Policy regarding the illicit trade in antiquities

The UCL Institute of Archaeology's policy regarding the illicit trade in antiquities.

(as amended May 2022)

1. Introduction

As archaeological and heritage professionals and students, Staff and Students of the Institute of Archaeology deplore the looting of archaeological sites, the removal of material from context, its negative impact on local communities, and the illicit trade in antiquities. This document presents the Institute of Archaeology's policy on the implications of an ethical position against illicit excavation and the illicit trade in antiquities.

It should be noted that the document has been formulated with 1970 as the benchmark before which the principles of the conventions are not applied since neither the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property nor the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects are retroactive. Indeed, the entry into force of the 1970 UNESCO Convention is regarded as having formally alerted the international community to the problems that the Convention addresses. From this time onwards, ignorance of these issues can no longer be put forward as an excuse for trafficking in illicit cultural property. Some allowances are made for the ways in which such material has been collected in the past on a case-by-case basis while making it plain that continuation along these lines is unacceptable. Nevertheless, the Convention should not be seen as a convenient means of distinguishing between ‘good’ and ‘bad’ antiquities, and it should not lead to abbreviated investigations acquisition histories (MacKenzie et al. 2020: 97–8).  The convention does not displace other patrimony laws in effect at the time of removal. The International Council of Museums maintains that due diligence ‘should establish the full history of the item since discovery or production’ (ICOM 2004: article 2.3). 

2. Ethical implications for Staff and Students of a stance against the illicit trade in antiquities

The following ethical implications arise from a stance against looting and the illicit trade:

• Work must not be undertaken (except on behalf of the police, courts or government of origin) on objects where there is insufficient information to establish a licit provenance or where the material is known to be illicit. Before agreeing to study, analyse or conserve material, Staff Members and Students must exercise due diligence in establishing that the material has not been illegally excavated, acquired, transferred and/or exported from its country of origin since 1970. Research into the illicit trade may involve investigating the provenance history of cultural objects and must be taken to the Institute Ethics Committee for consideration. (N.B. Metal-detecting on unscheduled sites is not illegal in England and Wales and artefacts recovered by this means are not subject to the above. However, Staff Members and Students must attempt to ensure that finders have valid title to their objects).
• Staff Members and Students must not undertake scholarly publication of unprovenanced material unless it can be demonstrated clearly that the artefact or specimen has been in a collection since before 1970 or was legally exported from its country of origin. This is in line with the publishing policy of the American Journal of Archaeology which states that it 'will not serve for the announcement or initial scholarly presentation of any object in a private or public collection acquired after 30 December 1973, unless the object was part of a previously existing collection or has been legally exported from the country of origin'. This applies also to unpublished reports, including condition reports, given to the possessor of an object, which have also been used to enhance the value of such pieces on the market and should therefore not be undertaken on unprovenanced material.
• Staff Members and Students must not undertake valuations of material, unless for insurance purposes for public bodies or to assist the authorities. 
• The formation by Staff Members and Students of personal teaching collections is permissible provided that the material has been acquired in compliance with all the above conditions. Any personal collections should be declared to the Institute's Ethics Committee. Staff Members and Students must not buy or sell such material.
• Staff Members and Students must not buy or sell antiquities nor act as an intermediary in any such transactions, inclusive of online platforms as well as through established dealers. Staff Members and Students must not accept gifts or emoluments from dealers and collectors for professional services, in support of excavations or for research projects.
• Staff Members and Students need to protect themselves at all times from situations of conflict of interest and must consult the Institute's Ethics Committee in such situations. There is most danger of being compromised in the area of sponsorship and funding.

The basis for these recommendations is outlined in the sections below.

