Who Owns The Past? The Collector's View


By Dorothy King

Minerva, March/April 2006

In recent years one of the most controversial topics in art and archaeology has been the concept of restitution. Academics, governments, and ethnic groups campaign for items to be ‘returned’ to them, arguing their cause through the press and journals. The Greeks' desire for the Elgin Marbles and the Egyptians’ more recent demands for the Rosetta Stone are well chronicled.
Who Owns the Past?: Cultural Property, and the Law, however, is the first major study to examine the cause intellectually from the perspective of art collectors and major museums. It does so in a thorough and persuasive manner, cutting through much recent and misplaced negative propaganda. Clemency Chase Coggins’ anti-trade articles (‘Archaeology and the Art Market, Observations of a Combatant’) offsets the views of collectors. This is the first academic and balanced response to the anti-trade lobby, largely started and perpetuated by Professor Lord Colin Renfrew in Cambridge, making the book a landmark study in this regard.

Who Owns the Past? is sponsored by the American Council for Cultural Policy - a US-based think-tank analysing issues surrounding cultural property, art law, and the governance of museums - and much of the content deals with laws of art and antiquities ownership pertaining to America. With the facts of law addressed (Kate Fitz Gibbon, ‘Chronology of Cultural Property Legislation’), the arguments around them are deftly handled by leading lawyers such as Ashton Hawkins and Professor John Merryman. Hawkins and Judith Church (‘A Tale of Two Innocents:
The Rights of Former Owners and Good-Faith Purchasers of Stolen Art’) emphasise the difficulties of implementing the law over stolen art, where innocent owners become victims, hoodwinked by thieves that are often unknown and so impossible to prosecute. Rather than wringing their hands, as many restitutionists have done before, Hawkins and Church propose a new legislative solution: a Federal registry of stolen art against which potential purchasers could verify the status of items. If an item were not registered, then the purchase would, in turn, be considered made in good faith, until now an extremely difficult concept to prove or qualify. Because they have practised the law, Hawkins and Church candidly highlight potential flaws, and admit that no law can be perfect, but their suggestion is a good start to resolving the contentious issues involved in art theft and multiple claimant-owners.

Merryman (‘A Licit International Trade in Cultural Objects’) has specialised in art law for years, and is brilliant at simplifying neglected points. He points out, for example, that the majority of the art trade is licit and badly tainted by the few illicit incidents, which regrettably gain far greater poor publicity. UNESCO comes under fire as an institution and for its conventions. Often cited as supporting the return of the Elgin Marbles, few people really bother to read the original convention wording. Merryman stresses that UNESCO is actually opposed to all art trade on the basis that it is an undemocratic pursuit: not everyone can afford art. It thus functions under the ridiculous ideology, ‘if I can't have a Picasso, neither should you’. Only in the field of cultural heritage is this form of Marxist ideology surely tolerable today. UNESCO only supports international loans between museums, and rejects the validity of private collecting in its entirety from art to old stamps. Imagine if our ancestors acted out such dictatorship: if a ban had been implemented we would have had no art patronage and no discovery, let alone any promotion of a whole generation of new artists since 1976. The UNESCO convention not only tries to regulate the past, but also to rob us of our artistic future.

Merryman continues by demonstrating the many difficulties involved in collecting antiquities. Increasingly archaeologists demand more and more due diligence - often well beyond what is legally required - from museums before they are allowed to acquire art, compelling them to prove beyond a shadow of a doubt that the object in question has an acceptable provenance. Yet proving a negative (the item was never stolen), of course, is infinitely harder than asserting a positive (the item was stolen). Having personally attempted to perform due diligence in the past, I could point out that it is very difficult to do so when archaeologists, museum curators, and ministry of culture officials rarely bother to answer emails about potentially looted items. If Greece and Italy wish to stem illegal exports, they might consider implementing a system whereby those of us who wish to comply with their laws and prevent illegal looting are shown how we can help. Those of us who believe in the integrity of an art market, but passionately want to prevent looting simultaneously, are lent little support either by the Greek or Italian governments who so loudly demand the ‘return’ of ‘looted’ works of art from the Getty and Metropolitan Museum.

In addition, as Merryman clarifies, nations prevent the export of works of art by declaring them ‘national treasures’ despite an often tenuous link with the country where they end up. A painting by an Italian of a Pole married to a Scot, executed in Rome but with a long English provenance, can be claimed as a French National Treasure to prevent its export to another country. Art is one of the few areas today in which the opposite of Free Trade is the universal norm: movement is so restricted that we are in danger of reinforcing outdated ideas of cultural nationalism when we should be moving towards a multicultural society.

UNESCO also comes under further fire from Andrew Solomon (‘Art in Jeopardy’) over the destruction of Kabul Museum. UNESCO believes that all cultural property should remain in its country of origin - in theory a reasonable argument. Unfortunately, however, UNESCO fails to
acknowledge in its legislation that not all the world is equally civilised. Occasionally, citizens choose to destroy their own national cultural heritage. Witness the destructive practices of the Taliban, Afghans who refused to acknowledge the existence of a pre- Islamic past. The Buddhas of Bamiyan would have been difficult to whisk away and save from the Taliban, but UNESCO was offered the opportunity to rescue the contents of Kabul Museum and declined. They ‘upheld with ludicrous literalism’, writes Solomon, their ideal of retaining objects in the country of origin,
embracing an outdated ideology over saving 3000 years of rich Afghan cultural heritage. When petitioned to help save the contents of the museum, UNESCO repeatedly replied to the museum’s director, Omara Khan Masoodi, that it was ‘not our policy to export works of art from their country of origin’.

