Utopian thoughts on a lazy, snowy Friday

by Marc Masurovsky

Museums
Acquisitions of objects are limited to those objects with no taint whatsoever on title. Under-provenanced objects with significant gaps and riddled with uncertainties as to past ownerships and locations must not enter a museum.

The museum’s research budget allows for a team of full-time researchers whose sole purpose is to keep the museum “honest.” 

Louvre, Paris

If problems emerge in the ownership history of objects in the permanent collection, all measures must be taken to clear title by submitting the object to a detailed, forensic analysis. If additional research reveals illicit activity that might have resulted in an illegal transfer of ownership, the museum will right the past wrong, seek out the heirs of the rightful owners and work out a proper solution to fix the historical wrong as long as it reflects the wishes of the aggrieved parties (those who suffered the loss of the objects).

As a matter of course, the museum will make available to the general public all information about the history of each object in its permanent collection without judgment or preconceived notions. That information will be freely and readily accessible.

When a museum possesses a large inventory of objects obtained from indigenous communities, former colonies, and conflict zones, it will:

Humboldt Forum, Berlin

         

1/ identify the rightful owners of these objects, whomever they may be;

2/ take the necessary steps to contact their representatives and consult them as to how to treat these objects;

3/ if repatriation is in order, the museum will abide by this decision and return the objects;

4/ if other solutions are envisioned, they too shall be respected and implemented as long as they reflect the wishes of the aggrieved parties (those who suffered the loss of the objects).

Auction houses

Recognizing the fact that there are thousands of auction houses worldwide, it is almost impossible to regulate their activities without imposing severe constraints on the global art market. Still, auction houses are the main purveyors of looted and otherwise stolen cultural property.

To stanch the in- and out-flows of stolen cultural goods, governments will establish oversight bodies whose sole purpose is to ensure that auction houses comply with rules and standards that will rid the market of unprovenanced, under-provenanced goods whose origin cannot be explained either by the consignor or the seller. If this is unreasonable, at the very least, auction houses will post “buyer beware” notices for un-and under-provenanced objects that they offer for sale. The goal is to inform consumers much like government agencies issuing product alerts. If art objects are commodities, they should be regulated in the same way that pharmaceutical, cosmetics, food and other products are.

Christie's

Hôtel Drouot

Collectors, dealers, and brokers

Private handlers of cultural goods are an important cog in the global machinery of recycling and dissipation of looted and otherwise stolen cultural objects around the world.

Without them, looters, plunderers and thieves find it challenging to “fence” their loot and to make quick money off of it, thus increasing their risk and disincentivizing the act of plunder and theft.

These handlers must be prohibited from offering any object which is un-or under-provenanced or whose past history shows clear signs of dislocation and illicit transfers of title. If they do, criminal penalties must be imposed on them and their accomplices.

Can privateers be deterred from acquiring objects with dubious provenance information that casts a cloud on title? They will, no matter what any government says or does. Realistically, their activity cannot be completely deterred but their quest to sell these objects on the open market must be interdicted.

Does this open the door to the creation of a parallel art market which operates under the radar? That market already exists and probably always will. Wars, conflicts, crises, laissez-faire governments and regimes enable its existence an allow it to thrive under their very noses and, to some extent, with their complicit assent. The fact that national and international elites sustain its existence complicates the task of any regulator to restrict its expanse and depth. Any attempt to clamp down on the parallel market is politically dangerous for those in positions of power and influence.

Good faith defense

Civil law and common law countries will rethink how good faith serves as an almost-impenetrable defense against relinquishing looted objects to claimants. One possibility is to create exceptions to the good faith defense which remove that protection from those who acquire and sell stolen or plundered goods, even if they were unaware of the true origin of the objects which they acquired. This measure will allow restitution claims to proceed without claimants worrying that the current possessor will resort to good faith as a reason not to restitute their property.  Ignorance is not a defense. Those who dabble in the art market must exercise proper due diligence before acquiring, selling, displaying, donating, loaning cultural goods. Failure to do so must have legal consequences.

