawfully Removed from the Territory of a Member
State 199333
Directive
93/7/EEC Official Journal L 74 of March 3, 1993.
has ensured at least a minimal mutual respect of the export laws of the
different members of the Union. The increasing ratification of the 1970
UNESCO Convention also suggests that European countries are increasingly
aware of the damage being done by the illicit trade and the need to
restore respectability to their markets by outlawing the more egregious
aspects of the illicit trade. In 1994, Merryman noted that Belgium,
France, Germany, United Kingdom, Japan, the Netherlands, the Scandinavian
countries, and Switzerland had not become parties and that the Convention
“is now generally considered to be a failure.”
34 There are currently 106 parties to
this Convention, including Denmark, Finland, Iceland, and Sweden as well
as France, Japan, Switzerland, and the United Kingdom, while the
Netherlands and Germany are working toward it, and discussions have also
begun in Belgium.
Merryman reserves particular opprobrium for the UNESCO Convention
on the Protection of the Underwater Cultural Heritage 2001. Its
provision against commercial exploitation he regards as
“breathtaking.” However, one could see it as the natural
result of an unregulated situation, such as Merryman would apparently
approve, which has led to commercial salvage of, and treasure hunts for,
historic shipwrecks with, in many cases, complete destruction of the
historic shipwreck and no cultural benefit for any of the peoples
associated with it, through history, location, origin of ship, or origin
of cargo. Such a situation has not been tolerated in land excavations for
decades, and the slowness of adopting controls in the maritime areas (due
to complications with the law of the sea), has created a situation of such
dire emergency that further commercial exploration is likely to wreck the
last vestiges of an irreplaceable archaeological resource.
Interestingly enough, this provision and the Rules of the
Annex, which spell this principle out in detail, were accepted by
every single delegation without exception at the negotiations. Even states
such as the United States, which is unlikely to ratify the Convention at
present, has expressed its complete accord with it. In other words, the
difficulties of protecting historic shipwrecks are so apparent to both
archaeologists and those responsible for the protection of the heritage
that this was seen as the only possible way of ensuring it.
The UNESCO Convention for the Safeguarding of the Intangible
Cultural Heritage 2003 does not have any provisions directly
mentioning commerce. Merryman's questions as to how international
trade or retention policies might be relevant overlook the most important
one of all: the removal of key items used in the practice of intangible
cultural heritage will cause damage and probably destruction of the
intangible heritage. Bowls used in ritual ceremonies such as the Saanich
bowl and regarded as desecrated;35
musical instruments used in unique musical
traditions; textiles that form an integral part of spiritual
practices;
36 The abstraction of textiles
from the Altiplano area around Coroma in Bolivia is movingly related by
members of one of these communities in the television documentary El
Camino de las Almas produced by Cristina Bubba Zamora.
religious sculptures that are actively worshipped, such as those stolen
from Nepal;
37
Zuni war gods;
38 the removal of all existing models of
objects on which a “living treasure” exercises his craft or of
all the tools of that trade (and the list could go on and on)—all
suggest the importance of retention of certain objects as key to the
survival of the intangible heritage.
In response to Merryman's argument that UNESCO has deviated from
its internationalist mission, others might well argue that instead of
adopting the views of a minority of countries and populations for a
particular view of its internationalist mission, it has done its best to
respect the views of all peoples in how best to protect the great
diversity of cultures represented among its member states. Which is the
more internationalist?
THE DEALERS' CODE
UNESCO has certainly not ignored the useful function of dealers and
collectors. In 1997 the UNESCO Intergovernmental Committee for Promoting
the Return of Cultural Property to its Countries of Origin or its
Restitution in Case of Illicit Appropriation adopted a report39
that recommended work to reach out
better to this community. Up until that date, it was clear that despite
invitations to international dealer groups to participate in that
committee, which discusses the implementation of the 1970 Convention,
dealers took little interest in the work of the organization. As a result
of that study, work begun on an
International Code of Ethics for
Dealers in Cultural Property was finalized, and it was adopted by the
committee in 1999 and endorsed by the 30th General Conference of UNESCO
the same year, with the recommendation to states to bring it to the
attention of the dealing community. A similar code for collectors was
recommended in the 1997 report, but this recommendation has not yet been
followed up.
