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Are antique dealers stealing the past or preserving it?

A fascinating article about the ethics of collectors / dealers of artworks & cultural artefacts & whether or not they are able to take the moral high ground in their belief that they are preserving rather than destroying the works.

From:
Reason Online [1]

April 2005
Ancient Treasures for Sale
Do antique dealers preserve the past or steal it?

Steven Vincent

As you read this, criminals somewhere in the world are destroying portions of mankind’s past. With backhoe and shovel, chainsaw and crowbar, they are wrenching priceless objects from sites in the mountains of Peru, the coasts of Sicily, and the deserts of Iraq. Brutal and uncaring, these robbers leave behind a wake of decapitated statues, mutilated temples, and pillaged trenches where archaeologists were seeking clues to little-understood civilizations. The results of this looting include disfigured architectural monuments, vanished aesthetic objects, and an incalculable loss of information about the past. And it shows no signs of diminishing.

As you continue to read, other people across the globe are purchasing some of mankind’s oldest and most exquisite creations. Contemplating ancient statues, vases, and stelae, many of these purchasers experience antiquities’ near-mystical power to connect them to the past or to transcend time through beauty. Proud of their efforts, these private collectors, commercial dealers, and museum curators view themselves as temporary caretakers of timeless treasures. Their love for these artifacts often resembles the passion one associates with religious fervor. It, too, shows no signs of diminishing.

At first glance, the connection between those who loot antiquities and those who collect, trade, and preserve them seems the stuff of academic seminars and journals. Yet such is the allure of ancient treasures that, since the 1970s, this relationship has spawned global treaties, inflamed Third World nationalism, created a secretive Washington bureaucracy, and triggered federal prosecutions. To some, this international cooperation reflects the ability of the world’s nations to unite to protect an endangered world resource. To others, it demonstrates the hazards resulting when “feel-good” multinationalism collides not only with the sovereignty of the United States but with the basic human desire to surround oneself with objects of beauty.

“We have a situation in this country today where American citizens pursue their legal rights under the shadow of prosecution by foreign laws, and private and public collections of antiquities are at risk to the demands of cultural ministers in other countries,” says New York lawyer William Pearlstein. “The antiquities situation is a mess,” echoes Kate Fitz Gibbon, a Santa Fe dealer in Central Asian artifacts. “We’re heading for a major crisis in the near future.”

Artifactual Dispute

It’s been a decade since I first wrote about “cultural patrimony,” the question of who has the right to own and exhibit mankind’s aesthetic and archaeological treasures. At the time, stories were proliferating about looters plundering the temples of Cambodia’s Angkor Wat and the tombs of Mali’s Niger River delta. Archaeologists were still buzzing about the Metropolitan Museum’s 1993 repatriation to Istanbul of the so-called “Lydian Horde” of gold objects, which smugglers had illegally excavated from Turkey and sold to the museum. I found the topic abstruse, filled with mind-numbing legal documents and visually stunning artifacts. All I knew for sure was that collector demand for these objects created incentives for looters to pillage archaeological sites in Third World countries. End the international antiquity trade, I thought, and the looting in those “source” nations would stop.

In the late 1990s, though, my investigations brought me to an urbane but down-to-earth antiquities dealer named Frederick Schultz. In his 57th Street gallery, filled with vitrines displaying relics of Chinese, Etruscan, and other ancient civilizations, the boyish Schultz explained the viewpoint championed by the “trade.” Looting is indeed a problem, he conceded, but critics of dealers were wrong. The international antiquities market—together with the private and public collections it supplies—preserves ancient treasures and disseminates their beauty and influence across the globe. “A strong market assures a free flow of antiquities and acts in the best interests of everyone—archaeologists, collectors, and the people in source and market nations,” Schultz argued.

He was persuasive. But then, as the head of the New York–based National Association of Dealers in Ancient, Oriental, and Primitive Art, he had to be; he was a high-profile defender of the trade and an adviser to the Clinton administration on issues involving antiquities.

Cultural patrimony was the focus of a complex, three-sided debate. On one side, there are the “internationalists”: academics, dealers, and collectors who advocate a vigorous but regulated market as the best way to protect antiquities and promote global understanding and universal values. “The moment the Soviet Union fell, the world plunged into ethnocentricity,” says George Ortiz, a celebrated collector of classical and Middle Eastern antiquities. “Instead of each group claiming its own heritage, we need to create a common culture by allowing art and antiquities to circulate around the world.”

