The year 1970 marks a turning point in the international law governing Art markets. In this year, the UNESCO Convention on the Means of Prohibiting and Preventing of Illicit Import, Export and Transfer of Cultural Property 1970 (1970 UNESCO Convention) came into existence and to date, this is the most important international law measure concerning cultural property and the regulation of its trade and movement. This Convention has direct implications for Art markets, as the Art markets represent the most important systems within which trade in artworks, antiquities and other such cultural property takes place (Robertson, 2005). Art markets may become the intentional or unintentional conduits for illicit trade in artworks and cultural property. In fact, there is a very profitable underground market that deals in the illegal trafficking of cultural property and the Interpol itself considers this to be the third largest felony after illegal drugs, and arms trafficking (UNESCO, 2010). The United States FBI considers illicit trade in art to generate revenues averaging six billion dollars a year (Levine, 2011). The theft of cultural property may be done from private museums, collectors, churches and archaeological sites, only to be sold in the black market (Chang, 2006, p. 832). At the same time, the recovery rates of stolen art are low at five to ten percent and the process is very lengthy, taking upwards of thirteen years in successful cases (Chang, 2006).
This essay considers the legal and ethical issues with respect to cultural property and Art markets. This essay focusses on the international law responses to the ethical codes and principles that have developed in the Art markets. Special focus is on the 1970 UNESCO Convention. The essay first discusses the background with special emphasis on the historical evolution of the international law focus on cultural property. Then the essay discusses the meaning and scope of cultural property. The ethical issues that are especially pertinent to the Art markets are discussed in the next section. The essay finally discusses the 1970 UNESCO Convention.
International law has been increasingly used to regulate the movement of cultural property, due to the ethical problems that were seen in the licit and illicit trade in cultural property, especially after the Second World War (O'Keefe, 1994). Some of these are related to the regulation of licit movement and transfer of cultural property, while others are related to the prevention of illicit movement of cultural property.
The Agreement on the Importation of Educational, Scientific and Cultural Materials 1950 and The Declaration of the Principles of International Cultural Co-operation 1966, were specifically related to the enhancement of the measures for licit movement in cultural property. The Recommendations on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1964 and the UNESCO Convention on the Means of Prohibiting and Preventing of Illicit Import, Export and Transfer of Cultural Property 1970 (1970 UNESCO Convention), were specifically related to the prevention and prohibition of illicit trade and movement of cultural property.
The reason for there being more interest in the 1970 UNESCO Convention is because it is the most important of all these measures for a variety of reasons, the most important being that it is comprehensive in its scope and also has a large number of state parties making it to be an important multilateral convention on cultural property and regulation of Art markets.
Legal transactions involving cultural property is a common phenomenon all over the world. However, due to some ethical issues that may be involved, particular cases of transactions involving cultural property may not be legal or licit in nature. However, the distinguishing between licit and illicit or even acceptable and non-acceptable transactions involving art, is often a complicated issue (O'Keefe, 1994, p. 3). There are specific issues of ethics that are involved in commercial transactions related to art. These ethical issues arise due to a number of reasons. First, there may be propensity of some to indulge in trade of stolen cultural property. Regardless of the source of origin in trade being illicit, the artwork may actually come into the hands of bona fide purchasers. This may lead to a conflict of interest between the original owners who are victims of theft in one country and bona fide purchasers in another. The problem may become more complicated if the bona fide purchaser further sells or transfers the property to another, where law may consider the lawful title being passed. Second, the artwork may be originated out of a clandestine excavation. Illegal excavators may source such artworks from sites that are not known to others, including the governments. Then again, if there is a lawful excavation in process and someone takes an artwork without authority from the site, this also becomes subject of illicit trade. This may be clearly unlawful in some states of the world where excavated items are deemed to belong to the state (O'Keefe, 1994). Third, the ethical concern with regard to cultural property may arise due to the item being unlawfully alienated, that is, transferred. Fourth, artworks may have been illegally exported from the country of origin. Here legal practice may vary from country to country. In the United States, such illegally exported objects could be lawfully traded in the US until changes were made. Fifth, a very ethically complicated situation is created where the artwork has been taken from an occupied territory by a colonising nation. This became a major source of concern in the postwar period with many colonised territories of the world becoming independent and new governments waking to the unpleasant fact of expropriation of its cultural property by the colonisers. Another complicated situation is created when cultural property is stolen from a country or its territory occupied by another during an armed conflict. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 specifically considered such property to be subject of illicit trade (O'Keefe, 1994).
