A survey of acquisitors' published policies suggests a general
consensus that the principles adopted in ICOM and national
associations' codes of ethics constitute the only acceptable approach
to the acquisition of cultural property.23
Of course, a number of acquisitors'
policies are unpublished (or unwritten), and that may be significant, yet
it underscores the general idea that if a museum harbors a robust cultural
internationalist agenda, it does so in private. Moreover, certain
acquisitors that have delayed in adopting more rigorous acquisition
policies have been singled out for criticism.
While there is more room for
debate—and for the introduction of internationalist
principles—on the topic of restitution, ironically, the deployment
of a cultural internationalist justification for
it today.
1. Acquisition
According to Merryman's acquisitors' discourse, we should
expect that a museum actively engaged in collecting international cultural
property would incorporate internationalist ideals into its acquisition
policies as far as it could do so legally and without breaching compliance
obligations under applicable ethics codes, but that does not appear to be
the case. Indeed, major collecting institutions have tended to follow
acquisitions policies that uphold foreign nations' export laws
whether or not it is a legal requirement,25
While many art-collecting countries like Japan, Germany, and
the Netherlands have not joined the Convention, the museums and
museum organizations there have endorsed UNESCO principles nonetheless.
See O'Keefe, “Museum acquisitions
policies.”
and some have adopted policies that limit
acquisitions significantly further than ICOM and the UNESCO
Convention would require.
In 1972, thirty years before the United Kingdom ratified the UNESCO
Convention, the British Museum, keeper of the Parthenon Marbles,
announced it would not acquire illegally exported cultural property. In
its current form, the museum's policy states that
“[w]herever possible the Trustees will only acquire those
objects that have documentation to show that they were exported from their
country of origin before 1970 and this policy will apply to all objects of
major importance.” (§ 4.2.5) For minor antiquities, the museum
reserves the right to allow its curators to use their judgment as to
whether acquisition should be pursued in spite of an inadequate
provenance.
The Berlin State Museums likewise adopted a strict acquisitions policy
early on. According to Wolf-Dieter Heilmeyer, director of the Museum of
Classical Antiquities, the policy means that the museums “will no
longer acquire, display, or restore any objects that do not have clear
provenances.” In short, “if there is any doubt about
provenance we don't go further.”26
The Metropolitan Museum of Art has not published an acquisitions
policy, electing instead to be “guided in its acquisition pursuits
by the policies set forth by the [AAMD].”27
See Eakin, “Debating ‘Illegal
Archeology,’ ” quoting the museum's senior vice president
for external affairs, Harold Holzer.
After the acquisition
guidelines enunciated in the 2004 AAMD
Report (discussed
previously), that means the museum will be subject to a fairly rigorous
policy, even if vicariously. The conspicuously missing ingredient is an
unequivocal ban on acquiring works exported in contravention of foreign
nations' laws.
Another major collector, the Getty Museum, once the very symbol of the
aggressively acquisitive American museum, has adopted a particularly
stringent acquisition policy. Antiquities that were not published by 1995
are flat out ineligible for acquisition at the Getty.28
Acquisition protocol also
requires contacting potential nations of origin to confirm that there are
no known claims on the object. Whereas a policy like the British
Museum's is arguably required at least in its basic form by
membership in ICOM and/or UKMA, bright-line policies like the
Getty's clearly exceed the mandate of ICOM or other associations.
What is one to make of such a policy? Does it reflect a sea change in
museum ideology? Have even the acquisitors become convinced that the best
hope for protecting cultural heritage rests in curtailing pursuit of new
acquisitions? Another possibility is that the shift in policy comes
instead as a politically expedient concession to a cultural nationalist
position that has been effectively promoted and widely embraced by the
public. In light of a number of embarrassing incidents in recent years,
one might speculate that among the many acquisitors that have reined in
support for cultural internationalist ideals, at least some are seeking to
avoid undesirable associations and special scrutiny as much as they are
contemplating a reinvention of museum goals and responsibilities. A few
examples from the U.S. museum community experience illustrate this
point.
The Kanakaria Mosaics In 1988, Peg Goldberg, an Indiana
dealer trading primarily in modern art, acquired in Switzerland and
attempted to sell in the U.S., four Byzantine mosaic fragments that had
been removed from the Church of the Panagia Kanakaria in northern Cyprus.
