MEMORANDUM
CULTURAL PROPERTY: RETURN AND ILLICIT TRADE:
GOVERNMENT ACTION ON THE INTERNATIONAL ILLICIT TRADE IN ART AND
ANTIQUITIES WITH A FOCUS ON IRAQ IN RESPONSE TO THE SEVENTH REPORT
FROM THE CULTURE, MEDIA AND SPORT COMMITTEE, SESSION 1999-2000
1. The Government's initial responses to the Select
Committee Report were published on 31 October 2000 and 7 March
2001.1[1]
This memorandum should be read in conjunction with these published
reports.
2. The following summaries set out the Government's
progress to the individual recommendations on the international
illicit trade listed on page li of the Committee's report of July
2000, and printed in italics below:
(i) A clear system for recording the ownership
history of a cultural object, linked directly to the capacity
to conduct a legitimate transaction, would be an extremely important
tool in tackling the illicit trade in cultural property and is
therefore desirable in principle. However, we have received persuasive
evidence that a compulsory "log book" providing such
a record would face many difficulties, some of them probably insuperable,
and we have concluded reluctantly that such a compulsory "log
book" would not represent a practical way forward. However,
where organisations feel that they can establish some sort of
voluntary "log book" within their own resources this
would be very much welcomed (paragraph 43).
(ii) We recommend that the Home Office make
a public commitment in the course of this year to establishing
a national database of stolen cultural property and cultural property
exported against the laws of countries concerned under national
police control. The Home Office should also seek to take forward
detailed discussions with the police service, the insurance industry,
the art market and private database operators about the development
of an open system which can meet the needs and draw upon the skills
and funds of the private sector. Finally, the Home Office should
liaise closely with other countries to ensure that any national
development is compatible with the wider international development
of a database of stolen and illegally exported cultural property
(paragraph 54).
(iii) We do not wish to recommend any changes
to the United Kingdom's current controls on the export of cultural
property (paragraph 102).
(iv) We recommend that the Government introduce
legislation creating a criminal offence of trading in cultural
property in designated categories from designated countries which
has been stolen or illicitly excavated in or illegally exported
from those countries after the entry into force of the legislation,
with a defence in law based on the exercise of due diligence as
defined in that legislation (paragraph 108).
(v) Assuming that the other recommendations
in this section of the Report (recommendations (iv) and (vi))
are implemented, we do not recommend that the United Kingdom become
a party to the 1970 UNESCO Convention (paragraph 109).
(vi) We recommend that the United Kingdom
sign the 1995 UNIDROIT Convention and that the Government bring
forward legislation to give effect to its provisions and facilitate
early ratification (paragraph 110).
(vii) We welcome steps already taken by museums
in the United Kingdom and by the Museums Association to increase
awareness of the illicit trade in cultural property and its implications
for museums. We support the broad principle that museums 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 and we recommend that the
Government also state its support for this principle. We further
recommend that, in the light of the development of the Portable
Antiquities Scheme, the Department for Culture, Media and Sport
conduct a review of the circumstances in which it is appropriate
for museums in England and Wales to act as repositories of last
resort of antiquities likely to have originated within those countries
(paragraph 121).
(xiv) We recommend that the Department for Culture,
Media and Sport initiate discussions with appropriate representatives
of museums, of claimant communities and of appropriate Governments
to prepare a statement of principles and accompanying guidance
relating to the care and safe-keeping of human remains and to
the handling of requests for return of human remains (paragraph
163).
(xv) We recommend that the Department for Culture,
Media and Sport seek commitments from all holding institutions
in the United Kingdom about access to information on holdings
of indigenous human remains for all interested parties, including
potential claimants, as part of these discussions (paragraph 164).
(xvi) We recommend that the Department for Culture,
Media and Sport undertake a consultation exercise on the terms
of legislation to permit the trustees of national museums to remove
human remains from their collections with a view to early introduction
of such legislation (paragraph 166).
(xvii) We recommend that the Department for Culture,
Media and Sport set out its strategy for assisting non-national
museums with provenance research relating to the period 1933 to
1945 and for ensuring that the results of research by national
and non-national museums is made available in a common and accessible
format in its response to this Report (paragraph 183).
