Chase Coggins, International Journal of Cultural Property, Vol. 4, 1995, P. 61-80

A Licit International Traffic in
Ancient Art:
Let There Be Light!
Clemency Chase Coggins*
1 Introduction
The premise of this conference is that a licit international traffic in
ancient objects is of benefit to all;1 a totally licit traffic in ancient
art should, indeed, be encouraged - but both the licit and the illicit
trade need to be understood and discussed more realistically. The
distinctions between licit and illicit, and between stolen and illegally
exported, gloss over the real issue when it comes to ancient works
of art. This is original context.
The different affected parties — countries of origin, specialists,2
collectors, and art dealers — involved with the movement of cultural
property share fundamentally the same goals for the preservation
and appreciation of ancient art — yet these groups are often in con-
flict.3 Their interests, while theoretically identical, appear func-
tionally to be irreconcilable. Such differences stem from pragmatic
values that define the various points of view - whether the immedi-
ately validating and self-correcting mechanism of the market is seen
to be most equitable and most healthy; or if a conservative historical
rationale, involving a long view, and an approximation of truth, gov-
erns. It is the intent of this paper to suggest they must not continue
to be irreconcilable, and that disclosure is the stony road that can
lead to detente, if not reconciliation.
2 The Scholar as Apologist for the Licit Trade

Every point in this debate has been made many times by each side,
and no one listens anymore. It seems that few measures have genu-
inely enhanced the preservation of the world's ancient cultural heri-
Adjunct Professor of Archaeology and of Art History, Boston University; As-

sociate, Peabody Museum of Archaeology and Ethnology, Harvard University,
Cambridge, Massachusetts.
61
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of use, available at https:/www.cambridge.org/core/terms. https://doi.org/10.1017/S0940739195000051
Clemency Chase Coggins
tage; in fact, the situation may be deteriorating. This is deeply dis-

couraging for someone who has worked for twenty-six years to miti-
gate this critical situation, and who is on record in opposition to the
market in antiquities, as I am. My field of specialization is ancient
American art and archaeology. Trained as an art historian in an ar-
chaeological field, it became clear to me in 1968 that little ancient
Maya sculpture would remain in Guatemala and Mexico, if the loot-
ing of sites were to continue at the 1960s rate.4 The overwhelming
importance of original context was little understood by many collec-
tors and experts at that time; this was largely because most of the
world's collections, private and public, had been acquired serendipit-
ously, or imperialistically, with little thought to original context. The
connoisseur's qualities of uniqueness and aesthetic appeal governed
the acquisition of antiquities, rather than interest in lost historical
significance — whereas pristine original context is not simply desir-
able for real historical understanding; it is essential. A significant
and beautiful ancient object set in lonely splendor in a museum case
may evoke a visceral sense of loss in an archaeologist.
In outlining the archaeological point of view Professor John Mer-
ryman suggests, disbelievingly, in his essay that archaeologists
would eliminate all commercial demand for such objects, if possible,
that archaeology is at war with the market, and that some archaeolo-
gists are delighted when fakes appear on the market.5 But this is all
absolutely true. Furthermore, archaeologists do, indeed, assume that
an ancient object was illicitly acquired unless there is convincing
proof to the contrary.6 Guilty until proven innocent.
The mistrust between antiquities dealers and archaeologists is in-
flamed by the increasingly destructive role played by market incen-
tives. Accordingly scholars who lend their expertise to the trade are
now considered unethical, and are seen as collaborators in the muti-
lation and corruption of the past.7 Such conflicts are also found in
other dimensions. Merryman speaks of several: the nation versus
the object,8 the source nations versus market nations,9 and national
interests versus international ones.10
3 Nemo dat quod non habet

Why is the law such an important factor in the international trade in
antiquities? Because the traffic is not entirely licit. Because trade
implies the transfer of ownership, and this can not succeed under
common law if the seller does not possess legal title (nemo dat quod
non habet). And because incompatible legal systems are involved in
most transfers of ancient objects. Once integral to a rooted living
culture, these things have been transformed into rootless property
- subject to shifting supply and demand, and to current political
jurisdictions. Merryman describes widespread objections, mostly by
specialists, to the commodification of the cultural heritage," but, I
62
Licit Trade: Let There be Light
believe that before they condemn commercialization, per se, these

critics are expressing despair at the irredeemable transformation
from precious record to bibelot.
"When, if ever, may museums, collectors, and dealers properly
provide a market for cultural objects that have been exported from
a foreign country contrary to the nation's laws?"12 This is the big
question, and Merryman poses it from a perspective in international
law that was earlier explored by the late Paul Bator whose pion-
eering work in the international trade in art laid the foundations for
current thought and policy.13 Bator observed that art elevates and
civilizes; that art is a good ambassador; and that the international
interchange of art is desirable.14 He identified different interests in
the cultural property debate,15 and he demonstrated that attempts to
cut off the international trade in art only create a corrupting black
market.16 "The best way to keep art is to let it go".17 Nevertheless,
Bator was convinced of the seriousness of the escalating destruction
and loss of cultural heritage and he proposed mechanisms that would
encourage both interchange and a legal market, in addition to rec-
ommending a radical reduction in export restrictions.
Bator has been proven right about the counter-productive effects
of export controls — in the numerous archaeologically-rich countries
that impose them the illicit market has only increased. While loans
and exchanges between countries have become more common, as
he recommended,18 they may actually stimulate more than they
dampen the illicit trade. However, one of Bator's most significant
proposals has not been received as enthusiastically as has his attack
on export controls. This is his observation that the art world operates
in secret.19 The art market requires concealment at every level, to
protect sources, to protect buyers, to protect itself — and collectors
and museums have traditionally accepted this restriction — to protect
themselves. If all such transactions were public (and also honest),
there might be no illicit market.
In his timeless book, The Plundered Past, Karl Meyer noted that
this huge speculative business, the art market, has no Securities and
Exchange Commission (as does the U.S. stock market) to enforce
fair dealing and to protect the public interest.20 Instead, it operates
more like the clandestine narcotics traffic. Bator advocates the com-
plete disclosure of museum acquisition records, as a means of open-
ing up and legalizing the market, and of protecting the public
interest.
John Merryman's extensive work on the international trade in art
supports most of Bator's proposals and conclusions, with some dif-
ferent emphases. Merryman adduces the 1954 Convention for the
Protection of Cultural Property in the Event of Armed Conflict,
known as the Hague Convention, as the first significant international
formulation of legal principles on this subject.21 The Hague Conven-
tion recognizes that "damage to cultural property belonging to any
people whatsoever means damage to the cultural heritage of all man-
63
kind" and "that this heritage should receive international protec-