3. Legal instruments

The Institute supports the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, ratified in the UK through the The Dealing in Cultural Object (Offences) Act 2003, and the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict. - commonly referred to as the Hague Convention, and the 1st (14 May 1954) and 2nd (26 March 1999) Protocols to the Convention (ratified in the UK as the Cultural Property (Armed Conflicts) Act 2017). We also urge the Government to: (a) sign and then ratify the UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects 1995; (b) sign and then ratify the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage. More detailed implications for the Institute of Archaeology as a body, and for individual staff members, of supporting the UNESCO and UNIDROIT conventions, follow.

3.1. Implications for Staff and Students of the 1970 UNESCO Convention

In supporting the ratification of the Convention, Staff and Students by implication support its principles and can lend support to it in the following ways:
Article 5 requires that States Parties to the Convention establish a series of services to protect the cultural heritage, including the following:

• Article 5b covers the establishment of national inventories of protected property. Many States find this commitment is beyond their resources and struggle to meet it. This is probably the most commonly voiced concern expressed when the convention is discussed. Staff and Students could collaborate with those experiencing such difficulties and offer assistance.
• Article 5f covers the duty to educate and make known the provisions of the Convention, and this should be reflected, both implicitly and explicitly, in our teaching and in our involvement with the wider community. In particular, it should be Institute policy that all students are taught about the dangers of looting and of the illicit trade in antiquities as part of their courses. Article 10 also advocates educating the public. To that end, Staff and Students should strive to make clear the importance and significance of the concept of context especially to collectors and dealers.
  Article 5g requires that States see that 'appropriate publicity is given to the disappearance of any items of cultural property'. What constitutes appropriate action will depend on the context and any Staff Members or Students who become aware of such activities should seek advice from UCL Ethics Committee in the first instance. 
• Article 6 requires States to provide certification of legal exportation of cultural property.  Since Brexit, and the revocation of several EU Directives, there is now a significant gap in protection of cultural objects in the UK in its import and export system (see Granet and Vigneron 2021). Staff should be aware of the changing political and legal circumstances of import and export laws, advocating for the ratification of the UNIDROIT 1995 to ensure there are no regulatory gaps that favour trafficking.
• Article 7 concerns taking steps to prevent the import of illicitly exported material and its acquisition by museums and similar institutions. By extension, although not specifically stated, such material has also often been stolen. The implication is that, if Staff or Students are shown material which they suspect to be illicit, that they should first seek advice from the UCL Ethics Committee with a view to potentially alerting the relevant authorities such as the Art and Antiques Squad of the Metropolitan Police, Interpol, HM Revenue and Customs, the Cultural Property Unit of the Department of Culture, Media and Sport and the original owner depending upon the circumstances

3.2. Implications for the Institute Collections

The Convention has another series of implications for the Institute as a body that curates archaeological material as part of UCL's collections. The following paragraphs are Staff policy covering all Institute collections. Similar wording is present in the ICOM Code of Professional Ethics, the Collections Trust Acquisition Due Diligence Checklist , Museums Association’s Code of Ethics,  and the Acquisition and Disposal Policy of the Petrie Museum.

• The Institute must not acquire by purchase, loan, gift, bequest or exchange any object or specimen unless the Director and curatorial Staff are satisfied that valid title to the item in question can be acquired, and that in particular it has not been acquired in, or exported from, its country of origin (or any intermediate country in which it may have been legally owned) since 1970 in violation of that country's laws. This also applies to any objects that may be temporarily borrowed for exhibition in-house.
• The Institute must not acquire any object from or dispose objects through the antiquities market, inclusive of online platforms and professional dealers.
• The Institute will not acquire objects in any case where the Director and curatorial Staff have reasonable cause to believe that the circumstances of their recovery involved the unscientific or intentional destruction or damage of ancient monuments or other known archaeological sites, or involved a failure to disclose the finds to the owner or occupier of the land, or to the proper legal or governmental authorities.
• Note that there are also restrictions regarding the acquisition of biological material, as well as cultural objects made of biological material. For these, please refer to CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora). 