Although the Code was based on the existing codes of dealer
organizations and on discussions with them, its promulgation has been met
with either apathy or criticism from the dealer community. It seems rather
unfair to speak of UNESCO's “market aversion;”40
it would seem more just to speak of the dealers' aversion to UNESCO.
Merryman would understand this, because he thinks that although the Code
is reasonable and constructive, many of the “trade restraints”
that the other UNESCO instruments seem to support are excessive. Again,
who is to decide what is excessive? Cultural experts such as
archaeologists, anthropologists, architectural historians, art historians
with firsthand experience in the countries in which they specialize,
managers of cultural resources, and representatives of tribal and
indigenous peoples make up the majority of the cultural heritage world
that UNESCO inhabits. These are people who have a wider view of the
cultural needs of the societies in which they work and who regard
themselves as having primarily public responsibilities. While some dealers
and collectors may feel some of that public responsibility, many also make
significant personal financial gains from cultural property
internationalism, going far beyond those of the great variety of cultural
experts already mentioned.
What has always been surprising in this debate is that the dealers
themselves have done nothing to distance themselves from the more
disreputable elements of the trade. After all, there is no particular
qualification that distinguishes a dealer of the highest expertise and
ethical standards from the dodgy character who buys from a thief and sells
from the back of a truck. A number of cases have shown exactly how easy it
is to arrange passage from a source country through the hands of a number
of villains into the hands of a dealer of the highest repute. Peter
Wilson, in a personal capacity but with his reputation as chairman of
Sotheby's behind him, sold the
Sevso treasure to Lord Northampton. The export certificates
accompanying them were found to be forged, and Lord Northampton
subsequently recovered damages both from Wilson and from his legal
advisers. Robert Huber, an art dealer from New York, sold to Steinhardt a
gold phiale from Sicily that was held by the U.S. 2nd Circuit of
Appeals to be stolen according to Italian law. A treasure from Aidonia in
Greece was displayed in New York in his gallery by the dealer Michael Ward
before it was claimed by the Greek government.41
〈http://www.culture.gr/6/68/684/e68403.html〉
(accessed February 25, 2005).
Ward was a member of the Cultural
Property Advisory Committee that advised the president on the
implementation of the 1970 Convention.
Even more worrisome is the direct implication of some apparently
respectable dealers carrying high positions in the art trade, in some
extraordinarily unethical behavior. The Schultz case42
is an example of a
well-respected dealer who frequently appeared before the U.S. Cultural
Property Advisory Committee, was formerly president of the National
Association of Dealers in Ancient, Oriental and Primitive Art, and who was
convicted of conspiracy to receive stolen goods. The goods came from the
world heritage site of Saqqara in Egypt. He had also concocted a false
provenance and bribed Egyptian antiquities police.
43 United States v. Schultz 333 F.3d 396, 397.
He was
supported in his legal travails by an
amicus curiae brief of the
association as well as others from the International Association of
Professional Numismatists and the Art Dealers' Association of
America, and the Antique Tribal Art Dealers' Association, the
Professional Numismatists Guild, and the American Society of Appraisers
all filed briefs in Schultz's support. Briefs in support of the
prosecution position were filed by the Archaeological Institute of
America, the American Anthropological Association, the Society for
American Archaeology, and the United States Committee for the
International Council on Monuments and Sites. Tokeley-Parry, with whom he
had conspired, was jailed for six years in England.
44 〈http://www.mcdonald.cam.ac.uk/IARC/cwoc/issue10/investigation.htm〉
(accessed February 25, 2005).
Another example is provided by the Bumper Development
case.45
Bumper Development Corp., Ltd. v.
Commissioner of Police of the Metropolis and Others (Union of India and
Others, Claimants) All England Law Reports, 4, 638
(1991).