tion".22 The Hague Convention provides a basis for the 1970 UN-
ESCO Convention, and, paradoxically, also for Merryman's position
regarding the international art trade which he describes as "the inter-
nationalist image"23 (in distinction to the nationalism that he as-
cribes to the UNESCO cultural property convention). The inter-
nationalist image proclaims that the cultural heritage of mankind
belongs to all, and encourages cross-cultural interchange, as does
Bator. The Hague Convention, however, has nothing to do with the
art trade. Its purpose is to provide protection for the cultural property
of signatory nations when endangered by war. This convention's ex-
pression of international concern for the safety of the common cul-
tural heritage in no way implies that this heritage should also be the
common property of all, although it is routinely invoked in support
of the antiquities trade.
In direct contrast to the internationalist image, Merryman de-
scribes a "nationalist image" which is a product of cultural national-
ism. He describes cultural nationalism as rooted in a nineteenth cen-
tury Romantic idea that inspires the protection, and especially the
retention, of cultural property.24 Merryman sees cultural nationalism
as an emotional attitude,25 adopted by many archaeologically rich
(source) countries, that leads to "hoarding" instead of to snaring
cultural property;26 thus cultural nationalism is antipathetic to the
international traffic in art. In this view cultural nationalism is bad.
Internationalism is good.
Merryman posits a third point of view, the "object/context image",
which is also protectionist.27 This position focuses on the preser-
vation of an object and of its original context. Strangely, this "im-
age" groups together archaeologists and art historians who are often
in disagreement over the relative importance of context and object.
But the context/object image does associate all those who would
keep objects for preservationist reasons — in distinction to national-
ist ones. However, if this philosophy governs, objects may "langu-
ish",28 or remain "chastely invisible",29 innocent victims of a "covet-
ous neglect",30 when they might, instead, be considered candidates
for sale as surplus items in redundant collections. One serious prob-
lem with this hybrid "image" is an artificial and divisive distinction
that seems to be made between (esoteric?) "information that is made
accessible to scholars for study"31 and what everybody else wants.
Most "object/context" scholars are interested in recording, learning,
and teaching about history for the benefit of everyone, and for the
long run. To accept such a goal as the description of only one com-
peting interest, as lawyers do, seems to me misleading and re-
ductionist.
Like Bator, Merryman emphasizes the principle of international
law which declares one country will not automatically enforce the
export laws of another. This is especially important in the inter-
national traffic in antiquities because if the United States, for in-
64
stance, were to enforce the laws of Peru, which declares cultural

property is inalienable national property, then all Peruvian objects in
the United States might be considered stolen. However, this did not
happen in the 1989 case of Peru v. Johnson?2 If Peru had won, the
decision might have made the import of all Peruvian antiquities into
the United States illegal, and thus seriously distorted the art market,
which some see as a beneficent, self-regulating mechanism, that
works with Darwinian efficiency to preserve and sell the finest art
— where others see only relentless market incentives that stimulate
the destruction of sites to provide new material for sale.
Whatever the image, internationalist, nationalist, or object/con-
text; whether archaeologist, curator, collector or dealer all parties
are in rhetorical agreement on an ethic of conservation and preser-
vation. Yet, these interests often disagree over specific cases. Yes,
we must preserve objects and contexts, and yes, we must conserve
an unknown archaeological heritage, but for how long, and for
whom? Archaeologists prefer to bank the archaeological heritage for
the future. They excavate as little as possible, and only for a specific
reason. Finding treasure is not a good reason. Similarly the basic
principle for conservators of cultural property is mimimum inter-
vention — as in the physician's Hippocratic oath — they should, at
the very least, do no harm. Such issues are also encountered in the
conservation of the world's natural resources, except that historical
resources, ancient cultural property, are unique; they can never be
replaced, nor can they be renewed. Sadly, this is precisely why they
are so desirable to the international traffic in art.
4 The Market
The international trade in ancient art is thriving. In full-page color
advertisements one dealer boasts that his gallery has "quadrupled its
sales over the past two years".33 Karl Meyer explains that the art
market goes up in all economic climates34 and, by some miracle, it
seems that both supply and demand are increasing steadily.35 How
do we explain this state of commercial nirvana? Bator notes that
little is known about the workings of the art market,36 and Meyer
observes that it is unregulated.37 Why rock the boat? Why disturb
or constrain a successful part of the world economy? Perhaps first
because the art market is not monolithic; ancient art is but one small
part of it.
The art market comprises myriad, often over-lapping, subspecialt-
ies that may be limited by region (for instance Asian or North Amer-
ican), by date (mediaeval, contemporary), by medium (paper,
bronze), or by form (paintings, furniture). Another way to divide the
art market is between archaeological, and some ethnographic, ob-
jects versus everything else. With very few exceptions these archae-
ological and ethnographic materials constitute what their countries
65
of origin consider cultural heritage and they constitute the bulk of

