Is It Possible to "Collect" Antiquities These Days?

Collecting antiquities, as critics charge and supporters acknowledge, may well encourage looting, smuggling and corruption, but is there a way to do it legally?
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Antiquities is "the only area of the art world that deals entirely with stolen goods." Perhaps that is an exaggeration -- certainly, many ancient objects were never looted from historic sites or even dug out of the ground -- but it is a bit of hyperbole that has a growing level of acceptance, to some degree with the public and overwhelmingly with archaeologists. Clemency Coggins, professor of archaeology and art history at Boston University, who made this comment, describes herself as a moderate on this issue because she believes that some antiquities can be legally owned. However, in her ideal world, antiquities dealers would "get out of the business."

One might assume that the trade in antiquities would be diminishing on its own. Almost every nation on the planet (the United States is a notable exception) has enacted laws to limit or prohibit the export of cultural property older than some specified number of years. With Mexico, it's pre-Columbian objects; with Pakistan, it's art and antiques dating before 1857. Presumably, no more comes out of these and other countries, leaving a dwindling supply of stuff that hasn't already been donated to museums.

However, there is always more stuff, and antiquities dealers abound, ready to sell it. Collecting antiquities, as critics charge and supporters acknowledge, may well encourage looting, smuggling and corruption, but is there a way to do it legally? Ever since the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import and Export and Transfer of Ownership of Cultural Property -- and particularly since 1983, when the U.S. signed the treaty -- dealers and museum curators have been prompted to do "due diligence" in investigating whether objects brought to their attention have a clear and legal ownership or something more murky. What constitutes due diligence is not fully agreed upon, even by people who don't believe the antiquities trade should be outlawed.

The due diligence of the Cleveland Museum of Art was brought into question by a variety of archaeologists around the U.S., because of a number of ancient Greek and Roman antiquities in its collection. Its 2004 acquisition of a bronze Greco-Roman (there is debate over the actual date and origin) statue of Apollo was intended to be included in a current Louvre exhibition of the work of sculptor Praxiteles, but the Greek government threatened to withhold all loans to the French museum if this particular work was included. The controversy stems from the fact that there are wide gaps in the sculpture's recent history of ownership and that it was purchased from Phoenix Ancient Arts gallery in Geneva, Switzerland, one of whose owners (Ali Aboutaam) had been convicted in absentia by an Egyptian court for antiquities smuggling (sentencing him to 15 years in prison). The very same day the museum publicly announced its purchase, the other gallery owner (Hicham Aboutaam, Ali's brother) also pleaded guilty in a U.S. District Court to falsifying a customs document for an ancient silver vessel. (A lawyer for Hicham Aboutaam claimed the dealer "inadvertently broke a law by making a mistake filling out a form.") Catherine Reed, director of the Cleveland Museum at the time, noted that Aboutaam's legal difficulties were "coincidental, rather than pertinent" to the authenticity and legality of the purchase of the Apollo.

There is no documentation of where the statue came from originally or when it came into the collection of the German Ernst-Ulrich Walter, although he swore in a written affidavit that it had been on his family's estate since at least the 1930s. In 1994, Walter claimed he sold the piece to a Dutch dealer, whose name he did not recall, and eight years later the Apollo was in the hands of the Aboutaam brothers. "We'd love to know more" about the period 1994-2002, Reed said, adding, "We have clear title."

According to Ricardo Elia, associate professor of archaeology at Boston University, due diligence isn't just "a pro forma nicety" but an integral part of scholarship, which he claimed was lacking in the Cleveland Museum's acquisition of the Apollo. "When you don't know where the piece came from and when it left the country, how do you know it's authentic?" he said. "The Cleveland piece may be Greek or Roman or a 19th century copy. Why spend millions of dollars on something so uncertain?" He added that the museum should have walked away from the Apollo in the same way that someone walking down the street should turn away from a sidewalk hawker holding out what he claims is a Rolex wristwatch.