In that case, a landless agricultural laborer in the
southern Indian state of Tamil Nadu sold an idol, which he found by
chance, to a dealer's runner Meivel for about £12 sterling. The
dealer Chandran sold it to Hussain, who sold it to Nadar, who sold it on
to a man named Prakash. The characters of these various operators were
assessed by Judge Kennedy, who heard the claim for the idol, a
Siva
Nataraja, before the Queen's Bench in London. Meivel was
Chandran's henchman, who did not impress the judge as having any
great regard for the truth. Chandran was a man known to be of bad
character and who was at the time on bail pending appeal of a sentence of
five years imprisonment for attempted murder; there was a related
conviction for rioting with a deadly weapon. Hussain had been found in
possession of two other idols, at least one of which was, to his
knowledge, stolen. The judge found that Nadar was a dishonest man and a
practiced receiver of stolen goods. Prakash was never traced. The judge
was left with the clear impression that each of the persons handling the
idol, with the exception of the finder Ramamoorthi, was seeking to cheat
the others. The idol was eventually sold to the agent of the Bumper
Development Corporation by the dealer Julian Sherrier in London, who
provided a provenance from his mother, known by him to be false.
Unless the ethical dealers make some greater effort to control the
unethical and illegal practices in the trade, one can hardly wonder that
those concerned with heritage protection trust governmental and
intergovernmental agencies more than they do private persons and their
organizations, most of whom have not only made no particular effort to
screen the licit trade from the results of scandalous activity but have
even actively supported some of the perpetrators of it.
Why have dealer groups not joined actively with UNESCO to stamp out
organized criminal mafias who have taken over sectors of the trade? UNESCO
has close relations with INTERPOL on these matters, and it is a serious
concern. A dealer in icons in Berlin was murdered some years ago at a time
when border controls with the former Eastern Bloc had weakened, and icons
were arriving in truckloads from Russia and other countries formerly out
of bounds to the illegal trade. Press speculation circulated that the
dealer had failed to agree with his suppliers or perhaps to pay protection
money. Should this not be a very serious concern to the dealers?
THE REALITY OF THE TRADE
Behind all this debate, behind the mutual suspicion and criticism,
there is one undeniable fact: the art trade is the only major sector of
international trade where it is regarded as normal, indeed essential, that
provenance is not required as a normal element of any acquisition. The
natural reaction of any lawyer new to the field to this practice is one of
amazement. Even Bator expressed this view:
The most striking thing to a lawyer who comes upon the art
world is how deep and uncritical is the assumption that transactions
within it should normally be—are certainly entitled to
be—secret… No dealer or auction house will normally reveal
the provenance of an object offered for sale; it is assumed that buyers
and the public have no business knowing where and when and for how much
the object was acquired…. Indeed, the tradition is that such
information is rarely even sought … [T]he art
treasure with a full and documented pedigree is rare precisely because the
custom has always been to ask as few questions as possible. Too much
information may spoil the acquisition of a stunning and desirable
treasure. It is the propriety of secrecy which is assumed; and it is a
secrecy which enables persons, otherwise aspiring to the highest standards
of personal probity, to become accomplices in the acquisition of looted
masterpieces.46
The results of this willful blindness have, alas, been only too clear
to see with the revelation of just how many museums, collectors, and
dealers handled material looted during the Second World War, although
evidence of its tainted source and its illegality, such as catalogs of
missing objects, was available.
Whether one wishes to acquire a motor vehicle, shares, real property,
a mining lease, or any other valuable property on the international
market, a thorough search of title is required of any purchaser if he
expects protection of his acquisition by the legal system. Yet any effort
to require this in respect of cultural objects has been virulently opposed
by those in the art trade. Why is this so, especially as this attitude
goes along with assertions that the illicit trade is only a tiny, indeed
virtually negligible, proportion of the trade as a whole? If this is the
case, where are the thousands of objects looted from archaeological sites,
the untraced thefts from museums, churches, and other institutions going?
In the Bumper Development case, an Inspector General of Police
for the CID in the state of Tamil Nadu (one of the 28 states and seven
territories of the Indian Union) said that there had been 800–1,000
thefts of idols in that state alone during the preceding 10 years. It is
not surprising that those in source countries battling to preserve a
reasonable representation of their own cultural heritage and those in
communities faced with continuing losses of significance regard with
extreme skepticism the suggestion that concealment of sources is a
necessary step in a legitimate art trade.
The failure to accept any responsible change in that practice has
increased reliance on steps that Merryman deprecates, such as countries
taking ownership of undiscovered antiquities and more draconian export
regulations than he would wish. If source countries had any confidence
that there would be some real control over the transition of suspicious
material into the licit market, they would perhaps be more inclined to
lessen controls at their end.