A year later, Cypriot efforts to recover the mosaics wooed an
international media and filled an Indiana federal courthouse. American
museums emerged largely unscathed from Cyprus' recovery of the
mosaics from American soil.29
Hofstadter,
“Annals of the Antiquities Trade,”
39. There were allegations leveled by one of those implicated in the
scheme, that looted Cypriot objects were housed in many museums, including
the British Museum, the Metropolitan Museum of Art, the Getty Museum, the
Museum of Fine Arts in Antwerp, and Dumbarton Oaks.
They had done
the right thing. The Getty refused to purchase the mosaics and made the
Republic of Cyprus aware of their whereabouts. Another museum's
director provided expert testimony on Cyprus' behalf in the
proceedings. Still, a new era of due diligence and intense media scrutiny
had arrived for all collectors, public as well as private.
The Lydian Hoard A great deal of negative press for the
Metropolitan Museum of Art surrounded the ultimate return to
Turkey—following six years of legal wrangling—of a massive
sixth-century bc treasure, the Lydian Hoard. While it
denied Turkey's claims that the museum knew the treasure was stolen
when it chose to acquire it and further denied that it intentionally
mislabeled it the museum eventually acknowledged publicly that some staff
members “were likely aware, even as they acquired these objects,
that their provenance was controversial.”30
Maier, “The Met Digs In.” Newsday (May
23, 1995), B36.
Other source nations, encouraged by Turkey's
settlement with the museum, have brought claims to the attention of the
courts and the media. These challenges have kept museums in the news, more
often than not in a defensive posture.
The Achyris Phiale In United States v. An Antique Platter
of Gold,31
United States v. An
Antique Platter of Gold aka Gold Phiale Mesomphalos, c. 400 BC, 991
F. Supp. 222 (S.D.N.Y. 1997); 184 F.3d 131 (2nd Cir. 1999).
a
gold
phiale acquired by prominent New York collector Michael
Steinhardt was seized by U.S. Customs agents and ultimately returned to
Italy. Although museums were only peripherally involved in the case, it
proved to be a conspicuous ground for the Archaeological Institute of
America (AIA) and AAM/AAMD to slug it out as
amici curiae
(friends of the court) for either side in the debate over international
trade in cultural property.
32 Before the Second Circuit Court of Appeals, AAM and AAMD argued that
enforcing foreign export laws “threatens the ability of U.S. museums
to collect … and make available for public exhibition objects from
around the world that have not been stolen or been the object of looting,
but rather have been the subject of sweeping foreign cultural patrimony
laws that are, in significant respects, antithetical to fundamental
principles of United States law and public policy.”33
See Shapreau, “Second
Circuit.”
The court never reached that issue, but the
associations' involvement had an effect just the same. Although they
framed their involvement as a pure policy stance, detached from the
particular facts of the case, AAM and AAMD were nonetheless perceived by
some as aligned in interest with unscrupulous collectors and dealers.
Consider the way AAMD support was described by the
Boston Globe:
“[T]he same museum directors' association has
… quietly decided to join a legal battle to protect the booming
multibillion-dollar trade in antiquities, objects often plundered from
archeological sites in countries like Italy and Turkey and then illegally
exported.”
34 Robinson,
“Museums' Stance on Nazi Loot Belies Their Role in a Key
Case.” The Boston Globe (Feb. 13, 1998), A01, available at
〈http://www.dhh-3.de/biblio/news/1998/0213a/〉.
The case revealed the intense media interest in
stolen art and
prompted both AAM and AAMD to elect against weighing in the next time that
this legal question was considered by the court, in
United States v.
Frederick Schultz.
35 United States
of America v. Frederick Schultz, 178 F. Supp. 2nd 445 (S.D.N.Y.
2002); affirmed at the Second Circuit, 333 F.3d 393 (2nd Cir.
2003).
