1 Introduction: UNESCO as a powerful designer of the regulatory framework for the international exchange of cultural property
The United Nations Educational, Scientific and Cultural Organization (UNESCO) was founded in November 1946 as a specialised agency of the United Nations with the purpose to contribute to promoting mutual understanding through collaboration in education, in the arts and sciences, and culture. The Federal Republic of Germany joined UNESCO in July 1951. Two of the most important and visible objectives of UNESCO are the preservation of the world's cultural heritage and the encouragement of international cultural exchange. To substantiate these general goals and to make them work in practice, UNESCO enacts legal instruments, that is, Conventions, Declarations and Recommendations. However, these legal instruments cannot be applied, and enforced, directly. To come into effect, it is up to the member states to translate the general rules agreed on the international level into national legislation. In other words, with its Conventions, Declarations and Recommendations UNESCO provides a regulatory framework and presets key concepts. Within this established framework, those member states of UNESCO, who adopt its legal instruments, pass their own national legislation and are subsequently responsible for enforcing the imposed rules.
In this process, the regulation of the international transfer of cultural property has been of crucial importance. This term encompasses movable physical objects charged with cultural or symbolic meaning and thus highly sensitive goods, antiquities and works of art in most cases. How does, then, UNESCO perceive, and conceptualise, those objects, as well as the agents who deal with them? What regulatory recommendations result from that conceptual presetting, with what impact on the arts and antiquities world?
2 The peculiar double nature of «cultural property« and the problems of its conceptual delimitation
Cultural objects are of a rather peculiar nature. Due to their odd characteristics and in particular somewhat opaque pricing2, clearly defining them is far from easy and so there is no single concept of cultural property generally accepted by economists, legal theorists and also the wider art world. What makes the conceptual situation even more confusing is the fact that UNESCO tends to abandon the term «cultural property« in favour of «cultural heritage«, shifting the focus away from economic and legal issues towards conservational aspects of the matter: «While the term ›cultural property‹ is still widely used, the term ›cultural heritage‹ is increasingly adopted in discussions, with UNESCO noting that property has a legal background (linked to ›ownership'), while ›heritage‹ stresses conservation and transfer from generation to generation.« (Pryor 2016, p. 114) To frame the discussion in this paper, a highly pragmatic, functional preliminary working concept thence should be applied. John Picard Stein once called cultural property
«extraordinary economic goods. They are at once durable consumer goods and financial assets. Their aggregate supply is nonaugmentable, when the works of only deceased artists are considered. They are extremely heterogeneous, with values that range from a few dollars to a few million dollars. When hung in museums, they are public goods in the sense that their viewing services are simultaneously available to everyone. They are speculative goods to the extent that demand determines future price appreciation and expected future price appreciation determines demand.«
They are «an archetype of what might be called ›collector goods', and as such they deserve attention.« (Stein 1977, p. 1021; see also Mandel 2009) As for cultural property, at least three features thus seem to me of utmost importance: First, those goods are extremely heterogenous (in contrast to the homogenous goods economists are used to analyse). Secondly, they carry symbolic meaning, that is, a nonvisual spiritual content is attached to a material object3, making them indispensable tools for the formation and expression of cultural identity. And, thirdly, they are simultaneously goods in the very traditional economic sense as they are sold and bought on markets for a price. Thus, on the one hand, cultural property transmits symbolic meaning and represents cultural, that is, shared, values. On the other hand, cultural objects are at the same time commodities in the commercial sense, have an economic value as they are sold and bought in markets, are subject to the rules of supply and demand, and, most importantly, have a price which does express and represent the economic value.
Due to their special characteristics, their dual nature, cultural property should not be treated as standard homogeneous economic goods but rather differently. Even avid proponents of unfettered free trade are, as far as cultural property is concerned, willing to make at least some concessions. Here, regulation is widely seen as indispensable to preserve cultural property and their precious symbolic value and nevertheless allow for an appropriate international distribution, exchange and access. Essentially, «trade regulation in these goods emerged as a result of scientific evidence and concerns over the survival of cultural heritage [...].« (Shelley 2018, p. 9).
There is, however, still deep disagreement about the quantity and the quality of regulation. This dispute causes even more attention since the markets for cultural property have been growing fast.
3 The licit and illicit markets for cultural property, their size and the need for regulation of trade
According to the most recent Global Art Market Report 2019 by Art Basel and UBS, the licit sales in art and antiquities reached 67.4 billion US-Dollars in 2018, up 6 percent year-on-year with the second highest annual growth in ten years, indicating a steadily rising demand for such «collector goods«. (McAndrew 2019, p. 16; also see Adam 2014; 2017)
However, this ever rising demand also fuels the illicit trade in cultural property, the illegal digging and looting of heritage sites, museums and private collections primarily in the many regions of the world hit by armed conflict, and the subsequent unauthorised export of the captured cultural artefacts.4 To illustrate, consider the situation in the war- and post-war-battered zones in the Middle East, where the lion's share of the antique cultural property currently on the market comes from. As Aisha Ahmad, who has been doing extensive fieldwork in the region, recently put it: «Since the outbreak of wars in Iraq and Syria, the illicit sale of antiquities has grown into a billion dollar industry. As armed groups ransacked the museums and historical sites, they built an elaborate trafficking network to sell stolen artefacts to shady art dealers around the world, [...]. So profitable is this illegal business that some jihadists have even pretended to destroy these priceless antiquities, publicly declaring them un-Islamic, while secretly hoarding them for sale.« (Ahmad 2017, p. 163) The dual strategy of terrorist organisations in dealing with cultural property clearly reflects the dual nature of the objects. From the terrorist groups’ viewpoint the illegal sale of cultural objects fulfils both elements of the dual strategy at the same time: on the one hand, new sources of cash are exploited; on the other, since many pieces have literally been broken off from their contexts, the cultural memory of their enemies – and of mankind at large – has been severely damaged.
