Memorandum submitted by the Museums Association
THE MUSEUMS
ASSOCIATION1. The Museums
Association is an independent organisation representing museums
and galleries and people who work for them. The association has
over 4,000 individual members and 600 institutional members. These
institutional members encompass around 1,500 museums in the UK
ranging from the largest national museums to small volunteer-run
independent museums. The Museums Association is a democratic organisation;
its governing Council is elected by the membership. It was founded
in 1889 and is a registered charity. It receives no regular government
funding.
INTRODUCTORY NOTE
2. Our evidence is divided into two sections,
prefaced by a summary of our recommendations to the Committee.
The first—and longer—section concerns the illicit
trade. This is largely based on the forthcoming report into the
Illicit Trade in Cultural Material and its Implications for Museums,
jointly commissioned by the Museums Association and ICOM UK (the
UK national committee of the International Council of Museums).
The report is not yet published, but we hope it will be possible
to provide members of the Committee with copies of the final text
before the enquiry finishes. The second, shorter, section of our
memorandum concerns repatriation. It is worth noting that today's
illicit trade in cultural property will inevitably lead to repatriation
claims in the future.
SUMMARY OF
RECOMMENDATIONS
3. We ask the Committee to consider the
following:
ILLICIT TRADE
A. We urge the committee to analyse closely
the reasoning that led to the Government decision not to adopt
the 1970 UNESCO Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Cultural Property and
the 1995 UNIDROIT Convention on the Return of Stolen or Illegally
Exported Cultural Objects (see paras 38, 41 and 42).
B. If Government has definitely rejected
the conventions then it should urgently introduce measures (legislative
if necessary) to bring UK practices into line with these conventions.
We urge the Committee to explore carefully the Government's intentions
(see paras 43 to 45).
C. We urge the Committee to endorse current
museum practice that museums should refrain from acquiring an
object if there is reason to suspect that the object has been
acquired in, or exported from, its country of origin (including
the UK), or any intermediate country, in violation of that country's
laws or any national or international treaties (see para 30).
D. We urge the Committee to consider recommending
to museums that they should avoid acquiring any unprovenanced
item because of the strong risk that it has been looted, unless
there is reliable documentation to show that they were exported
from their country of origin before 1970, or they have specific
written permission from the authorities in the country of origin
to acquire the item (see para 32).
E. The Government should take a lead in
advocating a similar approach to private collectors and work to
create a climate in which dealing in—or possessing—illicitly
obtained cultural property is seen as unacceptable (see para 45).
F. Government should review whether tax
benefits should be allowed to accrue to individuals in respect
of unprovenanced material unless there is documentary evidence
that it was exported from its country of origin before 1970, for
instance in the Acceptance in Lieu scheme for inheritance tax
and the Conditional Exemption scheme (see para 44).
G. Government should review whether it is
appropriate for the Government Indemnity scheme to continue to
cover loans of unprovenanced material to UK museums, unless there
is documentary evidence that the material was exported from its
country of origin before 1970, or permission from the authorities
in the country of origin to borrow the material (see para 44).
H. Government should proceed to ratify the
1954 Hague Convention and Protocol for the Protection of Cultural
Property in the Event of Armed Conflict, along with the 1999 Second
Protocol (see para 44).
I. Government should resist US pressure
at future meetings of the World Trade Organisation for the abolition
of trade controls on cultural material (see para 44).
J. The Government should take steps to make
the system for licensing exports of cultural material fully comprehensive
and to improve compliance (see para 24).
K. The Government should explain the reasons
for the inconsistencies in statistics on the export of cultural
material from the UK and take steps to improve data collection
(see para 24).
L. The Government should encourage "transparency"
in the art trade by requiring that auction houses and dealers
record and, when it is in the public interest, disclose the names
of individuals or organisations from whom they purchase material
(see para 29).
