Tuesday 9 December 2014

Comments on ADCAEA "Due Diligence" Guidelines

"problems? I see no problems"
A couple of months ago, the newly-formed 'Association of Dealers and Collectors of Ancient and Ethnographic Art' (ADCAEA) published a series of guidelines for members on what they consider as "due diligence". Initially it was to be restricted to "Members only", which is a loopy idea if the aim of the ADCAEA is to act as a flagship for responsible collecting. When I said this was bonkers, I was sent a copy by Sue McGovern-Huffmann. I  was told that the version that was published for members to see was "just a draft sent out for consultation" and that when comments were received a second version would be presented at the "end of October" and I was invited myself to comment on this first draft, which I spent some time carefully doing (the eight-page text below).

At the same time one of the ADCAEA leiters decided to make the first draft publicly available through a link from his own lobbying website. Meanwhile September passed, October went, November too, and now well into December no second draft, incorporating comments has appeared or been announced. On the basis that experience teaches that anything said by a dealer of dugup antiquities needs to be taken with a pinch of salt (including their desire to discuss the issues surrounding their treatment of and attitudes toward material remains of the past), it seems to me that a second draft of the document (if it was in fact ever envisaged at all) will not be appearing for a while. I have decided therefore to publish my commentary to that fist draft, indicating why I think it is inadequate for the purpose. This should be read with the first draft: http://adcaea.wildapricot.org/Resources/Documents/DueDiligenceGuide.pdf

ADCAEA ‘Due Diligence Guidelines for Dealers and Collectors of Ancient and Ethnographic Art (September 2014)’ 
Paul Barford 20th September 2014

I was sent a copy of this document by Sue McGovern-Hoffmann with the invitation to comment.

A few general points

1) I wonder why dealers and collectors are lumped together. Surely the point that should be made first of all is that if a collector is offered something by a dealer with no evidence (you talk about ‘recording it’) of DD before acquisition, they should just pass. Simple as that. Just say no. If an object has no documentation of DD research done by the dealer offering it, then most of the things you suggest the collector should do cannot be done from a photo and scrappy description on the internet before purchase.

Your Code of Ethics says anyway: All members undertake not to purchase, sell or exhibit an object until they have exercised, to the best of their ability, due diligence to ensure such object was not knowingly stolen from archaeological sites, excavations, architectural or religious monuments, public institutions or private property. (“knowingly” makes a difference? Your guidelines neglect to say how that is ascertained). This creates the impression that the DD is a moral imperative, while I am not so clear that this is what the Guidelines are aiming for, it actually reads at the end like making a “they cannot touch you for it” legal case, if caught by “further investigation which reveals it has dubious collection history or bad title”.

For this reason, in my opinion, the whole document should begin with saying WHY collectors should be doing DD, in other words what you see the aims of the exercise are. Is it so they can sleep with a sound conscience being 100% sure they avoid being caught up however marginally in dodgy dealings, or that nobody’s going to take their stuff away? Or is it just a façade to make the trade look good? Your document does not clarify this. 

2) I think a major problem here is the fragmented thinking that seems to lie behind the whole concept of what it is the ADCAEA is intending to do. If the ADCAEA is sincere in this and not just trying to create a façade like most other collectors’ organizations, the question arises ‘due diligence in respect to what?’. The answer should be, surely, the principles set out in the Code of Conduct. But then that places a very high threshold of accountability on the collectors and dealers who already have stuff acquired no-questions-asked. Elsewhere you suggest the ADCAEA exists: “To advocate a safe harbor for existing collections supported by the establishment of a nation-wide digital database that will restore legitimacy and value to objects and ensure museums, dealers and collectors can secure appropriate title to art and artifacts”. What do you mean “restore legitimacy” here – in the case perhaps of items which were acquired without DD? What do you mean by the use of the word “legitimacy” anyway? I guess that is a separate problem to be discussed elsewhere, I’ll restrict my comments to the document in front of me.

3) The document begins contentiously: “Many objects appear on the market with no physical evidence of their collection history. In many cases, this is because objects have passed through numerous hands […] This results in provenance being lost and the need to conduct due diligence”.

This ignores the fact that many archaeological and ethnographic objects appear on the market with no physical evidence of their collection history precisely because the middlemen are concerned to hide where they came from. That’s the problem. So really by ignoring that, your guidelines are ignoring that DD is what is done to differentiate the two categories of item. Once you’ve defined what this whole operation is for, matters become more simple.