3.3. Implications for Staff and Students of the 1995 UNIDROIT Convention

Recovery of illicitly obtained material under the terms of the 1970 UNESCO Convention was complicated by the fact that the private law in individual countries falls into roughly two categories: the Common Law Code and the Civil Code. Under the former, the interests of the victim of a theft are protected over those of the innocent purchaser of a stolen item. Generally, under Common Law, a thief cannot pass good title therefore all transactions following that theft are invalid (although there are some restrictions on making claims such as statutes of limitation and issues of jurisdiction). By contrast, under the Civil Code, the good faith purchaser's rights are given priority which may mean that the original owner loses his claim to the object or can only reclaim it if he pays the possessor compensation.

• The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was developed by the International Institute for the Unification of Private Law to resolve this difference. Its primary requirement under Article 1 is that the possessor of a stolen cultural object shall return it. This is accomplished by focusing principally on the concept of 'due diligence'. In Articles 4.1 and 4.4, the conflict between the thief not passing good title and protecting the good faith purchaser has been resolved by placing a duty on the prospective buyer to have exercised due diligence before making the purchase. Inability to demonstrate such care revokes entitlement to compensation upon return of the item. The trade in cultural objects is characterised by secrecy. The due diligence requirement is designed to tackle this. Article 4.4 cites some of the criteria upon which a judgement as to whether due diligence had been exercised will be determined. (See also DCMS Combating the Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material 2005).
• It should be noted that, unlike the UNESCO Convention, under the UNIDROIT Convention individuals do have a statutory right of action. However, as UNIDROIT relates to the recovery of stolen cultural property rather than its study, it has no direct legal implications for Staff and Students unless they are involved in transactions themselves, or on behalf of the Institute for its collections (see below). Nevertheless, as with the UNESCO Convention, urging the UK to ratify the Convention assumes that Staff and Students support the principles of the Convention, which is to assist individuals and groups who have lost cultural property through illegal means, to recover their material.
• Of particular relevance is Article 3.2, which states that unlawfully excavated objects or those which have been lawfully excavated but unlawfully retained 'shall be considered stolen' provided such a definition of the material is consistent with the law of the country in which the excavation took place. This is significant because the size of the market in antiquities and the large turnover of artefacts are inconsistent with suggestions that material on the market all comes from long-standing collections made prior to 1970. Since the Antiquities Market is a ‘grey market’ (Mackenzie and Yates 2016) unprovenanced material must be regarded with deep suspicion and, in the absence of evidence to the contrary, is deemed to have been unlawfully excavated or lawfully excavated but unlawfully retained. Under the terms of Article 3.2, this material is considered stolen.
• Staff and Students must think of such material as stolen, treat it as such and alert the relevant authorities as stated above under Article 7 of the 1970 UNESCO Convention. While none of the Conventions place legal obligations on Staff Members and Students, Staff and Student support for them presupposes a critical stance towards the widespread practices of illicit excavation, and the illicit import, export and trade in antiquities. It is this general critical stance rather than the specific strictures of the Conventions, which informs the Institute's policy on illicit excavation and on the illicit antiquities trade. The policy must therefore be an ethical one rather than one which is purely driven by legal requirements.

4. Implications for Staff and Students of the 1954 Hague Convention and its two Protocols

Staff and Students can lend support for the Convention and its two Protocols by assisting in the safeguarding of cultural property in peace time as stipulated in Article 3 of the Convention and elaborated in Article 5 of the 2nd Protocol which stipulates such measures as inventory preparation and disaster planning to protect against fire or building collapse and plan for the protection of cultural property in situ or for its removal if moveable.

Article 5 of the Convention and Article 9 of the 2nd Protocol are concerned with the protection of cultural property in occupied territory which enjoins States Parties to prohibit and prevent:

• any illicit export, other removal or transfer of ownership of cultural property;
• any archaeological excavation , save where this is strictly required to safeguard, record or preserve cultural property;
• any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence.

It also specifies that 'Any archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close co-operation with the competent national authorities of the occupied territory'.

