Christine Alder & Kenneth Polk. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
For centuries, the antiquities of some countries have been illegally removed and transported transnationally to fill the collections of private purchasers and museums. This chapter examines this international traffic in antique cultural material that has been illegally removed from its cultural setting. Of fundamental concern is the illicit removal from a country of material that is defined as being important to the cultural heritage of that nation or to humankind more generally. Although there is some variation cross-nationally in the definition of antique, here the common legal definition of antique as referring to material more than 100 years old will be used. Most objects of concern in this chapter are in fact chapter are much older.
Cultural material is a considerably more complicated term. Much of the material being referred to is considered in developed countries as “art,” and the items are likely to be found in art museums. The material covers such a wide range of objects that it is difficult to include them all within one definition (see Conklin, 1994). A recent example is the illegal removal from Italy of 18th- and 19th-century paintings, which were subsequently destined for international auction houses (Watson, 1997). Also covered by the use of the term cultural material are archaeological objects from ancient cultures. The material might consist of any items extracted from a site that were part of the life of a past civilization. For example, plundered items from ancient sites have included pottery and weapons from Native American sites in the United States, woven materials and gold objects from pre-Columbian sites in Latin America, stone and ceramic material from tombs in China, and stone sculptures from the Khmer sites in Cambodia.
The contemporary traffic in these objects is definitively an international problem (although some of the traffic in such objects may be within one nation, as in the case of Native American objects in the United States or the trade in Roman objects found and traded in England). The fundamental cause of the plunder is the demand for cultural material exerted by the rich market states. This demand exerts an inexorable pull on the cultural resources of the often poor nations that are the source of much of the highly valued cultural goods. Huge sums of money are exchanged in market centers such as New York, London, and Paris for objects illegally extracted from poorer nations around the globe. The consequence is the destruction of the cultural heritage of the source nation and of the cultural heritage of humankind more generally. It is the present argument that as long as that demand is allowed to continue, it will be virtually impossible to develop an effective campaign to stop the plunder. A major purpose of the present discussion, therefore, is to provide an exploration of the dynamics of this traffic as an international market problem.
A Brief Historical Overview
As the major developed nations expanded their colonial dominions, it was a commonly accepted practice to bring back to the colonial centers objects obtained from the empire. Often, these objects found their way into the major public collections in these countries and can today be appreciated in the major museums of the world, such as the Metropolitan Museum in New York, the British Museum in London, or the Louvre in Paris.
Individuals, too, often considered “tasteful collecting” as one of the major pastimes of travel in the newly conquered nations or recently established colonies. In fact, this practice has an even longer history. For example, an appreciation of cultural heritage was highly refined in ancient China, where collections of antique relics were often placed in tombs as part of the most valued items of the deceased. The appreciation of such material is recorded, for example, in a Chinese painting from the late 15th century with the title translated into English as “Enjoying Antiquities” (Hearn, 1997, p. 98). Young English gentlemen enjoying their grand tour of Europe in the 18th and 19th centuries often returned carrying cultural objects and items that provided a demonstration of both their wealth and taste.
Collecting and enjoying the artistic features of material from other cultures, in short, has been an important part of our intellectual heritage This appreciation continues to flourish today as demonstrated by the huge crowds attracted to the major museum collections in New York, London, or Paris. In fact, the long tradition of collecting has created a climate of legitimacy around the gathering of these goods that lingers and results in considerable confusion and debate when steps are designed to restrict or prohibit the removal of cultural material from source locations. Furthermore, as measures have evolved in recent years to stop contemporary plunder, major questions have been raised about the appropriateness of earlier practices of removal by the colonial powers, as can be seen in the notable international debate regarding the demands by Greece for the return by England of the Parthenon marbles (Conklin, 1994, pp. 133-134).
Contemporary Forms of the Problem
The illicit traffic in antiquities operates as an international market where demand from the developed economies results in the transfer of material from source environments. One point to start the analysis, then, is to examine the process whereby the material is initially removed from its context at the source. Virtually all nations that are the source of plundered antiquities today define the unauthorized removal of cultural material as a crime, either by terming the extraction of the objects as a form of theft or by prohibiting the export of the material from the country of origin (or both).
The actual nature of the removal of cultural heritage varies considerably according to the strength of law enforcement, the probability of detection, the nature of the contexts, and the goods being plundered. In some locations where there is more vigorous enforcement, the plunderers may be forced to work at night with a high degree of caution and secrecy, as is the case with the tombaroli (tomb robbers) in Italy and some of the tomb robbers in Peru. In remote impoverished sites in countries such as Cambodia, Thailand, or countries in Africa where enforcement is less vigorous, an affluent antiquities dealer may hire a large number of local farmers to plunder a site, often digging up a vast quantity of material in a relatively short (and destructive) time. One antiquities shop in the Southeast Asia region has a picture of such an operation pasted over the display case of the objects being sold, as if to provide some verification that the material has actually been dug from the ground and thereby providing provenance of the goods. In some instances, as when a whole tomb is plundered, there may be a great number of objects taken, whereas in other situations only one object may be involved, as in the robbery of paintings from churches in Italy. Although worldwide the potential penalties faced by plunderers generally are slight, in some cases the stakes are much higher, as in China where tomb robbers, nearly always peasants, may face capital punishment if they are caught.