(xviii) We consider that the case for special
treatment of cases of alleged wrongful taking during the period
1933 to 1945 has been convincingly established. It is appropriate
that the Spoliation Advisory Panel has been created to ascertain
the facts of individual cases and to recommend an outcome for
claims which are upheld. While there are merits to a solution
which secures continuing public access to an object in a museum,
that interest must be seen as subordinate to the interests and
wishes of a rightful owner. Where a claim has been upheld and
restitution is seen as appropriate by all parties, it is essential
that legislative barriers to such restitution be removed. It would
be absurd if restitution were not possible in these circumstances
due to the dilatoriness of Ministers in the Department for Culture,
Media and Sport (paragraph 193).
(xix) We very much welcome the lead taken by the
British Museum in making clear and unequivocal statements that
it would wish to return objects looted during the period 1933
to 1945 and not subsequently returned. We recommend that Ministers
in the Department for Culture, Media and Sport begin cross-party
consultations as a matter of the utmost urgency with a view to
securing agreement for early and expedited legislation to permit
the trustees or boards of national museums and galleries to dispose
of objects which, in the view of the Spoliation Advisory Panel,
were wrongfully taken during the period 1933 to 1945 (paragraph
194).
(xx) We recommend that the Department for Culture,
Media and Sport undertake discussions with representatives of
the British art market, claimant representatives and other interested
parties to explore the extent to which the Spoliation Advisory
Panel or a separate body could be engaged to investigate issues
relating to cultural objects currently in private hands which
may have been wrongfully taken during the period 1933 to 1945
and not subsequently returned and to propose outcomes reflecting
the legitimate interests of claimants and of current possessors
(paragraph 198).
3. The Government continues in its determination
to take effective action to combat the continuing international
illicit trade in antiquities. The destruction and plundering of
archaeological sites, monuments and collections in Iraq in the
aftermath of the recent conflict has highlighted the importance
of strong Government action to prevent the UK being used as a
marketplace for cultural objects unlawfully removed from other
countries in the world. The Select Committee's Report gave figures
ranging up to £4.5 billion for the size of the international
market in illicit cultural material.
4. In response to the Select Committee's deliberations,
the Government appointed an expert Advisory Panel in May 2000
under the chairmanship of Norman Palmer, Professor of Commercial
Law at University College London, with a remit to review both
legislative and non-legislative options for action. The Panel
submitted its Report, including ten key recommendations, to Ministers
in December 2000.2[2]
Recommendations (i) to (vii) of the Select Committee relate directly
to matters both actioned and still under consideration by the
Panel.
5. With reference to the Select Committee's recommendations
the Government has been assisting the Illicit Trade Advisory Panel
to make progress in the following key areas:
International conventions
- Accession on 31 October last year to the 1970
UNESCO Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property. The UK has an obligation under Article 7(b) of the
Convention to prevent the import of unlawfully removed art and
antiquities from signatory counties and assist them in to secure
their return.
- The Panel, however, advised against accession
to the 1995 UNIDROIT Convention on Stolen or Illegally
Exported Cultural Objects, on the basis that claims could
be made for the return of stolen cultural property up to 50 years
after the theft and the difficulties involved in enforcing such
an instrument. Moreover, its recovery value is limited by the
fact there are only 12 member states. Accession to the UNIDROIT
Convention would also have required primary legislation and so
would have taken time, whereas the Panel concluded that acceptance
of UNESCO could be enacted in the UK without delay. The widespread
adoption of the 1970 UNESCO Convention (99 countries to date,
including in recent months other market countries such as Japan
and Sweden) enhances its value as a means of protecting the cultural
heritage of the UK and other signatory counties. In signing the
treaty last year, the UK Government sent out a powerful signal
to the international community that the UK is serious about playing
its full part in the international effort to stamp out the illicit
trafficking in cultural objects.
A new criminal offence
- DCMS sponsorship of a Private Members Bill to
create a new criminal offence, which will make it illegal
to trade in unlawfully removed cultural objects. In switching
off the illicit marketplace, the Government aims
- to remove the commercial incentive for those
involved in the looting of museums and sites. The measure, which
carries a maximum prison term of 7 years, applies equally to objects
illegally excavated or removed in the UK or outside the
UK. The Government-supported Private Members Bill for Dealing
in Cultural Objects (Offences) received its Second Reading on
4 April and has both cross-Party and cross-sectoral support among
the UK art trade and heritage community. The Bill will receive
its Report and Third Reading in the Commons on 4 July and is estimated
to secure Royal Assent in the Autumn.