the illicit market. The difference between most art dealing and the
dealing in such objects, is that it is not possible to make a living by
selling only the few archaeological and ethnographic objects that
have been acquired legitimately. Some law is broken at some point,
and often at many points, in their trade. Selling antiquities is often
called the "second oldest profession" — one enshrouded in secrecy
because grave-robbing has, from the beginning, been a reliable
source of the goods.
Is it possible to change the oldest, the original, segment of the art
market? Probably not very much, but we must try, just as we try to
preserve whales, or rain forest; because we know they are invaluable
and vulnerable elements in our common existence on earth. How-
ever, the supply of ancient cultural resources is finite. To continue
consuming at the current rate would be as short-sighted as promoting
a great modern painter by selling all his paintings, then killing him;
or stimulating the market in old English furniture by burning down
all the country houses. Prices would go up, many dealers would go
out of business, and the cultural losses would be incalculable. The
antiquities market is approaching this phase of self-extinction by
over-consumption.
In their defense of this immemorial trade antiquities dealers de-
scribe the inevitable smuggling and bribery which are routine in any
country that tries to protect its cultural heritage with export restric-
tions. Such illegal commerce also entails fraudulent documentation,
and eventually it stimulates the production of fakes. Karl Meyer
describes "the prevalence of fakes [as] the venereal disorder of the
illicit art market — the punishment for excessive desire and bad
judgement"38 Nevertheless, the robbery of objects and the creation
of fakes is considered by some a validation of worthiness for in-
clusion in the market.39 In fact, the more desirable objects are the
illicit ones.
Despite the cynics, some antiquities dealers are apparently taking
initiatives to encourage a licit market. In April 1984 a code of pract-
ise for the Control of International Trading in Works of Art was
signed by representatives of several British auctioneers and dealers.
They agreed "to the best of their ability, not to import, export or
transfer the ownership of objects...[exported illegally from their
country of origin].40 A newly formed association of antiquities de-
alers in Europe and the United States, The International Association
of Dealers in Ancient Art aims "to actively encourage the protection
and preservation of ancient sites."41 In support of this objective they
quote the Hague Convention concerning "the cultural heritage of all
mankind", and conclude "we believe that a more liberal and rational
approach to regulations on the export and import of art will help to
protect world cultural heritage."42 The significance of these state-
ments is probably that they should have been made at all, since they
have not been in the past. The antiquities trade has a characteristic
66
attribute which one observer describes as "transparency"; this is very

much like the emperor who had no clothes. What everyone knows
to be true is not what is discussed.
Many antiquities dealers would prefer to operate legally and have
their trade function respectably like the rest of the art market — by
recycling old collections, and buying up newly and legally available
material. But, unlike most paintings and sculpture, archaeological
material must be removed, usually destructively, from the ground.
Could it be made legally available, as is invariably suggested? Only
if the possessing countries were to change their laws to accommo-
date the art market. The position of the international trade is that
these countries should not be so retentive, and that they should make
"duplicates" available. Jerome M. Eisenberg, editor of the magazine
Minerva, declares that "the illicit trade could, without doubt, be re-
duced significantly by allowing a limited and carefully controlled
legal export of antiquities from those countries with an abundance
of archaeological material."43
This position has been expressed by everyone who would like to
encourage a licit trade. It is logical and appealing. But I always
wonder exactly which objects they have in mind. Many, many ar-
chaeologically-rich countries do not have storerooms full of "dupli-
cates". Whereas, if those countries in which their ancestors did, in
fact, produce duplicates, like fired clay oil lamps and water vessels,
should decide to sell some — the art dealers would not want them.
They want the very singular objects most countries would choose to
keep, as one dealer wrote:
I for one, do not want to live in a xenophobic gray world of

endlessly rotating traveling shows, coffee table books of ever-
increasing gaudiness, and — God forbid — plaster casts from
overseas. I want continually to look at new and beautiful ob-
jects that delight the senses and excite the mind.44
These words express the feelings of most antiquities dealers; from

them one must conclude that talk of "duplicates" which will supply,
even satiate, the market is a smoke screen for inaction. Even if the
source countries were to allow the sale of fine objects from their
collections, thus creating a significant legitimate market, and if this
were somehow to supplant the illicit market, most antiquities dealers
would still be out of work. They will not benefit directly from the
loans and exchanges between countries foreseen in the empyrean
future.
Everyone agrees that inventoried property — no matter how neg-
lected — may be described as stolen if removed from its owner. But
not if the property was previously unknown. Most countries enact
broad export prohibitions in an effort to retain such invaluable unin-
ventoried material and, as Bator has shown, and we all know, they
do not work. What if there were no export restrictions? Would that
67
solve the problem, and protect a country's cultural heritage? The

