A Rational Proposal for the Hellenic Republic

Cultural Property Observer is pleased to repost in full the comments of one knowledgeable collector submitted for the recent CPAC hearing on the proposed MOU with Greece. The 1970 UNESCO Convention is not self-executing. The US has retained its "independent judgment" as to whether and to what extent to give effect to Greece's export restrictions. The US can condition any assistance it gives to Greece. The following comments suggest that CPAC recommend Greece adopt a system akin to the British Treasure Act and Portable Antiquities Scheme in order to further the protection of its own cultural patrimony.


Comments for CPAC hearing on Hellenic Republic request for import restrictions, 10/12/10, by Richard Witschonke

September 19, 2010

Prof. Katherine L. Reid
Chairman
Cultural Property Advisory Committee
United States Department of State
SA-5
Washington, DC 20522-0505

Dear Prof. Reid and CPAC Members:

I understand that your role is to assess the compliance of the Hellenic Republic’s request for US import restrictions with the four CCPIA criteria, and to report your findings to the Department of State. I would like to ask your indulgence in stepping back for a moment from the polarized debate, and considering some fundamental questions, before returning to my specific comments on the request. (For information on my background and affiliation, see number 8, below).

1. What is the problem we are trying to solve?

Clearly, the looting of antiquities, and the attendant loss of precious and irreplaceable contextual information, is a major, well-documented problem in Greece, as well as in many artifact-rich countries throughout the world. I would hope that all parties to the debate could agree that reducing the incidence of such looting ought to be the primary goal of any regulation.

2. Will the imposition of US import restrictions result in a significant reduction in looting?

The answer here is unclear. The US has had import restrictions in place on antiquities from Italy for ten years, and yet the recent Italian request for a renewal indicates that the problem persists. In fact, an objective, scholarly analysis of the US market for Italian antiquities indicates that there has actually been a 39% increase since the restrictions were imposed (Gordon Lorbay, Criminology and Archeology, 2009). And while, at the margin, restrictions would make it more difficult to bring looted objects into the U.S., it is not clear that this would translate into reduced incentives for the actual looters, given the depth of both the global and internal Greek markets for Greek antiquities. And surely we can agree that, until the incentive to loot is reduced, the looting will continue.

3. What has Greece done to reduce domestic looting?

Greece has passed comprehensive antiquities legislation, most recently in 2002 (law 3028, which supersedes all previous legislation) and 2008 (law 3658, which establishes a new Directorate within the Ministry of Culture to focus on the protection of antiquities). Greece claims ownership of all antiquities found in its soil (or waters), and provides substantial penalties for those who illicitly dig, fail to report, or trade in such antiquities (Articles 53 to 72). And these laws are vigorously enforced, as witnessed by the numerous published accounts of the arrest of antiquities traffickers by Greek authorities. But have these legal sanctions been effective in changing the incentives of the looters? According to Major Yiorgos Gligoris, head of the Antiquities Police: “Half of Greece is involved in these (illegal) digs. The rewards are great.” (Kathimerini, 2/24/06). He continues: “It’s a complete free-for-all, the situation is very hard to control. And, in some parts of the country, the spread of illegal digs is simply explosive. The first thing Greeks think of when they find an ancient object in their field is how to sell it abroad.” (Khaleej Times, 3/25/06). So legal sanctions, by themselves, are not proving adequate to change incentives on the ground.

4. Is there another way to change looters’ incentives?

The use of a carrot, in addition to the stick, perhaps deserves consideration here. And, ironically, many of the elements of such an approach are already present in the Greek 2002 law. Article 24 provides that persons who promptly report finds of moveable antiquities will receive a reward “commensurate to the importance of the antiquity and the contribution of the person”, and that this reward will be paid promptly if the value of the antiquity does not exceed 1,500 euros. And Article 23, paragraph 5, provides that if the reported antiquity “is considered to be of very small scientific and commercial value, it shall be recorded by the Service, and left in the free use of the applicant”. Article 25, paragraph 2 further provides that non-significant antiquities may be exchanged with foreign museums. Also, the export of non-significant antiquities is specifically permitted under Article 34, paragraph 2, and the export permit application must be acted upon within six months (Article 34, paragraph 7).

So why are these legal provisions not inducing innocent finders of antiquities to report and surrender them? Because they are not being effectively implemented. Rewards for surrendered objects are only occasionally granted, and then only after long delays, and at levels which are substantially below the prices which could be obtained on the thriving illicit market. So, since the people do not believe that the government will appropriately reward them, they do not surrender the objects which they find. And, to my knowledge, no reported objects are declared “non-significant” and returned to the finder, or licensed for export. So, the “carrot” approach to dealing with the problem of antiquities looting in Greece is not really in effect, despite the provisions of Greek law.

