European Conventions and Law

This section will examine and assess the European law that is in place to protect Cultural Property and therefore antiquities. Within each law this study will note key terms that specifically identify and protect antiquities and inspect the effects of the law. I will discuss the reasons for and against the implication of the law, some of which still has to be ratified by the UK.

It is important to clarify the difference between an antiquity and cultural property. Antiquities are objects created by ancient man or woman and cultural property is an item important to the development, art, science or industry of a particular country. For example, an antiquity would be an antique item, such as a Roman beaker, whereas cultural property would also include paintings, books, objects or buildings that are important to the country of origin. In the UK we block a certain number of exportable cultural objects every year to give British institutions the chance to raise capital and purchase them. Last year the government blocked the export of an important Neolithic carved stone ball, ⁷³ a similar one to that sold by Sotheby's in 1996. ⁷⁴ Therefore law covering cultural property will cover antiquities.

1954: Hague Convention, Protection of Cultural Property During Armed Conflict

This convention focuses on the protection of a nations assets during war, a very topical subject with actions in Kosovo and Afghanistan ⁷⁵ raising interest in the protection of cultural property. This convention was the one of the first to define antiquities as part of cultural property:

'...irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as... objects of artistic, historical or archaeological interest.' ⁷⁶

The most significant part of the convention is in Article Four whereby signatories were expected to:

'...undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property.' ⁷⁷

During conflict, theft and pillage is common and the desire to deal in the stolen objects quickly arises. Unscrupulous collectors or dealers will get hold of items not normally available on the open market, such as the Cypriot mosaics that were removed during the conflict on the north of the Island. ⁷⁸

Interestingly, neither the UK or the US have became signatories to this convention. I imagine that they are reluctant to sign because they are members of the Security Council within the United Nations and have to respond to conflict. This makes it very difficult for them not to cause collateral damage or effectively prevent loss of property during the conflict and therefore they are being realistic in their outlook - saving lives is more important than protecting cultural property - as shown by the bombing of Monte Cassino in Italy during World War II. Cultural property was bombed to save allied soldiers. ⁷⁹

Figure 5: The monastery at Monte Cassino

However, the UK is interested in becoming a signatory to the Hague and Michael Clark of the Foreign & Commonwealth Office is examining ways of exercising a protocol to ratify the Convention. ⁸⁰

The events in Kosovo at the moment are particularly relevant to this situation and the January 1999 ratification of the Hague Convention has made the original aims very topical today. Within the Museum Security Network ⁸² there have been multiple postings concerning the damage of cultural property in Kosovo, especially after an appeal from a Serbian to stop the bombing. He quoted the above convention as defence. ⁸³ Archaeological sites which are potentially in trouble include the Roman site Ulpiana near Pristina . ⁸⁴

1970: UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ⁸⁵

This convention was the first attempt to specifically address the problem of illicit trade in cultural property. The aim of the conference was to establish requirements to prevent further loss of cultural heritage from a member country because it was recognised that:

'...the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international cooperation constitutes one of the most efficient means of protecting each country's cultural property against all the dangers resulting therefrom.' ⁸⁶

Antiquities were noted as being a key form of cultural property and were classed as:

• products of archaeological excavations (including regular and clandestine) or of archaeological discoveries ⁸⁷
• elements of artistic or historical monuments or archaeological sites which have been dismembered ⁸⁸
• antiquities more than one hundred years old, such as inscriptions, coins and engraved seals ⁸⁹

One important aspect of the convention concerned the establishment of a national office ⁹⁰ that would oversee the protection of cultural property - in effect, policing items of national interest. In the UK we have the Department for Culture, Media and Sport which is concerned with the illicit trade in antiquities and the consequences of such trade. ⁹¹ The department has recently set up a registration system ⁹² for moveable cultural property found in the UK (through the use of metal detectors and archaeological discoveries) and in its first year this new body received 13,500 items for appraisal and registration. ⁹³

Articles 5 - 16 set out the responsibilities of signatory nations and there are various conditions to fulfill to prevent an object from being illicitly traded. For example, appropriate export documents have to accompany items leaving the country, without them an object will be considered to be 'illicit' ⁹⁴ and publicity must be given to items that have been stolen or are in need of recovery. ⁹⁵

The Convention was quite loosely constructed, appearing to be more a set of promises to fulfill rather than the law it would become two years after its inception. ⁹⁶ One clause states:

'...nothing in this Convention shall prevent States Parties thereto from concluding special agreements among themselves...' ⁹⁷

Which would potentially allow for the undermining of articles within the Convention.