The size of this illicit transfer of cultural property can only be estimated. Different sources such as UNESCO, Interpol, Scotland Yard and others agree in their estimates of between 6 and 8 billion US-Dollars made per year in the illicit trade in cultural goods. That puts this illegal market third after the illicit trade in weapons and drugs.5 Given that it has always been extremely difficult to estimate the sales volume of illegal economic activities, it is not surprising that much higher estimates also exist. Francesco Rutelli, a former Minister of Culture of the Italian Republic (2006–2008) for example, cited a UNESCO study which concluded that illegal «archaeological traffic from Iraq could reach 7 billion Euros«. (Rutelli 2015, p. 57) Just for comparison, the officially published consolidated sales figures of the two leading worldwide auction houses, Christie’s and Sotheby’s, amount to 13.4 billion US-Dollars in 2018, an increase of 6 percent on 2017. Neil Brodie, a renowned commentator on this issue, thence passionately calls for a «market reduction approach aimed at subduing demand.« (Brodie 2015, p. 317) In contrast to Neil Brodie, I do not think that, under the present circumstances, a strategy aimed at reducing the demand for cultural property can be successful. I have therefore argued for taking robust measures to block illegal lines of supply instead. (Groß 2018)
Furthermore, globally the public as well as personal interest in cultural property, and particularly in its preservation and (last but not least non-commercial) usage, is on the rise as cultural property has been defined as «the cultural heritage of all mankind, since each people makes its contribution to the culture of the world« (1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, preamble).
An appropriate regulation of the handling of cultural property then is in the well-understood self-interest of any nation-state as well as of all mankind. One-sided regulation, however, could run contrary to those interests. The problem is that there is, as far as regulation is concerned, no agreed upon definition of «appropriate« within the art and antiquities world. Standards dramatically differ depending on the position of the respective observer within the social system of the arts, antiquities and heritage.
The issue to be investigated here then is: Does UNESCO, as a powerful designer of the legal framework for the international exchange of cultural property, display a tendency toward biased regulation which could be one reason for the common practice of over-retention and even hoarding of cultural property? Does UNESCO apply a biased, if not a partisan, approach to cultural property, that is, an one-sided idea of both cultural property and exchange is taken for the whole, which not only limits the effectiveness of UNESCO's legal instruments but provokes member states to not even adopt them?
4 Five important examples of UNESCO's regulation of cultural property, their scopes and limits
In Article 1, 2(c) of its 1945 Constitution, UNESCO declares to be responsible for «conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions« with the overarching aim to «[m]aintain, increase and diffuse knowledge«. This is plurivalent; particularly the responsibility for «encouraging international exchange« requires further interpretation and legal clarification.
To shed light on that issue, five important legal instruments of UNESCO should come under scrutiny. This is to show, first, that UNESCO does apply a concept of cultural property which takes seriously only half of the peculiar dual nature (cultural and economic) of such objects, and, secondly, it seems to me that there is a systematic problem here.
Example 1: UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention 1970)
This is most probably the best known, most important and also most contested of the UNESCO's legal instruments to regulate the international exchange of cultural property which entered into force in April 1972. However, Germany joined only in 20076, Austria even later, in 2015. As of September 2019, 136 states, plus the entity governed by the «Palestinian Authority«, have adopted and ratified the Convention.
What makes this Convention so important is the fact that it is the international treaty in which the term «cultural property« was defined for the first time in international civil law in great detail (see the lengthy Article 1 of the Convention).
The declared main purpose of Convention 1970 is to prevent illegal trade of cultural property. According to the OECD, «[i]llicit trade has a negative impact on economic stability, social welfare, public health public safety & our environment.« (OECD 2018) That is, translated into (micro-)economic terms, illegal trafficking of cultural objects generates negative externalities that do harm to society as a whole and thus must be prevented. «Prevention« then means to force the illegal actor to internalise the costs and thereby to discourage the harmful activity.
Thus the decisive keyword here is «illegal« or «illicit«. Exports or, more generally spoken, the transfer of ownership of cultural property from the state of origin to a foreign buyer, are no problem as such. Encouraging the exchange of cultural property across borders and the promotion of access of the world community to such cultural items and sites has, after all, been UNESCO's self-declared goal. But terms like «illegal« or «illicit« are never self-explanatory. A certain action can only be jugded as «illegal« against a certain legal background or within a rules defining framework.
