[CPProt.net] Do antique dealers preserve the past or steal it?

Wed Apr 27 07:37:27 CEST 2005

Ancient Treasures for Sale
Do antique dealers preserve the past or steal it?

Steven Vincent

As you read this, criminals somewhere in the world are destroying portions
of mankind’s past. With backhoe and shovel, chainsaw and crowbar, they are
wrenching priceless objects from sites in the mountains of Peru, the coasts
of Sicily, and the deserts of Iraq. Brutal and uncaring, these robbers leave
behind a wake of decapitated statues, mutilated temples, and pillaged
trenches where archaeologists were seeking clues to little-understood
civilizations. The results of this looting include disfigured architectural
monuments, vanished aesthetic objects, and an incalculable loss of
information about the past. And it shows no signs of diminishing. 

As you continue to read, other people across the globe are purchasing some
of mankind’s oldest and most exquisite creations. Contemplating ancient
statues, vases, and stelae, many of these purchasers experience antiquities’
near-mystical power to connect them to the past or to transcend time through
beauty. Proud of their efforts, these private collectors, commercial
dealers, and museum curators view themselves as temporary caretakers of
timeless treasures. Their love for these artifacts often resembles the
passion one associates with religious fervor. It, too, shows no signs of
diminishing. 

At first glance, the connection between those who loot antiquities and those
who collect, trade, and preserve them seems the stuff of academic seminars
and journals. Yet such is the allure of ancient treasures that, since the
1970s, this relationship has spawned global treaties, inflamed Third World
nationalism, created a secretive Washington bureaucracy, and triggered
federal prosecutions. To some, this international cooperation reflects the
ability of the world’s nations to unite to protect an endangered world
resource. To others, it demonstrates the hazards resulting when “feel-good”
multinationalism collides not only with the sovereignty of the United States
but with the basic human desire to surround oneself with objects of beauty. 

“We have a situation in this country today where American citizens pursue
their legal rights under the shadow of prosecution by foreign laws, and
private and public collections of antiquities are at risk to the demands of
cultural ministers in other countries,” says New York lawyer William
Pearlstein. “The antiquities situation is a mess,” echoes Kate Fitz Gibbon,
a Santa Fe dealer in Central Asian artifacts. “We’re heading for a major
crisis in the near future.” 

Artifactual Dispute 

It’s been a decade since I first wrote about “cultural patrimony,” the
question of who has the right to own and exhibit mankind’s aesthetic and
archaeological treasures. At the time, stories were proliferating about
looters plundering the temples of Cambodia’s Angkor Wat and the tombs of
Mali’s Niger River delta. Archaeologists were still buzzing about the
Metropolitan Museum’s 1993 repatriation to Istanbul of the so-called “Lydian
Horde” of gold objects, which smugglers had illegally excavated from Turkey
and sold to the museum. I found the topic abstruse, filled with mind-numbing
legal documents and visually stunning artifacts. All I knew for sure was
that collector demand for these objects created incentives for looters to
pillage archaeological sites in Third World countries. End the international
antiquity trade, I thought, and the looting in those “source” nations would
stop. 

In the late 1990s, though, my investigations brought me to an urbane but
down-to-earth antiquities dealer named Frederick Schultz. In his 57th Street
gallery, filled with vitrines displaying relics of Chinese, Etruscan, and
other ancient civilizations, the boyish Schultz explained the viewpoint
championed by the “trade.” Looting is indeed a problem, he conceded, but
critics of dealers were wrong. The international antiquities market—together
with the private and public collections it supplies—preserves ancient
treasures and disseminates their beauty and influence across the globe. “A
strong market assures a free flow of antiquities and acts in the best
interests of everyone—archaeologists, collectors, and the people in source
and market nations,” Schultz argued. 

He was persuasive. But then, as the head of the New York–based National
Association of Dealers in Ancient, Oriental, and Primitive Art, he had to
be; he was a high-profile defender of the trade and an adviser to the
Clinton administration on issues involving antiquities. 

Cultural patrimony was the focus of a complex, three-sided debate. On one
side, there are the “internationalists”: academics, dealers, and collectors
who advocate a vigorous but regulated market as the best way to protect
antiquities and promote global understanding and universal values. “The
moment the Soviet Union fell, the world plunged into ethnocentricity,” says
George Ortiz, a celebrated collector of classical and Middle Eastern
antiquities. “Instead of each group claiming its own heritage, we need to
create a common culture by allowing art and antiquities to circulate around
the world.” 