As is the case with any international illicit market, obtaining the raw material is but a first step. In the case of antiquities, most systematic trade activity is handled in the country of origin by agents, commonly closely linked to antiquities dealers in either source or market countries. These agents in general must have the resources necessary to purchase the goods from those who have done the plundering, and they must have contacts with the marketplace. In addition, they must be knowledgeable about the market, including (a) how the market works and the selling prices of various kinds of objects, (b) some knowledge of the goods themselves so that they are able to rank goods in terms of their quality, and (c) knowledge about the procedures required to remove the objects from their country of origin—that is, contacts with smugglers.
Movement of illicit goods across national boundaries requires two elements. First, there will be networks of smugglers who are able to move goods illicitly from one country to another. In the case of antiquities, there are some known instances where the smugglers involved move not only cultural heritage material but other illicit goods, such as drugs, as well. A recent television program on stolen art showed a customs checkpoint coming out of Turkey where the border officials were removing both illicit drugs and plundered antiquities from a smuggler’s van. In most circumstances, especially in terms of the movement of material from Asia and Southeast Asia, it would appear that the smugglers are specialists in moving antiquities, with relatively narrowly defined routes for movement of goods from one country to another. In the case of China, for example, the smuggling routes run primarily from China through Macau or Hong Kong. In Cambodia, much of the material first crosses into Thailand, where it is then passed through centers such as Bangkok or Chiang Mai and then on to the market centers.
The second requirement of such traffic, to ensure consistent success, is that there will most often be some level of corruption of law enforcement and customs officials. In some countries, the large amount of resources involved in the trade in cultural heritage material suggests high-level political involvement in such corruption. In Asia, according to some sources, this can involve top-ranking military officers who often have unique access to the kinds of machines (including trucks, cranes, containers, container vehicles, and even aircraft) that ease the movement of such goods across borders and from source to destination.
The trade in antiquities, like drugs, tends to be differentiated. Just as there are different market patterns for drugs such as cocaine, heroin, and marijuana, so, too, are there different sources, distribution routes, patterns of smuggling, and ultimate market activities for antiquities. Historically, for example, there was a mainstream of traffic of pre-Columbian material that went from Latin America, through to North America, and then outward to a wider international market. In recent years, there has been a vigorous market in material from Africa that moves through markets located in France and Belgium.
Up to this point, the traffic in antiquities looks like many other illicit markets such as the traffic in drugs or human beings, in that there are illegal source activities, smuggling, and corruption. However, there is one fundamental difference. In contrast to other illegal markets, in the case of the trade in cultural material, the trade at the market or demand end is open and quite legal. The goods that may result in the shooting of a peasant looter in China are sold openly, often in very elite establishments, in demand centers such as London, New York, or Paris. This is not a trade, like drugs, where the ultimate market activity is as illicit and hidden as the production and transport processes of the material being sold. In some cases, the prices asked are extraordinary, and as a consequence, the purchasers represent the social and economic elite of the community.
In some respects, the involvement of elites in the purchasing of cultural heritage material represents the continuation of a long tradition of the demonstration of taste and wealth, a kind of social vestige of privilege that extends through the centuries. Some of these elites are well connected with political decision makers in many of the demand countries and have been involved in heated debates regarding whether the nation should participate in international agreements regarding the protection of cultural heritage. Of course, once a nation becomes party to such agreements, this potentially jeopardizes the access and supply of material to potential purchasers. Many leading demand countries (e.g., Belgium and The Netherlands) have yet to sign on to the major treaties.
Those engaged in the traffic of antiquities into the lucrative demand centers therefore face a problem. If goods have been illegally obtained in one country, but they are to be sold legally in another, a transformation must occur so that the objects have legitimate export documentation to enable their legal importation into the destination countries. This transformation of illegal to legal goods occurs in the major transit ports. Most transit locations have a history of being “free ports” with relatively few restrictions on importation and exportation of goods. Once material has arrived at these ports (e.g., Switzerland, Hong Kong, and Macau), export documentation is accessible that then allows the materials to be transferred on to markets as legitimate goods.
In the recent case of material plundered from Iraq, for example, claims were made that the material was flowing outward from Iraq to Jordan, and from there it was shipped to Switzerland (Gottlieb & Meier, 2003; Riding, 2003). Historically, at least two benefits have been derived from moving the material through Switzerland. First, the laws of that country are tilted strongly in favor of “good faith purchasers” so that an individual who has bought an object through most common commercial channels obtains secure title that is exceptionally difficult to dislodge through any legal challenge. Second, once that secure title has been obtained in Switzerland, the object is relatively free to flow onto the market in other centers because legal export papers will be easy to obtain. The material can then appear in venues such as the major auction houses with the all-too-common provenance of “from the collection of a Swiss gentleman.”