Whatever due diligence is, it's not easy. "There are several levels of inquiry that a prudent dealer, museum curator or collector should undertake," said William Pearlstein, a New York City lawyer who represents the National Association of Dealers of Ancient and Oriental Art. Among these, he claimed, is researching published material, such as academic journals, auction houses and museum catalogues, as well as the New York- and London-based Art Loss Register (where valuable reported stolen objects are listed). Prospective buyers should also see import and export licenses for objects -- were they legal to take out of the source country, were they legal to bring into the U.S. -- and obtain a history of the piece's ownership (known as the provenance) "as far back as you can in the chain of ownership." They might also contact the relevant cultural ministry in the country from which the object originally came "to find out if the piece is thought of as stolen by the source country."

None of this is foolproof, however. As the 2002 conviction of Manhattan antiquities dealer Fredrick Schultz showed, provenance can be faked (objects smuggled out of Egypt were labeled as part of a 1920s collection belonging to the uncle of the dealer's co-conspirator). The Art Loss Register only contains information on objects stolen from public collections, not on pieces dug up illegally from an archaeological site and smuggled out of the country. Contacting ministries of source countries may turn into an object lesson of frustration, since they have a reputation for not responding to inquiries and, "when they do answer a letter, they will just say, 'It's ours. Give it back' without any basis for the claim," said James Ede, a London antiquities dealer and chairman of the International Association of Dealers of Ancient Art. "They lie; they are not honorable."

Another problem arises if there is no paper trail (import and export licenses, documentation of where it came from and who has owned it since it was first discovered): was the antiquity brought out of the source country prior to the UNESCO treaty of 1970, when a certain level of documentation was less common, or more recently smuggled? A very high percentage of ancient objects come with no paperwork -- perhaps an entire collection of antiquities was brought out of somewhere with a receipt for the lot, but later the collection was dispersed with individual objects going hither and yon with no identifying source material -- or very minimal contextual information. The Manhattan-based Association of Art Museum Directors addressed this problem last summer in a report on the acquisition of archaeological material, concluding that "[i]n such cases, museums must use their professional judgment in determining whether to proceed with the acquisition." The problem at the Cleveland Museum may reflect the uncertainty in this calculation.

Or perhaps not. The Cleveland Museum's Apollo may have become a focus of controversy because it is anomalous. By and large, U.S. dealers and museums have been credited with applying greater scrutiny in its antiquities collecting. "U.S. museums are doing a better job," Clemency Coggins said. "It's amazing, considering the fact that most U.S. museums are private, whereas most foreign museums are state-run."

U.S. museum have also received high marks for the work they have done in opening their archives and collections in the search for what is called Holocaust art, artworks confiscated by the Nazis that have found their way into museums. This museum effort has involved examining pieces known to have been in Europe during the 1933-45 period, looking for gaps in the provenance during that 12-year span, and searching for information about the art dealers (some of whom were known to traffic in Holocaust art) through whom the art may have come to the museums. "Museums actually have changed their behavior in their search for Holocaust art," said Patty Gerstenblith, a DePaul University law professor who has written extensively on the issue of antiquities collecting, generally taking the archaeologists' side. However, that change in behavior only highlights to her what these same institutions should be doing with regard to their collections of antiquities. "You see the discrepancies," she said. "You don't see museums saying, 'Let's study all the antiquities we have in our collection. Let's open our accession records and allow public access.'"

A current area of concern is Mesopotamian (Iraqi) and Afghanistan antiquities, which have been the subject of well-documented looting -- the most recent publicized event was the looting of the Baghdad Museum in March 2003 -- and for which there has been an across-the-board moratorium on collecting of this material by dealers and museums in the West. Rumors circulate that looted objects are still in the Middle East, maybe in Jordan; both Christie's and Sotheby's have reported that they have not been offered any recent exports from Iraq since early 2003. Despite the fact that museum curators and antiquities dealers are seen as doing a better job of turning away objects that may have been stolen from some site, the extent of looting has ratcheted up the criticism by archaeologists, who believe that these objects will end up in some collection eventually. "A lot of material was looted out of Iraq," Gerstenblith said. "It's sitting somewhere, and we learned from Holocaust art that things can sit for 50 years before people start looking at what they have. I worry that, if public attention on this material relaxes, we could find a lot of looted Iraqi antiquities finding its way onto the market and into the museums."

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