Opposed to this view is a second group comprised of source nation officials
and Western academics who believe cultural patrimony is linked to a people’s
identity and sense of self-determination. As Claude Daniel Ardouin, then
director of Senegal’s West African Museum Program, once told me, “Our
cultural heritage tells us who we are. I find it unacceptable that big
dealers are sitting around in their shops in Paris and New York thinking
about the pretty objects they are going to take from my country.” These
“nationalists” generally call for a trade that is limited, heavily
regulated, and open to public scrutiny. 

The third party is the most extreme. It consists of archaeologists who
castigate the trade for removing cultural artifacts from their indigenous
context, rendering them useless for scientific study. Unlike the
nationalists, many archaeologists oppose the export of cultural property to
insure its preservation and accessibility. “One cares about the people and
the area in which we work, but our primary interest is to understand the
history of the country,” says Colin Renfrew, a member of the British House
of Lords and director of the Cambridge University–based McDonald Institute
for Archaeological Research. Many in this group would like to see the
antiquities trade shut down altogether. According to Boston University
archaeologist Ricardo Elia, “Collectors and dealers are dinosaurs. They
think it’s still the 18th century, when you could rip things out of the
ground and put them on your mantle.” 

The Long Arm of Mexican Law 

The nationalists’ and archaeologists’ illiberal amalgam of Third World
nationalism, anti-capitalist sentiment, and distrust of aesthetic
connoisseurship dates back to the U.N. Educational, Scientific, and Cultural
Organization’s (UNESCO) 1970 Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural
Property. The first major international agreement to protect cultural
property from thieves and smugglers, the convention created a legal
framework allowing signatory governments to negotiate for the return of
looted items. Over the years, UNESCO followed with further “recommendations”
that clarified international rules for protecting and exchanging cultural
property. These pronouncements reflected an increasingly anti-market bias.
In 2001, for example, UNESCO declared that “underwater cultural heritage
shall not be commercially exploited.” 

The U.S. signed the convention in 1972, and in 1983 Congress passed the
Cultural Properties Implementation Act (CPIA), which established a process
by which source nations could request U.S. import bans on archaeological
material originating within their borders. Legislators hoped restricting
entry into the American market would help reduce looting. Mindful of
UNESCO’s anti-market bias, however, they included in the CPIA measures to
protect dealers, collectors, and museums. “We felt we were in the business
of encouraging the legitimate circulation of cultural objects,” says
Meredith Palmer, who as a State Department official in the 1970s helped
develop the legal and intellectual framework for the CPIA. “We took pains to
ensure that any law based on the convention reflected the interests of the
American people.” 

Be that as it may, the result was a classic example of what happens when the
state decides to limit or prevent people from doing what they feel is their
natural right, in this case purchasing antiquities. Under the CPIA, a nation
seeking U.S. import restrictions on cultural objects must submit a petition
giving its reasons for the request, documenting, among other topics, the
severity of the looting problem and the country’s own efforts to curtail it.
Further, it must identify categories of endangered objects and specific
sites jeopardized by robbers. An advisory committee reviews the request,
then passes its recommendations to an anonymous State Department official
empowered to approve the petition, generally for a period of five years. 

The law does not require this official to declare reasons for the
restrictions. Nor must the State Department provide the public with any
documentation to support the decision. Even the advisory committee is not
privy to all information. “The process is frustrating and shrouded in
secrecy,” says Santa Fe dealer Fitz Gibbon, who served on the committee from
2001 to 2003. 

Worse, the CPIA proved ineffective in protecting the interests of American
citizens. In November 1995, U.S. Customs agents entered the New York home of
collector Michael Steinhardt and confiscated a third-to-fourth-century
Sicilian gold bowl, or “phiale,” that Steinhardt acquired from a New York
dealer for $1.2 million. In February 1995, Italian authorities had requested
the U.S. government’s help in retrieving the phiale, which they claimed was
part of Italy’s cultural patrimony. (Italian law claims state ownership of
all antiquities located in Italy, except for those privately owned before
1902.) Using the guidelines of the National Stolen Property Act (NSPA), U.S.
officials agreed the phiale was stolen property. But as Steinhardt’s
defenders noted, Italy had not requested import restrictions under the CPIA.
So what right did customs agents have in accusing Steinhardt of possessing
stolen property and invading his home to confiscate it? 