Therefore, the legal regulation of such transactions may become imperative. This leads to an inter-relationship between art, ethics and law. This inter-relationship has had an effect on the Art markets around the world. That is the reason why there are a number of ethical codes that have been adopted by dealer organisations around the world. For instance, in the UK, the Code of Practice for the Control of International Trading in Works of Art has been adopted collectively by Sotheby’s, Fine Arts Guild, Christie’s, The Royal Institute of Chartered Surveyors, to name a few (O'Keefe, 1994, pp. 6-7). At this point, it is important to point out that the individual laws of the nations may vary with respect to ethical concerns in the Art markets. Thus, the English law is generally considered to be permissive in the context of Art crime, whereas the INTERPOL considers it to be the third largest felony after drugs and illegal arms sales and in many situations these three, or the criminals dealing in these three felonies, may be inter-related (Robertson, 2016, p. 83).
The definition of cultural property is important in the context of this essay because the post 1970 developments on the codification of ethical principles related to Art have actually happened in the context of cultural property. However important such definition may be, it is also of significance that it is not easy to define cultural property. This section discusses the defining of cultural property for which reference is made to two important international law treaties where cultural property is defined, these being, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and 1970 UNESCO Convention on the Means of Prohibiting and Preventing of Illicit Import, Export and Transfer of Cultural Property (1970 UNESCO Convention). The latter gives a much more comprehensive definition of the term cultural property. The ethical concerns and ramifications of defining cultural property are also briefly discussed in this section, as these concerns do form a matter of significance to the codification of ethics and law for the Art markets.
The definition of cultural property is often subject to ambiguity or controversy, because it seeks to define property in the context of culture (Mezey, 2007). However, some definition of the concept can be given here in order to contextualise the present essay. The definition given by Professor Posner is relevant here. He says:
“Cultural property refers to property that has some special relationship with a particular culture or nation state. Cultural property includes objects found at archeological sites, which provide insight into earlier civilizations, and artworks produced by members of a culture and that are thought to embody or represent that culture in a distinctive way. The contours of the definition are vague and shifting, but the controversies over the use of cultural property are real and raise important problems for domestic and international law” (Posner, 2006, p. 1).
In the context of the present essay, as Art markets are being discussed, the point that Posner makes is relevant as he defines cultural property as those objects that are found at archeological sites and artworks produced by members of a culture. He is insightful enough to remind us that the contours of the definition are vague and shifting, as a testimony to the relation between cultural property and culture and the fact that contextualising property in terms of culture can be subject to vagueness.
Posner also reflects on three important concerns or controversies that are related to Art markets, cultural property and ethical considerations. Firstly, Posner says that there is a global black market that deals in antiquities, which have been exported from states of origins when the states themselves do not allow such exports (Posner, 2006). Such cultural property many have reached museums or private collections but the retrieval of this property is a difficult exercise. Here, much of the transfer could be effected through Art markets. Secondly, Posner talks about certain antiquities that although, strictly speaking, may not be stolen or transferred illegally from the country of origin but may be of such cultural significance to the countries of their origin, that such countries may seek retrieval of such artefacts. This situation presents a completely moral or ethical problem, because legally there is nothing wrong with the transfer of the artefacts (Posner, 2006). Thirdly, there is a problem of destruction of antiquities during armed conflicts and wartime. This happened for instance during both the Gulf Wars, when the United States destroyed some cultural property or failed to prevent looting of museums and archeological sites by criminals and ordinary Iraqi citizens (Posner, 2006, p. 2).
When these problems do exist in the interaction between law, ethics and the movement of cultural property, it becomes essential to ask how these problems are responded to by the law, whether domestic or international. It also becomes essential to ask what the responses of the Art market itself are when faced with such problems that signify both the legal as well as ethical concerns.
As mentioned before, the term cultural property itself is subject to some ambiguity or controversy because it is difficult to define it or find a consensus on a universally agreed definition. However, if there is a definition of cultural property, which can be said to have actual consensus, it is pertinent to look for it in the instruments of international law because it is only here that some indication of consensus can be found.
The first use of the term cultural property in an international legal context was in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (Frigo, 2004, p. 367). This international law instrument as its name suggests is in response to the concerns of vulnerability of cultural property during wars and armed conflicts. As this treaty was formed in the immediate postwar period, it is but understandable that there were concerns about destruction of cultural property during war time. The treaty itself referred to these concerns in its preamble as “Recognizing that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction” (UNESCO, 2010, p. 9).
Cultural property was defined in Article 1 of the 1954 Convention and included:
“movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole” (UNESCO, 2010, p. 10).