United States has no export restrictions, and our native American
heritage is spread around western Europe. Is everyone happy? Not
the indigenous community whose heritage has been sold, nor most
anthropologists, and now there is pressure to impose export restric-
tions on U.S. cultural property for the first time. Has free trade been
the answer?
How do the world's source countries view the constant proposals
for the replacement of their export restrictions with mechanisms for
controlled sale and export? They say, "Why should we?". This com-
mon response is a good example of "cultural nationalism". It repre-
sents, not only the lack of an "internationalist image", but different
values as well. The practise of collecting the art of other cultures is
uniquely western - perhaps a vestige of imperialism; it is unknown
and irrelevant to most of the source countries. They do not covet
our cultural property. Western art is seldom in their museums; they
may never have seen any, and do not miss it. Their museums, how-
ever mismanaged, are celebrations of their own cultures — not vast
warehouses of the art of the entire world as are our compendious
public and private treasuries.
Most culturally rich source nations do not want our art. Why
should they change their laws so we can have theirs? "Because",
we answer "otherwise we will take it, (and we do not consider this
stealing)". The archaeologists, cultural caretakers, and others in the
source nations understand this implied threat only too well, but they
seldom have political power, and national politicians are unwilling
to enact laws that involve selling the national patrimony, in order to
forestall theoretical losses. Yet, many of these countries are very
poor and would benefit by reaping this potential economic resource.
It is invariably averred by advocates of the "internationalist image"
that allowing controlled export would stop the illicit traffic, and that
the revenue would be helpful to the countries of origin — although
only the latter is clearly true.
5 Solutions?
In 1969 a UNESCO Convention was drafted that was intended to
solve these problems through agreements between countries signa-
tory to the Convention. Since each nation expected the other signa-
tory nations to observe its cultural property export laws, Merryman
has termed the Convention a "nationalist" reponse to the problem.
The final UNESCO "Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export, and Transfer of Ownership of
Cultural Property", adopted in November 1970,45 and now signed
by 81 nations, has not significantly restricted the illicit trade in art,
although it has facilitated the return of stolen inventoried objects.
Probably the principal reason for this ineffectiveness is that only one
68
major art importing nation has signed it — the United States. Al-
though this may change dramatically if Switzerland, a major art trad-
ing country, signs the UNESCO cultural property convention.46
A more "internationalist" approach characterizes the new "Unid-
roit Convention on the International Return of Stolen or Illegally
Exported Cultural Objects".47 This will promote the licit traffic by
confining international disputes over ownership to law courts within
the various signatory countries; ideally these will include those art-
importing countries that have not signed the UNESCO Cultural
Property Convention. The Unidroit Convention has the virtue of
forcing the source countries to pay attention, if they want something
back; it should confine the suits for return to significant objects. It
also emphasizes the values of the preservation of the object, and of
its context and associated materials in considerations for the return
of cultural property.48 Such a system presupposes adequately trained
specialists and cultural administrators, as well as designated finan-
cial resources, in the requesting countries.
A national, as opposed to a "nationalist," response to the UN-
ESCO Cultural Property convention, might be United States partici-
pation, as the only major art-importing country to have signed. By
signing the Convention the United States expressed both its great
concern over the destruction and loss of cultural heritage in other
countries, and acknowledged the significant role played by the U.S.
art market in that loss. The U. S. enabling legislation requires a very
deliberate response, as opposed to the automatic action envisioned
in the Convention, to a country that requests the imposition of U.S.
import controls against their illegally exported endangered cultural
property. The country must demonstrate the seriousness of a specific
situation before the U.S. will impose import controls to help to limit
the illicit traffic, and thus ultimately reduce further depradations in
the source country.49 Using a formula that requires carefully defined
requests, the United States has imposed import restrictions on ar-
chaeological objects from an endangered zone in El Salvador (1987);
on ethnographic textiles from a town in Bolivia (1989); on archaeol-
ogical materials of a particular ancient culture from a site in Peru
(1990); on archaeological materials from a state in Guatemala
(1991); and on archaeological objects from a region of Mali
(1993).50
Have these U. S. import prohibitions on targeted endangered ma-
terials stopped the destruction and loss? Certainly, most of these
objects are now rarely on the market in the United States. But the
impact in the source countries has varied. The U.S. initiatives have
generated beneficial publicity and long-term educational efforts in
most of the nations involved — and this is perhaps the most import-
ant benefit. In some cases, however, the U.S. import bans may have
tended to divert the illicit traffic to other art-importing countries
where such controlled and thus potentially rare objects may be es-
pecially attractive. The import restrictions have similarly enhanced
69
the value of the banned objects that are already in the legitimate
market. With or without U.S. involvement, the illict trade in these
objects flourishes — but, increasingly, the problem is seen differ-
ently.
6 Disclosure
Despite twenty-five years of international effort, and increasing pub-
lic awareness little, if any, progress has been made toward controling
the illict traffic or, more important in this context, encouraging a licit
trade in ancient objects — although there is some hope in evidence of
a slow but fundamental change in values. Everyone would prefer a
quick and painless solution. Signing conventions is not the cure. The
bitter pill may be disclosure. If antiquities-acquiring museums,
which are usually publicly subsidized (even in the United States),
were not allowed to maintain secret records, their behavior would
change. Documentation involves a lot more than title to an object
(when it even ensures that). Documentation should establish an ob-
ject's provenance, which often means only its history as cultural
property. Documentation may also bear on provenience. "Proveni-
ence" is the same word as the French provenance, but in English
"provenience" refers explicitly to an object's original context. Most
ancient objects in museums are of unknown origin, and every scrap
of information about both provenience and provenance, including
local contacts, middlemen and dealer identity and location, price,
invoices, tangential correspondence and so forth, may all be of value
in the effort to trace and reestablish a degree of historical signifi-
cance. In the future, when aesthetic fashions may have changed, this
information is the only real "quality" and legitimacy an object
will have.51
Let us consider museums who buy, and have always bought, im-
portant antiquities through the licit market, which is nevertheless
usually illicit in some phases. Here is an example from one of my
classes: one hundred years ago a prominent U.S. museum bought a
large stone sculptural relief from another country. It was related in
many ways to a relief that remained in the country of origin, but their
true relationship was unknown because they were both excavated
illegally. Perhaps one of them is fake, perhaps they both are. The
stone has been tested inconclusively. Stylistic and iconographic
analyses are also inconclusive. The only way to shed any new light
on this persistent question lies in the original correspondence and
acquisition records of the importing museum. But, even though the
evidence is a century old, the museum will not make it available.
This is not uncommon. While an object may be on public view, both
its provenance and even its provenience are usually hidden behind
an uninformative label. "Don't ask, don't tell" is the prevailing ac-
quisition philosophy in many museums. But such secrecy is no
70
longer the rule in the United States, and perhaps the major long term
effect of the UNESCO Cultural Property Convention has been the
adoption by many museums of acquisition policies that preclude
buying undocumented antiquities that have left their countries of
origin since the date of the Convention.52 Another important result
is the increasing attention these issues continue to receive twenty-
five years later, as demonstrated by this conference.
Museums that acquire antiquities, like the J. Paul Getty Museum
in Malibu, California, are adopting a new openness; when the falsi-
fied provenance of a recently acquired Greek kouros prompted
doubts about its authenticity, the Getty Museum addressed the auth-
enticity question directly through a public exhibition and a collo-
quium,53 although the museum did not reveal information about the
actual purchase.54 Such candor is an innovation for art museums,
one that must eventually lead to an opener market. Disclosure often
depends, however, on the demands of the consumer (the museum,
the public), and, unfortunately, on the persistence of the press.
Another heartening example of museum disclosure, albeit tenta-
tive, may be found in an exhibition now touring the United States.
Entitled Painting the Maya Universe: Royal Ceramics of the Classic
Period, it consists of about eighty beautiful polychrome vessels, plus
figurines, jades and other small grave goods.55 All but eight exca-
vated objects were exported illegally from Guatemala, Mexico and
Belize, most in the last ten to fifteen years. Their presence is stark
testimony to scores of demolished architectural contexts and totally
obliterated funerary assemblages in their countries of origin. For a
specialist in this field such a collection affords a nearly intolerable
blend of pleasure and horror. What is unusual is that Dorie Reents-
Budet, who curated the exhibition and wrote most of the sumptuous
catalogue, has included a chapter entitled "Collecting Pre-Columb-
ian Art and Preserving the Archaeological Record".56 In this she
reviews the collecting history of Maya ceramics, decries the destruc-
tion of archaeological sites, and makes a valuable comparison be-
tween the kind of information derived from a looted vessel in con-
trast to a similar excavated vessel. Although she never links her
condemnation to the objects she is actually exhibiting; they are in
fact typical of the current traffic in antiquities, since they would be
considered stolen by the source nations, but not by the United States
at the time they entered the country. Today, however, such objects
from the Guatemalan state of Peten, which is the source of about 70
per cent of the vessels, would be returned to Guatemala; in 1990 the
United States imposed import restrictions on such objects in re-
sponse to an Emergency Request from Guatemala, under the U.S.
legislation which enacts the UNESCO Convention on Cultural
Property.57
Dorie Reents-Budet also strives to educate museum-goers who
may not read this chapter in the catalogue, by presenting a ten-
minute video in which she makes the same points and advises view-
71
ers that labeled objects without provenience, and usually without