Enter McClain v. the United States, the most controversial aspect of the
cultural patrimony issue in this country and a source of continuing acrimony
and contention. When federal agents entered Steinhardt’s home to confiscate
the “stolen” phiale, they based their action on the 1977 case of an
appraiser, Patty McClain, whom American authorities had arrested for
carrying pre-Columbian antiquities across the Mexican border into the U.S.
In that judgment, the U.S. Court of Appeals for the 5th Circuit in New
Orleans, using Mexican law to define stolen archaeological property, upheld
McClain’s conviction. To put it another way, an American citizen was
arrested, convicted, and jailed in the U.S. based on the cultural property
laws of a foreign nation. “In my opinion,” says Stanford University law
professor John H. Merryman, a staunch supporter of regulated international
antiquities trade, “McClain was poorly decided.” 

In Steinhardt’s case, that 25-year-old ruling permitted Italy to assert its
state ownership laws in American courts, thus turning the phiale into stolen
property under U.S. law. Steinhardt unsuccessfully appealed in 1997, and the
phiale was returned to Italy. The shock waves from the case are still being
felt. Says Ashton Hawkins, former counsel to the trustees of the
Metropolitan Museum: “The government made a lot of people apprehensive by
seeming able to seize anything on the basis of a complaint from a foreign
government. When the U.S. begins to enforce foreign laws against private
citizens without due process, this is trouble.” 

The Antique Dealer in the Flak Jacket 

Emboldened by the Steinhardt case, anti-market forces, particularly
archaeologists, intensified their attacks. They began portraying dealers and
collectors as greedy plunderers running what one archaeologist called a
“vast international network” to loot countries in Central America, Europe,
Egypt, and the Middle East. Ricardo Elia once declared to me that he wanted
to make collecting as “socially distasteful as smoking cigarettes, wearing
fur, or eating an endangered species.” Lord Renfrew has accused major
American museums of “stimulating much of the looting in the world.” One Park
Avenue collector told me he felt like donning a “flak jacket in public, like
I was an abortion doctor.” A new clamor arose concerning the world’s most
notorious case of “cultural plunder”: the Elgin Marbles, sculptures from the
Parthenon that Britain’s Lord Elgin purchased in the early 19th century and
shipped back to England. The British Museum has them on display, ignoring
Greece’s repeated requests for their return. 

Whenever I dropped by Schultz’s gallery, I found the director writing
letters, articles, and legal briefs defending the trade. “This is
ridiculous!” he griped one afternoon. “I read that archaeologists liken our
profession to international drug dealers. They’re saying we rake in $5
billion a year in dirty profits! Do you know what we estimate the entire
international antiquities trade amounts to? Around $200 million a year!
Where do they get the nerve?” 

As the archaeologists stepped up their assault, the trade sharpened its
arguments and continues to assert them today. “We have to,” says New York
dealer Jerry Eisenberg. “The charge that we’re somehow responsible for the
‘rape of the land’ makes a greater impact on the public than our arguments
about the benefits of trade.” Stanford’s Merryman frequently criticizes
source country laws that define antiquities as state property. Egypt and
Turkey, for example, assert ownership of certain privately held objects
within their borders, including some owned for generations. Merryman argues
that such laws ensure that the supply of material remains short, thereby
creating a lucrative black market. Others, such as collector Ortiz, note
that source countries maintain warehouses and storerooms filled with
thousands of uncatalogued antiquities, many of which are just “rotting
away.” 

Critics also observe that source countries are often unable or unwilling to
pay their citizens for the antiquities they discover. Dealers maintain that
many items are tomb objects uncovered by accident, for instance by farmers
tilling their fields. If the farmers cannot sell what they discover in a
legitimate market, and if their government will not buy such artifacts from
them, they have two choices (aside from simply letting the state appropriate
the finds): destroy the objects or sell them illegally. 

There is also a problem of terminology, trade supporters argue. Many source
country export laws blur the distinction between “looted,” “illegally
exported,” “stolen,” and “unprovenanced” objects, thereby making it appear
as if dealers operate some vast criminal enterprise, when there are subtle
but significant differences between those terms. For example, critics of the
trade, including many journalists, unjustifiably assume that any antiquity
without a solid early provenance probably has been looted. 

“The burden of proof is on us, and that’s unfair,” Schultz frequently
argued. “For hundreds of years, people have been buying and selling objects
without keeping or publishing proper records. Many collections were built
decades ago; contrary to what the archaeology Hezbollah maintains, there are
bona fide old collections.” 