- The new offence is designed to target irresponsible
trading. It will inject greater transparency into the process
of acquiring and disposing of cultural objects within the art
market so that clear chains of ownership can be established in
the event of suspected unlawful removal or excavation. In effect,
the Bill does not impose further costs in terms of due diligence
checks but, rather, formalises them and encourages those not complying
with industry-approved standards of good practice to come on board.
The measure is designed to protect small business from the illicit
trade, which threatens their commercial position through unfair
competition.
Improved intelligence
- On the issue of intelligence gathering, DCMS
has been active in promoting the Culture Select Committee and
Illicit Advisory Panel recommendation for a single, widely accessible
database of stolen and unlawfully removed cultural objects.
By facilitating effective due diligence checks, the database is
regarded by the art trade and by museums as a vital part of the
package of measures designed to fight the illicit trade, including
the establishment of the mental element in prosecuting the proposed
new criminal offence.
- The national database of unlawfully removed
cultural property is intended to cover cultural objects unlawfully
removed from any place in the world, whether in the UK or overseas,
which have arrived in the UK. Its primary purpose, as recommended
by ITAP, would be to record those objects which have been (a)
stolen, or (b) illegally excavated, or (c) illegally removed from
monuments or wrecks on the basis that the theft of such objects
within the UK should be a reportable offence.
- The development of an open national database
of unlawfully removed cultural objects is regarded as integral
to fulfilling the UK's new obligations under the 1970 UNESCO Convention,
in particular those Articles covering inventories and publicity
regarding the disappearance of stolen items. The database is also
recognised by law enforcement agencies as part of a desired proactive
strategy to control the use of stolen artworks and antiquities
for other areas of organised crime, including money laundering
and the financing of drugs and firearms in connection with terrorist
activities.
- The database is an
ambitious project and requires extensive consultation, both amongst
policy makers in other Government departments and amongst law
enforcement agencies. At the request of the Home Office, the Department
has prepared an outline business case for the database, which
analyses the administrative arrangements, budgets required, together
with operational, security and access issues. Needless to say,
news of the circulation on the black market of antiquities unlawfully
removed from collections and sites in Iraq and Afghanistan have
highlighted the urgency of developing this facility for use by
the trade, law enforcement agencies, Customs and museums.
- The Panel also recommended the institution of
a comprehensive and universally accessible database of international
legislation on cultural property. The database should be run
as a service available to all who transact in cultural objects.
It should seek to record information about past as well as present
laws and about judicial decisions construing those laws. It should,
like other modern law databases, be regularly updated. Proof of
reference to the database will be relevant to a possessor's legal
position. UNESCO has agreed to take this proposal forward under
the umbrella of its international remit and the Department for
Culture, Media and Sport has offered assistance to drive the project
forward.
Export licensing
- Members of the Illicit Trade Advisory Panel are
united in their the opinion that the export licensing system
offers a workable and currently under-used means of imposing constraints
on the movement of those cultural objects which have recently
entered the UK after their illegal exportation from an overseas
country. In its Progress Report for 2001,3[3]
the Panel invited the Government to accept the following position:
that, in considering any application for an export licence, the
Export Licensing Unit should seek to identify and take account
of any unlawful removal (including illicit excavation) of the
object from the UK or, where different, from the country in which
it was located immediately before it was in the UK; and that the
Export Licensing Unit should take account of any evidence of unlawful
removal (including illicit excavation) from a third country
in which the object was located before the country of its
last location.
- In the light of the UK Government's recent accession
to the UNESCO Convention, the Panel has constituted a working
party to examine the most effective means of:
(a) advising on types of cultural property currently
subject to looting and therefore needing extra checks on provenance
before export licenses are granted;
(b) monitoring the illegal unlicensed outflow of
archaeological material from the UK, including material offered
for sale on the Internet;
(c) and reviewing the system of, and instructions
given to, expert advisers.
Role of museums
- Taking forward the Illicit Trade Advisory Panel
recommendation that "guidelines on the acquisition of archaeological
material from overseas and the role of museums acting to
provide temporary safety for antiquities in times of armed conflict
should be clarified and refined". DCMS - in partnership with
the Museums Association - is preparing to host a seminar for UK
museum directors on this issue in the early Autumn.