How, then, does UNESCO define this legal framework in order to be able to distinguish clearly between «legal« exports and «illicit« transfers of cultural property? Article 6 of the Convention 1970 says that the decisive factor is the existence of an «appropriate certificate«, that is, some sort of an export licence issued by an authorised state body. All exports without such an «appropriate certificate« (so-called un-documented cultural property) are automatically to be categorised as illegal and the trade in un-documented cultural property raises legal and societal concerns which distinguish those exports from the trade in other forms of cultural items. It is the member-states of the Convention 1970 who are liable «to prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate« (Article 6(b)). However, so far the parties of the Convention have been unable to agree even upon a common version of such a certificate.
Furthermore, to become effective, the general rules of the Convention 1970 must be implemented into national cultural property protection legislation. Thus, it is ultimately the member-state that defines the terms and conditions for the granting and denial of an export licence. This had, by the way, been one of the strongest points of criticism of the German cultural property protection act (Kulturgutschutzgesetz) 2016. Since cultural items are mostly unique, thus always special cases, it is almost impossible to define general standards of evaluation and clear-cut criteria for the granting of export permissions. The widely applied criterion «of national importance« is highly ambiguous and fundamentally a value judgement. Moreover, the concept of «national importance« cannot be fixed for a longer time since opinions within a society concerning the question what is to be regarded as «nationally important« are subject to socio-cultural change. Finally, those who form the demand side of the market, that is, according to Article 5(e) of the Convention «curators, collectors, antique dealers, etc.« have almost no say in the politico-legal process of defining criteria and conditions for the granting (or denial) of an export licence. The granting of permissions then is highly licentious.
There are good reasons to assume that national cultural protection authorities have strong self-interests. Their aim is to provide for the keeping of as much cultural objects as possible within their respective country that is, under their control. The situation is like «inverse neoprene«: At best nothing leaves the country, whereas as much as possible comes in. National cultural protection authorities have a strong incentive to do so since by that way they can enhance their weight and, last but not least, their power within the arts and antiquities world. This becomes irrefutably clear when it comes to restitution issues. Here it is once more German cultural authorities which do not even consider the restitution of undisputedly looted cultural property still in public collections throughout Germany, a fact that causes rising international criticism. Sylvester Ogbechie, a professor of art history at the University of California, recently even accused Berlin's brand-new Humboldt Forum «to be stuck in the past. The administrators of this new museum, scheduled to open at the end of 2019 with a collection that includes many looted African artifacts, so far have been intransigently opposed to demands for restitution. [...] Germany has long been accused of a lack of transparency regarding its colonial history in Africa [...]. Given the Humboldt's relative silence on the issue, critics accuse it of effacing German culpability for colonial crimes, including the dispossession of African cultural patrimony.« (Ogbechie 2019, p. 195) Despite the fact that, in 2007, the Bundestag passed a law on the restitution of unlawfully removed cultural property (Kulturgüterrückgabegesetz), this delicate situation will not change since the regulation will only be applied to cases of illegal transfer after 31 December 1992 or 26 April 2007 respectively. It furthermore applies only to such objects which were recorded before in a national register of important cultural property of the respective source country. (Bundesministerium der Justiz und für Verbraucherschutz 2007) As a consequence, not a single item had been returned on the basis of this Act.
Example 2: UNESCO Recommendation concerning the International Exchange of Cultural Property (UNESCO Recommendation 1976)
This Recommendation has been in some sense the concretion and further differentiation of the ideas concerning regulation enshrined in the Convention 1970. The Recommendation 1976 meticulously differentiates the concepts of «exchange« and «trade«, terms often used synonymously by economists. According to the Recommendation, the «international circulation of cultural property« should not, or only on a small scale, happen through the medium of the competitive market, that is, «trade«. Already the preamble starts with a strong anti-market bias: «Considering that the international circulation of cultural property is still largely dependent on the activities of self-seeking parties and so tends to lead to speculation which causes the price of such property to rise, making it inaccessible to poorer countries and institutions while at the same time encouraging the spread of illicit trading« (Preamble, para. 3).
In this, UNESCO shows a deep mistrust against any commercial transaction in the international exchange of cultural property. Sellers and buyers are bluntly discredited as «self-seeking parties« who, through «speculation«, are responsible for rising prices. What we are faced with here are unjustified value judgements and all-too simple equations like speculation = price rigging = encouragement of illicit trading = expulsion of «poorer countries and institutions« from international cultural exchange.
On the other hand, however, UNESCO points to the fact that many museums, particularly in their archaeological departments, have many similar if not identical items: «Considering that many cultural institutions, whatever their financial resources, possess several identical or similar specimens of cultural objects of indisputable quality and origin which are amply documented, and that some of these items, which are of only minor or secondary importance for these institutions because of their plurality, would be welcomed as valuable accessions by institutions in other countries« (Preamble, para. 7).
Indeed, if those well-documented «surplus« cultural objects would be offered for sale on the international arts and antiquities markets, then exactly this would be a blow against illegal trafficking. As experience regularly confirms, a clear provenance «ennobles«7 a cultural good, making provenance an important price determining factor which is causal for up to 80 percent of the final price, and also, that documented cultural objects are strongly preferred to undocumented pieces by (the majority of) dealers and buyers alike. So other (public) museums as well as private collectors would come into the position to complement their collection in a legal, efficient and transparent way. Moreover, so-called «source countries« for cultural property have often been poor states with chronically underfunded cultural institutions. Bringing «surplus« cultural items from their depots to the market would help them to generate an additional income to support their museums and, moreover, to provide better for the protection of their archaeological sites against illegal digging and smuggling afterwards. The problem is that UNESCO does not even mention this way of transparent, documented «de-accessioning« by means of market transactions. Instead, only «governments« and non-specified «institutions« are seen as worthy actors in that field, as if (private) collectors, dealers, auction houses and markets would not exist.