dates of acquisition, may be assumed to be illegally excavated and
of unknown provenience.58 In this film Reents-Budet does not specifi-
cally direct her remarks to her own own exhibiton, although the con-
clusion should be inescapable — if any museum-goers actually viewed
this tape, which was announced in small print at the entrance to the
exhibit, and shown some distance away on a monitor in a disused
lobby of the Museum of Fine Arts, Boston, Massachusetts.59
These efforts at explaining to the public some of the unsavory
background of museum antiquities is encouraging, as are the codes
of practise adopted by some antiquities dealers — no matter how
cosmetic and unenforceable they may be. They apparently reflect a
desire to operate more legally. Another attempt to join the licit art
market and upgrade the image of antiquities dealers may be found
in the new journal Minerva, edited by the owner of Royal-Athena
Galleries, Jerome M. Eisenberg.60 This publication enrages most ar-
chaeologists who view it as a glossy false facade that serves simul-
taneously to hide and to promote the illict traffic in antiquities, since
most readers can not distinguish the licit from the illicit in editorial
content, or in advertisements.61 However, the editor does make some
effort to report the ongoing debate over the international traffic in
antiquities.62 Perhaps most disturbing to many archaeologists, how-
ever, is the fact that scholars have lent their expertise, and thus their
imprimatur on the illicit trade, by writing articles for Minerva.
Viewed in the best possible light this periodical might be seen as a
small step toward disclosure.
Despite the continuing health of the gray market in ancient art,
there is some reason to believe that the overwhelming evidence of
its bad effects may lead to its eventual decline, if not demise, and
that the forces of conservation will win the war, although there may
be many battles lost along the way. Some cause for such optimism
may be found in the catalogue of the exhibition of the George Ortiz
collection.63 This stunning display of 260 ancient objects took place
in 1994 at the Royal Academy of Arts, London. Generally acclaimed
for its beauty, the exhibition has also been attacked for its self-com-
placency and insensitivity to cultural and historical values.64 George
Ortiz explains in his introductory essay that "Art is a projection of
the ego" and that, initially, he had "hoped that by acquiring ancient
Greek objects [he] would acquire the spirit behind them."65 But de-
spite the avowedly spiritual message of his introductory remarks,
and despite the "splendid melange"66 they represent, Ortiz has actu-
ally produced a catalogue which implicitly acknowledges the pri-
macy of historical context for both significance and for value. In
addition to including a fine color photograph each entry essays the
traditional apparatus of scholarship, replete with a meticulous physi-
cal description, differences of interpretation and opinion, footnotes,
and a blibliography. Despite his aesthetic rhetoric Ortiz has tried to
supply as much historical context as he can, thereby exposing and
72
acknowledging the limitations of these unprovenienced works, while

