Memorandum submitted by the Museums Association
THE ILLICIT TRADE IN CULTURAL PROPERTY
1. BACKGROUND
1.1 The Museums Association (MA) is an independent
organisation representing museums and galleries and people who
work for them. The association has over 4,500 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.
1.2 The MA welcomes the opportunity to submit
evidence to this inquiry. We are pleased that the committee has
agreed to re-examine the issue of illicit trade in cultural property.
The Government has taken positive steps to combat illicit trade,
but much more remains to be done. We think it appropriate that
this inquiry should also touch on issues around the return of
objects from museum collections to originating communities. Illicit
trade and repatriation are two faces of a single problem: illicit
trade today continues to rob people from across the world of their
cultural heritage; there is an argument that the presence of some
objects in UK museums has the same effect. The time is right for
a two-pronged approach to the problem of the degradation of the
culture of other countries.
1.3 The MA's recommendations are highlighted
in bold in this document.
2. THE MA'S COMMENTS
ON PROGRESS
ON THE
RECOMMENDATIONS OF
THE FORMER
COMMITTEE AND
THOSE OF
THE ILLICIT
TRADE ADVISORY
PANEL WITH
PARTICULAR REGARD
TO: THE
DEVELOPMENT OF
DATABASES ON
RELEVANT INTERNATIONAL
LEGISLATION AND
UNLAWFULLY REMOVED
CULTURAL OBJECTS
2.1 We welcome the Government's recent moves
to address the UK's position regarding the illicit trade in cultural
material, including accession to the 1970 Unesco Convention and
support for the Dealing in Cultural Objects (Offences) Bill.
2.2 However, much remains to be done by
the government, including ensuring the provision of databases
of objects and of international cultural property legislation
and regulations (ITAP recommendations 5 and 6). It is hard to
see how the new criminal offence can operate effectively in the
absence of such databases.
2.3 The Government also needs to do more
to deter the illicit looting, sale and export of UK cultural material.
In particular the police still need to take crime against cultural
property in the UK more seriously (ITAP recommendation 3) and
the government needs to do more to make the system for licensing
exports of archaeological material excavated in the UK fully comprehensive
and to improve compliance. (This is in addition to changes being
made to the Export Licensing System to prevent London being used
as a staging-post for exports of illicit material from source
countries to the USA and other market countries.)
2.4 Perhaps most importantly of all, as
noted in ITAP recommendation 9, the Government should promote
educational work to create a climate in which collecting illicit
cultural property is seen as unacceptable. (As, for example is
the case with rare birds eggs.) No government—not even in
the UK—can police every archaeological site in its jurisdiction,
nor can it monitor every border crossing to enforce export controls.
The solution ultimately is in the hands of collectors. Collectors
should follow the practice of museums and demand 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. We believe that one thing
inhibiting progress towards the prevention of illicit trade is
that outside museums and archaeology there is no real stigma attached
to the purchase of cultural material which may have been illicitly
traded; the government has lead responsibility for trying to change
attitudes.
2.5 Increasingly, and particularly since
the Culture, Media and Sport Committee's report of 2000, UK dealers
try to be careful about what they trade in and avoid material
if they think it may be illicit. However, we believe it is likely
that some dealers inevitably make mistakes (or take short cuts)
as the information needed to establish an item's status is often
unavailable. The central problem involves what are known as "unprovenanced"
objects, without accompanying information about their previous
history. Of course, when these objects come to market, someone
knows where they originated, but isn't saying. The trade's argument
that client confidentiality must be respected means in cases such
as these that little can be said publicly about provenance. This
is an unsatisfactory state of affairs. It will only prove possible
to fully combat the sale of illicit cultural material when the
trade is fully transparent and clear chains of ownership are available
to potential purchasers: this is the case with cars and with houses.
There seems little reason why the art trade should continue
to argue that client confidentiality should be allowed to continue
to such a degree.
2.6 In general many parts of 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 likely to be illicit
unless proven otherwise. Objects without a known recent history
should not normally be traded or collected.
2.7 This is the practice followed by UK museums
and organisations such as the National Art Collections Fund. Under
the (voluntary) Registration Scheme for Museums in the UK, administered
by Resource 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."
2.8 The Museums Association Code of Ethics
(2002) now requires that museums should avoid acquiring any object
that has no secure ownership history, unless 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, evidence of any relevant export licences
from the country of origin. The Code requires that museums:
"5.7 Exercise due diligence when considering
an acquisition or inward loan. Verify the ownership of any item
being considered for acquisition or inward loan and that the current
holder is legitimately able to transfer title or to lend. Apply
the same strict criteria to gifts, bequests and loans as to purchases.
5.8 Reject any item if there is any suspicion
that it was wrongfully taken during a time of conflict, unless
allowed by treaties or other agreements.