What in fact happens here is the bisection of the characteristics of cultural property briefly discussed above and the blurring of the suppressed (economic) half. UNESCO tends to refer only to the symbolic value of cultural property, disregarding the fact that cultural objects are simultaneously marketable economic goods and that there have been markets for them more or less since the advent of civilisation. This commercial side of cultural property is to be negated, as is the insight that markets are quite efficient arenas for transactions. For UNESCO, «international exchange« of cultural property is explicitly not «market exchange«: «'international exchange‹ shall be taken to mean any transfer of ownership, use or custody of cultural property between States or cultural institutions in different countries – whether it takes the form of the loan, deposit, sale or donation of such property – carried out under such conditions as may be agreed between the parties concerned« (Article I–Definitions).
The arts and antiquities markets, the art trade, the «art world« as a social system – all are explicitly excluded from UNESCO's idea and definition of «cultural institutions«. But there have always been lots of examples that dealers not only do business in the narrow sense; by making markets they simultaneously make art history and are thus themselves involved in creating cultural meaning and cultural exchange. Dealers have always played an important role as cultural entrepreneurs, as daring intermediaries between artists and the public by supporting artists, promoting their work and convincing a reluctant audience that investing into the hitherto unknown will pay off. Just to give four examples for such an influential dealer-artist-public-relationship:
Today, impressionist paintings are very much appreciated by the art loving public and the art market alike. Impressionism is an immensely appealing art genre and public exhibitions of works by painters like Édouard Manet, Claude Monet, Camille Pissarro or Auguste Renoir, to mention just a few, constantly attract large numbers of visitors. Since they are extremely popular, those paintings are also well sought after on the private art market. Even prices in the three digit million region have been paid.8 However, at the beginning of impressionism in the late 1860 s the situation looked quite different. The new creations did not meet the liking of the public and were consequently rejected by the Salon de Paris, then the nation's foremost authority when it came to endorsing an object as art. Even the very word «impressionism« was a derogatory term at first. The early impressionists were fighting an uphill battle against entrenched visual conventions, against long established attitudes about what a painting should look like and what not. As a result, they sold next to nothing and most of them lived in dire economic circumstances. It was, in the main, just one man who changed all that – the, in the broadest sense, cultural entrepreneur Paul Durand-Ruel (1831–1922). Durand-Ruel is a perfect example for a gallerist-dealer who designs markets, unscrupulously manipulates them and, by doing so, steers cultural history into another direction. He ranks as both the inventor of impressionism and the modern art market. (see Patry, Robbins and Riopelle 2015) It is no exaggeration to say that without Durand-Ruel impressionism would have disappeared again almost right away. But it was not his extraordinary sense for new economic possibilities and benefits alone. Durand-Ruel really liked the new art and made friends with a number of the initially poverty stricken members of the movement into whom he believed. To keep, beside many lesser well known others, Monet, Renoir and Pissarro afloat, he paid them stipends on the basis of the understanding that they as of now only sell through him as their exclusive representative. Durand-Ruel saw this as the only way to gradually build the reputation of «his artists« – not to mention their prices. He even meddled into their creative process in order to boost their saleability, not always to the delight of the artists, as surviving letters attest9. «The idea of art for art's sake had to yield to the fact that the market was making the rules. The principle of exclusivity or monopoly, with which Durand-Ruel was bound to his artists by the market, strenghtened this tendency.« (Assouline 2004, p. 31) Furthermore, Durand-Ruel soon realised two things: first, that he must go international and market impressionism where huge fortunes were made, that is, in the United States. The U. S. proved to be a fertile ground for the marketing of new art since America as a new and young country was susceptible to a new art and, moreover, in those days the New World was deeply enchanted by France. Thus he shipped hundreds of paintings to the United States, organised particularly well received exhibitions and finally, in 1889, opened his own gallery in New York – a fine example for successful cultural transfer and exchange. However, «Durand-Ruel had the good sense to remain very French, even as he devoted a large part of his energies to the American market.« (Assouline 2004, p. 224) The success in America had repercussions in France. His Paris gallery flourished and in 1890 had become such an institution that it was quite naturally included in Karl Baedeker's Paris guidebook for cultural tourists, blurring the boundaries between a commercial private gallery and a public museum. (Baedeker 1905, p. 40) Secondly, Durand-Ruel soon discovered that this kind of art is not self-explanatory and thus would need expert interpreters in order to be understood and, finally, bought. To actively promote impressionism and «his« artists, publishing became essential in an emerging attention economy. What members of the art loving public read in their newspapers and journals about new art helped them to comprehend and accept it. Thus, the dealer assumes the role of tastemaker and narrator. In applying such a mixed strategy, Durand-Ruel invented an image of the gallerist-dealer as the daring cultural entrepreneur, the idealist, pioneer and at least to some degree even altruist in the discovery, promotion and market-design of new talent. Until his death in 1922, Durand-Ruel orchestrated more than 200 public exhibitions in Paris and another 130 in New York. Roughly 12 000 impressionist paintings, about one third of the total impressionist production, went through his hands. And in this way he made himself, with lasting effect on cultural history to this day, a cultural institution.