Ethical collecting

Can people build an ethical collection of art objects, viz., a collection of objects whose history is not tainted by ambiguous claims to ownership as a result of civil unrest, war, and genocide?

They can and they do. The thrill of seeking out beautiful objects whose acquisition becomes controversial because of the circumstanced surrounding the object (coercion, illegal extraction, outright theft, etc.) is the ultimate drug that fuels thrill-based acquisitions. If you’re skeptical, read about Thomas Hoving, Douglas Latchford, and many others in the museum and art worlds who took pride in their reckless manners and methods to secure “beautiful and unique” objects.



Photos:

Christie's-courtesy of Artisera.com

Hôtel Drouot--courtesy of Drouot.

The domino effect

by Marc Masurovsky

In its most basic form, the domino effect is an uncontrollable chain reaction, an irreversible sequence of events brought about by one well-placed flick against a tile, which tumbles the neighboring tile, and then another tile, and then another tile, in a long line of domino tiles until the entire deck is down. Some of these “domino effects” make for fun, easy-to-produce effects. Many of us have tried them at least once to everyone’s delight.

Now apply the same idea to countries. The last time the domino effect was seriously invoked, it was in the form of a threat. American politicians and senior military officers used it to justify a hardline approach in Indochina against the “communist threat.” If one country “went” communist, the rest would fall. Here, the domino was South Vietnam. The other tiles were Laos and Cambodia, and then, who knows? Thailand? India? The “domino effect” was an integral component of the Cold War.

The domino theory in Southeast Asia

Let’s now turn our attention to the museum world. In order for the domino effect to work in the museum world, one needs a critical mass of cultural institutions predisposed to lean in one direction or another. In our case, the domino unit is “restitution”, the “return” of looted cultural assets to rightful owners, be they individuals, communities, tribes or source nations. For there to be a domino effect in the museum world, there needs to be a restitution, a repatriation which “tips the scales” in a way that paves the way for similar returns by other institutions and provokes a generalized onrush of claims that will ultimately provoke more returns, more repatriations, instability in the management of collections, loss of equilibrium in negotiations of loans with source nations, impending chaos, the end of the world as we know it.

Believe it or not, museum leaders and nations whose cultural institutions harbor looted cultural property have invoked the “domino effect” either to prevent restitutions or to isolate restitutions as unique cases which cannot be repeated, fearing that, if such restrictions are not imposed in a settlement, more claims will be filed and a generalized disgorgement of looted objects would ensue in favor of the aggrieved nations. As you know, that simply cannot happen.

The Wrestler from Koh Ker

The repatriation of the Koh Ker statues to Cambodia, it is argued, triggered a minor “domino effect” or a “breaking of the dam.” After Cambodia had won its case against Sotheby’s in December 2013, the matter could have been isolated to that one return. But there were many more statues located in different cultural institutions throughout the United States. The Metropolitan Museum of Art followed suit and agreed to return its two statues, followed by a return from Christie’s and the Norton Simon Museum in Pasadena, CA.  So did the Cleveland Museum of Art.

It is presumed that many more statues are located in European collections. Hence, the domino effect remained confined to the United States.

In the case of the Parthenon marbles, Michael Repps infers that the obstinacy of the British Museum to hold on to the marbles claimed by Greece constitutes a guarantee that, like Tom Thumb removing his digits from a hole in the proverbial dam thus causing the inevitable flood of the low lands, an unconditional surrender to Greece propelling the return of the marbles to their new home at the Acropolis Museum in Athens would trigger an irreversible chain of events, a domino effect, leading to uncontrolled disgorgement of cultural objects and their repatriation to aggrieved source. The counter argument is offered in a master’s law thesis entitled “What’s yours is mine—Indeterminacy in cultural property restitution debate” which was submitted to the University of Helsinki in 2014, by Pauno Soirila. In it, Soirila argues that the “domino effect’” threat is a non-argument since each restitution case is viewed as a unique case and should not cause such a massive disgorgement as threatened by some in the museum world and cultural officials in recipient nations. 

