It is art and works of art, the patrimony of humanity, that I am concerned with. There is a dimension to art that is much more than the pursuit of context. Unidroit overlooks this essential.
Diotima in Plato’s Symposium suggests that the intellectual intuition of beauty is a divine gift. Thus it ensues that the artist relates the divine to man.
Rules of behaviour in relation to art, after World War II, started with The Hague Convention of 1954 (see The Art Newspaper, No. 6, March 1991, pp. 10-12), whose purpose was to protect the cultural property of all peoples, the cultural heritage of humanity, against the ravages of war. It was followed by the 1970 Unesco Convention “concerning the measures to be adopted to forbid and prevent the importation and the transfer of the illicit property of cultural goods”. Though eighty-two nations between 1970 and 1996 have ratified this convention, it has not achieved its goal. Thus in 1984 Unesco gave birth to Unidroit whose organisation is headquartered in Rome and which issued the final draft of its Convention, 29 June 1995.
What is Unidroit and what are its objectives?
Its crucial statements are the following:
“Convinced of the fundamental importance of the protection of cultural heritage and of cultural exchanges for promoting understanding between peoples and the dissemination of culture for the wellbeing of humanity and the progress of civilisation.”
“...Concerned by the illicit trade in cultural objects and the..resulting damage...to the common patrimony of all peoples...”
“Reinforce and promote what precedes and fight against this illicit traffic.”
The present text is the result of the numerous reunions, work-sessions and conferences that have taken place since 1984. Unfortunately, those who elaborated it were, almost exclusively, government representatives and lawyers, who are not aware of the realities of the art world and its market. They were misled by the Utopian idea that every created object has its perfect or natural location and must remain in situ, overlooking the fact that much of art was made for trade and on commission.
Their aim was to define norms to control the export-import, etc. of works of art before or instead of first trying to achieve an international consensus, from all affected disciplines and interests, on what these norms ought to be.
Is it not shocking that, art being the concern, they consulted no museum directors or curators, save for a few chosen ICOM representatives; no collectors (who are at the basis of all art museums throughout the world, responsible for cherishing, conserving, and making known works of art, thus of prime importance in the dissemination of knowledge, and whose collections or the best pieces thereof eventually find their way into public institutions—thus collectors fulfil a social function); no dealers (crucial and essential to the distribution of art), and not one living artist who, after all, are individualists and the creators of art for the world, and who are indebted to past expressions of art that know no borders? In short, those concerned with Unidroit have given in to the claims of source countries and to ideology. The lawyers, however brilliant, being disinformed as to reality, were confronted with the insurmountable difficulty of rendering compatible different laws and different legal systems. The convention says that it wishes to “maintain a proper role for legal trading” but recognises that the implementation of this convention should be accompanied by other effective measures “...such as the development and use of registers” etc.
However, the implementation of Unidroit will mean that there is virtually no legal trade in any sort of art or material from all past civilisations whose remains lie underground, nothing new to excite and stimulate the love and study of our past.
And the trade in works of art above ground in all forms, of all cultures and civilisations, up to the present day will be controlled by the need for export and import licences at the beck and call, the whim, justified or not, of the bureaucrats, technocrats, custom officials, police authorities empowered or entitled to decide and/or to act.
Unidroit under the magnifying glass
Scope of application and definition
“This convention applies to claims of an international character for:
—The restitution of stolen cultural objects
—The return of cultural objects removed from the territory of a contracting State contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (hereinafter ‘illegally exported cultural objects’)”.
The convention re-defines what is meant by stolen and by making the term far too broad, it destroys the whole purpose. It does not differentiate between movable and immovable goods.
Regarding archaeological material, it imposes no duty on the source countries, to be responsible for protecting their sites and collections, to inform about stolen objects, etc., to adopt constructive measures and put into place reasonable and pragmatic laws, and it does not tackle the very serious problem of fakes and forgeries in any form of art.
Much of what precedes is based on the national patrimony claim, but there is no such thing as national cultural patrimony. The concept started with Byron in the early nineteenth century for an idealistic purpose: to help the Greeks in their fight for independence. To sectorise art is like categorising humans.