A critical factor that supports the continued trade of plundered cultural material in the demand centers is the general and widespread acceptance of a shared understanding among sellers and buyers that issues of provenance will not be raised when articles are purchased. Consistently, reviews of auction house and private-dealer catalogues demonstrate that when objects are sold, little or no information is provided regarding the history of the object. Provenance in the art world generally refers to the ownership history of the object. For cultural heritage material, the archaeologists are much more demanding, asking that the ownership history, at least in the ideal case, refer not only to who has owned the object in recent years but include exact information regarding where the material was found, when and by whom the dig was conducted, any information that has been published about the material, and how from that point it has entered the commercial market. It is striking that the common practice in the trade of antiquities is to provide no clues regarding either of these approaches to provenance. The fact that dealers historically have not been forthcoming about the history of the material being traded has meant that awkward questions about illegal digging and export practices could be avoided.
At the same time, this practice poses a dilemma for the dealers. Wherever there is a lucrative trade in cultural objects, there will develop a parallel trade in faked material. Dealers may then be placed in a position where they have to assure potential customers that their material is “authentic” (and therefore “genuinely” looted) while at the same time finessing possible questions of the legality of title. The legal export documents obtained through the transit ports are an essential part of this process. The potential customer can be assured that the material has come from some known (i.e., plundered) site but that its importation has been legal and the purchaser can obtain secure title. Where possible with expensive objects, dealers may be able to obtain technologically elaborate tests of the age of the object (particularly with ceramic material), which are an important feature of the often elaborate “certificates of authenticity” provided to the customer.
Where Crime Has its Greatest Impact
The victimology of antiquities crime is somewhat unique; the ultimate victims of such plunder are those whose collective understanding of a shared cultural heritage is threatened by the loss of antiquities. Once the sites have been plundered, the loss is irrevocable, because what is at issue for archaeologists is the total context of the site, not simply the individual objects that are carried away. Therefore, although the many attempts to return objects to the country from which they have been stolen are laudable, the objects themselves are not the major focus of concern. Future attempts at control must be premised in the objective of the protection of cultural heritage sites from the initial plunder.
The primary impact of the demand for antiquities is found in the destruction that occurs to major sites of cultural heritage, especially when the plunder activities are large scale, rough, and devastating. Whole temples in Cambodia and Guatemala have been destroyed to retrieve a few of the stone statues, and in nations such as Peru, whole areas have been transformed into moonscapes by looters.
A secondary impact occurs when the attempts to restrict trade at the source nation level create widespread corruption. In the poorer nations in particular, the wealth of the antiquities trade can result in the flow of money into the pockets of corrupt customs, police, and military officials.
Cooperative Efforts Undertaken to Reduce This Traffic
The first attempts at the control of the illicit plunder of cultural heritage material occurred when source nations attempted to restrict the flow of material outside their boundaries. Although some of these laws go back hundreds of years (Blake, 1997; Greenfield, 1996), most of these have been enacted over the past 100 years or so. These laws tend to take two forms: (1) a weak form that involves a restriction on the export of material and (2) a strong form that defines cultural material as property of the state, and its unlawful removal as theft (Kaye, 1996, 1998). The problem with simple export restrictions is that the courts in many of the major market states, including the United Kingdom and the United States, take the position that they will not enforce such regulations, leaving the control to the individual source nations within their own borders. Police and courts in most countries have accepted, however, that they have a responsibility for prosecution in matters of theft. There have been major successful prosecutions in both England and the United States of persons involved in the traffic of antiquities where it could be proved that the material in their possession had been stolen from the country of origin.
One recent and dramatic example of such a prosecution resulted in the conviction of Fred Schultz, one of the leading antiquities dealers in New York, on a charge involving the handling of material that the U.S. government alleged had been stolen from Egypt (Gerstenblith, 2002). Schultz is a former president of the National Association of Ancient, Oriental and Primitive Art, and the charges arose as a result of his sale, for $1.2 million, of a stone head of Amenhotep III and his attempt to sell other material that had been passed on to him by a British citizen who had smuggled the material out of Egypt. The pair had attempted to cover their tracks by inventing a false provenance for the material around a fabricated collection that they claimed had been established in the 1920s (“The Thomas Alcock Collection”). The U.S. government in this case applied U.S. law, specifically the National Stolen Property Act, despite the fact that the actual theft had taken place in Egypt. Schultz was sentenced to a term of imprisonment as a result of the conviction (his accomplice had already served time in English prisons as a result of his earlier conviction in that country).
One lesson available from criminological analysis of international illicit markets is that where demand remains at high levels in economically rich nations, much can be gained by prohibitive legislation in source countries, especially countries whose citizens are locked in poverty. Recent writing in the drugs area, with the exception of official government documents, provides a strident chorus regarding the failure of attempts, especially by the United States, to reduce the flow of illicit drugs by means of policies or interventions that focus on source nations. With regard to drug policies aimed at the supplying countries, Stevenson (1994) has observed,
For 70 years, the international community, spurred by the USA, has used diplomacy and financial and military assistance to persuade producer countries to control drug production. Despite this effort, supply-side policies have made no discernible impact on the global availability of drugs. (p. 33)
After reviewing the status of drug control efforts of nine countries, including producing nations such as Peru, Colombia, Thailand, and Burma, Tullis (1995) listed some of the unintended consequences observed in many of these countries, including a delegitimizing of the state and aggravated and endemic violence, among others (p. 208). Johns (1992) similarly notes that “criminalization and enforcement have brought about additional social costs (corruption, deflection of police resources, increased illegal profits, criminal justice system overloads, secondary crime, etc.)” (pp. 1-2).