The Schultz Scandal The July 2001 indictment and subsequent
conviction of Frederick Schultz, a well-known antiquities dealer, for
smuggling and forgery was a major embarrassment for museums as well as
dealers. Not only had Schultz supplied a number of museums with Egyptian
antiquities over the years, but in his capacity as president of the
National Association of Dealers in Ancient, Oriental and Primitive Art,
Schultz had participated in AAMD strategy meetings surrounding the
Steinhardt appeal. Newspapers were quick to point out that the disgraced
dealer was the same Schultz that museums had teamed up with to argue
against U.S. enforcement of foreign patrimony laws. The AIA got its jabs
in, too, proposing that this time around, “[r]ather than
bemoan the prosecution of those who deal in illicitly excavated
antiquities, museum officials should support efforts to curtail their
activities.”36
These and other less-publicized embarrassments in the United States
and abroad have no doubt contributed to acquisitors' reticence. Even
if they believe that the current nation-based cultural property model is
the wrong one, with their acquisitions policies and practices under
greater scrutiny than ever before,37
it is not an easy moment for museums to
stand up as proponents for greater availability of another nation's
cultural property. One result has been that advocacy for cultural
internationalism in museum acquisitions more and more occurs outside of
the museums themselves. Museum directors have shared cultural property
internationalist perspectives on the acquisition of works, but primarily
on their own behalf and not on behalf of a particular institution or group
of institutions. James Cuno, former director of Harvard University Museums
and now director of the Art Institute of Chicago, has been a vocal
proponent of an internationalist position that recognizes the importance
of keeping museums in the business of acquisition. “Indeed,”
Cuno suggests, “it is often only through the act of acquiring an
object, doing due diligence, exhibiting it, publishing it, and further
studying it, that one comes to know what is most important about it and
what in fact its legal standing is.”
38 But that view is not reflected in
Harvard Museums' policies, which as early as 1971 demanded
“reasonable assurance that the object has not, within a recent time,
been illegally exported from its country of origin.” Prior to
acquisition, Harvard policies require evidence “that the University
can acquire valid title to the object in question, meaning that the
circumstances of the transaction or knowledge of the object's
provenance must be such as to give adequate assurance that the seller or
donor has valid title to convey.”
39 Harvard University Museums, “General
Principles.” See also Robinson and Yemma, “Harvard
Museum Acquisitions Shock Scholars.” The Boston Globe (Jan.
16, 1998).
Other directors have likewise expressed cultural
property internationalist sentiments outside of their museums' press
offices or policy handbooks.
40 The same trend toward dissociation with cultural internationalist
advocacy is evident in the 2002 emergence of a new American lobbying
organization, the American Council for Cultural Property (ACCP).41
The group maintains an Internet presence, at
〈http://www.culturalpolicycouncil.org/index.htm〉.
The group, headed by Ashton Hawkins, formerly counsel to the Metropolitan
Museum of Art Trustees, operates with the stated intention of providing a
counterweight to
retentionist policies. Goals include revision of
the U.S. Cultural Property Implementation Act and advocacy in aid of
“legitimate dispersal of cultural material through the
market.”
42 D'Arcy, “Legal
group to fight ‘retentionist’ policies.” The Art
Newspaper (Fall, 2002), available at
〈http://www.theartnewspaper.com/news/article.asp?idart=10176〉.
These are roles that, in the past, one might have expected AAM or AAMD to
assume. ACCP was also willing to take to the field in the
Schultz
appeal, a battleground too hot for AAM and AAMD. While ACCP may prove an
able advocate for cultural internationalism, an organization that is not
directly accountable to the museum community is likely to have less
leverage than an organization that counts museums as institutional
members.
2. Consequences of Acquisition Reform
Whether the new acquisition policies represent a genuine commitment to
a new ideology or a perceived political necessity, they bear significant
long-term consequences. Chief among these is the prospect of little or no
acquisition of international cultural property in years to come. True, the
effect of a policy banning acquisitions of recent export may not be felt
at present or even in the near future. For one thing, some museums may
persist as cultural internationalists in practice though they do not
advertise it in public statements. Even where new rules have been
introduced, it is possible that former acquisition practices continue
largely unfettered, either because policies are routinely ignored, or
because they leave enough loopholes that they are easily circumvented. In
her 1998 assessment of acquisition policies, Clemency Coggins suggests
that the Getty's acquisition policy is relatively unique,
“especially in that it is actually carried out.”43
Coggins, “A Proposal,”
434–5. See also Robinson and Yemma, “Harvard Museum
Acquisitions Shock Scholars.”
