Why I am worried about AAMD's new "safe haven" protocols

Brian Daniels, whom I greatly respect for the important work he and his colleagues are doing to try to monitor and help Syrians safeguard archaeological sites and artifacts, is happy about the AAMD's announcement of safe haven protocols for antiquities from conflict zones. Here's Brian's facebook post, which many other fellow heritage protection advocates are retweeting approvingly:

"Quite possibly one of the most important developments in the field of cultural heritage policy in recent years. Not only does the AAMD declare its support for the 1954 Hague Convention, but it will treat objects in AAMD member museum safe havens as loans--not permanent acquisitions. (As such, a U.S. museum would need to follow U.S. law for an international museum loan to participate). The guidance outlined here is what framers of the 1954 Hague Convention had in mind for museums following World War II."

I cannot share this enthusiasm. Framers of the 1954 Hague Convention did not have in mind, objects dug up from archaeological sites by private parties, smuggled out of Syria to Turkey or Dubai and then bought up by dealers or collectors. There was nothing like the global market for illicitly excavated antiquities in 1954 that there is now. And the AAMD protocols, I worry, include provisions that will encourage more looting and smuggling of artifacts.

Here's the relevant section of the AAMD protocols, with the problematic language italicized:

II. The Source of Works In Need of Safe HavensIn the event of a terrorism occurrence or during an armed conflict or natural disaster, works may be brought for safe haven in the United States, Canada or Mexico from any depositor, assuming of course compliance with applicable law (see below).  Predetermining who may request such assistance in the abstract is not always possible, but may include the legal owner of a work, the agent for the owner, the bailee of a work, the custodian of a work, and a person or entity who comes into possession of the work and the owner is unknown, unavailable or legally constrained [sic] (collectively, a “depositor”).  Examples of a depositor are:

• Museums in the affected area that hold works;

• Governmental entities of or within the affected areas;

• U.S. government authorities who have seized works on entry to or in the United States; or

• Private individuals, companies or organizations who own or come into possession of works, whether in the affected area or after removal from the area.

Member museums should exercise caution to assure that accepting the request for safe haven will not violate the rights of lawful owners, subject the museum to a claim for return, reflect negatively on the reputation of the museum or cause the museum to be involved in any illegal or unethical activity.  Requests for safe haven and agreements to accept such requests should be documented where possible prior to movement of works to be transferred.

The garbled syntax in the first italicized phrase is a tell, indicating that this is an issue the AAMD must have been wrangling. With good reason. The last quoted paragraph above notwithstanding, the protocols give a green light to museums to accept as loans artifacts purchased from the networks that are paying looters to continue to dig, networks that in some cases are run by or beholden to ISIS. Those who purchase such blood antiquities will now be able to loan them to a museum, which will provide the buyers with a patina of legitimacy and museum approval that will increase the value of the artifact when it is returned to them. 

Taking as loans artifacts from museums, government entities, or seizures is an excellent idea. Taking as loans artifacts bought from the illicit market is a terrible idea.

, seeing it as marking a welcome albeit belated move that 

The Association of Art Museum Directors' Opposition to MOUs: Is it Justifiable, and What's the Alternative?

Rick Saint-Hilaire has an interesting post noting that the AAMD appears to have changed its policy stance towards Memos of Understanding, shifting from muted acquiescence or support to outright opposition. Several colleagues have already commented on facebook at how troubling this shift is. But it's also troubling that the law establishing the MoU system is not what many of us whose primary concern is stopping the market-driven looting of archaeological sites want it to be, i.e., not just a way to close down US imports regardless of any other factors. It requires countries asking for this restriction to do certain things, and supposedly lets us off the hook -- or, if one prefers, enables us to put pressure on those countries to live up to their end of the deal -- if they do not do those things, whether the reason they do not is corruption, indifference, or revolution. 

Reading the AAMD's brief on El Salvador as an example, one has to admit that they make a strong case, based on the evidence they provide, that the Salvadoran government is not doing a very good job. Because governmental presentations to CPAC are not made public, there is no way to know how or even if the Salvadoran government has refuted the charges the AAMD makes. The best we have is a  brief from the Lawyers' Committee for Cultural Heritage Protection which does not address the evidence offered by the AAMD, and as evidence of El Salvador's  offers a single example of a joint operation initiated, it seems, by US Immigration and Customs Enforcement. We have no way to know  how much El Salvador is spending on site protection, customs inspections, etc. etc., whether that amount has increased either in absolute terms or relative to the country's overall budget, or what the fruits of this expenditure have been.

The AAMD's more general policy position seems now to be that MOUs are not working and should be scrapped. In favor of what? The AAMD suggests that countries should open their markets and tax the exports to pay for more better policing (and, just coincidentally of course, to bring more better antiquities to museums). 

This is an intriguing suggestion, despite the fact that it is both politically unrealistic (they really think El Salvador's Ministry of Culture is going to go back to their government and persuade them that they have to both let national patrimony be bought up by foreigners and institute new taxes, because the museums and collectors in the US have reopened the US end of the market and caused a spike in looting as a result?), and bureaucratically unfeasible -- since, as the AAMD notes, corruption is a major problem, it's hard to see how the tax will be collected and revenues find their way to site protectors. What makes it interesting is that the AAMD recognizes that the general idea of taxing the market for antiquities to pay for site protection is a good one.  

The next step would be for the AAMD to propose, whether as a quid pro quo for abandoning particular MOUs or simply as a more effective way to bring looting under control enough to make MOUs unnecessary, that the US impose taxes on the import and sale of antiquities here. The funds raised could then be funneled -- perhaps via the newly proposed White House coordinator -- into targeted programs aimed at improving site protection and other anti-looting and anti-site-destruction efforts. 

Why Christie's Thinks It Can Find Buyers for Antiquities Lacking Pre-1970s Provenance

Nord on Art points out that the e-catalogue for Christie's upcoming London antiquities sale includes a number of items lacking in the pre-1970s provenance that museums belong to the AAMD should require for any objects they acquire, and that makes buyers more vulnerable to potential repatriation claims. 

For Wennerstrom, that Christie's thinks these items can be sold is puzzling:

as the repatriation of antiquities continues to make international news, one wonders why any potential buyer would consider acquiring works without clear datable pre-1970 provenance.

But there is really not much to wonder about here for two reasons. 

First, not all buyers care whether museums are some day going to be willing to accept donations of their artifacts. They are happy enough to acquire for themselves such beautiful objects, and perhaps eventually even display them in private museums; or they anticipate that eventually some solution to the problem of so-called "orphan" antiquities will be found and the very caring foster-parents who purchased these "orphans" will then be permitted to donate them. 

Second, the risk of having a repatriation claim brought is a calculated one for any buyer, and depends on several factors that may reduce it substantially: where the object's country of origin is difficult to establish that risk drops substantially, for instance, and the resources available to the country of origin are likely to be scarce, requiring them to focus on the highest-end objects and on repatriating items owned by countries, museums, or universities where leverage can be exerted in the form of threats to ban archaeological digs or exchanges. 

The continued saleability at auction of the kinds of items noted in the Nord post is only the tip of the iceberg. One can only imagine what goes on in the back rooms of antiquities dealers' shops where presumably the very highest-end provenance-challenged pieces are sold directly to collectors. But the key point here is that heritage protection advocates are deluding themselves if they think that the 1970 rule in itself is making much of a dent in the trade in non-archaeologically-excavated artifacts.