depending for any validation on the work of scholars. However frag-
mentary, the documentation offered by George Ortiz provides tantal-
izing phrases from the lost "chapters of our own human past" la-
mented by Colin Renfrew.67
Another step toward disclosure is perhaps exemplified by the case
of the Mycenaean objects publicly exhibited in the Michael Ward
Gallery in New York City in March 1993. For this exhibition Ward
produced a hard-cover catalogue with scholarly analysis that associ-
ated the objects, which were mostly gold, with a specific Greek
region and style, while further suggesting they may have been parts
of a single tomb assemblage.68 Presumably because of this hypo-
thetical association Ward chose to sell them together as a group.
The catalogue did not include any information about the modern
provenance of the collection — which is tantamount to declaring that
it had passed, probably recently, through the illicit market.
The exhibition was reviewed in The New York Times, with the
information that Ward had tried to ascertain if the objects were
known to be missing from Greece, before putting them up for sale.69
Museums now usually check with a presumed country of origin be-
fore acquiring important antiquities, but it was unusual for a dealer
to take such precautions. Greece replied in the negative. Struck by
the newspaper coverage, two different archaeologists notified the
Greek government, which then sued for the return of the objects,
since further study had associated the gold with specific illegal exca-
vations in Greece.70 The case was settled out of court by Ward agree-
ing to donate the objects, for a tax write-off, to a charitable Greek
organization in the United States.71 It is to be hoped they will be
reunited in Greece with the tomb furnishings they resemble, al-
though their original context and associations can never be securely
known.
The most obvious lessons from this affair were learned by Michael
Ward who will not henceforth exhibit and attempt to document such
a collection, and probably by the scholar, now vilified, whose pub-
lished analysis tipped off the investigation and suit. Yes, this case
makes clear the dangers and penalties of trading in objects from the
illicit market, both for the dealer and for any experts he may hire.
But have the most important values been preserved? Was this the
best possible outcome?
7 Reality
I submit that the highest value, both before and above national or
international concerns about cultural property, is the truth about the
object itself. More important than the law. More important than prop-
erty rights. Just the facts — as close as possible to the whole truth
that remains. No matter how historical interpretation or aesthetic
73
taste may change, the basic documentation is the only real title.
Preserving such information may involve some painful concessions.
Foremost among these is acknowledgement of the inevitable persist-
ence of the illicit market, no matter how the relative proportions of
illicit versus licit may vary. If such a traffic will always exist, then
it is incumbent upon scholars to use every possible means to wring
more information from the trade. First, this would entail extracting,
recording and using information from dealers. Second, it would in-
volve using any expertise provided by those who authenticate and
make attributions of illicitly acquired cultural property.
Dealers might be forced to provide more details of both prov-
enance and provenience if they had to keep detailed registers.72 They
might be forced to provide more information if museums (ultimate
rcipients) would refuse an object without such pedigrees, which
would then be public. But does this information have any value
when it may be falsified?73 Perhaps fraudulent provenance would
not clarify the original provenience of an object, but even a falsified
record can contribute to an aggregate picture of the market — re-
vealing some of what is now hidden. The names alone of a string of
middlemen and dealers in several countries may some day contribute
to the basic documentation of related objects in far-flung collections
— to the recreation of modus operandi. The purpose of such regis-
tration would be to arrive at some degree of truth. Not to prosecute
antiquities dealers. The search for historical accuracy is timeless and
can, failing every other recourse, wait for complete disclosure. Each
museum acquisition record should grow through time as more facts,
scholarly, commercial, contradictory, filter in. If dealers kept com-
plete records which included every scrap of information that came
to them — true or not — they could, at the very least, make such
archival data public after any possibility of legal repercussions. I
submit that the complete identity of an object as a part of cultural
heritage dwarfs its transitory role as cultural property. Even dealers
in the illicit traffic might play a constructive role, if they are encour-
aged, or required. Traditionally their only option has been the self-
protective promulgation of romanticized provenience and falsified
provenance.
By the same token, the knowledgeable analyses of scholars who
value the object itself above its historical context must be reinte-
grated into the single tapestry of archaeological reconstruction. At
the moment, such experts are seen as encouraging the continuing
loss of cultural heritage by enhancing the market value of an object,
and thus validating its role in the illicit traffic.74 I believe this is true
- but here's the rub. We must concentrate on the timeless object,
enhancing every possible facet of its existence, ancient and modern,
rather than on its fallible purveyors and mortal analysts. It seems to
me that the incident of the Mycenaean gold and the Ward gallery
might have been resolved even if the dealer had not been disgraced
for making the collection public, along with its historically valuable
74
but incriminating analysis. Somehow, such efforts must be encour-

aged — even though the objects may have come through the illicit
market, which they practically always have done . If the country of
origin can demonstrate its loss — then it should always be possible
to negotiate return, without legal means.
The American Journal of Archaeology, a classical publication of
the Archaeological Institute of America, has followed its parent or-
ganization in stipulating that it will not publish, as the Institute will
not accept for delivery, papers that constitute the first professional
presentation of an object that has left its country of origin illegally
since the passage of the UNESCO Convention on cultural prop-
erty.75 This policy denies validation by the Journal, or by the Insti-
tute, to objects from the illicit trade, while eventually acknowledging
their existence and (seriously compromised) significance. As an ar-
chaeologist and an art historian, I support the intelligent realism of
this policy which allows for the value of every possible obtainable
kind of analysis. However, because of the ongoing destruction of
ancient Maya sites in Guatemala and Belize, I have been as adamant
and uncompromising as any archaeologist in my disavowal of schol-
ars who appear to have encouraged such looting by their validating
work, albeit indirectly. Since all such objects are pillaged we do
not know where they came from; we do not know their historical
associations; we do not even know if they are authentic. As a metho-
dological premise I will not base interpretations on such seriously
flawed evidence. Nevertheless, one must evaluate and use very piece
of analysis that exists. The enormous amount of information held by
the many scholars who advise dealers must not be lost. In order to
salvage it, let there be a functional truce between the connoisseurs
and the archaeologists. The museums of the world are filled with
unprovenienced objects and many will continue to acquire them.
Since we can never change this situation completely, we must come
to terms with the intolerable circumstances, and figure out how to
exploit them.
The best possible chance for making truces, for salvaging infor-
mation, and for returning significant objects lies in mediation and
negotiation as Phyllis Messenger has outlined in her valuable article
"Forging New Partnerships".76 Every possible effort must be made
to solve these conflicts before the law is involved. She cites cases in
which negotiations have produced compromises that to some degree
satisfied each side of the dispute, for instance: the conservation and
return to Mexico of part of a bequest of illegally exported ancient
murals left to a San Francisco museum; the return of a pillaged stone
lintel to Thailand by a Chicago Museum thanks to a benevolent
intermediary; or a gift to Mexico of representative samples of an
archaeological collection removed legally in the first decade of this
century to a Cambridge, Massachusetts museum. These were all
possible through mediation based on underlying goodwill, rather
than legal confrontation. Models and precedents exist for negotiated
75
arrangements, what is lacking is the recognition of this eventuality