Avoidance of the
spirit of acquisition policy reforms may indeed occur to some
degree (some think to a high degree), but as the failure to follow
comprehensive and transparent procedures in the acquisition of works of
international cultural property becomes less and less defensible, there
will be less and less room for resistance. One suspects, moreover, that
the negative association with freewheeling acquisitions, both in the media
and in the museum community itself, will continue to limit
noncompliance.
The impact of acquisition reform is also forestalled at some
museums—U.S. museums especially—by a steady stream of new
acquisitions furnished by gifts and sales from private collections. One
might again, with good cause, entertain concerns that such acquisitions
evade the spirit of the new policies. Such a high percentage of
acquisitions hail from private collections that the exception surely
swallows the rule when acquisition standards are not applied to
donations.44
Perhaps some museums have failed to close this loophole, but that
oversight seems perilous enough in the current climate that it almost has
to be short lived. The Schultz scandal has revealed to the whole world how
easy (and common?) it is to fabricate a private collection provenance that
satisfies museum requirements. As the new AAMD guidelines indicate,
acquisitors can no longer accept proffered provenance details at face
value, nor keep such details to themselves. And the Getty's
experience with the Fleischman collection, both in the criticism it
received over accepting a collection with incomplete provenance and in the
eventual return of an object from the collection that had been illegally
removed from Italy, made it clear that nothing short of comprehensive
inquiry is acceptable, even for the most eminent of private
collections.
45 The limits of the
Getty's new policy were tested shortly after its implementation when
the museum acquired the Fleischman antiquities collection in 1996. The
only source of the required “well-established provenance” for
the bulk of the collection came in the form of a Getty catalog of the
objects published in 1994. As a postscript to the story, in 1999, one of
the Fleischman objects, which was shown to have been stolen from an
excavation storeroom, was returned to Italy.
There is a large body of provenance-ready works held in private
collections, but it is not infinite (nor is it renewable), it is deep in
some subject areas and thin in others, and not all of it has been
earmarked for museum acquisition. It cannot, in the long term, sustain
more than a trickle of museum acquisitions. That means that acquisitors
need to sort out a method of acquisition capable of satisfying all
relevant parties that it does not facilitate the black market, or they
need to seek out alternatives to acquisition. The substantial obstacles to
the first option have been examined by others.46
The latter option now looms over
acquisitors.
3. Alternatives to Acquisition
Patty Gerstenblith has argued that antiquities acquisitions are no
longer prudent. She repeats the observations of a Getty Museum curator
that “a decrease in acquisitions can encourage museums to provide
much-needed resources for the existing collections… [and]
the lack of purchasing power provides a great incentive for exchanges
among collections and meaningful loan programs.”47
There is considerable support for
the view that temporary exchanges should replace the practice of
acquisition.
The 1976 UNESCO Recommendation Concerning the International
Exchange of Cultural Property contemplated barter and temporary
exchange at the institutional level. Over the past 30 years, barter has
not been a significant factor. A handful of interesting long-term loans
have been negotiated, but the practice is hampered by cultural patrimony
laws in some nations. Turkey's laws, for instance, forbid loans of
antiquities that extend beyond one year.48
Long-term loans hold promise as an acquisition alternative if the kinks
can be worked out. A creative arrangement, for example, saw the Pergamon
Museum lend an important marble statue of Roman Emperor Marcus Aurelius to
the Getty Museum, which, for its part, provided extensive conservation
work. Although in that example the loan was from one acquisitor to
another, the model seems broadly practicable.
In contrast to the minimal impact of barter and long-term exchange,
short-term loan exhibitions have proven an immensely popular, if lopsided,
forum for international exchange. Such exhibitions have presented
acquisitors and other museums with opportunities never before
imagined.49
Consider the Metropolitan Museum
of Art's recent exhibition Byzantium: Faith and Power, in
which curator Helen Evans assembled more than 350 works from 135
institutions in 30 countries.
Still, loaned works—at least
at present—come with substantial limitations. The associated costs
of mounting an international exhibition are high and can raise related
concerns of sponsorship; preparation is time consuming; the condition of a
work can preclude frequent travel; international politics can restrict
loan availability; borrowers may be unable to present a loaned work in the
manner they find most effective or intellectually honest particularly in
prepackaged, traveling exhibitions; and borrowers generally cannot perform
conservation or examine a work's composition or authenticity. In
short, borrowing a work is not the equivalent to owning it, and a museum
community that does not acquire international cultural property will be a
different one.
