Collectors of antiquities, ancient coins and other relics, whether bought from eBay or elsewhere, would be well advised to have a basic understanding of the law as it relates to cultural objects.
Ethico-legal matters surround almost every modern industry to a greater or lesser extent. Consumers are becoming more ethically aware and markets from second hand vehicles to tourism and even the flower trade have their own ethical, moral and legal issues. The antiquities and ancient coin markets are no exception to this rule.
This guide is an attempt to provide a quick overview of the law in this field, the ethical background, as well as offering some sensible advice to collectors of ancient artefacts.
Why do antiquities have special legal protection?
- Ancient artefacts, including ancient coins, owing to their extreme age, are generally found in the ground, unlike other antiques which may be passed down from person to person. This may seem obvious but it is an important fact.
- Modern archaeologists place great importance on an artefact’s context, that is to say its geographical find spot and association with other objects/finds. Through careful excavation and consideration of an artefacts context, archaeologists may discern valuable information about how/why/when an object was used, in-so-doing learning more about the people that created that object.
- Archaeological norms, as well as the law, have moved on in the years since our major western museums and major collections were formed.
- Although in the past artifacts were removed and exported without any form of recording or excavation, this is no longer acceptable.
- International and national laws exist to protect objects from opportunistic removal (looting), and the resultant loss of context.
What is this special legal protection?
- The Convention is a piece of international law and therefore governs the relationship between countries rather than the people within those countries. This means it is down to each individual country to decide how to comply with their obligations under the Convention.
- The Convention might be seen as a ‘trend setting’ or ‘normative’ piece of law which, whilst not directly enforceable against individual persons, creates an environment whereby countries strengthen protection for cultural property.
- Important provisions include Article 6(b) which requires countries to control the exportation of cultural property from their territory and Article 7(b) which requires countries to prohibit the import of cultural property stolen from a museum, or similar institution.
- Article 9 allows countries whose cultural property is in jeopardy to call upon other countries for assistance through measures such as export controls. This is the mechanism through which the USA forms bilateral agreements (see below).
What USA law do I need to know about?
- After signing up to the UNESCO Convention in 1983, the Convention on Cultural Property Implementation Act 1983 was passed by the USA to fulfil their obligations under the Convention.
- This enables the USA to enter into so called ‘bilateral agreements’ with other countries, which are simply agreements to restrict the importation of certain items into the USA.
- Bilateral agreements are currently in place with Bolivia (2001), Cambodia (2003), Canada (1997), China (2009), Colombia (2006), Cyprus (2002), El Salvador (1995), Guatemala (1997), Honduras (2004), Iraq (2004), Italy (2001), Mali (1997), Nicaragua (2000) and Peru (1997).
- Buyers may wish to consult these individual agreements when an item originates from one of these countries, particularly if the item left the country after the date of the agreement (in brackets).
- Other than this there are few export/import restrictions on cultural property, unless it has been stolen.
- Under the National Stolen Property Act it is illegal to import stolen goods into the USA if the importer has knowledge that the item has been stolen.
- This is particularly relevant when an artefact originates from a country with cultural patrimony laws, that is laws which vest all cultural property in the ownership of the state (e.g. Egypt).
What UK law do I need to know about?
- The UK decided that it needed no new legislation to comply with the Convention. However, to complement the existing law, the Dealing in Cultural Objects (Offences) Act 2003 was passed.
- The DCOA makes knowingly acquiring tainted cultural objects illegal, where tainted means an object has illegally been removed from a building or place of historical/archaeological interest.
- This is not limited to the UK, i.e. the object can be tainted overseas.
- There is a maximum 7 years imprisonment and an unlimited fine.
- Under the Theft Act 1968 it is an offence to handle stolen goods for another’s benefit. This offence carries the higher penalty of 14 years in jail.
- Following Council Directive 93/7 EEC cultural objects classed as ‘national treasures possessing artistic, historic or archaeological value’ are liable to be returned to other Member States of the EU if they have been removed from that State unlawfully. After a Member State becomes aware of the location of an object, and the identity of its owner, there is a time limit of one year to make return requests. Claims cannot be made after an absolute time limit of thirty years unless the item formed part of a public collection.
- A UK export licence is required to export any archaeological artefact found in UK soil.
- Where the archaeological artifact has not been found in UK soil but is located in the UK, an EU licence is required to export it outside the EU.
- However, numismatic items of a standard type as well as other objects which possess no "special features" and are less than £65k in value are excluded from the above requirement. This is because the UK has exercised its discretion to exclude them under Article 2(2) of the Regulation on the Export of Cultural Goods (EC 116/2009).
- These and other items can be exported under the Open General Export Licence.
Do I need to change my behaviour/buying habits?
What is provenance and why is it important?
What kind of provenance exists on the market?
- Hearsay Provenance
This is when a dealer gives a rather vague provenance, probably restricted to date and location, for instance ‘collected in the 1930s, Munich private collection’, or such like.
This is a weaker form of provenance because there is nothing to back up these kind of claims – however there are many valid reasons why this type of provenance may be given: Items may have been dispersed following a collectors death, no invoices may have been kept, the collector wishes to remain anonymous or the item may have been bought from a secondary dealer who does not wish to disclose the name of the source collector.
Negative aspect: The vague provenance may be used to disguise a true ownership history, or lack of, that points to recent looting.
Conclusion: This is the most common form of provenance given for lower value items, and buyers may expect it as a minimum. This kind of provenance will often be given in good faith by dealers, but it is open to abuse by the unscrupulous. Responsible dealers will not hesitate to provide reference to this information on their invoices, providing some accountability when an item is guaranteed ‘as described’.
This is when a person or collection is stated, such as ‘Howard Carter Collection’.
This form of provenance is stronger because it allows a buyer to trace back to a place and time the ownership history of an item - in theory allowing the buyer to check to see if the claims the dealer has made are correct.
The weakness of this provenance is that not all collections are well inventoried so in practice it may be hard to check the dealer’s claims.
Conclusion: This form of provenance is harder to abuse for the reasons already stated and is therefore stronger. Buyers may still wish to ensure such claims are referred to in the invoice for future reference and by way of guarantee.
This is the strongest form of provenance and consists of evidence of provenance in publications such as scholarly journals, export licences, old invoices and old auction catalogues.
This is stronger because it is hard to refute the veracity of a dealer’s claims when proof of the existence of an object in place and time has been documented by a third party.
The only weakness here is the unlikely event that provenance is faked by an unscrupulous dealer. Whilst this is impossible for actual publications, there is the remote possibility that items such as invoices and export licences can be faked - a well known example being the Schultz case and the art forger Shaun Greenlagh.
Conclusion: Provenance of this type will often add significant value to items.
What is the best provenance?
Are there any cut-off dates I should know about?
- This is a policy, initially led by some museums, to use the date of the UNESCO Convention itself as a cut-off point. Under this policy, artefacts without verifiable provenance dating prior to November 17 1970 should only be acquired by the museum if they have proof of legal exportation from the country of origin.
- The 1970 date is an arbitrary cut-off point which has no legal basis/enforceability.
- Collectors should treat this "threshold" in the same way they treat provenance in general – pragmatically and with a view to all the circumstances. Generally speaking museums which use this date in practice are collecting antiquities of exceptionally high quality and importance. The vast majority of collectors will not be.
- Just as museums have numerous policy reasons for adopting this cut-off, so the average collector has similarly justifiable reasons for not using it in every circumstance.
- Nevertheless, collectors at the very top end of the market who may wish to bequeath their collection to a major museum should be mindful of this date when buying.