Britain was not an initial signatory to this Convention, despite attending the talks. We agreed in principle, but were unsure of the clarifications of cultural property. ⁹⁸ Britain has already fulfilled many of the required conditions, such as establishing an office to deal with incidents concerning cultural property, and our laws of export prevent any item over 50 years old from being exported without a license. ⁹⁹ Britain has still not signed this convention despite efforts from pre-eminent archaeologists such as Lord Renfrew. ¹⁰⁰

An example of the Convention in action can be seen in a US case between the Guatemalan Government and the Museum of Fine Art, Boston. ¹⁰¹ The case concerned the illegal export of Mayan artefacts to the American museum and their proposed return to Guatemala. However, the Boston Museum hid behind the 'cut-off' date of 1983, when the US ratified the 1970 convention and argued that items obtained before this date were not covered by the UNESCO agreement. In Article Three of the convention, it clearly states that parties recognised all illicit trade and agree to do something about it. The dispute is still unresolved, but the Guatemalan government continues to use the convention as a starting point for the return of their artefacts.

1992 Charter of Courmayeur

This was a small document that reaffirmed the 1970 UNESCO agreement within the United Nations. The Charter was an attempt to show that the principles of the 1970 Convention were to be continued within the nations involved with appropriate revisions to modernize the original text and aims. For example, the introduction of a database was suggested to keep track of important objects and greater cooperation between nations was to be assisted by Interpol. Although it is not a proactive piece of legislation, this charter was important to show that countries have not forgotten their original promises.

The use of databases was a good idea, especially with the fast moving expansion of IT and organizations such as the Getty Museum, with its ObjectID program, ¹⁰² show how associations can agree to a common form of object recording to enable the sharing of information.

The Charter is not a prequel to legislation, but Britain did send their recommendation to the ideas proposed.

1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects ¹⁰³

Unidroit is the second most important piece of European legislation (agreed private law between member states) on the subject of the protection of cultural property. This set of talks was concerned more with the restitution and return of cultural objects ¹⁰⁴ than the prevention of theft, although it completely recognized the 1970 UNESCO agreement. Members of the Convention were particularly worried about the pillage of archaeological sites, the ultimate source of all illicitly traded antiquities.

The Convention states that objects illegally excavated (such as the Egyptian artefacts taken in an elaborate scam involving a British academic ¹⁰⁵), or legally excavated, but illegally retained are deemed to be stolen and that owners of stolen objects must return them upon request. However, compensation will be granted to the owner from the nation recovering the object if it can be prove that all due diligence was taken in purchasing the object. ¹⁰⁶

Time limits are introduced on the reclaiming of objects and the notification of theft or request for recovery. There is no time limit on the return of items that are an integral part of a national monument.

Again, Britain is not a signatory to this document, despite being among 70 countries involved in the draft proposals. When asking the Department for Culture, Media and Sport why this was so they provided the following reply:

'Whilst regarding the overall aims of the UNIDROIT Convention as laudable, the previous administration thought it contained a number of provisions which made it unacceptable. The two principle problems were the scope of the Convention (i.e. the extremely wide and imprecise definitions of cultural property) and the extended limitation periods.

The current Government is currently undertaking an inter-departmental consultation about whether the UK should become a signatory to the Convention. When this has been completed, Ministers will consider whether the UK should sign.' ¹⁰⁷

It would be very interesting to see what would happen to the Elgin Marbles (a rather dry topic today) if the present administration does become a signatory. The Greek cultural ministry, especially under the auspices of Melina Mercouri, ¹⁰⁸ have been trying to regain the marbles purchased by Lord Elgin on his Tour of Greece in 1806. Although the British want to preserve them in England, the Greeks desire to reunite the Acropolis with its frieze. The Articles of this Convention, especially article 3 (parts 3 and 4), would give the Greek Government a platform from which to request the return of these objects, especially as there would be no time limitations regarding the acquisition of the Parthenon frieze. However, the Convention is not retrospective and the Marbles, as they were traded before 1995, do not fall within the scope of the agreements. It would be interesting to use this document to test the good faith of both Governments in reaching an agreement over the return or offering of the Elgin Marbles.

It was disappointing to read that a principal problem in signing the convention was the 'wide and imprecise' definitions. If one examines the annex of the document, there is an explicit list of the articles which can be defined as cultural property. Perhaps the previous Conservative government decided that this list was too inaccurate because it did not specify exact categories, such as bronze statuettes or gold torcs, within the general headings. However, the list provided was a precise as it could be to cover articles that will be individual to each country and the suggestion of categories is half the battle in creating precise definitions.

In the questionnaire written for this dissertation, ¹⁰⁹ those in the British antiquities trade felt that this Convention, if bought into force in the UK, would be damaging to the trade. This must have been a consideration for the previous Government because the implications for national and private collections would be enormous. The British Museum would be pressed to return many foreign objects, for example, the fragment of the Sphinx's beard. If any item were suspected of being illicit then it would be available for restitution and therefore many private collections and dealers could suffer if the convention was ratified. However, as the Convention is not retrospective, it could be used as an important step to cleanse the trade for the future.