5.9 Reject any item if there is any suspicion
that it has been stolen unless, in exceptional circumstances,
this is to bring it into the public domain, in consultation with
the rightful owner.
5.10 Reject items that have been illicitly
traded. Note that the UNESCO Convention (on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property) was finalised in 1970. Reject, therefore,
any item if there is any suspicion that, since 1970, it may have
been stolen, illegally excavated or removed from a monument, site
or wreck contrary to local law or otherwise 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 and
international treaties, unless the museum is able to obtain permission
from authorities with the requisite jurisdiction in the country
of origin.
5.11 Reject any item that lacks secure ownership
history, unless there is reliable documentation to show that it
was exported from its country of origin before 1970, or the museum
is acting as an externally approved repository of last resort,
or in the best judgement of experts in the field concerned the
item is of minor importance and has not been illicitly traded.
5.12 Contact colleagues and appropriate authorities
both in the UK and overseas for any information or advice that
may be necessary to inform judgement regarding the legitimacy
of items considered for acquisition or inward loan.
5.13 Comply not only with treaties which
have been ratified by the UK Government, but also uphold the principles
of other international treaties intended to curtail the illicit
trade, if legally free to do so.
5.14 Report any suspicion of criminal activity
to the police. Report any other suspicions of illicit trade to
other museums collecting in the same area and to organisations
that aim to curtail the illicit trade.
5.15 Avoid appearing to promote or tolerate
the sale of any material without adequate ownership history through
inappropriate or compromising associations with vendors, dealers
or auction houses. Refuse to lend items to any exhibition that
is likely to include illicitly traded items.
5.16 Decline to offer expertise on, or otherwise
assist the current possessor of any item that may have been illicitly
obtained, unless it is to assist law enforcement or to support
other organisations in countering illicit activities."
2.9 Best practice for museums is well established
in principle. But museums need support to turn this into practice.
The Museums Association and DCMS are working together to encourage
museums to work together to draw up detailed guidance on due diligence
procedures that should be followed when acquiring material of
overseas origin. An initial seminar for directors of UK museums
that collect internationally is being held on 19 November 2003.
This group will also be invited, possibly on a future occasion,
to comment on outline proposals that have been drafted by the
Illicit Trade Advisory Panel and the Museums Association about
how museums should act as places of temporary safety for overseas
cultural property. There is also a need to finalise similar proposals,
also drafted by ITAP and the MA, about an approach to museums
acting as repositories of last resort for inadequately provenanced
but important archaeological material that is likely to have originated
in the UK.
2.10 In the longer term we believe museums
will benefit from having the support, on acquisition and other
cultural-property matters, of a government-supported central advisory
point. In its international strategy Resource has undertaken that
by March 2006, it will investigate the most effective way to provide
cultural property advice to the sector. We are concerned that,
on this timetable, we may have to wait as much as five years before
the sector has access to this much-needed advice. We believe
that DCMS has a role to play in helping Resource to bring this
timetable forward to ensure a cultural property advisory service
for museums is established speedily.
2.11 One further issue which we believe
is relevant here is the Government's approach to the protection
of underwater heritage. The UK has not acceded to the 2001 UNESCO
Convention on the protection of underwater cultural heritage.
The previous Minister with responsibility in this area, Baroness
Blackstone, explained to us that the UK had not acceded because
there was no scope for discretion in application of the convention,
and that it was simply unfeasible—as well as undesirable—for
the UK to offer protection to all the thousands of wrecks in its
waters. The point may be valid but, nevertheless, we believe that
this should not be used as an excuse for a failure to protect
underwater cultural heritage. All the countries present at the
vote on the Convention's adoption, including the UK, committed
themselves to apply the rules in the Annex to the Convention.
However, by entering into an arrangement with a commercial company
to salvage bullion from the wreck of HMS Sussex, the government
has broken these rules. It is one thing for the government to
argue that it cannot protect all the wrecks in British waters;
it is quite another for the government to be a partner in the
exploitation of a historically significant wreck in international
waters. Other current cases, including the Titanic, serve to highlight
the lack of protection applied to cultural heritage when it is
under water rather than under ground. Although the current DCMS
Review of Heritage Protection nominally includes underwater archaeology,
it seems unlikely that this general review will be able to deal
with the special issues relating to the submerged material remains
of our maritime heritage. The Government should work towards
a clear policy for the protection of underwater heritage.
3. THE MA'S COMMENTS
ON PROGRESS
WITH TACKLING
THE TWO
AREAS FOR
FURTHER WORK
IDENTIFIED BY
THE PREVIOUS
COMMITTEE: HUMAN
REMAINS, AND
ITEMS POTENTIALLY
REMOVED FROM
THEIR LAWFUL
OWNERS BETWEEN
1933 AND 1945, WITHIN
THE COLLECTIONS
OF PUBLICLY
FUNDED MUSEUMS
AND GALLERIES
3.1 The Museums Association Deputy Director
is a member of the DCMS Working Group on Human Remains and supports
the dispute-resolution proposals for museum collections of human
remains set out in the Working Group's forthcoming report. He
is also a member of the Working Group on Human Remains established
by the Church of England and English Heritage, which is looking
at the excavation and retention of human remains of English origin
and is expected to report in Spring 2004.