4) I also simply cannot agree that the “level of due diligence should depend on several factors, including the value of the object, how common it is, and its potential origin”. In most of the countries that have laws regulating antiquities, there is no distinction based on what is “rare” (or even old – see some recent Egyptian and Indian cases, and the current series of arrests in Britain over items from the 1940s of little financial value). Your Code of Conduct urges complying fully with those laws, so your members cannot be selective how. Equally a hole dug into an archaeological site by a looter which produces a five-dollar Constantinian ‘nummus’ in worn condition is just as destructive as one that pulls out a 50000 dollar stature of Hercules. A looter that steals the head of a gilded angel from a Bolivian church has done the same damage irrespective of how much a dealer will sell it for and how many others like it they have in their stock. Due diligence is due diligence. Your guidelines are in effect urging a selective continuation of the nonchalance towards accountability which is the root problem of the antiquities trade.

5) Also you provide a cop-out clause on the second page: “it is important to establish, to the best of your ability, good provenance”. First of all we are tending today to stress collecting history, not merely provenance. Secondly what does “to the best of your ability” mean? My blog documents that there are very many collectors of dugup antiquities (we see them in the comments to CPAC) who are not exactly over-endowed with any kind of intellectual “ability” or ability to think for themselves. You’ve given them guidelines to say “you should if possible”, if the collector’s reaction is “I can’t do that” then basically what your guidelines say is “poor you, but at least you tried, now run off and carry on collecting”. This should read, “if you cannot establish a verifiable collecting history, walk on, don’t buy”. That way ADCAEA membership and the degree of hygiene it introduces into members’ collections has meaning.

More specific points
It seems to me that it would be useful to make the “six factors” in DD of your guidelines into criteria. This would act as a DD checklist, and each of the six can be considered and the results can be recorded in such a way that shows at a glance that an object satisfies criteria 2 and 5 for example.

You also need to differentiate items with ‘grounded’ (to use Elizabeth Marlowe’s phrasing) collecting histories, based on primary evidence associated with the object and ‘reconstituted’ collecting histories, concocted post-fact from secondary evidence, a letter from last year from the bloke who remembers seeing it on sale in Belgium forty years ago and is sure it’s the same one…. You also need to differentiate verified from accepted-at-face-value evidence which is the problem with several cases in the news this year.

Bearing in mind some objections that keep cropping up in the discussion of this topic in other media, the document needs to make reference to the issue of personal data and data protection.

Criterion 1 documentation 

There’s no doubt that this is the most important. Increasing the transparency of the antiquities market is what some of us have been advocating a long time. It would be worth stating in your guidelines that antiquities with associated documentation are a rare and precious resource, and because of this the dealer and collector should in every case make preserving that documentation and their association with the object almost as high a priority as curation of the object itself.

Perhaps the guidelines should say something about the form in which this documentation is to be presented, passed on and filed. In some countries the dealer will be required to hold on to some of this (especially if the export license or invoice was for a bulk lot), so you should state that xerox copies may be included in a document’s pedigree, but that there should be an annotation where the original was (and whether the buyer has seen the original). In any case documents made on certain types of paper (invoices on pressure-sensitive paper) will need to be copied for the files anyway as they fade with time.

But the point is that a mere piece of paper is not enough. SLAM has a whole file of pieces of paper for the Ka Nefer Nefer mask (and my blog makes clear what one may think of their value as documentary evidence for the case they are making), Cleveland also for the “Leutwitz Apollo” (ditto). Mr Kapoor was able to supply documents for his goods. The seller of the Sevso treasure produced a Lebanese export license. I am sure I do not need to explain where the problems lay in all of these cases taking the documents at face value. Verification is the keyword.

It is also important to ensure the seller holds proof of valid title and is able to transfer the title free from encumbrances”. What do you mean here? A dealer who has no documentation of legal/licit origins of coins of a type metal detected and illegally smuggled out of Bulgaria – or a handful of faience amulets of a bucket of Ptolemaic coins imported through Dubai, or a gilded angel’s head of Latin American style can give the buyer a piece of paper saying he holds valid title in a ‘can’t-touch-you-for-it’ way, but in terms of him knowing the objects are not stolen, it is a lie. If he does not know precisely how and when those objects left the source country, he cannot claim DD and cannot claim that he actually does have valid title (see my comments on your conclusions).