These widely discussed consequences for drug interventions focused on relatively poor source countries are not unfamiliar to observers of the antiquities market. Murphy (1995) has commented, for example that “the art world knows that embargo legislation in developing source nations does not prevent export; it only ensures that the traffic goes underground” (p. 155).
Almost 20 years ago, another analyst argued, “I start with the pessimistic premise that, so long as there is a world market for beautiful objects, a substantial amount of looting will persist no matter what regulatory system is installed, because total prevention would entail unacceptable costs” (Bator, 1982, p. 49)
The lengthy and detailed history of prohibition aimed at source nations, when demand continues in the developed nations, suggests, as Bator concluded, that few positive results will come from attempts to approach the problem of the illicit traffic in antiquities by punitive laws, no matter how draconian, aimed primarily at eradicating supply. This is not to argue that these countries should not press forward with laws and regulations aimed at preserving their cultural heritage (because the content of these laws often sets the parameters of what can be accomplished in the major market states). Rather, the intent here is to establish firmly the principle that such laws in source nations are unable to reach market forces that drive the trade, forces located firmly within the pulls exerted by demand. In fact, as long as the trade in antiquities may be conducted openly in auction houses and dealer’s galleries in the market centers, not only will the flow of material out of the poorer source nations continue, additional social costs will likely result from the creation of organized criminal activity to carry out the organization of the supply of material and its smuggling across borders, including the disastrous effects of corruption of the political process in the source environments.
Over the past three decades, there has been a growing recognition that any reduction in the level of destruction taking place in source nations will require international cooperation to address the problem of the demand exerted by wealthy nations for these cultural heritage goods. After many years of protest and outcry by source nations, one of the first and most important steps was the establishment of the 1970 UNESCO (U.N. Educational, Scientific and Cultural Organization) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This convention requires that cooperating states attempt to prevent the purchase and import of illegally excavated objects and return certain categories of unlawfully removed cultural material to the country of origin. Equally important, the convention places considerable emphasis on maintaining cultural resources in situ. In calling attention to the issue of context, the convention provides that “cultural property constitutes one of the basic elements of civilization and national culture…. Its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting” (UNESCO, 1970, p. 2). This treaty, to be effective, requires bilateral agreements between source and market nations. When these agreements are in place, they can serve as a powerful weapon for the return of cultural material to a source nation. The presence of treaties between the United States and Italy, Cambodia, and Guatemala (among others) has proven to be a powerful weapon on one hand, restricting material flowing into the United States from these nations and, on the other, assisting the return of material when its illegal entry into the United States is discovered.
Unfortunately, despite the clear intent of the 1970 UNESCO Convention, it has faced a number of problems in achieving significant outcomes. For one, it becomes fully effective only when a given country agrees to participate, and it also requires numerous bilateral agreements if material is to be returned. More critically, the legal systems of many European nations strongly favor “good faith purchasers.” Once goods have been obtained through most common commercial outlets in these nations—for example, at auction—and if the buyer can demonstrate good faith in the purchase, then it becomes close to impossible for the original owners of the property to regain ownership of the material.
To address such problems, the 1995 Unidroit (U.N. International Institute for the Unification of Private Law) Convention on the International Return of Stolen or Illegally Exported Cultural Objects was developed. The main aims of this convention were to (a) deter art theft, (b) provide the means by which the art-rich nations can make claims for the return of stolen or illegally exported goods through the courts of the art importing nations, and thereby (c) reduce the level of looting of cultural property that comes up for sale on the international art market. Specifically, this convention addresses the problem of “due diligence,” by attempting to balance protections extended to good faith purchasers against the risks that might arise if buyers are not careful in carrying out a proper search regarding the provenance of objects being bought. These aspects of the convention are aimed directly at a common problem of the secrecy and lack of openness that has been a central feature of the international art and antiquities trade. Unfortunately, this important instrument to date has had limited impact because relatively few of the market states have agreed to sign on, in no small part because of the strong opposition within the art trading community to these provisions.
Another international agreement relevant to this discussion is the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage. This convention contains a number of important elements, three of which are central to present concerns. The first is concerned with the preservation of context: “The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage” (UNESCO, 2001, Article 2, Section 5).
The importance of this provision is that the convention from the outset explicitly provides that a first priority is the protection of the archaeological setting. This issue of context must be understood as the issue of paramount importance.