Therefore, the term cultural property includes moveable as well as immoveable property. In the context of this essay, cultural property of the moveable kind is relevant because it is this property that concerns the Art markets. Therefore, artworks that are of great importance to the cutural heritage of a people are of special significance here. The next important international law measure with respect to cultural property is the 1970 UNESCO Convention (Frigo, 2004, p. 367). Cultural property is defined comprehensively in the Convention and it includes a variety of objects. Article 1 of the Convention has a very extensive definition of the term ‘cultural property’, encompassing a number of items that are included in the definition. These include rare collections and specimens of of paleontological interest; products of archaeological excavations and discoveries; dismembered elements of artistic or historical monuments; antiquities such as inscriptions, coins and engraved seals; pictures, paintings and drawings produced entirely by hand; statuary art and sculpture; original engravings, prints and lithographs; and even furniture.
However, the above mentioned items will be considered as cultural property if it is specifically designated such by states owing to their importance in the context of archaeology, prehistory, history, literature, art or science (1970 UNESCO Convention, Article 1). Therefore, it is important to understand that cultural property in the context of Art markets is only such property. The significance of cultural heritage that was also provided in the 1954 Hague Convention is unmistakable.
Cultural property itself is a concept that comes under the wider concept of cultural heritage. Cultural property may be conceived as an expression of and testimony to human creation, which now has a wider and more significant application (Frigo, 2004). Here, the term national treasures may be used to explain the meaning of cultural property and help to distinguish it from the broader concept of national heritage or cultural heritage. In a case decided by the European Court of Justice (Commission v. Italy (1968), ECR 562., 1968), cultural objects were held to be goods, for the meaning of Articles 28, 29 and 30 of the European Communities Treaty, if these objects could be evaluated from an economic point of view and could be subject to commercialisation. Such goods could be subject to the rules governing the common market (Frigo, 2004, p. 373). Ultimately, it is important to understand that cultural property has a lot of significance to the cultural heritage and the illegal trade of cultural property threaten the physical integrity of the items, as well as the source sites and the cultural heritage of the source nations (Veres, 2014, p. 93).
One of the ethical issues that are involved in cultural property and Art markets is the ownership of cultural property. As one author asks: “To whose culture do these icons belong? To ask and answer the question using the language of cultural property is both to reinforce rigid ideas about culture and to miss the point” (Mezey, 2007, p. 2005). She goes on to say that the concept of cultural property is paradoxical in nature in two ways. The first is relevant to the topic under research. She says that cultural property is contradictory because its core concepts, that is, property and culture are antithetical to each other. Whereas property is fixed, possessed, controlled by its owner, culture is dynamic and not possessed by anyone to the point of exclusion of other people (Mezey, 2007, p. 2005).
The cultural property that this essay is the most concerned with is the kind that can be transacted in the Art markets. Considering such property, there may be specific ethical issues that may need legal responses. These ethical issues are discussed in the following section.
The international Art market is the place where the cultural and economic exchanges related to artworks and cultural property takes place (Hoffman, 2006, p. 89). In this Art market, there are several stakeholders. At times, the balancing of the interests of such stakeholders becomes a matter of both ethical as well as legal concern. Some of these stakeholders are source nations and market nations. Source nations are the countries from where cultural objects emerge and the market nations are those where there is a demand of such cultural objects (Hoffman, 2006, p. 89). The ethical or legal issues that may be related to the concerns of the source nations in particular are: illegal export out of a private collection or a privately owned artefact that may be defined as a national treasure in the source nation; the taking out of tombs and other relics of an ancient civilisation and exporting of such objects that may be prohibited by the laws of the source nations; and the theft of a privately owned artefact in one country which is made available for sale in another country (Hoffman, 2006, p. 90). These are the particular concerns of the source nations or individuals in a source nation. On the other hand, for the market nation there may be a particular concern for protecting the interest of the bona fide purchaser and indeed many countries around the world do legally protect the rights of bona fide purchasers, except where the object involved is a stolen property (Hoffman, 2006, p. 90). At this point, it is important to consider that some of these bona fide purchasers may have actually paid a considerable amount of money to acquire the object of art, therefore, the concern of the state to protect the interest of the purchaser may be justified in certain cases. Countries such as United Kingdom, France, Switzerland, Thailand and Japan do have liberal laws that tend to protect the bona fide purchaser (Hoffman, 2006, p. 90). The source market may include nations as well as private individuals from where the artefact finds a point of origin (Robertson, 2005, p. 15).