5. What can CPAC do to influence this situation?

Under CCPIA Section 303.a.1.B, the President is required to find that “that the State Party has taken measures consistent with the Convention to protect its cultural patrimony”. I would submit that, until Greece effectively implements the above provisions of its own law, it has not met this requirement. Further, under CCPIA Section 306.f.4.A, CPAC is required to recommend “such terms and conditions which it considers necessary and appropriate to include within such agreement”. So there is a clear legal basis (and much precedent) for CPAC to include “terms and conditions” along with its findings. Accordingly, I would strongly urge CPAC to recommend to the Department of State that, as a condition of the granting of U.S. import restrictions on Greek antiquities, Greece enforce its own laws calling for reliable, prompt, and fair rewards to citizens who report the finding of antiquities; the return to the finder of non-significant antiquities; and the prompt issuance of export certificates for non-significant antiquities.

6. Would such a change actually reduce looting in Greece?

This is a difficult question, but we do have one case study in the effectiveness of such an approach. Fifteen years ago, the UK faced a similar problem: sites were being illicitly excavated, primarily by metal-detectorists, and many of the objects found were sold into the trade without any proper record being made. In response, the Government decided to revise its antiquities law, and passed the Treasure Act of 1996, which provided that finders of ancient objects who had the permission of the landowner to search would receive a full market value reward for any finds determined to be Treasure, and retained by the Government. Non-treasure finds, and Treasure not retained by the Government are returned to the landowner and finder, who are then free to sell them on the licit market. In addition, the UK also passed legislation establishing a Portable Antiquities Scheme, under which finders are encouraged to formally report non-Treasure finds so that they could be properly recorded. PAS also established a network of Finds Liaison Officers who work with metal-detectorists, museums, schools, and other groups in each area of the country; it is their relationship with the local communities which makes the Scheme work. The UK TA/PAS approach has, by almost any measure, been enormously successful. The number of reported Treasure finds has increased from an average of 25 per year in the decade before implementation to over 800 in 2008. And the voluntary reporting of non-Treasure finds has allowed the establishment of the PAS database, which now records over 400,000 objects, and is proving extremely valuable as a scholarly resource. Reported finds have even uncovered a number of major sites which were subsequently excavated by archeologists. Critics argue that “nighthawking” (illicit, unreported excavation without the permission of the landowner) persists, but a recent report by Oxford Archeology and English Heritage finds that nighthawking has actually diminished (see: http://www.helm.org.uk/upload/pdf/Nighthawking-survey3.pdf?1284920695), so clearly the trend is in the right direction.

On September 7, 2009, I attended a conference at the British Museum where representatives of seven European nations reported on their approach to antiquities preservation (see: http://culturalpropertyobserver.blogspot.com/search?q=PAS+Conference). Several of the countries participating have implemented programs similar to the UK TA/PAS, while others have not. From the reports and discussion, it was clear that programs involving market-based rewards and outreach tended to be successful in encouraging the reporting of found objects, while programs lacking those elements were largely failures.

This leads me to conclude that such an approach may well work in Greece if effectively implemented. In fact, Lord Colin Renfrew (certainly one of the most outspoken crusaders against antiquities looting), when asked whether he thought the implementation of a scheme similar to the UK TA/PAS in other source countries would result in a decrease in looting, responded that he thought it would.

7. Why do archeologists oppose the UK approach?

Many in the Archeological community characterize the UK approach of paying market rewards for retained reported antiquities as “subsidized looting”, and claim that looting is increased, not decreased. Many archeologists would like to see all antiquities remain in the ground until they can be scientifically excavated, studied, and published, and then stored indefinitely so they can be easily accessed for future study. But is this realistic? History shows us that looting will continue unless something is done to stop it (or until everything is lost), so perhaps it is worth considering a compromise, where most antiquities are at least recorded upon discovery, and the most important are retained for study and permanent display. This is precisely what the UK approach does, and many UK archeologists are now accepting (if not embracing) the approach as a pragmatic compromise which preserves much more of the historical record than the previous approach, which largely engendered rampant looting. In fact, even Paul Barford, one of the most rabid critics of the UK TA/PAS, admits that “the vast majority of British archeologists are ‘quite comfortable, thanks’ that they have PAS to ‘deal with’ the collecting problem” (see: http://paul-barford.blogspot.com/2010/09/is-for-apathy-and-archaeology.html). Perhaps this is because they view it as a reasonable compromise, and the best way to maximize the preservation of archeological context.

