Good Faith and the Antiquities Trade

There are a plethora of domestic and international laws which aim to stem the illicit trade in works of art and antiquities.  Unfortunately they are not working at stemming the illicit trade.  As Colin Renfrew, a prominent English Archaeologist has argued, in the decades since the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the theft and looting of works of art has increased.  I’ve tried to argue in a recent article that if we add some real scrutiny to the venerable doctrine of good faith, we might prevent the theft of works of art and the looting of works of art in nations with important historical sites all over the world.  To take one example, late in 2007 a prosecution in England revealed the strange story of how one art forger and his family fooled some of the World’s leading art institutions.  The Greenhalghs produced and sold an astounding number of forged works, some of which were displayed by the British Museum and the Art Institute of Chicago.  The “Amarna Princess” (pictured here) was a forged statue in the Egyptian Amarna style purchased by the Bolton Museum for £440,000 in 2003 and displayed for three years, despite the fact it had been created in a garden shed.  George Greenhalgh, the forger’s father, approached the Bolton Museum in 2002 claiming the object was from a “forgotten collection”; soon after it was purchased and displayed after both Christies auction house and the British Museum authenticated the piece as genuine.  A badly flawed market allowed these forgeries to invade the display cases of some of the world’s most hallowed museums.  Further evidence of the corrupt antiquities market came just after dawn on January 24, 2008 when Federal agents carried out coordinated raids on four Southern California museums and a Los Angeles art gallery, the culmination of a five-year investigation which traced the illegal international movement of Southeast Asian and Native American artifacts into American Museums and galleries.  The raids resulted in a swift and immediate change in museum guidelines on the acquisition of antiquities. 

If one were to devise a badly flawed market, one would be hard-pressed to surpass the antiquities trade.  The reasons for this are numerous, but can be attributed to two main factors:  a restricted supply and a trade plagued by anonymous buyers and sellers often shielded by auction house practices and traditions.  The supply is restricted for some very good policy reasons.  Nations of origin are justifiably reluctant to sell or lose to foreign institutions many objects which are unearthed illegally. They are also reluctant to allow the export of other objects which may be excavated legitimately by archaeologists mindful of historical injustices such as colonial takings.  

We are left, then, with a regulatory framework that rests upon prohibition of illicit antiquities (much like the illegal narcotics trade), which has no reliable means of distinguishing the legally-acquired objects from the illegal ones.  One of the weaknesses with prohibitionism is that it restricts supply without taking account of the potential demand.  This makes the targeted trade more profitable—allowing better, more sophisticated tactics to evade law enforcement.  In some cases prohibition helps create and incentivize large-scale criminal operations and organized crime networks.  It also creates a powerful deterrent to impart any kind of public scrutiny to many antiquities transfers.  This article proposes a legal framework for effecting a heightened scrutiny of the trade, which can alleviate many of these difficulties by allowing for a licit trade in antiquities. Such a framework will have a profound impact on the existing body of public and criminal law aimed at stemming the illicit trade in antiquities.

By most accounts, many American museums have ceased acquiring antiquities with dubious histories and the trade in antiquities has diminished even among private collectors and auction houses.  It appears, however, that looting, theft, and forgeries continue unabated, as unscrupulous dealers wait for a market to emerge somewhere for these objects.  The challenge for heritage advocates (including archaeologists, dealers, auction houses and others) is to organize and implement an effective and workable heritage management framework.