Historical and social perspectives on the regulation of the international trade in archaeological objects: the examples of Greece and India.

• Author: Brodie, Neil

TABLE OF CONTENTS I. INTRODUCTION II. REGULATION AT THE SOURCE OF THE ARTIFACT A. Example 1: The Greek Cycladic Islands B. Example 2: India III. DISCUSSION I. INTRODUCTION

It is a well-established fact that the international antiquities market is responsible for the destruction and vandalism of archaeological and cultural sites worldwide. (1) Material removed from these sites is traded across jurisdictions until it can be sold legally and acquired as "art" by private and institutional collectors in North America, Europe and, increasingly, East Asia. (2) One consequence of this trade is that most countries outside the United States have now passed laws that protect archaeological heritage by proscribing the unauthorized excavation of antiquities, the export of antiquities, or both. (3) Opinions are divided, however, as to the effectiveness and even the desirability of such strong regulations at the source of the artifacts. (4)

Opponents of such regulation argue that the prohibitions deter people from declaring antiquities that are discovered by chance. They further argue that because of the prohibition, information about the place of finding and context of the objects is often lost, and that any subsequent trade is driven underground, increasing the criminalization and corruption concomitant with such regulation. (5) Opponents also contend that these laws should protect only the most important archaeological finds while allowing the remainder to circulate freely. (6) The free circulation of these duplicate or poorer quality pieces, which might result from museum storage and fresh excavations, would go some way towards satisfying demand. They further argue that free circulation has the added cultural and educational benefit of allowing a large number of people to come into contact with ancient "art," either as owners or as museum visitors.

Proponents of strong regulation at the source of the artifacts counter that archaeological sites are a finite resource such that, in the long term, there can be no strategy of legal and sustainable commercial exploitation. (7) They argue instead that laws regulating the free flow of archaeological material constrain the market, through either a direct deterrent effect or the potentially high cost of circumvention, and therefore help to protect the integrity of archaeological sites at the source of the artifacts. (8)

These two contrasting views on how best to regulate the market reveal a fundamental disagreement over the source of traded antiquities. Opponents of strong regulation adhere to the premise that most archaeological objects coming onto the market are chance finds. (9) Chance finds are objects that would be found anyway as an incident of building or agricultural operations but, in the absence of a market, would be thrown away or destroyed. In effect, the market rescues them. Proponents are not convinced about chance finds; they believe that most material new to the market has been deliberately looted and that, without the market, it would remain safely unexcavated. (10)

Both parties to this debate make simplifying assumptions, and there is a noticeable absence of evidentiary support. For example, in 2000, the American Association of Museums (AAM) claimed that "blind enforcement of restrictive patrimony laws is not the answer" to archaeological looting, because "experience shows that given the unabated demand for antiquities, restrictive cultural property regimes merely promote a black market, shifting the trade from legitimate to illegitimate channels and increasing the risks posed by clandestine looting by driving all trade underground." (11) But the AAM gave no factual support for this statement, relying upon the authority of another similar statement made by John H. Merryman that,

[r]etention laws ... merely ensure that the export trade moves underground, putting cultural property traffic in the hands of the wrong people, who will do it the wrong way. Historically, the tighter the export control in the source nation, the stronger the pressure to form an illicit market. (12) Merryman himself relied upon yet a further authority, Paul Bator. (13) Bator sets out the microeconomic and psychological reasons why strong regulation should fail, but gives no hard evidence, aside from his explanation that the large volume of illegally exported material reaching the international market itself demonstrated that strong export control regimes had failed. (14) He seems not to have considered that, without such controls, the situation may have been far worse. (15)

In theory, the study of regulatory responses to other illegal trades, particularly those in narcotics and natural resources, should offer instructive insights into the use of regulation against the antiquities trade. There is no broad measure, however, of agreement as to the effectiveness of these regulatory responses, which seems often to depend upon the particular social and cultural circumstances of the trade in question. (16) It is not surprising that the effect of regulation depends upon factors that are not always legal or economic, and it emphasizes the danger in considering all illegal trades together as a single generic category. The trade in antiquities, and in cultural material more generally, has its own sociocultural characteristics. Thus, it is distinguishable from other illegal trades and the value of comparative perspectives is diminished.

Two empirical studies of the trade in cultural material have shown that strong export controls work. Between 1820 and 1870, pre-unification Italian states with strong export controls in place retained more of their cultural heritage (measured in terms of paintings and antique books) than states with weak or no controls. (17) Thefts from cultural institutions in the Czech Republic rose sharply after 1989, the year the "Iron Curtain" was raised; though this example also highlights the curtailment of civil liberties that might be necessary for strong export controls to work and that are probably unacceptable in a liberal society. (18)

This Article offers a further, admittedly partisan, contribution to the debate over the effectiveness of statutory regulation, especially at source, of the antiquities trade by introducing historical and social perspectives. First, this Article describes the history and assesses the utility of regulation in two countries, Greece and India. Second, this Article incorporates insights drawn from the examples of Greece and India into a discussion of the wider social and cultural contexts of the collection and trade of antiquities.

2. REGULATION AT THE SOURCE OF THE ARTIFACT

   The objective of any strategy aimed at combating the illegal trade in antiquities is twofold: to take the trade out of the hands of criminals while, at the same time, protecting the archaeological resource. Clearly, the trade could easily be saved from criminals by relaxing regulation, but only at an undetermined cost to the archaeological resource. Unfortunately, there is no consensus as to how this cost might be measured. (19) Successful protection of the archaeological resource might be differently conceived, either as conserving the integrity of archaeological sites and monuments, or as defending property rights. From the archaeological perspective of this Article the former concept is preferred, although national laws may enshrine an uneasy compromise between both concepts.

   The archaeological laws of most so-called "source countries" have a long history that often predates the modern nation state. In Italy, for example, laws enacted before nineteenth century unification continue to exert an influence over present legislation. (20) In many states, including India, laws were first enacted by colonial administrations. (21) Thus, modern archaeological laws often have a long pedigree and have been amended and adapted to changing political and economic circumstances. One legacy of this historical development is that rules are not always unequivocal, and laws might embody accommodations or compromises that have been made between different social interests or intellectual agendas. This legal indeterminacy has sometimes caused difficulties for U.S. courts called upon to enforce foreign archaeological laws. (22) Nevertheless, most source countries have adopted laws that prohibit the export of archaeological objects and take archaeological heritage into state ownership. As noted earlier, Bator has suggested that these laws have been ineffective. (23) If Bator is right, then before abandoning these laws, it will be useful to examine in detail several specific examples of apparent failures, in order to identify the causes of failure and suggest possible remedies.

   With this strategy in mind, this Article presents two case studies. The first concerns the plundering of Bronze-Age Cycladic cemeteries in Greece between the 1950s and 1970s. The second looks at the situation in India over the same time period. These two countries...