However, in spite of the fact that many UK archeologists seem to be adapting to TA/PAS, many North American classical archeologists still strenuously oppose it. Why is this? In my view, there are three reasons. First, many archeologists may feel that it is morally wrong to “pay for artifacts”, and have not taken the time to think through the alternatives and their consequences. Second, these archeologists may see such an approach as eroding the supply of sites available for them to excavate. And third, many of these archeologists regularly apply to source country governments for excavation permits, and therefore do not want to contravene the policies of their hosts. These are all perfectly reasonable motivations, but the result is that, in the US, any suggestion that source countries be encouraged to implement market-value rewards for government-retained antiquities is dismissed out of hand as wrong-headed, intrusive, and neo-Colonial. This further polarizes the debate, and perpetuates the status quo wherein the looting continues unabated, and all parties are the losers.

8. Why am I addressing CPAC?

I am a retired businessman currently working as a Curatorial Associate at the American Numismatic Society in New York, and as Co-Director of the ANS Graduate Seminar in Numismatics. I am a lifelong student and collector of the coinage of the Roman Republic, and have written several peer-reviewed articles on the subject. I have many close friends who deal in antiquities, and I regularly engage with them in order to understand how the antiquities market works. I am also a member of the AIA, and have many friends among the archeological community. Over the past decade, I have become increasingly concerned about the problem of looted antiquities, and have read widely on the subject, attended numerous conferences, and discussed the issues intensively with my friends in the archeological, scholarly, museum, and antiquities trade communities.

I spoke before the Committee in May regarding the Italian MOU renewal request, and made much the same proposals. However, I have no idea whether my suggestions influenced CPAC’s recommendations regarding that request.

9. Why are other groups and individuals not advocating such an approach?

I fully understand that I appear to be a lone voice advocating an approach to the looting problem that is not supported by any of the major participants in this debate. However, upon examination, this is not surprising, since the approach which I propose is not in the short-term self interest of any of the participants. The reasons why the North American archeological community does not support the UK approach are outlined in section 7, above. US antiquities dealers naturally prefer the status quo, where they can pursue a lucrative trade in possibly illicit antiquities. Antiquities collectors, although they may regret the loss of context implicit in the current system, tend to support it, since it maximizes the range of material available to them. US museums have, for the most part, accepted the UNESCO 1970 cutoff date for acquisitions and loans, so their only relevant concern is that source countries provide reciprocal loans of antiquities. Organizations such as SAFE ostensibly represent the interests of the general public, but their positions tend to follow the lead of the archeological community. And the majority of the US public is only peripherally aware of these issues, and is unsurprisingly uninformed as to the complexities of the debate, and therefore susceptible to simplistic arguments like: “we must stop looting”, or “we must defend our right to collect antiquities”.

Alexander Bauer, writing in the Fordham International Law Journal (2008), has characterized the debate thusly: “On one side, archaeologists are considered aligned with U.S. policymakers and foreign governments against the antiquities trade, and on the other, museum professionals—some of whom are archaeologists themselves—are aligned with collectors and dealers in support of it. The overall classification of the various groups into these two basic types, however, has resulted in a distillation of a complex web of both convergent and divergent interests into little more than a set of talking points and assumptions that are uncritically grouped together. As a result, arguments are repeated wholesale as sets of memes or interrelated talking points that do little to advance productive policy. And while some may argue that the debate has not so much stagnated as been “won” by critics of the antiquities trade, we must ask whether stopping the trade actually remedies what many perceive to be the heart of the problem.” He goes on to assert that: “the two polarized positions are often repeated without critical reflection on whether they actually serve the stated interests of their constituent groups. It is my belief that if we unpack the individual positions and arguments of the different stakeholders in the antiquities debates, we might be able to move the discussion forward from its current stalemate and develop more nuanced policies that not only may represent a pragmatic way forward, but one which might better satisfy their interests.”

10. Summary.

For the reasons outlined above, I strongly urge CPAC to recommend to the Department of State that, as a condition of the granting of U.S. import restrictions on Greek antiquities, Greece be required to effectively enforce its own laws calling for reliable, prompt, and fair rewards to citizens who report the finding of antiquities; the return to the finder of non-significant antiquities; and the prompt issuance of export certificates for non-significant antiquities. Reasonable proof that these policies have been implemented should be a condition for any renewal of a Greek/US MOU restricting the import of Greek antiquities into the US.

Respectfully Yours,

Richard Witschonke