RETURN
M. We urge the Committee to endorse current
museum practice that requests for return should each be considered
on their own merits by the governing body of the museum concerned,
following a common set of criteria, such as Restitution and
Repatriation: Guidelines for Good Practice, published by the
Museums and Galleries Commission (see para 54).
N. We urge the Committee to encourage museums
to treat those requesting the return of an item in a museum collection
with courtesy and respect (see para 55).
O. We urge the Committee to encourage museums
to wherever possible address requests for return using an open,
transparent procedure, ideally involving meetings open to the
public (see para 56).
P. The Government should ensure the provision
of a central advisory service, possibly funded by the Museums,
Libraries and Archives Council, that can help museums with responding
to repatriation requests and avoiding acquiring illicit cultural
property (see paras 35 and 50).
THE ILLICIT
TRADE: THE
NATURE OF
THE TRADE
4. The illicit trade in cultural material
is a destructive and often criminal enterprise that is causing
concern worldwide. Modern-day looting is greater in scale than
any carried out in the past, with damaging results that are often
beyond repair. The damage caused to the history and traditions
of living communities is often severe and action is needed now
to stop it. Archaeological remains are often vital for the rediscovery
of a people's history while "ethnographic" material
provides a visible and easily accessible reminder of a people's
traditions and accomplishments. Their removal abroad steals from
a people part of their identity, part of their collective psyche.
In view of this, some have argued persuasively that the right
to a cultural heritage is a fundamental, human right, and that
the destruction of cultural heritage should be treated as a violation
of human rights. Scholars are concerned about the illicit trade
because when a context is damaged or destroyed in the hunt for
a saleable object then knowledge is lost too.
5. As an underground, secretive activity,
it is impossible to attach a firm financial value to the illicit
trade in cultural material. Estimates of its worldwide extent
vary from £150 million up to £2 billion per year. (Latter
estimate made by Geraldine Norman, The Independent, 24
November 1990.) The scale and impact of the trade can be judged
from examples. Just three examples out of many are given here.
6. In Italy, archaeological sites are being
destroyed at an alarming rate. As early as 1962 a survey of a
single Etruscan cemetery at Cerveteri showed that 400 out of 550
tombs had been looted since the end of World War II. Between 1970
and 1996 the Italian police recovered more than 300,000 antiquities
from clandestine excavations. In January 1997 Swiss police sealed
four warehouses in Geneva which were found to contain approximately
10,000 antiquities from sites all over Italy. Some of these objects
had Sotheby's labels on them (see para 19 below). They were valued
at about £25 million. In 1998, a police raid on a villa in
Sicily revealed more than 30,000 Phoenician, Greek and Roman antiquities,
worth more than £20 million, thought to have been taken from
the ruins of Morgantina, in central Sicily.
7. Looting in Mali has become an international
scandal. Mali has more archaeological sites than anywhere else
in Africa outside of Egypt, but only a handful have been properly
investigated. A recent survey of 125 square miles discovered 834
sites but also showed that 45 per cent have been looted, 17 per
cent badly. Particularly renowned are medieval terracotta statues,
but of the hundreds presently in museums and private collections,
only 30 come from properly recorded excavations. The history of
Mali is quite literally disappearing from under the feet of its
inhabitants.
8. In the wake of the 1991 Gulf War, looting
in Iraq has escalated out of all control. Over 3,000 antiquities
are known to have disappeared after the looting of nine regional
museums; it is estimated that thousands more unrecorded antiquities
have been removed from archaeological sites. At the same time
the number of Iraqi antiquities on sale in London and New York
has increased dramatically. The despoliation of Sennacherib's
Palace at Nineveh has been particularly well documented, and looted
relief sculpture has been broken up and dispersed for easier transport
and sale.
LOOTING IN
THE UK
9. Looting to feed the illicit trade is
usually thought to be something that goes on in foreign countries.