In the introductory section of his most recent article, Merryman
states that
No thinking person argues for free trade in cultural
property. Regulation is necessary in order to preserve cultural property
and to support its proper international circulation…
… [S]ource nation regulations preserve the
cultural heritage when and to the extent that they protect fragile objects
that are likely to be damaged or destroyed by movement and when they
prevent the dismemberment of complex objects, like the panels of an
altarpiece or the components of a sculptural group. When antiquities are
removed from their contexts in order to preserve, study and enjoy them,
archaeologists rightly urge and source nations rightly require that the
removal be done with care and that it be accompanied by full
documentation. It seems right that objects of ritual/religious
importance to living cultures remain with or be returned to the
representatives of those cultures … And finally, it is
internationally important that the inhabitants of every nation, including
the poorest survivors of colonial exploitation, have access to a fully
representative collection of objects that represent their history and
culture.47
The list includes important concessions that, interestingly enough,
are not listed in the TEFAF article. However,
the big problem with this position is that, given the insistence on the
secrecy of transactions, how can one distinguish those objects that may
properly be traded and those which, because retention is justified and
protected by national export prohibition, may not? Once an object arrives
in the licit market, detached from any information as to its provenance
(origin) or provenience (subsequent transactions), how can anyone possibly
tell whether it is being legitimately traded or not, or indeed, stolen?
Provision in the UNIDROIT Convention that an object be returned without
compensation unless due diligence (that is, proper inquiry made by the
purchaser) has been shown, is being furiously resisted. Why? If the
illicit trade is such a small part of the market, this provision is not
threatening. Cynics may take the view that it is exactly because many in
the art trade know that such objects are a principal source of their stock
that they so vehemently resist it.
THE INTERESTS AT STAKE
In his TEFAF article, Merryman also
justifies his defense of the art trade by assessing the interests at
stake. Though superficially attractive, this argument is defective. The
articulators of this theory recognized that some interests are usually
asserted as social or public interests, but others are more familiar to us
as assertions of interests of the citizen seen as an individual. Roscoe
Pound, the originator of this kind of analysis of legal policymaking in
the United States, is insistent, however, that these are not separate
categories. Social or public interests are still interests of individuals,
just as individual interests may be looked upon as public or social
interests. It is axiomatic that the same interest may be looked at from
each standpoint, and Pound was unambiguously insistent that interests,
however labeled, must be mutually translatable to one level to allow
comparison. This is important, for if an interest is labeled as
individual, it may, if your bent is individualism, automatically be given
priority over a public or social interest. If you are, on the other hand,
from a culture where the focus is on the community rather than the
individual, you may naturally give priority to an interest expressed in
that way.48
Merryman's comparison of archaeologists pursuing their own, as
opposed to the international interest, falls precisely into that trap.
Archaeologists' and other cultural workers' interest in the
survival of cultural objects and their proper handling can be seen as a
social interest, as can the anthropologists' interest in the survival
of threatened cultures.
If the interests of the art trade are asserted as international, so
must the interests of the others be categorized on the same level.49
If that is done, we are left with a factual question on which there may be
persistent disagreement; not just that there are conflicting interests,
but on what is the best way to ensure that survival and flourishing of
cultures. This is not a conflict that can be resolved by an analysis of
the interests being asserted.
I would also suggest that in analyzing interests to be accounted for
in making legal policy, all the interests involved must be taken
into account. This is not the place to enter into a full analysis of all
the interests involved in the protection of the cultural heritage:
elsewhere Patrick O'Keefe and I have attempted to do so, at least for
the protection of the archaeological heritage.50
Suffice it here to
say that there are far more than those of dealers, collectors, and
archaeologists.
HUMAN RIGHTS INSTRUMENTS
Merryman regards as an established principle of private international
law the fact that courts judicially enforce foreign private law rights
(such as ownership) but not foreign public law rights (such as export
regulations).51
This may have been the case
decades ago, but new rules have emerged with the increasing movement of
people between jurisdictions and their consequent entanglement in both the
private and public law of more than one, and sometimes many, states. For
example, the
Institut de Droit International,
made up of experts in international law from all over the world, adopted a
resolution in 1975 condemning the traditional view that foreign public
laws should not be applied in other jurisdictions.