Criterion 2 initial examination
I wonder what you mean by “secondary provenance” here. You say an “old collection history” I think this is confusing and the confusion is at once removed by referring to “collecting history” in general. A collector’s cabinet is not any form of provenance. What we do have here is secondary information compared to criterion 1.

An object may “look” as if it was “in an old collection” but that means absolutely nothing. In my vacuum cleaner bag is a lot of dust that in five minutes can be ingrained into any object I or a collecting-history faker may want. Thomas Alcock labels tea-stained can be applied to smuggled artefacts. Mr Tokely also did a nice line in faking “old repair jobs”. Cleveland Museum have a nice antique statue ‘soldered’ onto an old base as ‘proof’ that the statue was in an old collection (watch the blog for why not).

Of course ingrained dust and grime on an ethnographic item, an African statue from a roadside shrine or cemetery is anything but evidence of being in an old collection, it could have been snatched two weeks earlier. Likewise a looted ethnographic item need not be detectable through having ‘soil’ on it.

More to the point, an object stolen from the backroom of some financially-challenged provincial museum somewhere may well also bear ingrained dust, old labels, numbers etc. How to tell?

Mounts can be added.

You should mention the notion of ‘cabinet toning’ for the coineys.

I’d add here that any sign that something has been doctored to look as if it is old collection material should prompt the buyer to drop any idea of acquiring it. An old mount that has been bent to fit an object it was not made for, some odd looking patina/fake cabinet toning. The Ka Nefer Nefer mask had an area where an inscription had been recently removed (you can still see the ink staining making it clear what has happened). That should have set alarm bells ringing.

Criterion 3 Object Type and Country of Origin

It is not clear what this section is about. This is terribly muddled. “If there is nothing obviously suspicious about the physical appearance of the item” – meaning what? Is this a reference to the point above about old labels, dust etc? How is the appearance “suspicious” (in terms of DD) and why is the second part of the sentence conditional on this?

consider the type of item and likely place of origin” but here you run slap-bang right into the ACCG’s “First found principle” ranting. I do not believe for a moment that they are right, but the difference in opinion needs to be ironed out.

Ensure the object was not taken illegally during a time of conflict or natural disaster” well indeed, but this is a RESULT of the buyer’s DD and not a means of doing it. How do you ensure this anyway in the absence of evidence? This should read, “if you cannot ensure….., walk on by, just say no”.

Your dealers may have items on sale which did, or could have, come from territories like Syria, Egypt etc currently affected by events of concern. If so, they should be encouraged to indicate upfront for which of them they actually have documentation (or other evidence) for showing it was licitly on the market before the current troubles started. There are many antiquities of Egyptian and Syrian origin on sale this morning (on V-coins, ‘the ethical alternative to eBay’ for example) which have not a word on when they left the source country and how, showing that in fact neither dealers nor buyers are a bit concerned.

Whether or not an object is of a type on a Red List is irrelevant to whether it may be looted. Illegal artefact hunting goes on in the UK today (three arrests in the past three days) and not a single Red List anywhere in sight. Any artefact without an upfront documentation of licit origins is potentially illicit.

An ‘Art Loss Register Certificate’ that an object’s not on their database is of course in some circumstances totally meaningless. How many of the recent antiquities ‘busts’ in the news recently had anything to do with the ALR? The Koh Ker statues, Mr Kapoor the Californian Ban Chiang items, the Four Corners/Blanding artefacts, the Hopi masks sold in Paris? Dogon artefacts from Mali? Do the administrators of the Vriddachalam temple in Tamil Nadu or the chief of a Dogon village raided in the recent troubles, or the local policeman in El-Hibeh even know something like that exists half-way around the world? Yes, the ALR might pick up something taken from a museum, or a private collector or dealer willing to admit he’d been robbed (not all do) but what about items clandestinely “stolen from archaeological sites, excavations, architectural or religious monuments or private property” (or indeed taken from a box in a museum backroom between inventories)? You need to make it clear that checking the ALR cannot be used as a substitute for other more searching investigations.

Criterion 4 Seller reputation

Hmmm. ‘Repute’ among whom and for what? No, this is not any kind of criterion for DD. That someone has not been caught and served jail time does not mean he’s not done any dodgy business. Mr Schultz had a good reputation, once. Several others too – and many of them as we know are still in business after a conviction. The forums make quite clear that in today’s antiquities market a dealer has a bad reputation for selling fakes as authentic, not selling items covered in earth with no paperwork. I presume the ADCAEA aims to change that, so it cannot use “market reputation” as a criterion.