However, it also happens in the UK. As a single UK example, consider
the sack of Wanborough, near Guildford in Surrey. After the discovery,
in early 1985, of some Iron Age and Roman coins, treasure hunters
descended on the site. Working mainly at night it is estimated
that they removed some 5,000 coins, worth about £2 million,
and destroyed an area of about 300 square metres (together with
the covering crop). Many of the coins were dispersed abroad and
subsequently spotted in Europe and the United States. Surrey Archaeological
Society responded with a campaign of rescue excavation through
the autumn and winter of the same year and uncovered an important
second century AD Romano-British temple, although evidence related
to the coin deposits was lost, and the reasons for their burial
are not clear. The looting continued and by 1997 the temple itself
was under attack as, again by night, deep holes were dug through
its foundations. Local residents reported seeing a lorry with
no lights driving past full of soil, apparently to be more thoroughly
searched elsewhere. The Surrey Archaeological Society took to
the field again, with the help of the local metal detecting club,
who were themselves disgusted at the looting, and in 1999 a first
century AD precursor temple was discovered, which had possibly
been contemporaneous with the looted coin deposits, although the
nature of their relationship has by now been destroyed.
THE ILLICIT
TRADE AND
ORGANISED CRIME
10. As the above examples indicate, the
illicit trade is destructive enough in itself. On top of this,
there is growing evidence of links to organised crime. Beginning
two or three years ago, reports started to appear that criminals
involved in drug smuggling, and money laundering, were also dealing
in antiquities. This information has come from all over the world:
— In January 1999, Spanish police broke
up a smuggling ring that had been planning to trade stolen art
and antiquities for cocaine.
— A smuggler's plane, arriving in Colorado
from Mexico, carried marijuana from Western Chiapas and pre-Columbian
antiquities.
— Miami has become a crossroad for
illicit antiquities—from Ireland, Peru, Guatemala, Mexico
and Greece—precisely because, according to US Customs, there
is so much "dirty money" swirling around in the city.
Drug profits pay for the antiquities, which are sent for auction
so as to obtain a good pedigree for the cash.
— A British graduate, Ian Graham, now
of the Peabody Museum at Harvard in the United States, has been
photographing Mayan sculptures in situ in Central America
for the past 30 years, mindful of the fact that, at some stage,
it might be necessary to prove from where these objects—so
easily stolen—had been removed. Beginning in 1998, Graham
came up against violent gangs who were so intent on taking Mayan
objects that they posted look-outs, at the top of palm trees,
ensconced in make-shift observation posts, to scare away anyone
who was too inquisitive.
— In 1998 two guards at Guatemalan
sites were killed at their posts.
— In one attack on the Angkor storehouse
in the early 1990s a guard was shot dead by rocket-wielding bandits.
THE LONDON
MARKET
11. In the UK the trade in cultural material
is undertaken by dealers and auction houses. The trade is of great
financial value and it generates wealth for the UK economy and
sustains many jobs. Many dealers try to be careful about what
they trade in and avoid material if they think it may be illicit.
However, it is not always possible to be sure of the status of
a particular item and dealers can make mistakes or take short
cuts as the information needed to establish an item's status is
often unavailable (see para 26 below). Other dealers do not even
try to be careful. Some UK dealers and auction houses appear to
be involved in trading in cultural material illegally exported
from other countries. (While this is ethically unacceptable, it
is not necessarily illegal in the UK—see paragraph 38 below.)
12. The unethical behaviour of these dealers—and
the sense of uncertainty that pervades the whole antiquities trade—damages
the reputation of the UK art trade as a whole. This poses a long-term
threat to the London art market. Revelations about the illicit
trade in London led Sotheby's to move its antiquities sales from
London to New York, resulting in a loss of business for the UK
(see para 25 below).
13. The central problem involves what are
known as "unprovenanced" objects, objects that "surface"
on the market and are sold without any accompanying information
about where they have been found, in what circumstances, and under
whose auspices. "Unprovenanced objects" is a shorthand
of sorts. When these objects come to market, someone knows where
they originated, but isn't saying.