Staff Members and Students should thus avoid working on material that falls under Article 9a and they should not participate in excavations unless sanctioned by the national authorities whose territory is under occupation.

5. Implications for Staff and Students of the 2001 Convention on the Protection of the Underwater Cultural Heritage

Although this convention has not yet entered into force it is seen as essential to protect underwater cultural heritage outside territorial waters and thus outside the jurisdiction of nation states by providing an international legal framework.

• Staff Members and Students should seek to raise public awareness of the importance of underwater cultural heritage and the need to protect it in accordance with Article 20 of the Convention and should alert the Receiver of Wreck of any material they suspect as having been recovered contrary to this Convention according to Article 14.
• The Institute abides by the UNESCO convention annex.

6. Relevant ethical codes

Opposition to looting and to the illicit antiquities trade is enshrined in the ethical codes of many museum and archaeological professional bodies.

• The ICOM Code of Professional Ethics, for example, opposes acting 'in any way that could be regarded as benefiting such illicit trade, directly or indirectly', and this was enshrined in the (then) Institute of Archaeology Services Division Policy on the Acceptance of Objects and Materials (1990) which states that 'The Institute of Archaeology is totally opposed to the looting and illegal export of antiquities and adheres to the ICOM Code of Professional Ethics'.
• The Archaeological Institute of America's Code of Ethics advises archaeologists to refuse to participate in the trade in 'undocumented antiquities' by refraining from activities that enhance the commercial value of such objects. This Code identifies undocumented antiquities as 'those which are not documented as belonging to a public or private collection before December 30, 1970 ... or which have not been excavated and exported from their country of origin in accordance with the laws of that country'.
• The Society for American Archaeology (SAA) notes that  it ‘has long recognized that the buying and selling of objects out of archaeological context is contributing to the destruction of the archaeological record on the American continents and around the world. The commercialization of archaeological objects - their use as commodities to be exploited for personal enjoyment or profit - results in the destruction of archaeological sites and of contextual information that is essential to understanding the archaeological record. Archaeologists should therefore carefully weigh the benefits to scholarship of a project against the costs of potentially enhancing the commercial value of archaeological objects. Whenever possible they should discourage, and should themselves avoid, activities that enhance the commercial value of archaeological objects, especially objects that are not curated in public institutions, or readily available for scientific study, public interpretation, and display.’

7. Ethics Committee

In some cases, it may not be immediately clear to Staff Members and Students what the appropriate ethical course of action should be. The Institute has therefore established an Ethics Committee which meets on an ad hoc basis to consider individual cases and provide advice.

8. Ethics review

This policy should be reviewed every three years. The next review is due in September 2025.

References

• Brodie, N., Kersel, M., Mackenzie, S., Sabrine, I., Smith. E. and Yates, D. 2022. Why There is Still an Illicit Trade in Cultural Objects and What We Can Do About It, Journal of Field Archaeology 47(2): 117–130, DOI: 10.1080/00934690.2021.1996979
• DCMS. 2005. Combating the Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material. London: DCMS.
• Granet, V. and Vigneron, S. 2021. The impact of Brexit on heritage: impeding workers’ mobility and European co-operation in the fight against the trafficking of cultural objects and endangered species. Art, Antiquity & Law 26(4): 277-297.
• Mackenzie, S., Brodie, N., Yates, D. and Tsirogiannis, C. 2019. Introduction. Trafficking Culture. New Directions in Researching the Global Market in Illicit Antiquities. London and New York: Routledge.
• Mackenzie, S. and Yates, D. 2016. What is grey about the “Grey Market” in antiquities? In Beckert, J. and Dewey, M. (eds.) The Architecture of Illegal Markets: Towards an Economic Sociology of Illegality in the Economy. Oxford: Oxford University Press. 
• O’Keefe, P. 2017. Protecting Cultural Objects: Before and After 1970. Leicester: Institute of Art and Law.
• Prott, L. 1997. Commentary on the Unidroit Convention. Leicester: Institute of Art and Law.