The very concept has become horrendous. It leads to retrograde ethnocentrism, it justifies as a consequence cultural destruction, it is divisive and gives justification—if such be possible—to religious wars, (for example the destruction of Moslem and Ottoman libraries and mosques in Bosnia). Ultimately it leads to cultural genocide and then to physical genocide.
Article two defines what cultural objects are and lists what is involved in an annexe, that basically covers everything including even postage stamps (Annexe i).
Article three stipulates the return of stolen cultural goods for which the delay can be as much as seventy-five years.
Article four is draconian. It purports to protect the buyer of good faith and enable him to receive payment in indemnification, but the buyer has to exercise “due diligence” and cite all details of the acquisition, parties involved, price, etc.
The return of illegally exported cultural objects
“1. A contracting State may request the court or other competent authority of another contracting State to order the return of a cultural object illegally exported from the territory of the requesting State”.
“3... order the return of the illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs one or more of the (all-encompassing) interests”.
The last sentence reads: “...or establishes that the object is of significant cultural importance for the requesting State”.
This last is so extensive that it will permit any abuse.
Article six qualifies a cultural object illicitly exported... and... circumstances of the acquisition including the absence of an export certificate required under the law of the requesting State.
“1. Nothing in this convention shall prevent a contracting State from applying any rules more favourable to the restitution or the return of stolen or illegally exported cultural objects than provided for by this convention.”
Though the application of Unidroit is not retroactive regarding past illicit export, clause 3 states: “This convention does not in any way legitimise any transaction of whatever nature prior to ratification and does not limit the right of any State or person to make a claim for the restitution or return of a cultural object stolen or illegally exported before ratification”.
“No reservations are permitted except those expressly authorised in this convention”.
This means that no interpretation is possible. Notwithstanding the disinformation to which the legal profession has been subject, Dr Paul Jenkins, legal adviser to the Department of National Heritage in the UK, concluded that both the scope of the Convention and the seventy-five year limitation period, rendered its ratification unacceptable.
Unidroit is ideological and simplistic in its approach. Those concerned with the elaboration of its ruling, mainly the legal profession, allowed themselves to be blinded by Utopia and neglected to inform themselves of the reality with which they were dealing and the consequences of the rulings they were preparing. Priority is given to the national interest of retention over considerations of conservation, truth and access.
The reality of Unidroit is a moral hypocrisy, the consequences of which are contrary to the purported aim of the convention. That is what is important. They gave in to political and nationalistic pressures instead of pursuing the truth, ending up creating a baby, almost a monster, an end to itself.
The enactment of this legislation will be morally deplorable, counterproductive in practice and criminal in its consequences for world culture.
Unidroit’s concern for archaeological material will lead to far greater destruction than preservation. Its pretence that the purity of context is more important than the work of art found, that scientific data is all that matter, is to deny the existence of the soul of its creator, the soul of man.
What is more important: to understand a work of art intuitively and perceive its message or to consider the work only under the aspects of scientific data? Why does music, poetry, literature, painting and sculpture move us? An emotion and love of beauty are basic human dimensions, this is essential.
These are some examples of what I mean: frontiers change, the geography of religions change, the ethnos of the inhabitants change.
Let us take Turkey in relation to archaeological remains. The Turks claim Greek art from the coast of Anatolia as national patrimony. What did they do to the Greeks in the 1920s? They kicked them out in a blood-bath. More recently, around three years ago, they dug out the Greek cemetery of Istanbul, to permit the construction of buildings.
They claim Byzantine antiquities as Turkish national patrimony, they allow the Christian and Armenian chapels and churches to fall into ruin. Recently, mosaics of great historical and artistic merit were ripped off the walls of a Byzantine church on Northern Cyprus where the Turkish army and authorities are in absolute control. They found their way to Indiana, but fortunately have been returned.
Even for the Turks to claim neolithic sculptures from the Anatolian plateau as national patrimony is questionable in view of the diversity of its populations throughout the past millennia.