The second example, quite closely linked to the first, is the Berlin Kunstsalon Cassirer, founded in 1898 by the visionary gallerist, art dealer and publisher Paul Cassirer (1871–1926), who also acted as Durand-Ruel's agent for Germany. Paul Cassirer was a relative of the philosopher and intellectual historian Ernst Cassirer briefly mentioned above. Cassirer's gallery soon developed into one of the foremost cultural institutions in Germany before the First World War and again in the Weimar Republic. Cassirer's self-avowed goal was to «present the best from around the world« (Echte and Feilchenfeldt 2011). It is said that at that time nowhere else was art as good as this shown, and offered for sale. Cassirer can be regarded as a pioneering type of cultural entrepreneur with the mission to revolutionise the perception and understanding of art. He caused the public to rethink fundamental beliefs about art and to revise their expectations and sensibilities. Already Cassirer's first exhibition showed more than seventy works of Max Liebermann and brought Edgar Degas to Berlin; by and by Cassirer presented the complete oeuvre of Edouard Manet and thus introduced French impressionism to the German audience, which was at first dismissive, if not hostile, against everything French, being eventually able to swing sentiment around. (Brühl 1991) He was the first to exhibit Paul Cézanne in Germany and nugded Hugo von Tschudi, then the Director of the Berliner Nationalgalerie, to purchase modern French art and to present it to the public in a completely new way. Subsequently, the first Cézanne to enter any public collection was not acquired for Paris but for Berlin. Cassirer’s daring and risky (in commercial as well as in political terms) exhibitions finally helped Vincent van Gogh to achieve a breakthrough and gain late posthumous international acclaim. (Feilchenfeldt 1988) In 1914 Cassirer exhibited more than 150 works by Vincent van Gogh with only a few offered for sale. Such was the key aspect of Cassirer's work: he primarily wanted to show the paintings in their inner history of development and referential connections. His foremost concern was not just to make the sale but to create cultural meaning, expand the concept of art and thus educate the public too. It was the art and their cultural value and not the dealing that mattered most to Cassirer.
Thirdly, Pablo Picasso and his long-term exclusive dealer Daniel-Henry Kahnweiler. Kahnweiler with his publications, particularly his works on cubism10, certainly made the market to the commercial advantage of both Picasso and himself. As an influential tastemaker and public educator, however, he also made lasting art history. Kahnweiler's Der Weg zum Kubismus was published under the pen name Daniel Henry first in German in 1920 by Delphin Verlag in Munich. An English edition under the title The Rise of Cubism followed soon – making Cubism known to the other side of the Atlantic, immediately arousing curiosity there, prompting exhibitions in both public museums and private galleries and, of course, opening new markets and attracting fresh classes of collectors ready to empty their wallets on a Picasso. Kahnweiler's book is, by the way, still regarded as one of the foremost standard texts on cubism by art historians and the general modern-art-minded public.
A current example for such a dual role certainly sets the German-American art dealer and philanthropist David Zwirner, ranked No. 1 in the latest – 2018 – «Power 100« list of the most influential big bugs in the contemporary art world, annually published by the magazine ArtReview. Much like Kahnweiler, Zwirner's global gallery network operates «an expansive publishing arm, and not of the type solely dedicated to boosting the careers of those in whom the gallery has a vested commercial interest (though it does that too). Headed by Zwirner’s son Lucas, David Zwirner recent publications have included Jarrett Earnest’s portrait of the state of art criticism (a series of interviews with prominent critics titled What It Means to Write About Art), Roy DeCarava and Langston Hughes’s tribute to ordinary people (The Sweet Flypaper of Life), Donald Shambroom’s account of Marcel Duchamp’s final hours (Duchamp’s Last Day) and a reprint of John Ruskin’s 1860 analysis of Giotto’s Arena Chapel (Giotto and His Works in Padua). All of which puts Zwirner in a position to raise the bar for what a commercial gallery can be, how it can operate and how it might integrate with the broader, changing artworld of today.« (Art Review 2018)
As we see, a number of gallerists and dealers have, in some respect, been «cultural institutions« themselves – they play, as the examples briefly discussed above show, an essential role in international cultural exchange. A proper, that is, balanced, rounded and inclusive, concept formation of «cultural institution«, a term so fundamental for any regulation of cultural property, ought to reflect that obvious fact.
For UNESCO, however, »›cultural institution‹ shall be taken to mean any permanent establishment administered in the general interest for the purpose of preserving, studying and enhancing cultural property and making it accessible to the public and which is licensed or approved by the competent public authorities of each State;« (Article I–Definitions). This echoes a somewhat naive faith into the state, as if there were only market-failure but never corruption, fraud and inefficiency on the side of state authorities and government bodies. This kind of black-and-white thinking contradicts the experience that it is mixed systems and mixed approaches which are more stable and work sustainably stabilising because under such mixed arrangements the combination of advantages and the minimisation of disadvantages becomes fairly possible. However, I must concede that the question for the «right« or «optimal« mix ratio remains an open issue which can never definitely be solved. Instead, only limited answers can be given here.