14. There can be little doubt that the great
majority of the London trade in antiquities is in unprovenanced
objects. No details about private dealers are available, but inspection
of the main auction house catalogues shows a surprising—and
distressing— consistency in the picture. Generally speaking,
over the last 20 years at least, somewhere between 65 per cent
and 90 per cent of the antiquities offered for sale on the London
auction market have no published provenance, with the figure usually
at the higher end of that range.
15. Traditionally, the auction houses have
argued that the bulk of these unprovenanced antiquities have come
from small private collections or were discovered in "attics".
This is inherently implausible, a picture that is not mirrored
in other sectors of the art market. Until recently it was difficult
to do more than quote this implausibility. All that changed in
1997 with an exposé (published as Sotheby's: Inside
Story, by Peter Watson) which, for the first and only time,
provided a revealing glimpse behind the scenes at an auction house.
16. The basic material which gave rise to
the book and two Channel 4 television programmes consisted of
many original Sotheby's documents leaked to Watson. They showed
that very many of the antiquities sold at Sotheby's without a
published provenance had come from one dealer in Switzerland who
proved to be a "front" for an Italian who was well known
to the art squad of the Italian carabinieri. Watson's investigation
showed that he smuggled the illegally excavated objects from Italy
to Switzerland (where it is still perfectly legal to import and
export antiquities without any documentation) in bulk. From there,
they were sent to Sotheby's in London. This enabled Sotheby's
to claim that the objects had arrived on its premises from Switzerland
perfectly legally.
17. The size of this traffic was considerable.
For example, between December 1983 and December 1986, the dealer
and another colleague consigned 248 objects to six sales with
a total value of at least £640,880. Separate documents showed
that in 1986, 1987 and 1988 he had traded other goods worth around
a quarter of a million pounds. In Sotheby's December 1987 sale,
another company owned by the Italian consigned 101 lots, out of
a total of 360 in the auction. In May 1988 the same company consigned
76 lots and in December 1988 46 lots.
18. Nor was this all. The documents also
showed that:
— among the sellers at Sotheby's auctions
were several dealers from Munich whose names were well-known to
police for their involvement in the sale of looted antiquities;
— the Italian shared an office address
in Geneva with a London dealer, who traded in Switzerland under
a different name, and also consigned to Sotheby's a broadly similar
range of unprovenanced antiquities; and
— in individual cases, regarding more
valuable pieces, Sotheby's personnel had either been aware that
objects sold on their premises had been illegally exported from
Italy, or had themselves had a hand in the arrangements.
19. Italian police began an inquiry and,
at the time of writing, the Italian awaits trial in Rome. The
carabinieri, aided by Swiss police, found that he had four warehouses
in the Geneva Freeport, where there were 10,000 unprovenanced
antiquities valued at £25 million. Some of these objects
had Sotheby's labels on them, raising the possibility (not yet
proven) that they were sold at the London salesroom and then bought
back, as a way of "laundering" them, making it appear
that they had been bought on the "open" market.
20. The documents also related to antiquities
that had been illegally excavated and smuggled out of India. Specific
dealers had been consigning material to auction in London for
at least 10 years. Dealers in Bombay admitted to investigators
that material came out of India by the "container-load".
Subsequently, they identified a London address where the material
was warehoused and this was visited by the investigators. There,
they found objects consigned by the Bombay dealers, and identified
by them in a Sotheby's catalogue.
21. On another occasion Dr Dilip Chakrabarti,
an Indian scholar in the Department of Oriental Studies of Cambridge
University, drew attention to three items in a Sotheby's catalogue
for a sale of Asian antiquities, that were labelled "Probably
Chandraketugarh, West Bengal, second and first century BC".
Dr Chakrabarti explained that this site, north of Calcutta, has
never been professionally excavated and was not discovered until
the mid-1950s, by which time India's law forbidding the export
of archaeological material was already in place. Therefore, any
material from Chandraketugarh has by definition been illegally
excavated and illegally exported from India. (Although dealing
in this material in the UK is not necessarily illegal; see para
38 below.)