Teachings of Buddhas 

In the winter of 2001, an event occurred that bolstered arguments in favor
of an international antiquities market: Afghanistan’s Taliban regime
destroyed two colossal third-century sandstone sculptures of Buddha at
Bamiyan. Although the statues, each standing more than 100 feet tall, were
too large for purchase, their fate posed uncomfortable questions for source
country nationalists and archaeologists. What happens when a country’s
government decides to eliminate rather than retain its cultural heritage? In
such a case, wouldn’t leaving objects in their archaeological sites threaten
their existence? International trade, by contrast, would bring artifacts to
safe harbor in private collections and museums. 

“The market gives objects value,” contends noted New York collector Shelby
White. “Like we saw at Bamiyan, source countries often destroy temples for
political or religious reasons. Other times, they simply use ancient columns
and pillars for new construction. Then you have cases where common people
who find antiquities often melt them down for the gold, or simply throw them
away. They don’t care about the craftsmanship or beauty of the object.” 

These problems are not confined to rogue nations. For example, China’s Three
Gorges Dam project, when completed, will submerge countless undiscovered
antiquities beneath a 400-mile reservoir. “A stronger market system could
have created incentives for Chinese officials to excavate and preserve the
objects and sell them,” notes Jim Fitzpatrick, a Washington, D.C.-based
lawyer who lobbies Congress on behalf of the trade. “When they permanently
flood untold numbers of irreplaceable artifacts, how much does China really
care about their antiquities?” 

But if market supporters felt the destruction of the Bamiyan Buddhas and the
Three Gorges Dam had finally given the trade the moral high ground, their
victory was short-lived. In July 2001 federal prosecutors accused a
prominent antiquities dealer of handling objects that a confederate had
smuggled from Egypt. For the trade, this was a catastrophe. Because the
government based the indictment largely on McClain, a conviction in the case
risked confirmation of that notorious ruling by the U.S. Court of Appeals
for the 2nd Circuit, which has jurisdiction over the New York art market.
Not only that, but the indicted dealer was none other than Frederick
Schultz. 

Schultz’s trial, held in February 2002, was a veritable how-to guide for
smuggling ancient artifacts. The star witness against the dealer was the
former British cavalry officer and master antiquities restorer Jonathan
Tokeley-Parry. 
According to Tokeley-Parry’s testimony, from 1990 to 1994 he purchased
numerous items, including statuary, from Egyptian “farmers and builders,”
used his restoration skills to disguise them as tourist tchotchkes, and
spirited them out of the country. 

His actions violated Egyptian Law 117, which states that any antiquities
found within the country’s borders are state-owned and thus cannot be
exported or sold. Tokeley-Parry (who evidently turned against Schultz in
order to shorten a prison sentence in England involving other smuggled
Egyptian antiquities) testified that Schultz sold these and other illegally
acquired objects to Western collectors, claiming they originated from the
fictitious “Allcock Collection,” supposedly begun in the 1920s. 

Buy an Antique, Hire a Lawyer 

In response, Schultz portrayed himself as an innocent associate of
Tokeley-Parry, hounded by overzealous prosecutors. Egypt itself had made no
claim for the objects the Englishman had taken out of the country, the
dealer argued. Furthermore, Egypt had never requested import restrictions as
required by the CPIA. The only justification the U.S. government had in
declaring Tokeley-Parry’s objects as “stolen property” was Law 117. And the
only reason it could use foreign law to accuse Schultz of a crime was the
McClain ruling. “If the court agrees that Congress intended the CPIA to set
our country’s policies toward antiquities, then Fred has a good chance of
acquittal,” a lawyer supporting Schultz told me at the time. “If the court
decides to apply McClain, he could be in trouble.” 

U.S. District Judge Jed Rakoff applied McClain. Ruling that the CPIA and
McClain were not mutually exclusive, he upheld the government’s contention
that under U.S. law Tokeley-Parry stole objects from Egypt; prosecutors then
worked to prove that Schultz knowingly handled these pilfered artifacts.
After a brief deliberation, the jury found the dealer guilty of a single
charge of conspiring to handle stolen property. In June 2002 Rakoff
sentenced him to 33 months in prison and a $50,000 fine. 