British Law and Controls

This section describes British law covering antiquities. The law in this country is more concerned with the actual trade in objects and their discovery on British soil than the recovery and protection of antiquities or cultural property.

1994 Market Overt

The Market Overt was a mediaeval law that enabled a buyer to obtain good title to a stolen object by purchasing it in certain street markets during daylight hours. This law was obviously unethical, but was missed from the Sale of Goods Act 1979. ¹¹⁰ Therefore, the Council for the Prevention of Art Theft (CoPat), ¹¹¹ (Directed by Mark Dalrymple) initiated a private member's bill ¹¹² to get the old law abolished and received all-party support in 1994. A Sale of Goods (Amendment) Act ¹¹³ was enacted and abolished Market Overt from 3 January 1995.

This was an important step for those preventing the theft of fine art (including antiquities) because it prevented the casual trading of stolen goods at fairs and street markets. This should assist the consumer of fine art by protecting their purchases and the dealer will have to be diligent about what he buys for stock. Therefore principals who buy stolen goods in these situations will be easier to prosecute because they have mens rea (a criminal mind) in the eyes of the court.

1996 Treasure Act

The 1996 Treasure Act is a revamping of the Treasure Trove laws and does away with the difficulty of discovering if treasure was deliberately hidden or accidentally lost. Principally dealing with metal finds ¹¹⁴ (i.e. the finds of metal detectorists) this act aims to reward finders of treasure who present it to the crown for recording and preservation. By rewarding finders of ancient treasure with the full market value of that object, ¹¹⁵ the Crown hopes to repair the relationship between academics and 'treasure-hunters.' If the finders realise it is more profitable to pick up a reward, without being subjected to long investigations, (as they had under Treasure Trove) then they will hopefully report their finds to the authorities and therefore allow archaeologists to record more data, adding to our knowledge of the past.

From section 11 of the act, the Secretary of State had a duty to:

'...prepare a code of practice relating to treasure..'" ¹¹⁶

Under this proviso, the Secretary set up the Portable Antiquities Scheme ¹¹⁷ to record every object brought before the rewards council and thus prevent illicit trade in historical objects.

The Secretary was particularly clever in establishing the PAS because it gave illicit treasure hunters a reason to come forward and declare their finds. The introduction of a 14 day time limit to notify the district coroner of the find ¹¹⁸ (a convictable offence if disregarded ¹¹⁹) places the onus to declare objects directly on the finder. This will hopefully limit the illicit trade in portable antiquities by making it more profitable to honestly declare finds rather than sell them illegally.

Import and Export Regulations

Antiquities exported from any country in Europe have to be accompanied by the appropriate documents that show a licence has been granted to allow that item out of the country. ¹²⁰ As long as they have the correct documentation and all duty has been paid, Customs and Excise have no problems with antiques (any item over 100 years old) entering the country.

Export of archaeological items from this country will require a license for export from the Department of National Heritage. ¹²¹

If items enter or leave the country illicitly, those involved - if caught - could be charged with smuggling, the goods will be impounded and an investigation will be commissioned to discover the nature of the illegal maneuver. ¹²²

1999 Due Diligence ¹²³

Last year, CoPat brought together dealers and auction houses to write a code of conduct for the trade. Although this code is not law, it acts in the favour of the consumer by requiring the retailer to be more diligent in the purchase and sale of goods. In section 4 of the document, dealers are given a checklist to prevent trade in stolen items thus making harder for the illicit trade of objects to occur. For antiquities, this is backed up by the code of conduct for the Antiquities Dealers Association (ADA) whereby they uphold to not sell antiquities that could be from illicit sources. ¹²⁴

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The European Conventions that have occured help Governments to create laws that will prevent the illicit trade in antiquities. However, without ratification by individual countries, they are not relevant because they are not enforceable. The British Government is actively considering each of the conventions that I have discussed and are trying discussing ways to implement them into our Law. This move shows the problem of protecting cultural heritage is widely understood and that nations are trying to slowly resolve the tangle of litigation to create a clear and concise method of addressing the illicit trade.

In Britain we have several measures that relate to antiquities and are really making an attempt to break the illicit trade in British antiquities through the Portable Antiquities Scheme. Although the Government does take a long time to reach a decision on some conventions and laws, they raise points - for example, the requirement of a precise definition of antiquities - that need to be agreed for a law to work correctly. However, there will be a certain degree of 'politics' wrapped up in European issues as this is a very lively area of Government concern today.