In all of this the Art market becomes the conduit through which such transactions are conducted. The Art market is the distribution system, which is needed because there is a desired commodity, that is, the art, and in order to distribute it or to allow its free availability or access to a larger number of people, there is a need to have an Art market (Robertson, 2005, p. 13). The international Art market is the sole mechanism through which value is conferred for the objects of art (Robertson, 2005). Therefore, the Art markets have a place within the economic system relating to transactions involving commodities. Artworks are then commodities when they become subject to trading in the Art market (Robertson, 2005, p. 15). Art markets themselves may be divided into three trading levels, which are, primary art markets, secondary art markets and tertiary art markets. Primary art market, or dealer and source market, is the first market that the commodity is traded in, secondary art market or dealer market, is usually characterised by the quasi-institutional galleries, and the tertiary art market is characterised by the auction market. At this stage, the artefact is very valuable (Robertson, 2005). There is a fourth kind of Art market, which is not recognised because it is the illicit market which deals mostly in stolen or prohibited for trade artefacts. The Art market may have both institutional as well as commercial players. UNESCO and the Interpol are examples of institutional players (Robertson, 2005).
Some of the important ethical issues that are involved in the context of cultural property and the Art markets are related to stolen artefacts, colonial art that has been taken away by the colonisers, excavated artefacts, depiction of obscenity and the trade in obscene artworks, etc. These issues involve questions of both legal as well as ethical significance. However, it the matters related to artworks and artefacts, some of these purely legal and purely ethical issues may be divided by a very fine line. In such situations, it becomes difficult to respond to such issues in clear and unequivocal legal terms.
One of the ethical issues that impacts the Art markets is the depiction of obscenity in the artworks. In the UK, the Hicklin rule is applied in such situations, as was laid down in the case of Regina v Hicklin (Regina v Hicklin (1868) 3 Q.B. 360 , 1868). The test provides that a work will be considered obscene if it has the tendency to deprave and corrupt those whose minds are open to such immoral influences (Robertson, 2016, p. 66). This therefore becomes an issue of public morality, which in the UK is balanced by considerations of the merit or worth of the artwork (Kearns, 1998). However, the sensibilities of the average or ordinary decent citizen may not really be indicative of the true worth of the artwork (Kearns, 1998).
The question of obscenity of the artwork is an important ethical question because of the difficulty in “applying universal standards of decency to art is wholly subjective” (Robertson, 2016, p. 66). This can be better understood by understanding the differing notions of obscenity in different states or for different governments and people. One such area where such differences may arise concerns nudity in artworks, be these paintings or sculptures. In a French judgement, the court held that the nude is an aesthetic, decorative and plastic thing (Kearns, 1998, p. 52). On the other hand, in 2013, two Greek classical nude statutes loaned to the Qatar government by Greece were returned to Greece because the Qataris intended to cover the genitalia and exposure of nudity is obscene to them (Robertson, 2016, p. 66).
In the Art market, the issues of obscenity with reference to certain artworks may become important when these are traded within a state where such objects are considered or may be considered obscene. It is also a difficult area because there is a lack of conclusiveness as to what may or may not be obscene. Therefore, there may be states where law specifically defines obscenity. For example, in the Islamic countries such as Saudi Arabia, nudity in artworks is legally obscene. In other countries, obscenity may not be clearly defined and may be left to the courts to interpret in different cases. The ‘I know it when I see it’ standard of obscenity has been famously applied both in the US as well as the UK. In the US, the Supreme Court applied the test to overturn the conviction of a theatre owner who had exhibited a film deemed obscene by the state (Jacobellis v. Ohio, 378 U.S. 184 , 1964). In the UK, the Hicklin test amounts to the same principle.
Within the Art market, the secondary or dealer market is prominent and the concern for ethical considerations has been felt and responded to with respect to dealers in the cultural property. For instance, the UNESCO International Code of Ethics for Dealers in Cultural Property 1999 opens with the following paragraph:
“Members of the trade in cultural property recognize the key role that trade has traditionally played in the dissemination of culture and in the distribution to museums and private collectors of foreign cultural property for the education and inspiration of all peoples.They acknowledge the world wide concern over the traffic in stolen, illegally alienated, clandestinely excavated and illegally exported cultural property and accept as binding the following principles of professional practice intended to distinguish cultural property being illicitly traded from that in licit trade and they will seek to eliminate the former from their professional activities.”
There are some points of importance here. First, the appeal to the potential of art and artworks for the dissemination of culture has been specifically made by showing how it can impact the education and inspiration for all peoples. At the same time, the fact that at times artworks can be subject to illicit trade, is also clearly referred to. And finally, the document is posited as a collection of principles to be followed by Art dealers in order to ensure that illicit trade in artworks is prevented.