What is needed here is the heading “establish who the seller is”. After all if the guidelines are for collectors buying outside the market (for example on eBay directly from finders) this is what is needed. What else is the seller offering? How do the descriptions of the objects present the issue of origins? What evidence is there that the seller is able to provide a proper provenace/collecting history or even knows what the term means? If the object is from recent artefact hunting is the item registered (in the UK this would be through the Portable Antiquities Scheme or the Treasure process). Has the seller documentation of their legal title (for example artefact hunting on private land, a declaration from the landowner)?

I think Professor Gill might have a few words on the notion that “auction houses provide collecting histories” – let alone if they can “guarantee” them (which should include guarantee that there is no information missing)!

Criterion 5 Seek Expert Advice

“seek expert advice” about what, and on the basis of what information? “Ask for [what kind of] assistance”? Those in the antiquities and ethnographic collectables industry may give advice for free, but why do you expect other institutions to do the same? Providing a collector with “object parallels” “and possible sources of evidence for provenance” is not in their remit, and is not what doing due diligence on the licit origins of a particular object should be about.[1] But I really do not see this as something museum or university staff should be expected to do for a collector or dealer gratis.

What about ethnographic collectables? Here a different range of contacts may be necessary to establish licitness of owning them, I am thinking about Hopi masks (no law broken by their sale in Paris) and things like Torahs. The question of who is an expert raises the thorny issue ‘who owns the past/ culture’.

‘Cultural attachés in embassies’ are often not a reliable source of information about the details of antiquities laws, what you should be telling your readers is to use them to get the information about the addresses of those in the country who are.

There are of course online (though selective and partial) databases of heritage laws. A useful task for the ADCAEA would be putting links to them on their website as a starting point.

If possible, also check whether the export of the item was in line with the regulations of the country of origin, and other cultural property legislation applicable at the time the item was exported. If necessary seek legal advice about whether the export of the item complies with current legislation”. What do you mean “if possible”? Establishing that the object was (a) obtained (ie taken from the ground or original place of keeping) legally and (b) exported legally is the SOLE purpose of doing the DD. It is therefore not a method “of” doing DD. If it is not “possible”, quite simply the object should not be bought, neither by a responsible dealer or collector. The market in licit artefacts should be exactly that, not a market where there are a load of bits of unknown origin floating around. Let the cowboys handle them.

Criterion 6 Ask the Seller
I like the notarised document idea for estate items, that is a real step forward if we can get buyers to insist on getting something like that with everything (from finders too). I am not sure what the point is of point four, Mr Smith the sheet-metal worker does not need to say if he “believes” the items are authentic antiquities, the document explains how he has them, and that he is able to transfer the title free from encumbrances (actually your document does not contain a statement on that latter and should). The reader should be informed what should happen to the document of the items listed in schedule A are sold off separately.

No certificate of authenticity I have seen ever provides anything more than the sketchiest of collecting histories. These are two totally independent things.

I have a few problems with the notion of this as a means of doing DD: “Oral history and personal communication with the seller can also be important when establishing a collecting history. A seller can give assurance about provenance, but may not be able to provide supporting documentation to show it has a collection history”. Like a used-car salesman, the seller’s say-so or “assurance”, “establishes” nothing. What if he’s lying? Or just decides to keep part of the story quiet? Or refuses to answer any more searching questions? Or does not know because he forgot to ask? This is not DD.

This, however, is where we get into the whole issue of “no-questions-asked buying”. Why actually do we have to ask the questions, why can the honest dealer every time not present up-front what he knows (and why not with the upfront codicil, “and that’s all I know”)?

If you are suspicious, do not purchase” I am 100% in agreement with that sentiment, but it seems we are at odds about what should make a buyer suspicious.

the absence of such records should not immediately condemn an object or require its rejection”. Maybe we can agree on the word “immediately”, but if deeper enquiry produces no information, then yes, the object should be rejected as tainted by lack of proof of licit origins. Establishing licit origins is what due diligence is all about, surely.