A further section provides a clear prohibition regarding an economic market of maritime cultural heritage goods: “Underwater cultural heritage shall not be commercially exploited” (UNESCO, 2001, Article 2, Section 7). This provision recognizes that the fundamental force motivating the plunder of cultural sites derives from the economic market that exerts a demand for cultural heritage material. Furthermore, the “Annex” to the convention provides “Rules Concerning Activities Directed at Underwater Cultural Heritage”; the second of these specifies concerns about the market:
The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods. (UNESCO, 2001, Annex, Rule 2)
This 2001 convention is unique in that it explicitly states that it is the market itself that has to be addressed. It goes on to provide a mechanism by which states will achieve the objectives of this provision: “Each State Party shall take measures providing for the seizure of underwater cultural heritage in its territory that has been recovered in a manner not in conformity with this Convention” (UNESCO, 2001, Article 18, Section 1). This element of the convention, when (and if) it becomes fully implemented, will provide the mechanism by which the provision against an economic market can be enforced. It is anticipated that market actors will be deterred from buying or selling illicitly extracted material by a concern for possible seizure of goods.
These three international approaches to controlling the illicit market in antiquities share a common concern for addressing the forces that fuel this traffic—that is, the demand exerted by purchasers in the developed nations. The focus has thus shifted from earlier attempts to control the market by restricting the flow of goods out of source nations (which would seem to be doomed to failure as long as demand remains strong) to a focus on mechanisms and procedures to restrict or channel demand. Furthermore, that these three measures all developed out of a U.N. framework indicates that international pressure is gradually building (not yet international consensus, to be sure) to reduce the illicit traffic in cultural heritage material.
Future Directions: Deterrence as Problematic
One of the unique problems that must be confronted in attempts to control the illegal market in antiquities is that some buying and selling of antiquities will be legal. For centuries, there has been a legitimate trade in cultural objects (whatever ethical position one may wish to take today about such a trade). Consequently, there is an enormous amount of material in collections and in the hands of collectors that will continue to flow on and off the market legally regardless of the steps taken to prevent the movement of newly excavated material. Furthermore, there are a number of aesthetic and scholarly reasons for a flow of cultural material, as was recognized in a recent report in Great Britain:
We further accept that there is a substantial public benefit in a vigorous and honorable market in cultural objects. Aside from its general contribution to the economy, the market is a touchstone of much of our law and practice on cultural property. Many public committees require knowledge of the state of the market in cultural objects in order to operate. Their terms of reference assume both the existence and the desirability of a market. (Department for Culture, Media and Sport, 2000, p. 10)
There may be dangers in attempting to close off areas of legitimate trade; an important consequence might be the creation of an even more problematic underground market (Murphy, 1995; O’Keefe, 1997). The continued existence of this legitimate trade clouds the ethical terrain around the antiquities issues; it creates a climate of demand and acceptance of the legitimacy of at least a partial market for heritage material that may not necessarily be easy to constrain neatly into categories of legal and illegal activity.
As we look to the future of policy regarding the control of the illicit component of the antiquities trade, it is our view that there needs to be a much wider view of the policy options than those currently in place. Most of the present policies, both at the source nation level and at the international cooperation level, rely fundamentally on simple deterrence mechanisms. That is, the suggested policies, including the various treaties and conventions, propose relatively simplistic prohibition approaches to control of the illicit traffic. The rules and regulations that have been put in place are premised on the idea that the task is to identify wrongdoers engaged in the illicit trade and then to implement various civil penalties or criminal penalties to discourage others from considering engaging in the trade. Certainly, when a golden object stolen from Italy that costs several hundred thousand dollars is seized and returned to its country of origin (without compensation to the individual from whom it has been seized), or when a prominent art dealer is convicted to a lengthy prison term, a message is sent to the community of potential sellers and buyers of cultural heritage material.
Such regulatory approaches are consistent with the conventional wisdom of deterrence theory, especially when it is recognized that there is a better than usual correspondence between the traffic in plundered cultural material and the elements of rational choice found in deterrence theories. The buying of antiquities is a considered a transaction where it can be argued that the typical purchaser will balance a number of factors that probably include the perceived appropriateness of the cost and that might include consideration of risk of seizure or prosecution if such risks were attached to the purchase. When objects costing millions of dollars are seized in a blaze of media publicity from purchasers who then see their investment vanish (as happened in the Golden Phiale case where a golden platter bought in the United States for $1.2 million was seized by U.S. Customs and ultimately returned to Italy; Slayman, 1998) or when a dealer is sent to jail as the result of a very public trial (as in the Schultz case), it is only reasonable to anticipate that the market will take notice as the principles of deterrence begin to operate.
Initially, then, it might appear that when it comes to public policy aimed at reducing the plunder of illicit cultural material, legal sanctions might be a key element. It should be noted here that in its routine formulation, deterrence theory refers to the threat of criminal sanctions. In the case of the control of the market for antiquities, it is likely that the most common legal actions are civil suits that have the result of removing the material from the possession of a purchaser. Some of the most notable of these seizures have occurred in the United States where these purchasers are not compensated for their loss. Given the large amounts of money involved, these civil sanctions obviously constitute a form of legal penalty that can be considered a component of deterrence.