as routine and unavoidable. Institutional machinery for mediation is
needed, not more laws.77
8 Conclusions
In conclusion of this consideration of the licit trade - I endorse it,
of course, but see little evidence of a hopeful prospect for the future.
Lack of enthusiasm about the licit market reflects the fundamental
fact that once an object has been extracted from its context, it makes
little difference to the fabric of cultural heritage whether it travels
legally or illegally. A looted object that a country is willing to export
has lost just as much of its historical significance as one in the illicit
trade. They are equally undesirable from the point of view of cultural
heritage. From the point of view of cultural property, defined as
material alienated from its original historical setting, the best way
for reintegration into the world's cultural heritage is through the full
disclosure of provenance, the full acknowledgement of equivocal
status, and the total exploitation of available expertise.
While we make every effort to preserve the ancient, and the ethno-
graphic heritage of the world, we can also work to widen the licit
trade, and to supplant the passion for prosecution of the illicit traffic
with a lust for the truth, remembering that cultural heritage is for
the future, whether it is safely under ground or actively building a
provenance in a collection. Let there be light.
Notes
1 Merryman, John, A Licit International Trade in Cultural Objects, pp. 13—60
supra.
2 "Specialists" in this context, includes archaeologists, art historians, curators,
conservators — all those professionally dedicated to the preservation of
ancient art. They correspond to J. Merryman's "object/context image", p. 14
supra.
3 Bator, Paul M., The International Trade in Art, Chicago, University of
Chicago Press, 1983:19. Bator identifies one important axis of this conflict
when he observes "Accomodating these two fundamental values — the ap-
preciation of beauty and the search for knowledge — is the central challenge
involved in our inquiry."
4 Coggins, Clemency, "Illicit Traffic of Pre-Columbian Antiquities", Art Jour-
nal (1969): 9 4 - 9 8 .
5 Merryman, p. 34 supra.
6 Idem.
7 See: See the Codes of Ethics of the Society of Professional Archaeology,
of the Archaeological Institute of America; of the Society for American
Archaeology; and see Cook, B.F., "The archaeologist and the art market:
policies and practice", Antiquity, 65 (1991): 533—7; Elia, Ricardo, "Conser-
76
vators and unprovenienced objects: Preserving the cultural heritage or servic-

ing the antiquities trade?", paper presented to the Conservation and the An-
tiquities Trade Conference, British Academy, London, 3/12/1993.
8 Merryman, John, "The Nation and the Object", International Journal of Cul-
tural Property, 1:3 (1994) pp. 61-76.
9 Merryman, John, "Two ways of thinking about cultural property', American
Journal of International Law, 80(4) (1986): 832.
10 Merryman, pp. 10—11 supra.
11 Ibid, pp. 38-40.
12 Merryman, 1994, supra, note 8, p. 61.
13 Bator, supra, note 4.
14 Bator, ibid, pp. 29—30. But: " From this analysis it should be clear that there
is no absolute value in movement of the cultural heritage", O'Keefe, P.J
and L.V. Prott, 1989, Law and the Cultural Heritage, London, Butterworths,
Vol. Ill, [115].
15 On interests see: O'Keefe, P.J. and L.V. Prott, Law and the Cultural Heri-
tage, London, Butterworths, (1983) vol. 1, [120-149]; and fora distinction
between interests and values see: Ibid, (1989) vol. Ill, [131].
16 Bator, supra, note 4; pp. 41—43.
17 Ibid: 46.
18 Ibid: 89.
19 Ibid: 84-86, n. 146.
20 Meyer, Karl E., The Plundered Past, New York, Athenaeum, (1973) xii.
21 Merryman, (1986) supra, note 9: 831.
22 UNESCO, (1983), 77ie Protection of Movable Cultural Property, Paris,
vol. I: 336.
23 Merryman (1986), supra, note 9.
24 Idem.
25 Merryman (1985) "Thinking about the Elgin Marbles", Michigan Law Re-
view 83:8, pp. 1880-1923.
27 Merryman, ibid, p. 14.
28 Ibid, p. 20.
29 Bator, supra, note 4; p. 18.
30 Merryman (1985), supra, note 25; p. 1919.
32 See discussion of Peru v. Johnson in Merryman (1994), supra, note 8, pp. 62,
63. Peru's declared ownership of the nation's ancient cultural property was
viewed by a California court as "no more effective than export restrictions",
and thus would not be not enforced by another nation in the absence of a
treaty.
33 Minerva, (1990) 1:1, inside back cover.
34 Meyer, 1973, supra, note 20; p. 3.
36 Bator, supra, note 4; p. 13.
37 Meyer, 1973, supra, note 20; idem.
38 Ibid, p. 108.
39 Merryman, p. 48 supra; fn. 28.
40 O'Keefe, P. J. and L.V. Prott, Law and the Cultural Heritage, vol. 3, Move-
ment, London, Butterworths, 1989, [1032].
41 Rules of the International Association of Dealers in Ancient Art,
article 2 (3), 1994.
42 Ibid.
11
43 Minerva, (1994): 2.
44 Marks, Peter, 'Other points of view', Auction, IV(5) (1971): 34.
45 See O'Keefe and Prott, 1989, supra, note 14; vol. Ill, chapter 14.
46 Faber-Castell, Christian von, "Switzerland moves toward UNESCO Conven-
tion", Art Newsletter, XIX: 7, pp. 4, 5, 7.
47 See Merryman, 1994, supra, note 8: p. 71.
48 Merryman, pp. 27—28 supra.
49 Cultural Property Advisory Committee, Preserving Mankind's Heritage: U.S.
Efforts to Prevent Illicit Trade in Cultural Property, United States Infor-
mation Agency, 1991; and see: O'Keefe and Prott, 1989, supra, note 14;
[1403, 1473, 1482, 1492-97].
50 Looting Theft and Smuggling: A Report to the President and the Congress.
The Cultural Property Advisory Committee 1983 — 1993, Cultural Property
Advisory Committee, United States Information Agency, 1993, pp.11,
14-22.
51 For instance, when a nineteenth century taste for Hellenistic sculpture re-
turns, the formal abstraction of Cycladic figurines may consign them to the
basement. The majority of these sculptures come from illicit excavations and
the analytic literature must, as a consequence, rely on stylistic criteria — with
little security about percentage of fakes (Gill, David W. J. and Christopher
Chippindale, "Material and Intellectual Consequences of Esteem for Cy-
cladic Figures", American Journal of Archaeology, 97 (1993) 601—659).
If all dealer and acquisition information, including hearsay, were available
there might still be some hope of establishing original sources, networks,
authenticity, modus operandi - by comparison with other collections and
dealer records.
52 Or since 1983 when U.S. enabling legislation was passed.
53 Bianchi, Robert Steven, 'Saga of the Getty Kouros', Archaeology, (1994) 47:
3, 22, 23; The Getty Kouros Colloquium, the J. Paul Getty Museum and the
Nicholas P. Goulandris Foundation Museum of Cycladic Art, Athens, 1993.
54 Elia, Ricardo, "A Corruption of the Record", Archaeology, (1994) 47:3,
24, 25.
55 Reents-Budet, Dorie, Painting the Maya Universe: Royal Ceramics of the
Classic Period, Durham, North Carolina, Duke University Press, 1994.
56 Ibid, pp. 290-311.
57 See supra, notes 50, 51. In 1994 U.S. import restriction was renewed for
ancient objects from Peten, Guatemala.
58 "The Buena Vista Vase: Archaeology vs. Looting", Duke University Mu-
seum of Art, Durham, North Carolina, 1994.
59 The exhibition was at the Museum of Fine Arts, Boston, from April 15 —
June 26, 1994. Then it traveled to the Denver Art Museum, 7/15-9/15,
1994; Los Angeles County Museum of Art, 10/8- 1/8,1995; Yale University
Art Gallery, New Haven, Connecticut, 2/10-4/23, 1995.
60 Published in London, the first issue appeared in January, 1990.
61 Butcher, Kevin and David Gill, "Mischievous pastimes or historical sci-
ence?" Antiquity, 64 (1990), 946-950; Elia, Ricardo J., "Popular archae-
ology and the antiquities market: a review essay", Journal of Field Archae-
ology, 18, (1991), 95-103.
62 Eisenberg, Jerome M., "The Unidroit Convention on the International Return
of Stolen or Illegally Exported Cultural Objects: Report on the fourth meet-
ing", Minerva, March/April 1994.
63 In pursuit of the Absolute: Art of the Ancient World from the George Ortiz
Collection, Berne, Benteli-Ward, 1994.
78
64 Renfrew, Colin, "Justifying an interest in the past", The Guardian, January