Similar less known cases prove the existence of a worrying pattern: in one instance UNESCO preferred to see a 'Roman' synagogue destroyed by Muslim fundamentalists (who wanted to deny the Jewish past), rather than help export parts of its unique architecture. Some of us, however, feel that culture is our universal heritage, belonging to all people, and that allowing countries to destroy it is a dangerous form of cultural nationalism reminiscent of Hitler’s appalling ideology c. 1939. UNESCO would rather see an antiquity destroyed in Afghanistan, it would seem, than find it a temporary safe haven in a museum in Switzerland. Fortunately, Omara Khan Masoodi was undeterred and displayed bold initiative in managing to save part of the collection. UNESCO finally conceded to the logic of his pleas, and agreed to help Masoodi save the contents of Kabul Museum, but only after the majority of its collections had already been destroyed by the Taliban. If UNESCO had been in charge of Baghdad museum - another example of citizens destroying their ancestral heritage - no doubt it too would now be empty.

The Taliban exemplifies the deliberate destruction of art for political profit; the Chinese Cultural Revolution represents another. Historically, conquerors’ destruction of a vanquished people’s past has long been the aim of victors, since the act undermines the conquered sense of self-worth. As recently as the siege of Nablus, many Ottoman buildings were deliberately destroyed by the Israelis. Neglect of art in war-torn or impoverished lands is a far more common reality. It is, of course, very difficult to criticise a Third World government for neglecting its ancient heritage when it cannot even afford to feed or immunise its people.

The destruction of ancient cultural heritage in the name of progress remains a very modern dilemma. The Greek decision to bulldoze the site of the Battle of Marathon for a (now abandoned) rowing lake for the 2004 Olympics is an obvious case in point. Andre Emmerich (‘Improving the Odds: Preservation through Distribution’) discusses further examples of
tragic losses, often perpetrated by the construction of hydroelectric dams. Although these dams, in theory, will provide many with electricity, in practice they tend to silt up quickly and have a short viable life. The Roman villas of Zeugma were flooded in Turkey (although fortunately many mosaics were saved thanks to the intervention of the US Packard Humanities Institute). The Roman spa centre of Allianoi in Turkey and the Three Gorges in China are imminent losses from which it will not be so easy to salvage the extensive physical remains.

UNESCO would naturally like to see the Elgin Marbles back in Athens, and the controversy over the Greek claim is briefly covered by Fitz Gibbon (‘The Elgin Marbles: A Summary’). Many ofher arguments are lucid, and cover the main points. However, I cannot resist pointing out the forgotten matter that, should the Greeks eventually get their way, and have all the Parthenon marbles repatriated, the block incorporated into the Washington Monument would also have to be returned, for which the monument itself would have to be dismantled.

Elsewhere, Fitz Gibbon contributes several brilliant articles that emphasise the many fallacies surrounding the art trade (‘The Illicit Trade - Fact or Fiction?’), and produces a nuanced and balanced alternative examination to the current hoarding of art by artrich nations (‘Alternatives to Embargo’). The majority of the art trade is legal and licit, with the billion- dollar estimates of illicit smuggling - alleged to be on a par with drugs or guns - grossly exaggerated. A far greater value, both cultural and financial, of art is lost each year through neglect and wartime destruction. She points out that blanket embargoes of art from source countries are clearly not working, and suggests that resources would be better used to care for sites and museums rather than chase after already illegally exported items. International agreements over art movement can only be window dressing as long as nothing constructive is being done in the countries from which the art itself originates. A database of items is again suggested, this time for objects in museums - it would serve the dual purpose of keeping track of art and of allowing greater access to our cultural heritage. Successful collection management remains the key preservation of assets.

All museums were usually formed by the initiative of prominent individuals, often art collectors, and continued over time to be moulded by successive generations of art lovers and collectors to whom we are Rosenkranz. The role of these figures is expanded upon by Shelby White (‘Building American Museums: The Role of the Private Collector’), who offers a personal insight into assembling a major collection. UNESCO has failed repeatedly to fulfil its perceived remit to preserve art and cultural heritage, and therefore lost a great deal of respect in recent years.
Perhaps White’s collectors are those that we should look to instead as protectors of the past. They covet, admire, appreciate, and safeguard art, but they do not hoard or destroy it. Historically, it was these same collectors who founded the world's greatest museums, made art accessible to everyone, and encouraged scholarship. For that they deserve respect.

Few restitution issues are anything like as clear-cut as the simple cries for the ‘return’ of cultural objects. Who Owns the Past? is an outstanding and well researched academic volume that helps illuminate complex theories of art collecting and clarifies the field of cultural property conservation.

Dr Dorothy King is author of
The Elgin Marbles:
The Parthenon and the Story of Archaeology’s Greatest Controversy
(Hutchinson, 2006; 352pp, Hardback, £18.99).

Who Owns the Past?:
Cultural Policy, Cultural Property, and the Law
(editor) Kate Fitz Gibbon
Rutgers University Press, 2005

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