52 In a number of areas such as family law (child abduction),
consumer protection, and other administrative law, countries have been
prepared to implement foreign laws. Furthermore, the distinction between
public and private law is becoming more and more difficult to sustain, as
areas that have traditionally been considered private law increasingly
fall under areas of public law, such as that of the European Union or the
general international law.
Merryman also considers the rights of private owners to be preferred
over the rights of the state as owner, the more so as state assertions of
ownership may in fact be “merely a disguised form of export
control.”53
In fact, the failure of some
states to recognize and apply foreign export controls in this area has had
the effect in some cases of persuading states that would rather not claim
state ownership over categories of cultural objects to do so. An example
is given by the case of
Attorney-General of New Zealand v.
Ortiz,
54 Attorney-General of New
Zealand v. Ortiz [1982] 1Q.B.349; [1982] 3 W.L.R. 571
(Court of Appeal); [1983]2 W.L.R. 809 (House of Lords).
where the House of Lords both misinterpreted the New Zealand export
legislation on which New Zealand had based its case, and failed to apply
it. Ownership rights over the object concerned were vested in one of the
Maori tribes, and its elucidation was a very complex issue. To avoid this
issue being argued before a tribunal with no experience in Maori law and
custom, the New Zealand government decided to sue on the ground of illegal
export. The decision of the court confronted it with the dilemma of taking
state ownership of all antiquities in order to ensure that it would be
able to sue on behalf of the traditional owners with some prospect of
success (a decision not easily understood by Maori people) or be unable to
ensure their access to key items of their own culture. Is this really the
end desired? Would it not be better to enforce export controls for the
truly significant items such as that in the
Ortiz case, rather
than force governments into claiming ownership in order to defend the
rights of the bearers of the culture concerned?
Human rights arguments are to be handled with care by nonspecialists
in this important area. There have been many debates about whether certain
human rights should have precedence over others, in particular whether
civil and political rights should be regarded as having a legal character
denied to the economic, social, and cultural rights. After decades of
debate, numerous international declarations uphold their equal validity,
such as that of the World Conference on Human Rights in Vienna in 1993
that “[all] human rights are universal, indivisible and
interdependent and inter-related.”55
This applies of course to property rights and cultural rights. To
state the latter at the most basic level, Article 15 of the
International Covenant on Economic Social and Cultural Rights
provides:
There is in this formulation a careful balancing of the needs of
individuals in respect to their own culture and its support by
preservation or by interchange (“take part in cultural life”,
“conservation … development and … diffusion of
… culture”, “international contacts and cooperation in
the scientific and cultural fields”). The rights guaranteed by it
are not put into a hierarchy; the rights of citizens are regarded both in
their individuality and in their collectivity. International cooperation
is essential; so is access. Neither has priority. So there is no priority
among cultural rights themselves, and there is no priority between
property rights and cultural rights.
This leaves us with a delicate balancing act to perform in order to do
justice between states and individuals. With an observable movement of
cultural objects in one particular direction (to Europe, United States,
and Japan), the need for countervailing mechanisms seems clear.
TRADE TREATIES
A final legal justification for increased liberalization of trade in
cultural movables is based by Merryman on trade agreements.56
He cites Article 30 of the Consolidated Treaty of the European
Community as admitting exception for the “protection of
national cultural treasures” to the rule prohibiting export
controls, but argues that this phrase should be interpreted narrowly.
However; that treaty also contains the following clause:
This Treaty, drawn up in a single original in the Dutch,
French, German, and Italian languages, all four texts being equally
authentic, shall be deposited in the archives of the Government of the
Italian Republic, which shall transmit a certified copy to each of the
Governments of the other signatory States.
Pursuant to the Accession Treaties, the Danish, English,
Finnish, Greek, Irish, Portuguese, Spanish and Swedish versions of this
Treaty shall also be authentic.
The French text refers to “protection des trésors
nationaux ayant une valeur artistique, historique ou
archéologique.” It is the only one of the many other official
texts currently available to me that reflects the concept of treasures.