22. An example of an illicit trading chain
in Britain of the type revealed by Watson in Italy and India has
recently been exposed in a remarkable study carried out by Ian
Stead at the British Museum. He investigated the Salisbury Hoard,
which had been excavated illegally in southern England in 1985.
It is a unique find in British archaeology and contained over
500 bronze objects of various ages ranging over 2,000 years, which
had apparently all been buried together sometime around 200 BC.
However, after its excavation the hoard was broken up and sold
piecemeal.
23. Stead and his colleagues set out to
investigate the provenance of the pieces. The involvement of the
police in what became a criminal investigation opened up the record
books of auction houses and dealers. The true nature of the trade
stood revealed. The stolen hoard was broken up into smaller lots
and passed through the salesrooms of Britain. Many dealers and
auction houses—including Sotheby's, Christie's and Spinks—at
one time or other sold objects from this hoard, not knowing them
to be stolen.
24. It is not possible to determine the
financial value of the UK dealers' and auction houses' trade in
cultural material. Even the Government's official trade figures
do not give a clear picture, with massive inconsistencies between
the figures given by DCMS and DTI—and further discrepancies
between the DTI figures and US trade statistics on imports of
cultural material from the UK. In part this may be because of
weaknesses in the UK export licensing regime which does not appear
to be applied comprehensively. (These points are being explored
more fully in a memorandum from the Illicit Antiquities Research
Centre,) It would clearly be useful to have reliable information
about the scale of UK trade in cultural material and we recommend
that the Government should take steps to improve data collection
about the value and pattern of the UK's international trade in
cultural material and to make the system for licensing exports
of cultural material fully comprehensive and improve compliance.
This would also help detect the presence of organised crime and
money laundering in the trade in cultural property. The Financial
Action Task Force (FATF) recommended in 1998 that an effective
export licensing system is a key component of any strategy designed
to defend against international crime.
THE ILLICIT
TRADE: STOPPING
THE TRADE
25. In the wake of the Watson exposé
Sotheby's stopped their antiquities auctions in London and now
hold them only in New York, where there is stronger regulation
of the market under the US Cultural Property Implementation Act
(see para 37 below). After an internal enquiry, in December 1997
Sotheby's announced a new Code of Conduct and established a Compliance
Department to oversee its implementation and operation. An important
feature of the new Code is a pledge not to sell an object if it
is known to have been exported illegally from its country of origin,
regardless of its status under EC or US law.
26. This is a welcome move, as are other
voluntary codes such as the Council for the Prevention of Art
Theft's Codes of Due Diligence, designed to impede the flow of
stolen material through the art market. However, these voluntary
codes are not enough. The information necessary to assess the
status of an item is often non-existent or is kept secret. Vendor
and purchaser anonymity is a fundamental feature of the trade
and when selling an item there is no requirement to reveal a record
of ownership history, or the original findspot, so that there
is no published information which can be used to trace an antiquity
back to its original source. It is usually simply not possible
for a potential good faith buyer to establish whether an antiquity
was originally obtained by honest, or dishonest means. Licit and
illicit antiquities become hopelessly mixed. Looted antiquities
acquire a patina of legitimacy when ultimately they are sold,
without provenance. There is little chance they will be recognised
as looted.
27. In general the trade seems to prefer
to assume items are all licit, "innocent until proven guilty".
It would be safer—and more realistic—to regard certain
categories of material as potentially illicit unless proven otherwise.
This is what we are now recommending to museums—see paragraph
32 below.
28. Auction houses regard their first duty
as being to their clients, by which they mean the people who sell
through them. It is easy for collectors and auction houses to
hide insalubrious practices behind the argument that client security
comes first, so nothing must be said. This is an unsatisfactory
state of affairs. It will only prove possible to combat looting
of cultural material when the trade in antiquities is fully transparent
so that clear chains of ownership can be established.