Opposed to this view is a second group comprised of source nation officials and Western academics who believe cultural patrimony is linked to a people’s identity and sense of self-determination. As Claude Daniel Ardouin, then director of Senegal’s West African Museum Program, once told me, “Our cultural heritage tells us who we are. I find it unacceptable that big dealers are sitting around in their shops in Paris and New York thinking about the pretty objects they are going to take from my country.” These “nationalists” generally call for a trade that is limited, heavily regulated, and open to public scrutiny.

The third party is the most extreme. It consists of archaeologists who castigate the trade for removing cultural artifacts from their indigenous context, rendering them useless for scientific study. Unlike the nationalists, many archaeologists oppose the export of cultural property to insure its preservation and accessibility. “One cares about the people and the area in which we work, but our primary interest is to understand the history of the country,” says Colin Renfrew, a member of the British House of Lords and director of the Cambridge University–based McDonald Institute for Archaeological Research. Many in this group would like to see the antiquities trade shut down altogether. According to Boston University archaeologist Ricardo Elia, “Collectors and dealers are dinosaurs. They think it’s still the 18th century, when you could rip things out of the ground and put them on your mantle.”

The Long Arm of Mexican Law

The nationalists’ and archaeologists’ illiberal amalgam of Third World nationalism, anti-capitalist sentiment, and distrust of aesthetic connoisseurship dates back to the U.N. Educational, Scientific, and Cultural Organization’s (UNESCO) 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The first major international agreement to protect cultural property from thieves and smugglers, the convention created a legal framework allowing signatory governments to negotiate for the return of looted items. Over the years, UNESCO followed with further “recommendations” that clarified international rules for protecting and exchanging cultural property. These pronouncements reflected an increasingly anti-market bias. In 2001, for example, UNESCO declared that “underwater cultural heritage shall not be commercially exploited.”

The U.S. signed the convention in 1972, and in 1983 Congress passed the Cultural Properties Implementation Act (CPIA), which established a process by which source nations could request U.S. import bans on archaeological material originating within their borders. Legislators hoped restricting entry into the American market would help reduce looting. Mindful of UNESCO’s anti-market bias, however, they included in the CPIA measures to protect dealers, collectors, and museums. “We felt we were in the business of encouraging the legitimate circulation of cultural objects,” says Meredith Palmer, who as a State Department official in the 1970s helped develop the legal and intellectual framework for the CPIA. “We took pains to ensure that any law based on the convention reflected the interests of the American people.”

Be that as it may, the result was a classic example of what happens when the state decides to limit or prevent people from doing what they feel is their natural right, in this case purchasing antiquities. Under the CPIA, a nation seeking U.S. import restrictions on cultural objects must submit a petition giving its reasons for the request, documenting, among other topics, the severity of the looting problem and the country’s own efforts to curtail it. Further, it must identify categories of endangered objects and specific sites jeopardized by robbers. An advisory committee reviews the request, then passes its recommendations to an anonymous State Department official empowered to approve the petition, generally for a period of five years.

The law does not require this official to declare reasons for the restrictions. Nor must the State Department provide the public with any documentation to support the decision. Even the advisory committee is not privy to all information. “The process is frustrating and shrouded in secrecy,” says Santa Fe dealer Fitz Gibbon, who served on the committee from 2001 to 2003.

Worse, the CPIA proved ineffective in protecting the interests of American citizens. In November 1995, U.S. Customs agents entered the New York home of collector Michael Steinhardt and confiscated a third-to-fourth-century Sicilian gold bowl, or “phiale,” that Steinhardt acquired from a New York dealer for $1.2 million. In February 1995, Italian authorities had requested the U.S. government’s help in retrieving the phiale, which they claimed was part of Italy’s cultural patrimony. (Italian law claims state ownership of all antiquities located in Italy, except for those privately owned before 1902.) Using the guidelines of the National Stolen Property Act (NSPA), U.S. officials agreed the phiale was stolen property. But as Steinhardt’s defenders noted, Italy had not requested import restrictions under the CPIA. So what right did customs agents have in accusing Steinhardt of possessing stolen property and invading his home to confiscate it?