In more recent times, it is terribly difficult to attach an artist to a given State.
Take Picasso. His works are neither geographically nor intellectually the product of a nation, “but represent a universal and personal vision of an artistic genius who was enriched by influences of the greatest diversity”. Therefore, how can a nation justify restricting the movement of his art from a given territory.
Take the Dada movement born in New York, via French artists Duchamp and Picabia, with an independent branch started in Zurich by a Rumanian poet, Tristan Tzara, and Germans, such as the poet Richard Hülsenbeck and the author Hugo Böll and the artists Hans Arp and Marcel Janco.
Take modern artistic currents, the antithesis of the notion of national patrimony, such as Cubism, Expressionism, Dadaism, Surrealism, Abstract Expressionism, Pop Art, conceptual art, street art etc.
The saga of the Liotard sold at public auction in Paris that the French government stopped from export is enlightening. The painting in question was done in Constantinople and the painter is Swiss, an itinerant artist who worked in Rome, Constantinople, Paris and London.
Take the great Belgian collector Adophe Stoclet who in the early part of this century had his Brussels house designed by the Viennese architect Joseph Hoffman, decorated by the painter Klimt, and furnished by the Wiener Werkstätte. The house was filled with Italian gold-ground paintings, Chinese, medieval European, archaeological and African works of art. Henceforth, if Unidroit is ratified, this achievement of internationalism can never happen again.
Then one must take into account the permanent instability of nature and life. Dissemination has saved many works of art from natural cataclysms, floods, fires, wars and revolutions.
For example, the Orthodox Serbs in Bosnia destroying Moslem and Ottoman culture; in Afghanistan: the pillaging of the Kaboul Museum and the deliberate destruction of Buddhist statues, stupas and monuments by the Moslem Taleban; and also the consequences of the 1967-1976 cultural revolution in China with ninety percent of all cultural remains above ground destroyed; and particularly in Tibet with bonfires of manuscripts and rare books covering a thousand years of continuous religious and philosophical thought, a unique intellectual record. Thousands of monasteries and religious monuments have been dynamited and totally destroyed, three or four allowed to stand, a handful being rebuilt today. It is estimated that 800 tons of bronze statues, some silvered, most gilt have been torched to recover the gold—the lot lorried off to Beijing.
The Spanish destruction of native artistic heritage in the melting of precious gold statues and the burning of ideologically incorrect Mayan codexes was accomplished within “politically correct boundaries”. (This would not be Unidroit’s concern, though in contradiction with its aims, because it is outside its legal scope).
The French Revolution destroyed, it is generally believed, more art than all the wars in the history of France. Furniture, crown jewels, etc., were saved in the measure that they were sold in the revolutionary sales. The bulk of artistic masterpieces in metal and precious metals from St Denis, the Ste Chappelle and elsewhere were sent to be melted down.
The reality of archaeological material
The majority of what reaches the market is the product of chance finds and not illicit excavations. The result of the huge worldwide economic development over the past fifty years, constructions and buildings, agrarian reforms leading to the ploughing of millions of acres untouched in depth for millennia, the worldwide development of modern agricultural irrigation systems, the ditches of yore replaced by concrete and plastic, etc.
The existence of the market saves. With no market, the objects would be destroyed, kept or melted but almost never declared, for the consequences of doing so are often physically and/or financially painful.
Those responsible for Unidroit accept the assumption made by Professor Renfrew and other archaeologists, that outlawing the art market will allow the recovery of objects by proper excavations. This is untrue, as nearly all finds are accidental and with minimal useful context.
They accept the assumption that all material on the market comes from plundered archaeological sites. This is a gross distortion of reality, although official archaeological sites and delimited areas are sometimes disturbed and it is true that tombs are illicitly dug and the Greek pot found in Italy re-exported, for example, in former Etruscan territories.
They also accept the assumption that collectors are “corrupt” or “have pretensions as art lovers and connoisseurs”, while archaeologists are “serious”. They wish to place all responsibility for works of art (“cultural property”) in the hands of archaeologists or government officials.