Parthenon Marbles on view at the British Museum, London

An unusual twist to the repatriation/domino effect dyad refers to the hypothetical “devolution” of Wales and Scotland which might provoke a deluge of repatriation requests against “English” museums that would gut them of significant numbers of objects. Hence, in a twist of irony, the threat of falling dominos may not come from those “nationalist” source nations which selfishly demand their looted property back, but rather from insurgent regionalist movements plaguing the halls of power in London. How fitting!

So, what’s all the hullaballoo about with all of these dominos falling and the world of museums as we know it collapsing around us because of incessant claims for return of looted cultural property to source nations and tribal communities?

In true fashion, France embodies the worst of the anti-restitution movement, whereby objects, as a rule, do not leave State-controlled museums under any circumstances. Once in, there is no conceivable exit. The principle of inviolability reigns over the management of cultural objects in French museums, regardless of provenance and origin.

In the case of the Oekyujanggak Royal Manuscripts which South Korea claimed, the French government rejected the Korean repatriation claim. Granted, the case was complicated. The French navy had stolen these sacred royal documents in 1866 presumably in retaliation for the deaths of nine Catholic priests. [This bears strange similarities to the punitive confiscation of bronzes in Benin  in 1897 as a retaliatory act by British colonial troops].

These manuscripts were rediscovered in 1975 at the “Bibliothèque nationale” in Paris. 

Sample pages from the Oekyujanggak Manuscripts

The idea of recovering these manuscripts first was discussed in 1991 by scholars at Seoul National University. South Korea filed a formal request for restitution in 1993. The claim quickly became entangled in larger trade issues between South Korea and France involving high-speed train contracts. [A similar entanglement occurred in the United States which linked high-speed train contracts between France and the United States to pending Holocaust-era claims against French railroads.] The discussion between the two nations evolved into a possible exchange through loans of artifacts of equal worth between the two nations.

As Professor Keun-Gwan Lee of Seoul National University rightfully asked during the ICECP conference held in Gyeongju on October 18-20, 2016, which law should be applied: the 1866 law or the 2011 law?

Regardless of what law applied, France invoked the “domino theory” and felt that an unconditional return of the royal manuscripts without any “contrepartie” from South Korea might provoke a generalized gutting of colonial-era plunder from French institutions.

In Korea, opposition built up and voiced against a proposed exchange of similar documents with Fraance, because, the argument went, any exchange or loan would be tantamount to a recognition of the plunderer’s right to good title, enabling nations like France to loot another nation’s treasures and get away with it.

In February 2011, an agreement was signed between France and South Korea outlining the terms under which the royal manuscripts could return to the Korean people. It wasn’t so much a return as a long-term loan renewable every five years. Hence, title remained with the French government while South Korea obtained the equivalent of “custodial rights” over their stolen royal manuscripts.

Furthermore, the French government insisted in Article 4 of the 2011 agreement that:

“The loan of the Uigwe manuscripts by France to Korea is a transaction characterized by its uniqueness, which cannot be replicated under any circumstance and cannot be viewed as setting a precedent…”

In other words, France would never repeat this folly again.

The so-called “domino effect” of repatriation and restitution of looted cultural assets is a convenient, albeit cynical, scarecrow invented by nations with long histories of cultural plunder to atone for and museum boards worldwide which fear the impending, unproven, gutting of their collections by aggrieved source nations should they surrender prized items. It’s unfortunate, however, that source nations should succumb to these idiotic arguments. We can only surmise that larger considerations—trade, politics, geopolitics—have more to do with the compromise settlements that put an end to these restitution claims than simple fears of a scarecrow wafting in the wind in some abandoned corn field.

A scarecrow