Enter McClain v. the United States, the most controversial aspect of the cultural patrimony issue in this country and a source of continuing acrimony and contention. When federal agents entered Steinhardt’s home to confiscate the “stolen” phiale, they based their action on the 1977 case of an appraiser, Patty McClain, whom American authorities had arrested for carrying pre-Columbian antiquities across the Mexican border into the U.S. In that judgment, the U.S. Court of Appeals for the 5th Circuit in New Orleans, using Mexican law to define stolen archaeological property, upheld McClain’s conviction. To put it another way, an American citizen was arrested, convicted, and jailed in the U.S. based on the cultural property laws of a foreign nation. “In my opinion,” says Stanford University law professor John H. Merryman, a staunch supporter of regulated international antiquities trade, “McClain was poorly decided.”

In Steinhardt’s case, that 25-year-old ruling permitted Italy to assert its state ownership laws in American courts, thus turning the phiale into stolen property under U.S. law. Steinhardt unsuccessfully appealed in 1997, and the phiale was returned to Italy. The shock waves from the case are still being felt. Says Ashton Hawkins, former counsel to the trustees of the Metropolitan Museum: “The government made a lot of people apprehensive by seeming able to seize anything on the basis of a complaint from a foreign government. When the U.S. begins to enforce foreign laws against private citizens without due process, this is trouble.”

The Antique Dealer in the Flak Jacket

Emboldened by the Steinhardt case, anti-market forces, particularly archaeologists, intensified their attacks. They began portraying dealers and collectors as greedy plunderers running what one archaeologist called a “vast international network” to loot countries in Central America, Europe, Egypt, and the Middle East. Ricardo Elia once declared to me that he wanted to make collecting as “socially distasteful as smoking cigarettes, wearing fur, or eating an endangered species.” Lord Renfrew has accused major American museums of “stimulating much of the looting in the world.” One Park Avenue collector told me he felt like donning a “flak jacket in public, like I was an abortion doctor.” A new clamor arose concerning the world’s most notorious case of “cultural plunder”: the Elgin Marbles, sculptures from the Parthenon that Britain’s Lord Elgin purchased in the early 19th century and shipped back to England. The British Museum has them on display, ignoring Greece’s repeated requests for their return.

Whenever I dropped by Schultz’s gallery, I found the director writing letters, articles, and legal briefs defending the trade. “This is ridiculous!” he griped one afternoon. “I read that archaeologists liken our profession to international drug dealers. They’re saying we rake in $5 billion a year in dirty profits! Do you know what we estimate the entire international antiquities trade amounts to? Around $200 million a year! Where do they get the nerve?”

As the archaeologists stepped up their assault, the trade sharpened its arguments and continues to assert them today. “We have to,” says New York dealer Jerry Eisenberg. “The charge that we’re somehow responsible for the ‘rape of the land’ makes a greater impact on the public than our arguments about the benefits of trade.” Stanford’s Merryman frequently criticizes source country laws that define antiquities as state property. Egypt and Turkey, for example, assert ownership of certain privately held objects within their borders, including some owned for generations. Merryman argues that such laws ensure that the supply of material remains short, thereby creating a lucrative black market. Others, such as collector Ortiz, note that source countries maintain warehouses and storerooms filled with thousands of uncatalogued antiquities, many of which are just “rotting away.”

Critics also observe that source countries are often unable or unwilling to pay their citizens for the antiquities they discover. Dealers maintain that many items are tomb objects uncovered by accident, for instance by farmers tilling their fields. If the farmers cannot sell what they discover in a legitimate market, and if their government will not buy such artifacts from them, they have two choices (aside from simply letting the state appropriate the finds): destroy the objects or sell them illegally.

There is also a problem of terminology, trade supporters argue. Many source country export laws blur the distinction between “looted,” “illegally exported,” “stolen,” and “unprovenanced” objects, thereby making it appear as if dealers operate some vast criminal enterprise, when there are subtle but significant differences between those terms. For example, critics of the trade, including many journalists, unjustifiably assume that any antiquity without a solid early provenance probably has been looted.

“The burden of proof is on us, and that’s unfair,” Schultz frequently argued. “For hundreds of years, people have been buying and selling objects without keeping or publishing proper records. Many collections were built decades ago; contrary to what the archaeology Hezbollah maintains, there are bona fide old collections.”