We remain skeptical, however, regarding the success of attempts to control the illicit traffic in cultural material built mainly on the threats of seizure or punishment. This skepticism is based on two different sets of questions. The first set is concerned with the rather dismal record of attempts to control illegal markets through prohibition. The second focuses on arguments regarding the potential contribution of regulations aimed at the task of persuasion and their ability to create a “climate of compliance” wherein individuals will not participate in the illicit market for antiquities.
Illegal markets are driven essentially by demand, and when demand is great enough, as for goods such as drugs and antiquities, they become international in scope. When the demand is high and exerted over an extended time, complex organizational structures emerge to provide the necessary hidden services required for illicit activity, including smuggling and the negotiations with corrupt public officials required if consistent access to travel routes is to be secured. As reviewed above, the record of prohibition to date with respect to both the drug and antiquities markets is not one that would lead to any great optimism that by itself such deterrence-based approaches will bring the illicit traffic under control.
In the United States, Prohibition in the 1920s obviously did not result in the disappearance of alcohol use, and for most objective observers (at least those outside of the U.S. government) the ongoing struggle to control drugs through punitive legislation has similarly failed to stem the flow of drugs into that country. We are not the only observers who question such approaches when they are applied to the antiquities markets. Recall, for example, Bator’s (1982) lament that “looting will persist” as long as demand for antiquities remains high.
It is not being argued here that there is no role for punitive legislation aimed at restricting the flow of illicit antiquities. Furthermore, recent actions, such as the 2001 UNESCO Convention, are much more sophisticated in their recognition that the problem arises because of the economic exploitation of (i.e., the market for) cultural material. Although the 2001 UNESCO convention provides for steps such as seizure that could occur in both demand and source countries (as well as transit venues), the fundamental mechanism provided in this convention is still one based in the inherent threat represented by seizure.
Where market demand remains high, and individuals are willing to run the risks of such seizure, or when it is known that there are locations where there is no risk of seizure, it follows that the plunder will continue. Our own work has been focused primarily on the traffic of material from China and Southeast Asia, and it certainly appears that for most goods from these regions, there is still a vigorous market for objects and that this market is supplied by the continued plunder of cultural heritage sites. Thus, on the day that a large object from China was seized by U.S. Customs in New York and ultimately returned (Barnes, 2000), hundreds if not thousands of smaller objects from the same country were openly being sold in the antiquities shops of that city. These objects—for example, ceramic figures from the Han and Tang periods—were offered with little in the way of provenance and in all probability had been recently plundered.
Unfortunately, the current regulations, as provided in the 1970 UNESCO Convention, are applicable only where rather rigorous conditions are met. They apply only when both source and market nations have signed onto the convention (and the sanctions available are shaped by the specific provisions of the convention that have been adopted). As it has been commonly pursued, the provisions of the convention commonly (but not exclusively) seem most relevant to a few large objects that have been inventoried prior to their removal from their country of origin. The mesh of the net of regulation, in short, is apparently not fine enough to snare the smaller objects being traded in an apparently vigorous market, at least when the focus is on material from Asia.
Even when there are wins, they may be illusory. For example, over the months we have been observing the traffic of Khmer materials out of Cambodia, we have noticed a discernable slowing of the flow in such items through venues such as the River City complex in Bangkok. Our informants suggest this is because of agreements struck between Thai and Cambodian governments designed to reduce the trade in Thailand of material from Cambodia. The antiquities shops in Thailand, however, are still crammed with merchandise. It appears that there is now considerable traffic in wooden objects from Burma and Laos and wooden chests from Tibet (or, more properly, allegedly from Tibet). Because of the apparent continued demand for antique material, there is a kind of “displacement” effect occurring, where as supply is restricted from one source, alternative material is substituted from another. The plunder continues, but its location shifts, at least in terms of the materials publicly displayed in antiquities retail outlets.
In the case of a recently proposed convention (UNESCO, 2001) regarding maritime material, there, too, intent of the convention may also founder on the hard rock of commercial realities. Certainly, one stream of destructive activity in maritime objects is made up of treasure seekers searching for highly valuable items such as gold, silver, and precious jewels. Under current international laws and regulations, at times treasure seekers engage in complex negotiations involving salvors, archaeologists, and national governments whereby as the material is extracted, an attempt is made to carry out a full archaeological survey of the site, and a proper classification of the material produced. One salvage firm, for example, has just announced that such a deal was struck with the British government regarding recovery of a large shipment of gold that was lost in the 17th-century shipwreck of the Sussex.
The attempt to establish preservation in situ as the major option for underwater cultural objects and the prohibition against commercial exploitation found in the 2001 convention are unlikely to be respected by those tempted by the search for precious materials. If an attempt was made to have a rigid enforcement of these provisions, the treasure seekers would see little alternative but to abandon any kind of collaborative arrangement as in the Sussex wreck. The search for gold and other valuable commodities, unfortunately, will continue as it has for centuries. If treasure trovers have to do their work secretly, they will have scarce regard for the preservation or study of the wreck as part of our cultural heritage. Instead, the techniques will involve snatch and grab, with major destruction of the maritime site a likely result.
In sum, although there have been undeniable gains since the 1970 UNESCO Convention, there continues to be a thriving market for plundered antiquities in the international market centers. Criminal and civil sanctions, despite at times being severe, have not been successful in controlling the plunder. It is the present argument that the current strategies based in deterrence need to be supplemented by additional methods based in persuasion, negotiation, education, and training.