29. We recommend that the Government should
encourage "transparency" in the trade by requiring that
dealers record and, when it is in the public interest, disclose
the names of individuals from whom they purchase material.
THE ILLICIT
TRADE: EFFECTS
ON AND
IMPLICATIONS FOR
UK MUSEUMS
30. Under the (voluntary) Registration Scheme
for Museums in the UK, introduced by the Museums and Galleries
Commission, and the Museums Association Codes of Ethics museums
and galleries are required to "refrain from acquiring an
object if there is reason to suspect that . . . the object has
been acquired in, or exported from, its country of origin (including
the UK), or any intermediate country, in violation of that country's
laws or any national or international treaties".
31. Until recently, museums were not always
as careful as they should have been in following this requirement.
However, museums are now much more cautious. For example, the
British Museum Policy Statement on the Acquisition of Antiquities,
adopted in 1998, states that the British Museum deplores the looting
of antiquities for the market, and refuses to acquire objects
that have been illegally excavated and/or exported. Enquiries
made during the preparation of the forthcoming Museums Association/ICOM
UK report suggest that many UK museums turn down potential acquisitions
because they are unable to satisfy themselves that the acquisition
is acceptable. Museums generally seem to be aware of the need
not to purchase unprovenanced material when it is recognised as
archaeological. (However, attitudes may be less secure when pieces
are labelled as art.)
32. The Museums Association is now to recommend
to museums that they should avoid acquiring any object that has
no secure ownership history, unless there is reliable documentation
to show that it was exported from its country of origin before
1970. To ensure it is acceptable, any purchase should be accompanied
by full and proper documentation, including, critically, any relevant
export licences from the country of origin. This may be achievable
when the item is being offered by a dealer, but purchases from
auction houses are more problematical. It should, by now, be clear
that the appearance of an object in the saleroom of a major auction
house is no guarantee of its good pedigree.
Unless good evidence of its history and means
of first acquisition is forthcoming an item should be avoided
because of the risk that it could be illegally exported—or
fake, or stolen.
33. By undertaking "due diligence"
procedures it may be possible to establish a provenance or reconstruct
an ownership history. However, in some cases it will prove impossible
to establish a secure history, in which case the acquisition should
be avoided unless specific written permission is officially granted
by the relevant authorities in the country of origin.
34. Due diligence is an indispensable procedure
to be followed for any acquisition. It can be time consuming,
and expensive, and it is tempting to take short cuts. But failure
to adequately check the history of an acquisition could result
in an embarrassing and expensive mistake. The cost of diligence
procedures is effectively a hidden cost of the trade, the need
for them a result of their secretive, often unethical practices,
and one passed on to museums.
35. A further problem is that many museums
lack the resources or expertise to undertake due diligence—or
even to identify the correct overseas authorities who should be
contacted. For this reason, we recommend that a central resource
should be set up to advise museums and make available the export
legislation of all countries. UNESCO hold copies of relevant legislation
from all states party to the 1970 Convention but, in general,
such information is difficult to come by.
INTERNATIONAL CONVENTIONS
AND THE
UK GOVERNMENT'S
RESPONSE
36. The illicit trade is facilitated by
differences in law between jurisdictions: it is difficult for
a government to reclaim material once it has been exported illegally
from its territory. To overcome these problems a series of international
conventions have been devised over the years, with the aim of
allowing an internationally unified response to what is an international
problem. The 1970 UNESCO Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property establishes a legal framework within which
governments can have the opportunity to co-operate to fight the
illicit trade in cultural property. The Convention makes provision
for a state party to request the return of an object stolen within
its own jurisdiction but located within the jurisdiction of another.
It also makes provision for a state party to request another to
impose import restrictions on specific classes of material. There
are also recommendations for education and training. A state can
implement any or all of the articles of the Convention.