Teachings of Buddhas

In the winter of 2001, an event occurred that bolstered arguments in favor of an international antiquities market: Afghanistan’s Taliban regime destroyed two colossal third-century sandstone sculptures of Buddha at Bamiyan. Although the statues, each standing more than 100 feet tall, were too large for purchase, their fate posed uncomfortable questions for source country nationalists and archaeologists. What happens when a country’s government decides to eliminate rather than retain its cultural heritage? In such a case, wouldn’t leaving objects in their archaeological sites threaten their existence? International trade, by contrast, would bring artifacts to safe harbor in private collections and museums.

“The market gives objects value,” contends noted New York collector Shelby White. “Like we saw at Bamiyan, source countries often destroy temples for political or religious reasons. Other times, they simply use ancient columns and pillars for new construction. Then you have cases where common people who find antiquities often melt them down for the gold, or simply throw them away. They don’t care about the craftsmanship or beauty of the object.”

These problems are not confined to rogue nations. For example, China’s Three Gorges Dam project, when completed, will submerge countless undiscovered antiquities beneath a 400-mile reservoir. “A stronger market system could have created incentives for Chinese officials to excavate and preserve the objects and sell them,” notes Jim Fitzpatrick, a Washington, D.C.-based lawyer who lobbies Congress on behalf of the trade. “When they permanently flood untold numbers of irreplaceable artifacts, how much does China really care about their antiquities?”

But if market supporters felt the destruction of the Bamiyan Buddhas and the Three Gorges Dam had finally given the trade the moral high ground, their victory was short-lived. In July 2001 federal prosecutors accused a prominent antiquities dealer of handling objects that a confederate had smuggled from Egypt. For the trade, this was a catastrophe. Because the government based the indictment largely on McClain, a conviction in the case risked confirmation of that notorious ruling by the U.S. Court of Appeals for the 2nd Circuit, which has jurisdiction over the New York art market. Not only that, but the indicted dealer was none other than Frederick Schultz.

Schultz’s trial, held in February 2002, was a veritable how-to guide for smuggling ancient artifacts. The star witness against the dealer was the former British cavalry officer and master antiquities restorer Jonathan Tokeley-Parry.
According to Tokeley-Parry’s testimony, from 1990 to 1994 he purchased numerous items, including statuary, from Egyptian “farmers and builders,” used his restoration skills to disguise them as tourist tchotchkes, and spirited them out of the country.

His actions violated Egyptian Law 117, which states that any antiquities found within the country’s borders are state-owned and thus cannot be exported or sold. Tokeley-Parry (who evidently turned against Schultz in order to shorten a prison sentence in England involving other smuggled Egyptian antiquities) testified that Schultz sold these and other illegally acquired objects to Western collectors, claiming they originated from the fictitious “Allcock Collection,” supposedly begun in the 1920s.

Buy an Antique, Hire a Lawyer

In response, Schultz portrayed himself as an innocent associate of Tokeley-Parry, hounded by overzealous prosecutors. Egypt itself had made no claim for the objects the Englishman had taken out of the country, the dealer argued. Furthermore, Egypt had never requested import restrictions as required by the CPIA. The only justification the U.S. government had in declaring Tokeley-Parry’s objects as “stolen property” was Law 117. And the only reason it could use foreign law to accuse Schultz of a crime was the McClain ruling. “If the court agrees that Congress intended the CPIA to set our country’s policies toward antiquities, then Fred has a good chance of acquittal,” a lawyer supporting Schultz told me at the time. “If the court decides to apply McClain, he could be in trouble.”

U.S. District Judge Jed Rakoff applied McClain. Ruling that the CPIA and McClain were not mutually exclusive, he upheld the government’s contention that under U.S. law Tokeley-Parry stole objects from Egypt; prosecutors then worked to prove that Schultz knowingly handled these pilfered artifacts. After a brief deliberation, the jury found the dealer guilty of a single charge of conspiring to handle stolen property. In June 2002 Rakoff sentenced him to 33 months in prison and a $50,000 fine.