Example 3: UNESCO Recommendation for the Protection of Movable Cultural Property (UNESCO Recommendation 1978)
This Recommendation once more exacerbates the already established anti-market bias. The existence of a private art and antiquities trade, of dealers and private collectors is indeed acknowledged, yet in a warning manner: cultural property in private hands is regarded less secure than those in state-run cultural institutions and thus more endangered by art crime. Here again, non-state actors face global discrimination and «protection of movable cultural property« means protection against the private market, dealers and private collectors.
Furthermore, as the preamble says, it is the growing interest in culture and cultural heritage which could lead to dangerous consequences: «Considering that the growing desire of the public to know and appreciate the wealth of the cultural heritage, of whatever origin, has nevertheless led to an increase in all the dangers to which cultural property is exposed as a result of particularly easy access or inadequate protection, the risks inherent in transport, and the recrudescence, in some countries, of clandestine excavations, thefts, illicit traffic and acts of vandalism« (Preamble, para. 3).
Example 4: UNESCO Convention on the Protection of Underwater Cultural Heritage (UNESCO Convention 2001)
Convention 2001, which came into force in 2009, can be regarded as the strongest expression of anti-market bias so far: Article 2 (7) says: «Underwater cultural heritage should not be commercially exploited.« Does this mean that UNESCO understoods any coordination and transaction through markets as «exploitation« and thus negative per se? In the light of this crescendo, it becomes more and more clear that UNESCO wants cultural property seen and treated as res extra commercium. Cultural property protection then means foremost protection against market transactions. This is what Rule 2 of the Convention says: «The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.« As of September 2019, only 61 states ratified the Convention. Germany, the United States and the United Kingdom are not among them.
Example 5: UNESCO Recommendation concerning the protection and promotion of museums and collections, their diversity and their role in society (UNESCO Recommendation 2015)
For the mission of UNESCO, museums are of special importance. As the preamble to this Recommendation says: «Considering that museums share some of the fundamental missions of the Organization, as stipulated in its Constitution, including its contribution to the wide diffusion of culture, and the education of humanity for justice, liberty and peace, the foundation of the intellectual and moral solidarity of humanity, full and equal opportunities for education for all, in the unrestricted pursuit of objective truth, and in the free exchange of ideas and knowledge.«
However, UNESCO's idea and concept of a museum is exclusively that of a «non-profit« institution: «The term museum is defined as a ›non-profit, permanent institution in the service of society and its development, open to the public, which acquires, conserves, researches, communicates and exhibits the tangible and intangible heritage of humanity and its environment for the purpose of education, study and enjoyment« (Article I, para. 4). The growing number of private museums – 70 percent of them were founded after 2000 – and collections or those in mixed ownership (public-private partnership) is simply blurred. Does this mean that UNESCO promotes only publicly owned and funded museums and collections?
There is a certain contradiction in the Recommendation since the economic importance of museums has been acknowledged by Article III, para. 14: «Member States should recognize that museums can be economic actors in society and contribute to income-generating activities. Moreover, they participate in the tourism economy and with productive projects contributing to the quality of life of the communities and regions in which they are located. More generally, they can also enhance the social inclusion of vulnerable populations.« Thus UNESCO cannot avoid admitting that even publicly owned and funded museums have come under pressure to earn a growing part of their funding on private markets. However, UNESCO tends to presume that funding from private third-party donors almost necessarily corrupts and undermines the main functions of museums: «In order to diversify their sources of revenue and increase self-sustainability, many museums have, by choice or necessity, increased their income-generating activities. Member States should not accord a high priority to revenue generation to the detriment of the primary functions of museums. Member States should recognize that those primary functions, while of utmost importance for society, cannot be expressed in purely financial terms« (Article III, para. 15).
Also, cooperation and exchange should only happen among public museums and public «institutions« which have complementary tasks. What we see here once again is the anti-private bias, that is, the notion that museums should be protected against the influence of private collectors: «Cooperation within the museum sectors and institutions responsible for culture, heritage and education is one of the most effective and sustainable ways of protecting and promoting museums, their diversity and their role in society. Member States should therefore encourage cooperation and partnerships among museums and cultural and scientific institutions at all levels, including their participation in professional networks and associations that foster such cooperation and international exhibitions, exchanges and the mobility of collections« (Article IV, para. 31).
What is intentionally overlooked here is the matter of fact that so many important temporary exhibitions of highest cultural value in public museums would simply not have been possible without the cooperation with – and particularly the loans of – private parties. Just to give one example: When one enters The Ashmolean, the University of Oxford's public museum of art and archaeology, which houses a superbly presented collection of antique cultural artefacts several thousand years old to masterpieces of contemporary art, the visitor suddenly finds himself or herself in front of a light limestone wall approximately ten meters high. This wall is neatly inscribed with dozens of names of private benefactors to The Ashmolean ranging from Saudi princes through well and lesser well known international corporations and private foundations to ordinary British citizens. The immediate impression is that without the private support, this public institution would not exist in its present shape. Furthermore, when the visitor inspects the educational panels beside the exhibits more closely, one often notes, when it comes to provenance, that a considerable number of them is lent from private collections, were donated to the museum from private collectors or their heirs or, most interesting, were «accepted by H.M. Government in lieu of Inheritance Tax on the Estate of ... and allocated to the Ashmolean Museum« – obviously an effective method of cultural transfer, to nationalise privately owned cultural property and to make it available to the public.