The Role of Persuasion: Creating a “Culture of Compliance”
The argument for alternatives to deterrence is based partly in psychological theory regarding the effects, and limits, of pain, punishment, and the threats thereof as a tool for shaping behavior. It is well established that punishment (or its threat) can under specific conditions inhibit a pattern of behavior. Unfortunately, it is also well established that this response to conditioning does not extinguish the drive behind that behavior, so the pattern will reemerge when the threat of punishment is removed. Furthermore, although the original pattern may be deterred, alternative behavior may emerge aimed at a similar end where there is no threat of punishment. The logic of conditioning argues that an alternative approach is to support other and desired forms of behavior that compete with the undesirable pattern with positive reinforcement. As these alternative behaviors take hold, are rewarded, and thrive, the original pattern is extinguished.
A slightly different argument focused on the issue of the regulation of white-collar crime can be found in the work of John Braithwaite (1985, 1989, 1993, 2002). Part of his view, as expressed in the title of one of his early works, is that when we deal with white-collar crime we have to make some difficult decisions whether we should “punish or persuade” (Braithwaite, 1985). When it comes to regulation, Braithwaite ultimately urges that we take a bet both ways—that is, that we recognize that both persuasion and punishment need to be part of the regulatory mix but that most of what we do within a regulatory policy should be focused on persuasion. He proposes a “pyramid” metaphor (Braithwaite, 1993), where the bulk of regulatory activity within the policy is at the base of the pyramid and is about education, training, negotiation, arbitration, and other strategies of persuasion. Braithwaite sees a place for appropriate severe punishments when the crimes are particularly serious; he also believes that a symbolic response by the criminal justice system indicated is especially appropriate. But such punitive responses (as indicated by his placement of such actions at the top of the “pyramid”) should occur relatively rarely within a healthy regulatory environment.
The central idea of this view of regulation is that the desired outcome is what we might for our purposes term a “culture of compliance.” One persuades, educates, trains, and negotiates to create a climate within a market where those involved comply with regulations because they see these regulations as proper and appropriate. The intent, as in behavioral psychology, is to create situations where individuals comply with regulations because they think the regulations are right, not simply because they fear that they will be punished if they violate the rules.
In the antiquities trade, it is our view that the task, similarly, is to create a climate of compliance where dealers will not sell, and consumers will not buy, unprovenanced antiquities, not because they fear that they may be punished but because they understand the consequence of their market behavior. The goal is to eliminate the demand for unprovenanced cultural heritage material, thus removing the basic force that drives the illicit market in antiquities and thereby stopping the plunder.
How might this be accomplished? What we propose is that market centers accept the proposition that only cultural heritage material that has documented and acceptable provenance be offered for sale and that consumers be educated and trained to demand proper documentation before they buy such objects. The form of such documentation would have to be developed, and this might involve collaboration of dealers, art historians, curators of major public collections, archaeologists, and cultural heritage public servants, among others.
It is striking that such documentation is still not an expectation in the sale of material either through antiquities dealers or in auction houses. In an ongoing study of such catalogues involving Chinese and Southeast Asian objects, we have found that almost never do the major dealers and auction houses provide provenance information for material being offered for sale. Where provenance information exists, it most often takes the form of such well-known and ambiguous phrases as “from the private collection of a Swiss gentleman.” Rarely is specific information given about whose hands the object has passed through in recent years, and almost never is there any statement about the archaeological origins of the material.
We envision a standard provenance form, perhaps one prepared with the joint sanction of a dealers’ association and an archaeological body. Although the exact details would have to be negotiated, it can be assumed that the form would identify (a) the source country; (b) the cultural period from which the object came; (c) the rough date that the material was created originally; (d) the date that the material was removed from the heritage site; (e) perhaps some details of the removal, such as the sponsorship of the dig and the archaeologist who supervised the removal of the material; and (f) some history of the object since it has been placed on the market. For material that has been on the market since before a sunset clause date (often a date in the early 1970s is offered as appropriate to such provenance to conform to the establishment of the original UNESCO convention), it would be acceptable to provide information regarding whose hands the material has passed through since the off date.