Illicit trade is of special significance because of the harm that it poses to artworks. Professor Posner sums up the harms of illicit trade as follows: “First, the antiquities are frequently damaged. Second, scholarly information is lost because archeological norms are violated. Third, the origin country loses the antiquities to foreign countries, which many people find objectionable... Fourth, purchased antiquities usually disappear into private collections and cannot be studied by scholars or appreciated by people who care about cultural property” (Posner, 2006, p. 4).
Apart from the concerns of the source country, Posner also points out an important harmful effect of illicit trade, that is, the ability of illicit trade to take away every possible opportunity for art connosseurs or students to study or appreciate the artwork. This is significant because the UNESCO International Code of Ethics for Dealers in Cultural Property 1999 also recognises the ability of cultural property to educate and inspire people.
This section discusses the adoption of ethical principles into the 1970 UNESCO Convention on the Means of Prohibiting and Preventing of Illicit Import, Export and Transfer of Cultural Property (1970 UNESCO Convention), which is the turning point for restitution claims with respect to stolen or illegally exported art. The ethical issues that have been discussed in the sections above have raised some important points for consideration that are significant to the 1970 UNESCO Convention. First, one of the important ethical issues that is involved in cultural property and Art markets, is that a lot of such cultural property actually originates from poorer and less influential source nations, that are unable to protect or prevent such illicit trade and many times find themselves unable to get the restitution of such property (Posner, 2006, p. 5).
The 1970 UNESCO Convention marks an important turning point because it has created an international law regime which gives more rights to the source nations. Prior to the passage of this treaty, there were many countries, often the richer market nations, which did not take stringent action against illicit trade making restitution of stolen or illicit trade cultural property difficult. The motivation behind the 1970 UNESCO Convention was the intention that market or importing nations would prohibit the importation of goods that were exported from source countries in violation of the export restrictions of the source countries (Posner, 2006, p. 5). The question to ask is whether the 1970 UNESCO Convention has been successful in creating a stricter regime for the trade in the Art markets and how it has impacted the Art markets.
One of the criticisms against the international law on cultural property, including the 1970 UNESCO Convention, is that states have not taken the law seriously (Posner, 2006, p. 6).
Another ethical issue that was raised earlier in the essay relates to the property looted from source nations during armed conflict. The 1979 UNESCO Convention addresses this problem by providing that illicit trade in art and antiquities has to be prohibited. Many market countries such as the UK, Germany and Japan, have refused to join the Convention as they view it as being harmful to the interests of their Art markets, however, the largest market country, that is, the US, has joined the Convention possibly due to many scandals involving American museums and looted property (Efrat, 2009).
The refusal of the market countries to join the 1970 UNESCO Convention is not surprising, given the large Art markets that these countries have. The Art market may have a say in the shaping of government response to the Convention in particular cases. The example of Germany can be taken here. In 2015, the German government proposed an updated draft legislation to prevent illegal import and export of cultural objects however there was a strong lobby of the Art market that objected to the adoption of the draft and Germany is yet to bring it to effect (Observatory Illicit Traffic, 2015). This experience may be prevalent in other market countries as well.
The 1970 UNESCO Convention has had some successes as well when a number of cultural artefacts have been returned to the source nations over the years. Recent examples include return of an antique sword and dagger to the Government of the Republic of Bulgaria by the Canadian Conservation Institute in Ottawa (UNESCO, 2016).
The ethical issue involving obscenity in the artworks has not been addressed by the 1970 UNESCO Convention. This issue is completely in the domain of the national law and each state is free to define obscenity as per its law and constitution.
Art markets are the important systems through which the global trade in cultural property such as, art works and antiquities is conducted. As such, Art markets are the conduits of the trade and movement of cultural property. There are some important ethical issues that concern the Art markets and cultural property. Prominent amongst these issues are: trade and movement of stolen or looted cultural property, obscenity in art works, and rights of the source nations to not be exploited by market nations. The 1970 UNESCO Convention is the most important international effort that has been taken in the international law in response to the rights of source nations and the prohibition of illicit trade and movement of cultural property. The 1970 UNESCO Convention exemplifies the strong nexus between Art, ethics and the law. Although many market nations have yet to join the Convention, the biggest market nation, that is, US, has joined and ratified the Convention. There are also instances of restitution of stolen and looted cultural property, which shows that the regime on prohibition of illicit trade may be strengthening.
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