Different may turn out to be better or it may turn out to be
worse. Some of the limitations currently in place may be overcome.
Compromises with reluctant lenders may be reached. Other mutually
beneficial arrangements may evolve. Museums may be able to reach out just
as effectively to their communities and their donors without new
acquisitions of cultural property from abroad. It would be reassuring,
however, to see more evidence that acquisitors are thinking about and
preparing for their future. To date, acquisitors appear reluctant to share
with an interested public the forecasts and strategies, the
soul-searching, that must accompany such a major change in museum
practice.
4. Restitution
Whereas the museum community may have reached some consensus that, for
now at least, cultural internationalism cannot shape acquisition policies,
internationalist principles continue to inform conversations about
restitution. A sizeable quantity of cultural property has been returned to
places of origin in recent decades. The recent dismantling and preparation
for the return of Ethiopia's Axum obelisk from Rome
represents the largest-scale restitution project, but it is just one of
numerous examples—large and small, complete and partial.50
Examples of recent activity in this area
include the 2002 return of a mummy to Egypt by the Carlos Museum at Emory
University; Princeton University's 2002 return of a Roman marble
funerary monument to Italy; the Denver Art Museum's 1999 return of a
Maya wooden lintel to Guatemala; the Royal Albert Memorial Museum's
1997 return of Truganini's necklace and bracelet to the Tasmanian
Aboriginal Centre in Australia; the Getty Museum's return of three
antiquities to Italy in 1999; the Berlin Museum of Indian Art's
return of an 800-year old Nepalese carving to Katmandu; and the National
Ethnographic Museum of Stockholm's decision to send a totem pole to
the Haisla nation in Canada. As well as the unconditional return of an
object, there have been some creative compromises reached during
restitution negotiations, including the 1981 agreement between the Fine
Arts Museums of San Francisco and the Instituto Nacional de Anthropologia
e Historia de Mexico, providing for the joint conservation and custody of
an important set of Teotihuacan Murals.
In spite of a mounting number of works repatriated, it is important to
distinguish those that stem from recent acquisitions that were later
recognized to contravene laws or museum policies from those that stem from
acquisitions made during the age of imperialism, before the UNESCO
Convention and before acquisition practices were modernized.51
A useful third category comprises works seized
before and during the Second World War. A final category might consider
works lost from museums during more recent armed conflicts.
In
the former category, there is general agreement that restitution should be
considered and carried out if legal and practical; many museums' and
museum associations' policies so state. In the latter context there
are far fewer examples of restitution to report (although NAGPRA and
related national programs stand out as an exceptional example), and there
remains a wide range of opinions in the museum community, including
opinions that espouse cultural internationalist principles.
One strand of cultural internationalism opposes restitution on the
ground that the physical preservation of important examples of some
nations' cultural property is better secured in the foreign museums
where objects currently reside. This argument grows less and less
compelling as museums in so-called source nations continue to emerge
better equipped and better organized. Still, in specific instances it has
persisted as a justification. The Royal Museum for Central Africa in
Tervuren, Belgium, for instance, opposes restitution following its
experience of returning 114 ethnographic works in 1976 to the custody of
the Kinshasa Museum only to see a large number of them stolen amidst
subsequent political turmoil in the Congo. Such disappointing results
convinced the Royal Museum's director, Guido Gryseels, that wholesale
return of objects collected during the colonial era is not a viable
option: “The past is what it is.”52
Another cultural internationalist perspective has been aired primarily
in response to the ultimate restitution debate of recent decades, namely
Greece's demand for the return of the British Museum's Parthenon
Marbles. The protracted demand, now decades old, was voiced with
heightened urgency in recent years, as Athens prepared to host the 2004
Olympic games and as a new museum on the Acropolis was designed to house
the Marbles. Pressure to return the Marbles has come from all
corners—the press, UKMA, the Greek government, even the U.S.
Congress. The British Museum continues to resist restitution of the
Marbles, and in 2002–2003, was joined by a large group of many of
the world's preeminent acquisitors in a statement in defense of
universal museums.