37. The 1970 UNESCO Convention is not retroactive.
This means that claims for restitution can only proceed for an
object that was removed from the territory of a claimant state
after the date of ratification by the state party from which the
object is to be recovered. Private and public collections established
within a state before it becomes party to the Convention are not
open to claims for restitution. At the present time there are
86 signatory states around the world. Of the three largest market
states (USA, UK and Switzerland), the USA has ratified the Convention,
which entered US law in 1983 as the Cultural Property Implementation
Act (CPIA) and even Switzerland is currently drafting implementing
legislation.
38. However, in sharp contrast, the UK Government
has consistently refused to ratify the Convention. This means,
shockingly, that as Lord Inglewood told the House of Lords in
1997: "It is not an offence to import into this country antiquities
which have been illegally excavated in and exported from their
countries of origin". On 9 February 2000 the Government announced
that it had decided not to sign the 1970 UNESCO Convention because
"significant practical difficulties remain in implementing
its provisions into UK law". What these practical difficulties
are was not made clear.
39. The failure of the United Kingdom to
ratify UNESCO is regrettable in itself, but the position is worsened
as, in effect, the United Kingdom is undermining American efforts.
Reports suggest now that in the wake of import restrictions placed
on pre-Columbian material by the United States that such material
is now moving through London before entering the United States—through
the "back door", so to speak. It was reported in 1997
that the London market was glutted with smuggled pre-Columbian
antiquities, with 60 per cent of the sales revenue coming from
Americans.
40. The 1970 UNESCO Convention is an instrument
of inter-Governmental co-operation—there is no provision
for private individuals or institutions to reclaim stolen material
through the courts of a foreign country. The 1995 UNIDROIT Convention
is designed to rectify these deficiencies by providing a legal
framework within which private actions can proceed, and by defining
that an object which has been illegally excavated should be considered
as stolen. Like the UNESCO 1970 Convention, the UNIDROIT Convention
is not retroactive. Unlike UNESCO, UNIDROIT must be fully implemented.
Eleven states have ratified the UNIDROIT Convention, with France
being the only major market nation to have done so.
41. On 7 February 2000 the UK Government
announced that it would not sign the UNIDROIT Convention due to
conflicts with current UK law. It put forward two legal objections
in support of this decision. In the first place it is argued that
the limitation periods are different to those which apply in the
Return of Cultural Objects Regulations 1994, which are in turn
different to those which normally apply for stolen property. This
would cause confusion in the courts. Secondly it is argued that
the principle of compensation is alien to established common law
practice. HM Government's objection to the payment of compensation
is difficult to understand. Article 9(1) of the Convention allows
common law countries to ignore requirements for compensation,
and thus represents an advance over the 1994 Return of Cultural
Objects Regulations, where compensation is payable in cases of
illegal export, and which have already been accepted into British
Law to implement the EU Directive on the return of Cultural Objects
Unlawfully Removed from the Territory of a Member State.
42. The Museums Association is not competent
to address the legal arguments in detail. We regret that the Government
has not taken a more positive attitude to the 1970 UNESCO Convention
and the UNIDROIT Convention and urge the Committee to closely
analyse the reasoning that led to the Government's conclusions.
43. In announcing the Government's decision
not to become a signatory to the UNIDROIT Convention, the Secretary
of State for Culture Media and Sport wrote "please rest assured
that our decision in no way represents a rejection of the objective
of discouraging trade in stolen, illicitly excavated and illegally
exported cultural objects . . . I do assure you that we are seeking
energetically and constructively to find another way forward which
would be compatible with our current legal system". This
statement of intent is welcome. Less welcome is the Secretary
of State's admission that this "will take some time to consider
fully". If Government has definitely rejected the conventions
then it is under a moral obligation to move forward quickly with
the introduction of an alternative regime. We urge the Committee
to explore carefully the Government's intentions.
44. The Government now needs to build on
the Secretary of State's desire to "discourage trade in stolen,
illicitly excavated and illegally exported cultural objects".