For the anti-trade camp, this was Wellington at Waterloo. A highly respected dealer had been convicted for his involvement in a smuggling operation, proving beyond a doubt the link between the antiquities trade and looting. Moreover, Schultz’s conviction affirmed McClain in the 2nd Circuit, the heart of the antiquities trade. “McClain is now established in the 5th, 2nd, and 9th circuits,” notes Patty Gerstenblith, a DePaul University law professor and former president of the Archaeological Institute of America. “I don’t think market people recognize what an important legal development this is. They’re in denial.”

Not all of them. “The fact that the 2nd Circuit upheld McClain is huge, no doubt about it,” agrees Fitzpatrick, the Washington lawyer. “But how far will prosecutors take it? Does this mean that anyone who purchases an antiquity in the U.S. has to hire a lawyer first, to make sure the purchase doesn’t violate a foreign country’s patrimony laws? What’s the state of these laws around the world? Which ones apply, which ones don’t?” Fitz Gibbon, the Santa Fe dealer, says, “I fear the government is gearing up for more prosecutions, using McClain and the NSPA. Where will it end? This will only be settled by some huge court case involving a museum collection, I’m afraid.”

Schultz’s conviction did not bring a truce to the cultural patrimony wars. The bitterness continues, with archaeologists and the trade each rallying around a new cause célèbre. For the archaeologists, it is the purchase last fall by the Cleveland Museum of a bronze statue of Apollo, between 1,700 and 2,400 years old. The object’s documentation dates back to an East German lawyer who claims to have discovered it on his family estate in the 1990s. “This is just simply not a convincing provenance,” contends Malcolm Bell, a professor of art history at the University of Virginia and a vice president of the Archaeological Institute of America.

Worse, the museum purchased the work from Phoenix Ancient Art, a business headquartered in Geneva, Switzerland, owned by brothers Ali and Hicham Aboutaam. Last year an Egyptian court sentenced Ali in absentia to 15 years in prison for smuggling; last June, Hicham pleaded guilty in New York to a federal charge of falsified documents pertaining to an ancient silver vessel that the Phoenix Gallery sold for $950,000. “How, in this day and age, can a respectable museum do this?” demands Lord Renfrew. “Doesn’t the American taxpayer realize they are subsidizing the purchase of items like these through government support of museums? I find it curious there is not more outrage.”

As for the trade, its members are currently preparing to do battle over a CPIA request submitted last May by the People’s Republic of China asking for restrictions on an array of objects, including nonarchaeological works like calligraphy and paintings dating from as recently as 1912. Says the New York–based Asian dealer James Lally, “I fear that these import restrictions are so broad they may inhibit the legitimate trade in Chinese material and chill the honorable practice of collecting.”

In the past, dealers note, the Chinese government did not want to shame itself by seeking U.S. help to curb its looting problem, relying instead on Chinese collectors to buy back the nation’s cultural patrimony. So why make a request now?

One theory posits that a new and more nationalistic director of the State Bureau of Cultural Relics has pushed for these restrictions. Others believe it’s part of a quid pro quo: China cracks down on pirated CDs, and we close off our shores to Chinese material, helping to boost China’s domestic market for antiquities. Or perhaps, as the dean of Chinese dealers, Robert Elsworth, suggests, “Instead of letting construction projects like the Three Gorges Dam destroy objects, China may simply let looters take them out of the country, then use U.S. Customs officials to intercept and return them back to China.” In keeping with the secrecy surrounding these petitions, a State Department spokesman says officials are reviewing China’s request and have yet to schedule private or public meetings on the issue.

Hidden Objects

No resolution to this conflict is in sight. Changes have certainly occurred, though. Take Iraq. So far, few objects looted from the war-torn country have appeared on the market. “Five years ago, you would have seen Iraqi objects up and down Madison Avenue,” comments DePaul’s Gerstenblith. “Our efforts have proven successful in that area.” (Others argue that thieves simply have filled up warehouses with pilfered Iraqi antiquities, waiting for the statute of limitations to expire.)

Has the rate of worldwide looting actually diminished? “I don’t think so,” says collector White. “Objects are going elsewhere—to Japan and Europe and the Middle East. All we’ve done is make public and private collections more vulnerable to claims from foreign countries. At the same time, we’ve made it harder for Americans to see the glories of the past.”

Steven Vincent is author of In the Red Zone: A Journey Through the Soul of Iraq (Spence).