For the anti-trade camp, this was Wellington at Waterloo. A highly respected
dealer had been convicted for his involvement in a smuggling operation,
proving beyond a doubt the link between the antiquities trade and looting.
Moreover, Schultz’s conviction affirmed McClain in the 2nd Circuit, the
heart of the antiquities trade. “McClain is now established in the 5th, 2nd,
and 9th circuits,” notes Patty Gerstenblith, a DePaul University law
professor and former president of the Archaeological Institute of America.
“I don’t think market people recognize what an important legal development
this is. They’re in denial.” 

Not all of them. “The fact that the 2nd Circuit upheld McClain is huge, no
doubt about it,” agrees Fitzpatrick, the Washington lawyer. “But how far
will prosecutors take it? Does this mean that anyone who purchases an
antiquity in the U.S. has to hire a lawyer first, to make sure the purchase
doesn’t violate a foreign country’s patrimony laws? What’s the state of
these laws around the world? Which ones apply, which ones don’t?” Fitz
Gibbon, the Santa Fe dealer, says, “I fear the government is gearing up for
more prosecutions, using McClain and the NSPA. Where will it end? This will
only be settled by some huge court case involving a museum collection, I’m
afraid.” 

Schultz’s conviction did not bring a truce to the cultural patrimony wars.
The bitterness continues, with archaeologists and the trade each rallying
around a new cause célèbre. For the archaeologists, it is the purchase last
fall by the Cleveland Museum of a bronze statue of Apollo, between 1,700 and
2,400 years old. The object’s documentation dates back to an East German
lawyer who claims to have discovered it on his family estate in the 1990s.
“This is just simply not a convincing provenance,” contends Malcolm Bell, a
professor of art history at the University of Virginia and a vice president
of the Archaeological Institute of America. 

Worse, the museum purchased the work from Phoenix Ancient Art, a business
headquartered in Geneva, Switzerland, owned by brothers Ali and Hicham
Aboutaam. Last year an Egyptian court sentenced Ali in absentia to 15 years
in prison for smuggling; last June, Hicham pleaded guilty in New York to a
federal charge of falsified documents pertaining to an ancient silver vessel
that the Phoenix Gallery sold for $950,000. “How, in this day and age, can a
respectable museum do this?” demands Lord Renfrew. “Doesn’t the American
taxpayer realize they are subsidizing the purchase of items like these
through government support of museums? I find it curious there is not more
outrage.” 

As for the trade, its members are currently preparing to do battle over a
CPIA request submitted last May by the People’s Republic of China asking for
restrictions on an array of objects, including nonarchaeological works like
calligraphy and paintings dating from as recently as 1912. Says the New
York–based Asian dealer James Lally, “I fear that these import restrictions
are so broad they may inhibit the legitimate trade in Chinese material and
chill the honorable practice of collecting.” 

In the past, dealers note, the Chinese government did not want to shame
itself by seeking U.S. help to curb its looting problem, relying instead on
Chinese collectors to buy back the nation’s cultural patrimony. So why make
a request now? 

One theory posits that a new and more nationalistic director of the State
Bureau of Cultural Relics has pushed for these restrictions. Others believe
it’s part of a quid pro quo: China cracks down on pirated CDs, and we close
off our shores to Chinese material, helping to boost China’s domestic market
for antiquities. Or perhaps, as the dean of Chinese dealers, Robert
Elsworth, suggests, “Instead of letting construction projects like the Three
Gorges Dam destroy objects, China may simply let looters take them out of
the country, then use U.S. Customs officials to intercept and return them
back to China.” In keeping with the secrecy surrounding these petitions, a
State Department spokesman says officials are reviewing China’s request and
have yet to schedule private or public meetings on the issue. 

Hidden Objects 

No resolution to this conflict is in sight. Changes have certainly occurred,
though. Take Iraq. So far, few objects looted from the war-torn country have
appeared on the market. “Five years ago, you would have seen Iraqi objects
up and down Madison Avenue,” comments DePaul’s Gerstenblith. “Our efforts
have proven successful in that area.” (Others argue that thieves simply have
filled up warehouses with pilfered Iraqi antiquities, waiting for the
statute of limitations to expire.) 

Has the rate of worldwide looting actually diminished? “I don’t think so,”
says collector White. “Objects are going elsewhere—to Japan and Europe and
the Middle East. All we’ve done is make public and private collections more
vulnerable to claims from foreign countries. At the same time, we’ve made it
harder for Americans to see the glories of the past.”  

Steven Vincent is author of In the Red Zone: A Journey Through the Soul of
Iraq (Spence). 

http://www.reason.com/