Since the Convention of 1970 there has been discussion about “illegal transfer of ownership” of cultural property. Forty years. That discussion has been intensifying over the past two decades. What excuse is there for a responsible collector, still less a dealer “not to receive”, or throw away relevant documentation? There is however every incentive for a dodgy dealer not to put things down in writing (cf. Medici!) and to get rid of the documentation. There is therefore every reason to be suspicious of items with no documentation, and anecdotes unsupported by independent evidence. You never know where they have been. If there is any problem with the actual logic of that, I’d be glad to hear it.

As I said earlier, I simply cannot agree that one can discriminate: “level of due diligence will depend on several factors, including the value of the object, how common it is, and its potential origin”. No, an antiquity or ethnographic collectable either CAN be established as of licit origins or it cannot. That is the only criterion here, and that determines whether a responsible buyer on the licit antiquities market will enter it into a collection or stock room. That is exactly what DD should be sorting out.

One may acquire such an object unless further investigation reveals it has dubious collection history or bad title”. It looks like ADCAEA is advocating optical due diligence and a “they–can’t-touch-you-for-it” legalistic approach rather than advocating rigorous methods of maintaining collection and market hygiene on moral grounds. What type of “further investigation” had you in mind? Another Medici archive turns up? A fake found in place of an original in a museum case? Otherwise no need to worry about where items actually came from? So what is the point of doing ANY DD at all, if you think you’ll not get caught out?

A condition of being an ADCAEA dealer member should be telling them to put some kind of information about the existence of collecting history documentation in each description of an item put on sale (it need not detail it, but say what kind of material he possesses, a xerox of the export licence, a notarified letter stating provenance dated … etc) and a general point should be for all of them that if a collector is unsatisfied with that documentation upon receipt (for example the ‘old Thomas Alcock’ collection labels have a faint smell of Earl Grey tea), the object may be returned.

Finally: The Code of Conduct implies that “All members will inform the Board about stolen objects and thefts and will cooperate with national and international law enforcement authorities in their efforts to identify, locate and recover stolen objects”. The guidelines do not say what should happen if a collector is doing DD on something a dealer is offering, and they turn up evidence it is stolen. Your Code says “inform the [ADCAEA] board”, why not the police? If you discover a crime, you are obliged to report it to the relevant authorities, not the ADCAEA. The guidelines should say this.

The significance of this
You say this document was created out of “concerns” about the bad publicity collectors were getting about looting in Syria and Egypt. In a hypothetical situation, collector Baz Braghoard is offered a nice blue uninscribed TIP shabti by Grebkesh and Runn the dealers. There are no associated documents (criterion 1). The object has no fresh earth on it (criterion 2). There are lots of shabtis on the market, they’ve been collected for hundreds of years (criterion 3). Silas Grebkesh (criterion 4)has never been convicted, and gives money to a New York children’s charity each year and is well-liked on collectors forums [good at telling anti-archaeological jokes]. The man in the local museum says that though he cannot find any parallels for this particular object, people have been collecting shabtis for years and just because it has no documents does not mean necessarily that it has been recently looted (criterion 5). Silas Grebkesh tells Baz he was told by the dealer who sold it to him (whose name he “understandably cannot give because he’d betray his sources”) that it came from an old collection of a Munich dental assistant, “named Schmidt” whose father had worked in Egypt before the War. The object, your guidelines indicate, can be bought with a free conscience, Baz “tried” to the “best of his ability” and can add this item to his collection until such time as “further investigation reveals it has dubious collection history or bad title”. This will never happen as looter Hamid el Ga'ab who dug it up in a graveyard in the Fayoum last February was killed in a gun battle with the police who found him looting another site. The dealer Grebkesh’s unnamed supplier bought it from later went to jail in Turkey for fraud and money laundering, but Baz never learns of the connection between him and the shabti. What “due diligence” has Baz (or Grebkesh) done? None. And – in this easily believable scenario - with ease another looted artefact would have passed onto the market, documented in his reconstructed collecting history by the trusting Baz as a “pre-war import by the collector Schmidt” when it’s nothing of the kind. Yet all of this follows the ADCAEA guidelines.

I suggest that the only basis for due diligence is the presence or absence of verifiable primary documentation and surely, if one really wants to clean up the shady side of the international market (or provide an alternative), nothing else can be seen as a substitute.
Paul Barford 20.09.2014

[1] I suppose the only possible exception is a loose inscribed shabti, where knowing when the other 360 entered museum collections may help to establish it as an old find.

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