The others seem to state rather clearly that cultural heritage is within
the exception: “beskyttelse af nationale skatte af kunstnerisk,
historisk eller arkæologisk værdi” (Danish); “het
nationaal artistiek historisch en archeologisch bezit” (Dutch); zum
Schutze … des nationalen Kulturguts von künstlerischem,
geschichtlichem oder archäologischem Wert” (German);”
“protezione del patrimonio artistico, storico o archeologico
nazionale” (Italian); “protección del patrimonio
artístico, histórico o arqueológico nacional”
(Spanish); “bevara växter, att skydda nationella skatter av
konstnärligt, historiskt eller arkeologiskt värde”
(Swedish); “protecção do património nacional de
valor artístico, histórico ou arqueológico”
(Portuguese) (listed, according to international practice, by alphabetical
order of language). Note also that these phrases accurately reflect the
definition in the 1970 Convention that Merryman found inadequate.
In support of his view, Merryman quotes Pierre Pescatore as saying
that “[t]he Exception's purpose is not to preserve
the totality of an artistic patrimony” but to safeguard its
“essential and fundamental elements.”57
It is
notable that most of commentators on this point seem to have been working
from the English or French text alone. Stamatoudi has pointed out that the
evolution of the European Union, notably through the Maastricht Treaty,
may lead to a more generous interpretation of this article.
58 There are certainly grounds for
views that would support a more liberal interpretation of Article 30 in
respect of cultural objects than Merryman is prepared to give.
Merryman also cites a similar text in the World Trade Organization
(WTO) treaty (a full citation of the treaty is not given), but again, only
the English text is cited, and there are other equally authentic language
versions to be consulted. One also needs to be aware that so far the
decisions that have been taken about this article, have been taken by
tribunals that, like the International Court of Justice in the Preah
Vihear case (a dispute about a temple on the Thai/Khmer border),
have no professional background in heritage matters.
There is, as everyone is aware, a strong move, particularly by the
United States, to remove the “cultural exception” from the
general trade agreement (General Agreement on Tariffs and Trade
1947, taken over by the World Trade Organization Agreement
1994). A number of states are deeply concerned about this, and there
will certainly be very tough negotiations on the subject.
All in all, I think the assessment that “a naive and misguided
anti-market prejudice, excessive source nation retentionism and the
excesses of the archaeologists' Crusade … supports
[sic] source nation actions that violate
(emphasis added) the cultural property provision of the WTO and EU
treaties and related international arrangements” is certainly
premature and may well be proven wrong.
One other thing needs to be said on the question of trade agreements.
An argument frequently urged in favor of more liberal trade in antiquities
and other movables is that they are not properly looked after in their
homeland. If those in industrialized states concerned with their welfare
were to lobby in their own states as hard for reduction of tariffs for
agricultural and other goods produced by poorer countries as they do for
liberalization of trade in cultural property, not only would millions of
people no longer live in the most dire poverty, but increasing wealth
would enable those countries to devote a greater proportion of their
national resources to policing and conservation. A general
liberalization of trade, rather than the partial one that has been
occurring, would, in terms of assertions of interest and human rights, be
a solution to some of the problems that Merryman has outlined. But a
one-sided solution will only make things worse.
CONCLUSION
In this reality, it seems far-fetched to suggest that excessive
restraints thwart internationalist goals and that there has been an
artificial expansion of the meaning of illicit to reduce the possibilities
of a licit cultural property trade. To the contrary, the restraints seek
to ensure internationalist goals by ensuring that there is a fairer
distribution of cultural objects and not a one-way flow.
Merryman asks in his conclusion, “Whither cultural property
internationalism?” My own answer would be that cultural
internationalism will flourish but not in terms of the very limited
cultural property internationalism he espouses. I do not believe that the
historical sources represent the form of internationalism that his
description currently takes, and I think that many of the arguments being
made in support of a far greater liberalization of trade in cultural
movables are not well founded and ignore important social, political, and
historical factors that have led to the current restrictiveness of many
countries.
Finally, we should all be aware that problems like this are not solved
by legal regulation alone. Where there are so many diverse and entrenched
views, the involvement of the very wealthy, the utterly impoverished, and
every level in between; states; private organizations; and individuals,
all in active pursuit of their interests, will result in issues such as
resources, education, and public awareness having a major impact on the
solutions.