The Declaration on the Importance and Value of
Universal Museums, issued in December 2002, reads as
follows:
The international museum community shares the conviction that
illegal traffic in archaeological, artistic, and ethnic objects must be
firmly discouraged. We should, however, recognize that objects acquired in
earlier times must be viewed in the light of different sensitivities and
values, reflective of that earlier era. The objects and monumental works
that were installed decades and even centuries ago in museums throughout
Europe and America were acquired under conditions that are not comparable
with current ones.
Over time, objects so acquired—whether by purchase,
gift, or partage—have become part of the museums that have cared for
them, and by extension part of the heritage of the nations which house
them. Today we are especially sensitive to the subject of a work's
original context, but we should not lose sight of the fact that museums
too provide a valid and valuable context for objects that were long ago
displaced from their original source.
The universal admiration for ancient civilizations would not
be so deeply established today were it not for the influence exercised by
the artifacts of these cultures, widely available to an international
public in major museums. Indeed, the sculpture of classical Greece, to
take but one example, is an excellent illustration of this point and of
the importance of public collecting. The centuries-long history of
appreciation of Greek art began in antiquity, was renewed in Renaissance
Italy, and subsequently spread through the rest of Europe and to the
Americas. Its accession into the collections of public museums throughout
the world marked the significance of Greek sculpture for mankind as a
whole and its enduring value for the contemporary world. Moreover, the
distinctly Greek aesthetic of these works appears all the more strongly as
the result of their being seen and studied in direct proximity to products
of other great civilizations.
Calls to repatriate objects that have belonged to museum
collections for many years have become an important issue for museums.
Although each case has to be judged individually, we should acknowledge
that museums serve not just the citizens of one nation but the people of
every nation. Museums are agents in the development of culture, whose
mission is to foster knowledge by a continuous process of
reinterpretation. Each object contributes to that process. To narrow the
focus of museums whose collections are diverse and multifaceted would
therefore be a disservice to all visitors.53
The Declaration was signed by the directors of the
following institutions: The Art Institute of Chicago; Bavarian State
Museum, Munich; State Museums, Berlin; Cleveland Museum of Art; J. Paul
Getty Museum, Los Angeles; Solomon R. Guggenheim Museum, New York; Los
Angeles County Museum of Art; Louvre Museum, Paris; The Metropolitan
Museum of Art, New York; The Museum of Fine Arts, Boston; The Museum of
Modern Art, New York; Opificio delle Pietre Dure, Florence; Philadelphia
Museum of Art; Prado Museum, Madrid; Rijksmuseum, Amsterdam; State
Hermitage Museum, St. Petersburg; Thyssen-Bornemisza Museum, Madrid;
Whitney Museum of American Art, New York; The British Museum,
London.
Immediately noteworthy is the Declaration's failure to
assume a cultural internationalist position when it comes to the
acquisition of cultural property in the present. It seeks, instead, to
convince the interested public, governments, and the museum community that
there is a wide gulf separating the past from the present; that one must
not consider cultural property transferred prior to the UNESCO
Convention or modern collecting policies and practices in the
same way that one perceives cultural property transfers under the UNESCO
regime. In other words, the Declaration does not say that current
nation-based attitudes are wrong, just that they should not apply
retroactively.54
Ronald de Leeuw, director
of the Rijksmuseum, was careful to distinguish the
Declaration's principles from acquisition policies:
“Of course, we would not now dream of buying illegally exported
antiquities or ethnographic objects, or of not returning a painting to a
rightful Jewish owner.” See also Bailey, “Shifting the
Blame,” The Art Newspaper (Jan. 2003), available at
〈http://www.forbes.com/2003/01/21/cx_0121hot.html〉.
Such a stance seems poised to seal the fate of cultural internationalism
in the acquisition arena.
It is hard to gauge at present what impact, if any, the
Declaration will have on the restitution debate. It demonstrated
that, for now at least, some acquisitors remain willing to assume a
cultural internationalist posture, even if it has been reduced from a
modus operandi to a defense. The Declaration garnered attention
to a cultural internationalist position, but along with attention came
renewed criticism of that position, both within the museum community and
beyond.55
It will be interesting to see whether these
acquisitors hold fast to the internationalist model when it comes to
repatriation, or whether—as in the acquisitions arena—policies
and practices will be reconfigured to fit a different model.