Professor Boardman in The Greeks Overseas (1990) says “Most excavations are never fully published. As Rhys Carpenter put it, “Some archaeologists are slow to realise that they are burning the book of history page by page as they read it. More loss of scholarly information is suffered through excavation in the cause of scholarship than though tomb-robbing for collectors and museums, yet the non-publishing excavators continue to enjoy credit for their discoveries...”
Professor Michael Coe, past chairman of Yale’s Department of Anthropology and a leading Pre-Columbian scholar remarks that archaeologists are among the worst offenders, since as many as half of all excavated sites are never published. “Think about that for a minute, boxes of forgotten sherds lying in basements. The fellow who has dug them up has left long ago. His notes are scattered and labels vanish. The site could just as well have been destroyed, and yet every department of archaeology, every museum, is familiar with the problem”.
Last but not least, Professor Renfrew, in the Journal of Financial Crime, taken up by the Times (9 October, 1995) and The Evening Standard (11 October, 1995) asserts that the traffic in antiquities is tied to the drug trade, criminal in nature, speaking of £3 billion per year. In fact the drug trade is $500 billion, which is over 3000 times the most generous figure one can put on total world trade in newly found archaeological material, which includes the greatest source for this market, China. Is not trying to make these appear as the same, to put it mildly, an ideological deviation? The reality [is] that the antiquities problem is complex and admits of no simple solution”.
Professor Renfrew and field archaeologists embrace a simplistic reductive stance with the result that, as Professor John Henry Merryman has said in this same newspaper (No. 55, January 1995, p. 26), “Acquisitors are, in effect, excluded from polite society: they are not invited to participate in seminars, conferences and symposia; they are not encouraged to submit manuscripts for publication; they are not permitted to advertise in archaeological journals; archaeologists are counselled to refuse to consort with them. Even if there were a dialogue they would not be admitted to it. Archaeologists are an interest group pursuing their own interest”. I would rather support the rights of the individual over the state’s dictate and the evils of nationalism.
Then why Unidroit?
It stems from modern man’s love affair with ideology, born out of man’s lack of humility before nature. It is what the ancient Greeks would have called “hubris”.
The ideology of the new man led Pol Pot and his comrades, educated at the Sorbonne on the ideals of the French revolution and Jean-Jacques Rousseau, to do away with one out of three of their fellow citizens in a rather uncomfortable manner.
Ideology is the rational approach that leads certain men to believe that with their intelligence they can programme the ideal solutions to all problems, and put into place a system that will be right for all. In the name of that finality they will be oblivious to reality and refuse to admit anything that is contrary to what they want reality to be. This leads to the end justifying the means and enables all abuses in the pursuit of that end.
The majority of art retained and exhibited by the museums of the world was provided by the legions of enlightened collectors over the preceding generations. They have permitted the school children and citizens of countless countries the opportunity to share the world’s cultural heritage.
Art is far more than just commerce. Art is the material manifestation of man’s noblest expression. It is an idealism made into matter, it is a message. It is a message of communication. We are trying to make one world where ideas circulate, and the expression of ideas as manifested through art should also circulate freely.
Some sort of convention is obviously appropriate and necessary to deal with works of art stolen in the classical sense; to deal with the pilfering of architectural complexes such as Angkor Vat, Borobudur, etc (the author is in full agreement with Unidroit’s annexe paragraph d); to deal with forgeries; to incite source countries to adopt responsible and constructive measures to protect their sites and collections.
However, the ratification of Unidroit in its present form would result in a major impairment to individual liberty, private property and the free circulation of art.
The Art Newspaper invites comments on Mr Ortiz’s point of view. The full text of the Unidroit Convention is published in The Art Newspaper No. 51, September 1995, pp. 26-28 together with arguments for and against. The matter is again debated in the Art and Law supplement, issue No. 66, January 1997, pp. 19-20.
Originally appeared in The Art Newspaper as “Unidroit is a potential disaster—enough of disinformation and ideology”