Thursday, 26 February 2009

US efforts to curb illicit antiquity trade - Vitale

Katherine D. Vitale has published a text called “ The War on Antiquities: United States Law and Foreign Cultural Property”. It seems rather too pro-collecting in tone for my taste. Surely the title should read the “war on illicit antiquities”, since if somebody is trading items of legitimate provenance and can document the fact then they have no problem with US law. It's heavy going in places which leads the author to the conclusion:
“The United States should be enforcing the standards of CPIA, not those of NSPA and ARPA, because they expose museum officials to prosecution […].”
If a member of staff in any other kind of US public institution is found to have been knowingly handling illicitly-obtained material, are they not to face any consequences?

I must admit I’d not noticed before the full import of the precise wording of section 470ee(c) of the US Archaeological Resources Protection ActNo person may sell, purchase, exchange, transport, receive . . in interstate or foreign commerce, any archaeological resource excavated, removed, sold…”. Interesting. I guess that means private collectors too.


Anonymous said...

Hi Paul,

This is Katherine Vitale. I realize that my stance on prosecution of museum staff is an unpopular one. I just want to address a few points that you've made.

First, I called it the "War on Antiquities," not "Illicit Antiquities," because I conclude that the United States' current approach to stemming the trade of illicit antiquities might endanger ALL antiquities, not only those that are illicitly traded.

Second, I fully believe that museum officials who engage in looting or smuggling of illicit antiquities, or solicit such actions should be criminally prosecuted. My argument is that NSPA and ARPA expose even those museum officials who have a very limited role in the larger black market to criminal liability, when the focus should really be on those who steal illicit antiquities.

In sum, my point is that ARPA and NSPA are imperfect methods for stemming the trade of illicit antiquities and could result in the United States' failure to keep to its obligations under the 1970 UNESCO Convention. Moreover, the imperfection of these criminal laws--and the fact that the prosecutors know this--is probably the reason we've seen little movement in the 2008 California museums investigation.

Thank you for your thoughtful post, and I will consider some of these issues before my note goes to print.


Katherine Vitale

Paul Barford said...

Dear Katherine, thanks for the comments. First of all I’d like to apologise that my remarks yesterday evening may have sounded a bit grumpy, yesterday was not a good day for me; I’ll try and edit it later.

Prosecution. I do think that recently there has been too much emphasis in the media at least on “saving” (ie repatriating/returning) the “object” rather than doing something about the culprits. As I am sure I have moaned here earlier, we are often hearing of the “arrest’ at the “market” end of some (unnamed) culprits involved in smuggling and the illegal trade with the media joyfully trumpeting that a handful of coins or a pot or two have “gone home”. We rarely hear what happened to the people who were caught in their possession, or those from whom they had obtained them. The suspicion is that these guys get off with a cautionary ‘talking to’ (“now run along and don’t do it again”) and that’s it. There are a few exceptions of course. We need more naming and shaming, more questions publicly asked, and yes, people actually punished and above all (connected with that) the chains of passage of these items more thoroughly investigated so we can all see how these objects are reaching our markets.

those museum officials who have a very limited role in the larger black market to criminal liability , that would make them pause to think before getting involved. Frankly I do not believe there should be a place in public institutions of any kind with chains of responsibility (not just in the US) for staff who are willing to contemplate having “a limited role” in any kind of illicit business – no matter how they want to dress it. Why should they not be liable for their actions?

I really do not accept that combatting the trade in illicit antiquities is attacking the whole trade. That is what the dealers (mostly the US ones) say. That is their excuse for not doing anything. We have to accept for now as a working hypothesis that there is a socially-acceptable legitimate market in licit antiquities which has become contaminated by cowboys dealing in illicitly-obtained material which need to be pushed out to allow the market to continue. The argument which the dealers almost unanimously offer says to me that in fact they all know that if the latter happened the market would actually collapse. If that is what they believe, then one can hardly talk about a socially acceptable legitimate market and that then raises the question of the social acceptability of collecting at all. The dealers and collectors cannot have it both ways.

ARPA and NSPA are imperfect methods for stemming the trade of illicit antiquities
I think there is hardly a nation in the world that has legislation adequate to dealing with these problems in a satisfactory manner. The US is (to my mind) a particularly bad example from the point of view that for at least the past three decades it is where a large amount of the illicitly-obtained antiquities of the world have been going, and precious little has been done in the US to stop it. The “Wisconsin Collectors Rights Resolution” just about says it all.

could result in the United States' failure to keep to its obligations under the 1970 UNESCO Convention.
well, there are some who look at the 1970 convention and look at the Convention on Cultural Property Implementation Act and wonder just what on earth the people who wrote the latter thought they were doing. The 1970 convention would place far wider obligations on the party state than the US is willing to accept; I am sorry to say that seen from the perspective of the Convention itself, the CCPIA really looks to me a bit like “just going through the motions to stop people pointing fingers” – and even that gets bogged down by the dealers’ lobby pathetic shouting and posturing over the wording of this or that MOU. Crazy.

Marcus Preen said...

"We need more naming and shaming.......the chains of passage of these items more thoroughly investigated so we can all see how these objects are reaching our markets."

Here here! It seems to me it is sometimes forgotten that illicit antiquities are ruled by the laws of economics in exactly the same way as any other commodity.

I can't imagine drugs middlemen running websites and blogs seeking to convince both the authorities and their customers that actually, the problem lies with other parts of the chain not them, that their own role in it is both inadvertent and innocent and, most bizarre of all, that supply is not a direct consequence of demand. Yet that is what we have in the case of illicit antiquities.

This denial of basic economic realities shows up very starkly in the commonly voiced notion that source countries are where anti-looting measures belong. This is a fallacy. President Andrés Pastrana of Colombia pointed out that the drugs trade was lucrative not just because of the demand but because efforts there make heroin and cocaine artificially scarce, thus keeping up the prices. In other words, the efforts of source countries can never solve the problem so long as the demand remains the same. Only if one takes away that will the whole thing collapse. Chains pull not push and if supply is restricted chains pull harder and the supply is stimulated commensurately.

Not that I am advocating taking away the users of antiquities, the collectors. But I do think the message of innocence that many dealers seek to deliver to their customers should be exposed for what it is:

In truth, all in the chain contribute to the process to the same degree as the looters; not knowing is no excuse if one patently hasn't looked very hard; the ONLY hope for real improvement lies in reform at the demand end.

By all means let us have your thorough investigation. But let us not recruit an archaeologist, numismatist or moral philosopher to do it. Let's appoint a plain no-nonsense economist to explain the true dynamics of the process and expose the fallacious nature of some of the claims that are made by commercial interests.

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