5 Concepts do matter as they form our perspective on cultural objects and institutions and have a practical impact on the way in which cultural property is regulated
What the mentioned examples of UNESCO's legal instruments concerning cultural property protection from 1970 until now systematically show is that the idea and the very concept of «international cultural exchange« is one-sided and biased, since most, if not all, forms of exchange which involve markets are strictly excluded and out-ruled. Thus, the question whether UNESCO's regulations of the international cultural exchange are to be considered immoderate in the sense that they run counter to the aim of promotion of international exchange and shared cultural heritage must be answered affirmatively. Of course, UNESCO does not directly regulate market transactions of cultural property. As it looks, UNESCO wants member states to translate international Conventions into national legislation whichkeeps private transactions out of cultural exchange since cultural property is best conceived and subsequently treated as res extra commercium.
The problem is that this makes for blind spots in many ways: At least at the level of concept formation, UNESCO makes private actors in the art world as well as the many transaction processes through private markets disappear. For UNESCO, the international art world consists only of governments and institutions, which do not deal in cultural property but only lend to and borrow from each other, with the strict exclusion of market-brokered transactions. Market transactions are declared evil and only degrading, even corrupting cultural property. Only international cultural exchange managed by governments and institutions can show respect for the dignity of cultural property. Conventions and other legal instruments thus aim to regulate only the conduct of sovereign states, governments and institutions. The great remaining rest of the art world then is remarkably regulated out of the arena, put in a shabby corner and subsequently obscured.
That is highly problematic since this policy actively diverts attention of states and their law-making institutions away from the opaque structures of the markets for cultural property simply by not mentioning, by not appropriately addressing them. Thus, UNESCO's one-sided concept of cultural property would result in blind spots and translate into a lack or absence of any regulation of the other side, since what is excluded by definition or seen as non-existing cannot be legally framed and regulated, what makes for a «market that is still largely unregulated.« (Desmarais 2015, p. ix) In this sense, imbalanced regulation does not serve neither the preservation of cultural property nor the international interest in cultural exchange. It rather violates that very interest. And a de-facto prohibition of private international trade in cultural property due to the eclipse of the second, that is, the economic, half of the peculiar dual nature of cultural property is certainly imbalanced regulation.
Moreover, due to its one-sidedness and strong anti-market bias this sort of regulatory framework does not provide for the diminution of art crime in general and illicit exports/imports in particular, since it declares all private market transactions in cultural property exchange, if not straightforwardly illegal, so at least improper, thus unacceptable as every commercial transaction of cultural property is suspect. This has lead some commentators even to denounce the market as such as «criminal« (Mackenzie 2011; 2014). But it is certainly not «the market« which is «criminal« per se. Rather, the problem lies with a regulatory framework for market behaviour (the Ordnungsrahmen) which obviously still provides too many loopholes and sets incentives for criminals to exploit them.
One reason for this is that international law like UNESCO's Conventions and Recommendations cannot be applied – and enforced – directly but must be translated into national legislation. Frictions and blind spots are quite common here. Moreover, even national legislation can be contradictory, causing disincentives. Germany presents a striking example: According to the German Civil Code (Bürgerliches Gesetzbuch), at public auction good faith-acquisition of stolen, looted and illegally imported objects is absolutely legal and thence perfectly possible. (Article 935, para. 2 German Civil Code) On the other hand, Article 40 of the national Act on the Protection of Cultural Property, amended in 2016 (Gesetz zum Schutz von Kulturgut), rules out such a possibilty. (Bundesministerium der Justiz und für Verbraucherschutz 2016, p. 1914) Whether this abolishes the so-called auction privilege (Auktionsprivileg) enshrined in the Civil Code is completely unclear so far.
What this shows is a lack of diligence on the side of the law makers and this has made Germany a gateway for looted cultural property which can be bought at auction in good faith and subsequently resold, now laundered and furnished with a respectable provenance («auctionated at Munich«, for example) as well as with a correct invoice, on the much more upscale markets in London or New York. The Art Newspaper has recently reported in detail, with a map included, one such case which must be regarded as only the tip of the iceberg. (Somers Cocks 2018, p. 47) When Lyndel V. Prott evaluated the strengths and weaknesses of UNESCO's 1970 Convention forty years after its adoption, she rightly urged national governments to evaluate «the effectiveness of their own national legislation on illicit traffic and, where desirable, updating it« (Prott 2012, p. 6). This remains, not only for Germany, a lasting issue, which should be addressed by parliament more insistently – and very soon.
Can «encouraging international exchange« as the self-proclaimed central goal of UNESCO's Constitution 1945 be reached by opposing international trade? I fear not, since a way of regulation which rules out market transactions, significantly affects and alters the structure of incentives: There is no incentive to bring surplus goods into official circulation, no incentive to so-called «source countries« that own several identical or similar specimens of cultural items to offer them for sale. On the contrary, such regulation produces strong incentives for hoarding (that is, the opposite of international exchange) as well as for a thriving shadow economy, since demand has been growing for years now while licit supply has become very limited.