6. In response to the Select Committee's recommendations
on the treatment of Human Remains held in UK collections and on
artwork wrongly removed between 1933 and 1945:
Human Remains
- The Government set up the Working Group on Human
Remains (WGHR) in May 2001 under the Chairmanship of Professor
Norman Palmer to examine the current legal status of human remains
in Government funded museums and galleries in the UK. The Working
Group is expected to report to Ministers by late Summer. At this
juncture, it is not possible to say what it will recommend. However,
any recommendation for a relaxation of the law to enable national
museums to de-accession human remains will be subject to wide
consultation. It is not possible, at this stage, to say whether
the recommendations could be achieved through secondary legislation
(e.g. a Regulatory Reform Order), or whether it would require
primary legislation.
Spoliation
- The Government set up the Spoliation Advisory
Panel in February 2000 under the Chairmanship of the Rt. Hon Sir
David Hirst. The Panel can help to resolve claims from people
- or their heirs - who lost cultural objects during the Nazi era
(1933-1945), which are now held by UK collections. The first claim
to be reported on the by the Panel in January 2001 concerned a
painting by Jan Griffier the Elder in the Tate Gallery. The Panel
recommended the Government pay ex gratia payment of £125,000
to a family for the painting, which they were forced to sell during
the Nazi era.The Panel is now considering four further claims.
7. In response to the Select Committee's request
to examine the Iraq situation as a case study in Government action
on the international illicit trade in art and antiquities, we
offer the following summary report:
Pro-active measures to curb the trade in looted
Iraqi antiquities
- In the interests of urgency, it is felt that
there is scope for involving the private sector in developing
an emergency database dedicated to the location and identification
of recently looted Iraqi antiquities. In the meantime, the Government
welcomes the publication on 11 June on the world-wide web by Interpol
and the International Council of Museums (ICOM) of a fully illustrated
Red List of the hundred most important categories of antiquities
that could have been looted or stolen in Iraq. The list, to which
the British Museum has contributed, will form a vital tool for
Customs officials, art dealers and collectors to help them recognize
objects that could originate from Iraq, and will alert and raise
awareness of professionals and the general public on the illicit
traffic of Iraqi cultural property. A complementary multi-lingual
leaflet in English, French and Arabic is also being prepared for
use by law enforcement agencies and Customs on the ground.
- It is encouraging that border nations are maintaining
their vigilance over the movement of antiquities across their
borders. The Jordanian customs authorities, for example, recently
confiscating looted antiquities at a frontier crossing. Within
the UK, the Secretary of State for Culture, Media and Sport wrote
to John Healey, Economic Secretary to the Treasury, to
ask him to alert Customs officers at all ports of entry in locating
and identifying any Iraqi antiquities, with a view to prosecuting
those who attempt to breach the import controls.
- The UN Security Council has adopted Resolution
1483 lifting sanctions on Iraq but maintaining the restrictions,
among other goods, on the import and trade in unlawfully removed
Iraqi cultural property. The Iraq (UN sanctions) Order 2003 made
under the United Nations Act 1946 brought these restrictions into
effect within the UK on 14 June.
- In addition to these restrictions, the Government
has also been proactive in trying to prevent the illicit trade
in artefacts within the UK by involving the relevant trade bodies.
At the beginning of April, DCMS wrote to the British Art Market
Federation and to the Antiquities Dealers Association to ask for
their assistance in locating and identifying looted material should
it arrive in the UK.
David Gaimster
Cultural Property Unit
DCMS
020-7211-6144
David Gookey
Iraq Project Team
DCMS
020-7211-6163
2 July 2003
1
1 . Culture, Media and Sport
Committee, House of Commons, Cultural Property: Return and
Illicit Trade, Session 1999-2000, Fourth Special Report (31
October 2000); and Session 2000-01, Second Special Report (7 March
2001). Back
2
2 . Ministerial Advisory Panel
on Illicit Trade Report, DCMS (December 2000). Back
3
3 . Ministerial Advisory Panel
on the Illicit Trade in Cultural Objects, Progress Report 2001,
DCMS (September 2002). Back
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