3.2 As neither of these groups has yet reported
publicly it is not appropriate to go into detail here about the
recommendations, but from the Museums Association's point of view
it is important to draw the committee's attention to the fact
that it is clear that museums need a more systematised approach
to holding human remains and higher standards. To achieve this
they will in many cases need increased external support and advice
and improved accountability and scrutiny.
3.3 It is true that there has been little
visible progress since the previous Committee reported in 2000
in dealing with the problem of items in museum collections, which
might have been removed from their owners between 1933 and 1945.
There have still only been a handful of claims, including a new
claim made against the Samuel Courtauld Trust earlier this month.
Only one case, that referred to in the Committee's report of the
Jan Griffier painting in the Tate's collection has yet been resolved.
In that instance the Government agreed to pay compensation to
the family of the rightful owners of the painting. The previous
Committee had expressed the view that it would be desirable for
secondary legislation to be enacted which would allow works of
art in similar cases to be returned, if the owners or their rightful
heirs preferred. This issue apparently remains problematic for
DCMS and some national museums.
4. THE MA'S COMMENTS
ON THE
SCALE AND
IMPLICATIONS OF
THE LOOTING
OF THE
IRAQ MUSEUM
IN BAGHDAD
AND MUSEUMS
AND ARCHAEOLOGICAL
SITES ELSEWHERE
IN THE
COUNTRY
4.1 New reports continue to emerge concerning
the looting and destruction of historic sites across Iraq. It
is disgraceful that looting is continuing and that the Coalition
Provisional Authority appears largely unable to prevent it. The
international community has taken steps, such as the preparation
of the "red list", to prevent material looted from Iraq's
museums reaching markets in the west. But the ongoing looting
of unexcavated sites has served as a reminder that, in times of
conflict, it is highly desirable to prevent looting and destruction
of cultural property at source. Preventing illicit trade once
objects have been removed from their context is at best shutting
the stable door after the horse has bolted.
4.2 We welcome government's announcement
that it aims 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. We believe that
it should make its commitment explicit by outlining a timetable
for ratification.
5. BROADER ISSUES
RELATING TO
THE RETURN
OF OBJECTS
FROM MUSEUM
COLLECTIONS
5.1 We are pleased that the Secretary of
State has recognised the importance of return and repatriation
and is taking a greater interest in them. We believe that most
museums will benefit from a clearer government policy framework
and from government support and assistance in addressing the issue.
However, we caution against excessive government involvement in
individual cases, which we believe should where ever possible
be negotiated on a museum-to-museum basis, with appropriate assistance
from independent advisory panels. Ultimately decisions about return
are for the governing bodies of individual museums, taking into
account a wide range of advice and acting in an open and accountable
way.
5.2 A small number of additional points
about return may be of help. In 1997 research found that 97% of
Museums Association individual 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% 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".
5.3 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 (with some notable
exceptions) museums see themselves as having the main responsibility
for objects in their care.
5.4 In Australia, Canada, New Zealand and
the United States the return of indigenous human remains and sacred
material is now the norm. This is not the case in the UK, although
there are increasing examples of return from non-national museums
in the UK. In 2003 returns have included human remains from the
Royal College of Surgeons, Manchester Museum and the Horniman
Museum and returns of cultural material by the Marischal Museum
at the University of Aberdeen.
5.5 The argument that if one item is returned
it is the beginning of a "slippery slope" that will
lead to huge amounts of repatriation is not we believe viable.
Evidence from Australia, Canada and the USA suggests that only
a small proportion of museum collections are likely to be subject
to repatriation requests. In the UK, even since its high-profile
return of a Ghost Dance shirt Glasgow Museums has received very
few other repatriation claims. In general the volume of requests
for the return of items from UK museums is low (although the strength
of feeling and significance of those claims is, of course, often
high).
5.6 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.
5.7 Most museums are too small to have their
own procedures for dealing with repatriation requests and so they
would benefit from outside support. At one level this is simply
advice, such as the cultural property advice point, discussed
above. In some cases museums, even large national museums, are
finding it helpful to have government-supported advisory mechanisms:
Tate and other national museums have made use of the Spoliation
Advisory Panel. We believe that analogous advisory panels would
be useful for requests for the return of other types of material.
5.8 Museums would also benefit from further
guidance on contentious cultural property matters. Authoritative
guidance is now available on many aspects of illicitly traded
material and on spoliated material. Soon authoritative guidance
on human remains is likely to be made available. Sacred material
raises specific issues and we believe a further inquiry into the
treatment and possible return should be considered by DCMS.
October 2003
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