26, 1994; Fenton, James, "A collection robbed of its true history", The Inde-
pendent, January 31, 1994.
65 From the unpaginated introduction "In Pursuit of the Absolute", Ibid.
66 Renfrew, supra, note 64.
67 Ibid.
68 Betts, John H., Gold of the Mycenaeans: Important Finger rings, sealstones
and Ornaments of the 15th Century B.C. New York, Michael Ward Gallery,
1993.
69 Reif, Rita, "Rare Gold Baubles: Small, Ancient and Radiant", New York
Times, 4/4/93, p. C:39.
70 Boucher, Isabel, "Having your Mycenaean cake and eating it" The Art News-
paper, 35, February 1994.
71 Reif, Rita, "Greece and Gallery Settle", New York Times, 12/31/1993.
72 See: O'Keefe and Prott, (1989), supra, note 14; [628-633].
73 Reports from dealers, museum curators, and in the press suggest that falsified
documentation is now the norm.
74 See supra, note 8.
75 Kleiner, F.S., "On the publication of recent acquisitions of antiquities",
American Journal of Archaeology, 1990, 94: 525—527. For an endorsement
of this policy see Cook, B.F., (1991), supra, note 7.
76 Messenger, Phyllis Mauch, "Forging New Partnerships for the Study and
Preservation of the Pre-Columbian Past", in Collecting the Pre-columbian
Past, Elizabeth H. Boone, ed., Washington, D.C. Dumbarton Oaks, 1993,
pp. 291-314.
77 At a conference organized by the International Association of Dealers of
Ancient Art, Constance Lowenthal proposed the creation of a computerized
registry in which objects might be listed until title was passed; Explorers
Club, New York, 7/6/94. As Director of the International Foundation for Art
Research, which keeps records of stolen art, Lowenthal also mentioned that
I FAR has created a list of names to contact in every country, when inquiring
about cultural property.
79

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A Licit International Traffic in

2 The Scholar as Apologist for the Licit Trade

Adjunct Professor of Archaeology and of Art History, Boston University; As-

tage; in fact, the situation may be deteriorating. This is deeply dis-

3 Nemo dat quod non habet

believe that before they condemn commercialization, per se, these

kind" and "that this heritage should receive international protec-

stance, were to enforce the laws of Peru, which declares cultural

of origin consider cultural heritage and they constitute the bulk of

attribute which one observer describes as "transparency"; this is very

I for one, do not want to live in a xenophobic gray world of

These words express the feelings of most antiquities dealers; from

solve the problem, and protect a country's cultural heritage? The

ers that labeled objects without provenience, and usually without

acknowledging the limitations of these unprovenienced works, while

but incriminating analysis. Somehow, such efforts must be encour-

arrangements, what is lacking is the recognition of this eventuality

vators and unprovenienced objects: Preserving the cultural heritage or servic-

64 Renfrew, Colin, "Justifying an interest in the past", The Guardian, January

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