Tuesday, November 3, 2009

International Archaeological Lobby Presses Efforts to Shift the Burden of Proof

The "archaeology over all" lobbies in Bulgaria and the UK are seeking to shift the burden of proof onto collectors and antiquities dealers to demonstrate the valid "ownership" of the artifacts in their collections--just like their American colleagues.

Archaeologists have already succeeded to some extent with the passage of Bulgaria's new cultural heritage law, but parts of that law were then struck down by the Bulgarian Constitutional Court as violating Bulgarians' right to own private property. See http://sofiaecho.com/2009/10/30/806668_archaeologys-losing-fight and http://culturalpropertyobserver.blogspot.com/2009/10/bulgarian-constitutional-court-strikes.html

Though written from an "archaeology over all" perspective, a recent Sofia Echo article does acknowledge that this "hot button" issue helps explain why collectors find the new law so controversial:

One of the bill’s provisions that most stirred controversy was that holders of any artwork or antiques should prove their ownership. This provision, central to the law’s intention to regulate the balance between the state’s goal of preserving Bulgaria’s cultural heritage and the private interests of art collectors, would become the defining battleground between the law’s supporters and its detractors.

See http://sofiaecho.com/2009/10/30/806668_archaeologys-losing-fight

The Bulgarian Constitutional Court's decision addressed this issue. In its ruling, the Court allowed invoices and the like to suffice to esbablish "ownership," effectively weakening this "provenance" requirement. In contrast, the law as written had required "official paperwork" like a customs declaration or a court decision to establish good title.

Meanwhile, in the U.K., Lord Renfrew and other members of the "Archaeological All Party Group" have sought to attach a provision to proposed Amendments to the Treasure Act that would shift the burden of proof for those dealing in ancient artifacts from all cultures. As Renfrew explained,

Amendment 68 requires that a person dealing in an archaeological object should produce evidence to show that the object has not been unlawfully excavated. That places a duty on the vendor of knowing and stating the recent history of the antiquity. It will no longer be sufficient to say that it fell off the back of a lorry or was found in the vendor's attic.

See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/91026-0003.htm

This proposal will no doubt be quite controversial and, in any event, the Government does not seem interested in pursuing it at this point. As stated by the Parliamentary Under Secretary of State, Ministry of Justice (Lord Bach),

I cannot be as helpful with Amendments 68 to 73, which would introduce a new criminal offence of dealing in undocumented archaeological objects. The new offence would add to the existing offence of dishonestly dealing in a cultural object that is tainted. That offence was introduced in the Dealing in Cultural Objects (Offences) Act 2003. The introduction of the Act showed our commitment to address the problem by facilitating the prosecution of people who trade in objects looted or stolen from buildings and excavations both here and abroad, and its provisions have an important deterrent effect. There may well have been no cases at this stage, but we believe that it has had a deterrent effect and has raised awareness of the importance of the need to make appropriate checks when acquiring items of cultural importance.

I know that the noble Lords to whom I have referred support the provisions of the 2003 Act as the national heritage of many countries is at stake. Our reluctance to accept these amendments is that we are always wary of introducing yet another new criminal offence unless there is a proven need to do so. The proposed new offences would extend to objects which have been excavated in countries other than England and Wales, which is outside the scope of the treasure system.


Collectors and dealers need to be more vigilant. A fundamental right for both Britons and Americans is to be considered innocent until proven guilty. Yet, archaeologists have used "provenance requirements" to chip away at this fundamental right when it comes to collecting antiquities. The debate needs to be refocused towards the impact of proposed remedies to "looting" on our fundamental rights.

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