Within this argument, the fundamental objective is to stop the plunder of cultural heritage sites. It is assumed that this will be accomplished best by having a market of provenanced cultural heritage material that in essence drives unprovenanced material out of that market. Others, of course, have proposed this argument. O’Keefe (1997), after observing that the levels of destruction and theft of cultural material suggest that current legal strategies “cannot be operating satisfactorily” concludes, “Perhaps the time has come to look at changing the market for antiquities” (p. 61). He then surveys different approaches and proposes that although rendering all collecting antisocial is not an achievable or desirable option, it may be possible to address some antisocial collecting:
Instead of attempting to render all collecting anti-social… it would be more productive to bring about change in public attitudes that would render the collecting of certain antiquities unacceptable; antiquities which are undocumented, unprovenanced, looted or stolen. A campaign to this end might be more effective if the flow of antiquities from legitimate sources were maintained or increased. (p. 63)
In making a similar proposal, Murphy (1995) offered one approach whereby
the developing art-rich nations should treat cultural property as an exploitable national resource, not to be hoarded absolutely, but to be “mined” as a source of income…. The income from the sale of excess relics can be made available to finance preservation of the most culturally significant pieces, training of curators, and scientific exploration efforts. Once international demand is satisfied by the creation of a sizeable licit market, the profit is cut out of illicit traffic and the concomitant anti-social behaviour is reduced. In a perfect model, money would be channeled toward preservation and study rather than to bribes. (p. 235)
Two decades ago, the argument was put in its simplest form: “The best way to keep art is to let a lot of it go” (Bator, 1982, p. 322). Such an argument presumes, as did the recent Palmer Panel (Department for Culture, Media and Sport, 2000) in the United Kingdom, that there will continue to be a vigorous market in antiquities.
More critically, and controversially, this proposal allows for the flow of new material onto the market. Although, in fact, many of the traditional source nations for cultural heritage objects now forbid such traffic, there are interesting examples drawn from maritime sites, where in recent years material has been located, studied, excavated, and placed onto the antiquities market. One of these is the large amount of early ceramic material extracted from the Hoi An wreck. In that case, an arrangement was made between the Vietnam government, a salvage firm, and a team of marine archaeologists. The site was subjected first to an archaeological survey; then the material was extracted. A proportion of the thousands of ceramic objects was retained by the Vietnam government and distributed to various state museum collections, with the rest placed in an auction conducted by Butterworth’s. Whatever one thinks of the consequences of this particular venture, when material from this site circulates in the market, it will carry with it the full provenance documents provided in the course of the auction.
It is possible that further innovations might develop in the processing of material by both archaeologists and source nations, including the possibility, suggested to us by participants at a recent conference, that material is placed on the market on a lease arrangement, where title is retained by the source nation and material is carefully catalogued and identified by archaeologists or cultural heritage staff so that it can be recalled if research purposes dictate the need to reexamine the objects. Such an arrangement meets the requirements of many source nations that they retain ownership of their cultural heritage but also creates a mechanism so that individuals can have personal access to material.
It can be pointed out that it is to be regretted that personal access to cultural heritage material is treated as unethical and problematic. Individual appreciation of these objects has an ancient lineage and resonates today in the widespread appreciation of finely crafted ancient material. It is not the individual possession of one or another object that is the problem. It is the purchase of unprovenanced items, from an illicit market, that should be the focus of our attention. Furthermore, if it were decided that there would be henceforth no commercial traffic in cultural heritage material, alternative mechanisms would have to evolve if the large public collections (including those maintained by universities) are to continue to have access to new material for purposes of research, education, and cultural appreciation.
One of the major problems in implementing a strategy of persuasion is that at present it is not clear how a responsible regulatory unit would be organized, where it would be located, and what powers it might have. The scheme proposed by Braithwaite (1993, 2002) is concerned primarily with the oversight of corporate activity by government bodies such as those dealing with occupational health and safety, coal mine safety, the monitoring of homes for the elderly, and financial organizations such as banks and insurance companies, among others. Typically, these regulatory bodies are governmental units created by the legislative framework that provides the statutes enforced by the unit.
In most market nations, such governmental bodies, dedicated to the control of the antiquities market, do not exist. Instead, there is a complex of interest groups with competing perspectives regarding how the trade might be organized. O’Keefe (1997) for example, identifies a widely dispersed set of groups that have a stake in such activity, including archaeologists, impoverished local populations, indigenous peoples, dealers, auctions houses, art historians, collectors, and the general public. Additional interested parties are public museums, political figures with an interest or stake in public policy relating to antiquities, and public servants (both nationally and internationally) concerned with cultural heritage policy.
In the short term, given both the urgency of the problem and the growing awareness of the need for action by various of these stakeholders, a variety of initial steps can be taken. Those with expertise in the issue of archaeological provenance might come together and make specific proposals for standard provenance protocols that might have the sanction of the associations of academics, dealers, and museums. O’Keefe (1997) speaks of the importance of a “sustained campaign in all media” that would highlight the costs of the destruction involved with the looting of cultural heritage sites, and these, too, might be organized through conferences and seminars by the major stakeholders and professional associations. Organizations such as the International Council of Museums (ICOM) have already played a major role by adopting a set of binding guidelines that require that member museums commit themselves to the principle that they will not acquire unprovenanced cultural heritage material. It is highly likely, however, that for sustained effort organized around the level of “persuasion” that is required, governmental regulatory units within the market countries will have to be established.
To summarize, it is presumed that there is a role for criminal sanctions within a total approach to the control of the market in illicit activities that gives emphasis to both punishment and persuasion. This formulation assumes that major effort in the future needs to be given to innovative work to shape the education and training required for the persuasion component of this statement. The plunder of cultural heritage sites will stop only when dealers and buyers in market countries come to realize the tragic consequences of the continued trade in unprovenanced material. By itself, the threat of punishment alone is too inexact and blunt an instrument to achieve this end.