There are a number of practical steps that the Government could
take to do this. These include:
— Government should review whether
tax benefits should be allowed to accrue to individuals in respect
of unprovenanced material, because of the risk that it may have
been illicitly traded, for instance in the Acceptance in Lieu
scheme for inheritance tax and the Conditional Exemption scheme.
— Government should review whether
it is appropriate for the Government Indemnity scheme to continue
to cover loans of unprovenanced material to UK museums.
Note: In considering the above recommendations
it may be useful to adopt the rule of thumb used increasingly
by museums that provenance need not necessarily be established
if there is documentary evidence that the material in question
had been exported from its country of origin before 1970.
— Government should proceed to ratify
the 1954 Hague Convention, along with the 1999 Second Protocol.
— Government should resist US pressure
at future meetings of the WTO for the abolition of trade controls
on cultural material.
45. Perhaps most importantly of all, the
Government should work to create a climate in which dealing in—or
possessing—illicitly obtained cultural property is seen
as unacceptable. (As, for example is the case with rare birds'
eggs.) No Government can police every archaeological site in its
country in an attempt to keep off looters, nor can it monitor
every border crossing to enforce export controls. The solution
ultimately is in the hands of the customer, or collector. While
people in the West remain happy to buy objects with only the flimsiest
indication of provenance, that is what they will continue to be
offered. It will continue to be easy for the trade to market looted
material, whether knowingly or unknowingly, by turning a convenient
blind eye. Collectors should demand documentary evidence of an
object's history. If they fail to do so then, at the end of the
day they will be the real looters.
REPATRIATION
46. As the main focus of this memorandum
is on the illicit trade, the evidence offered here on repatriation
is extremely brief and we would be happy to provide additional
written evidence, if the Committee would find that useful.
47. In 1997 the Museums Association published
a report by Moira Simpson Museums and Repatriation: An account
of contested items in museum collections in the UK, with comparative
material from other countries. The report's key findings were:
48. 97 per cent of Museums Association personal
members thought that items should be repatriated under certain
specified circumstances (for example, if the items would be preserved
in a museum after repatriation). Almost 50 per cent agreed with
the statement "Circumstances have changed and in many cases
there are grounds for repatriation, even if the items may not
be preserved in a museum".
49. Demands for repatriation in Australia,
Canada and the USA have led to a profound shift in museum philosophies.
Museums in these countries now generally have a concept of sharing
responsibility for museum collections with communities of origin.
This is generally not the case in the UK, where museums see themselves
as having the main responsibility for objects in their care.
50. Most non-national museums had not adequately
addressed the possibility of repatriation. Only 6 per cent of
museums responding to a questionnaire had developed written policies
specifically referring to repatriation. This, and other evidence,
implies that many museums need expert advice and assistance to
help them follow through the complex procedures needed to properly
assess a repatriation claim. Government needs to ensure this expert
advice is provided—perhaps as a central advisory point that
can also advise on related cultural property matters such as avoiding
illicitly traded acquisitions.
51. International treaties on illicit trade
in cultural property (such as the UNESCO 1970 Convention and the
UNIDROIT Convention) have little, if any, relevance to demands
for the repatriation of material acquired during the colonial
era.
52. Evidence from Australia, Canada and
the USA suggests that only a small proportion of museum collections
are likely to be subject to repatriation requests.
53. Repatriation negotiations can bring
benefits for museums. If handled properly, a repatriation request
need not be a negative experience—it can lead to future
co-operation and partnership.
The Museums Association also wishes to make
the following additional points.
54. In view of the diversity of museums,
motivations for repatriation requests and histories of objects
in museum collections, every repatriation request has to be considered
separately, by individual museum governing bodies but according
to a common set of criteria. The kinds of criteria to use are
outlined clearly in the MGC publication Restitution and Repatriation:
Guidelines for Good Practice, as are possible procedures.
55. It is essential the museums treat those
making a repatriation request with courtesy and respect.
56. As public, accountable bodies, museums
should wherever possible address repatriation requests using an
open, transparent procedure, ideally involving meetings open to
the public.
March 2000
| 