Is the private art world unable to properly protect cultural property and to provide for suitable access of the public to such goods? If regulators set definite, that is, non-contradictory, rules, implement them consistently and ensure strict enforcement, what provides guidelines for conduct and substantially reduces transaction costs, the vast majority of private inhabitants of the art world, notably dealers, auction houses, private collectors, connoisseurs and museums will accept rules and regulations and do not intentionally violate them. They have a strong incentive to do so – and this stems from their most precious asset: their reputation.11 Social trust is of immense importance, since trading in highly heterogenous goods means coming to terms with information asymmetries which produce risks and uncertainties (see Christopherson 2014; Petterson 2014). The trustworthiness of a dealer or consignor or, due to their growing pricing power, of experts who authenticate cultural goods12 is expressed and communicated through his or her reputation. To build a reputation takes a long time, whereas it can be wrecked within seconds. A betrayal of trust can lead to bankruptcy of even long established private institutions (just to mention the case of M. Knoedler & Co., New York's oldest gallery and for more than 150 years a best-respected cultural institution (see Miller 2016; Spencer 2016)). In economic terms: in the cultural property world it is reputation which allocates trust, status and eventually economic resources.
Thus, instead of, at best, ignoring their existence, the private actors in the art world should be seen by rulemakers like UNESCO as partners, sometimes opponents, but not necessarily enemies, in designing an international legal framework for the exchange of cultural property which includes market transactions and gives these special attention. This would strengthen their incentives to play by the rules to increase their reputation and willingness to accept regulation, and it would be to the advantage of international cultural exchange and preservation of cultural property as well as economic advantages, that is, profits for sellers/consignors, dealers and auction houses. Any proper regulation of cultural property exchange must take the double nature of cultural property into consideration: as goods which are simultaneously carriers of symbolic meaning and cultural value and economic goods in the very traditional economic sense and that cannot function as res extra commercium alone. The proper, that is, balanced, regulation of cultural property is still unfinished business. This is all about improving mutual understanding of both public and private actors handling cultural property. The objective must be a regulation of cultural property exchange that combines the specific strengths of both the public and the private side whilst diminishing the disadvantages. The design of such a rounded regulatory framework would, however, start with a multifaceted conceptualisation of cultural property and cultural institutions which does not divert attention from the economic side but as comprehensively as possible depicts today's highly complex and contradictory art world.
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Brodie, Neil (2015), Syria and its Regional Neighbors: A Case of Cultural Property Protection Policy Failure? In: International Journal of Cultural Property, 22(2–3), pp. 317–335.
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As Ernst Cassirer, the philosopher of the Symbolic Forms, once put it: «Unter einer ›symbolischen Form‹ soll jede Energie des Geistes verstanden werden, durch welche ein geistiger Bedeutungsgehalt an ein konkretes sinnliches Zeichen geknüpft und diesem Zeichen innerlich zugeeignet wird. [...] Dieser Prozeß stellt sich uns überall dort dar, wo das Bewußtsein sich nicht damit begnügt, einen sinnlichen Inhalt einfach zu haben, sondern wo es ihn auch sich heraus erzeugt. Die Kraft dieser Erzeugung ist es, die den bloßen Empfindungs- und Wahrnehmungsinhalt zum symbolischen Inhalt gestaltet.« (Cassirer 1923, p. 79, 81). The foremost example for this process of symbolisation is the production and consumption of cultural goods and, by doing so, the generation of cultural meaning. See also Wortsman Deluty 2011.
On its website, Interpol characterises the trafficking in cultural property as a «low risk, high-profit business«. This «crime can affect all countries, either as origin, transit or destinations.« (Interpol 2019).
The German government has officially subscribed to these estimates. See the 2013 report of the German government on the state of cultural protection in Germany. (Bundesregierung 2013, p. 1).
Reportedly, it had been the images of the looted and smashed Iraqi National Museum in Baghdad of 2003 which finally brought the German government to make up its mind and eventually adopt the Convention. For a moving personal, first-hand account of the consequences of the looting of the Baghdad Museum, its devastating impact upon Iraqi society and the efforts made to retrieve the stolen cultural property see Bogdanos 2005 a; 2005 b.
«Ein grundlegendes Kunstmarktgesetz besteht darin, dass die Provenienz ein Kunstwerk adelt.« (González 2002, p. 90).
On May 14, 2019, Sotheby's New York sold a painting from Monet's haystack-series for 110.7 million US-Dollars to a thus far unknown bidder.
For a more detailed and balanced account of Kahnweiler's double role as a commercially successful art dealer and an interpreter of cubism and thus an educator of an at first reluctant public see Bois 1987.
For this see Beckert and Rössel 2004. In my view, Beckert's and Rössel's approach to inquire into the socio-economic processes of the granting of reputation does not only apply to artists but also to all the other inhabitants of the cultural property world, notably experts who authenticate cultural artefacts and attribute them to a certain creator, dealers (not least in their role as tastemakers) and the vastly growing number of privately run museums.