Who Should Own the World’s Antiquities?

1.

Last June, the directors of the leading art museums of the United States agreed to limit their acquisitions of antiquities to works that have left their “country of probable modern discovery” before 1970, or that were exported legally after that date. On the face of it, the decision, issued by the Association of Art Museum Directors (AAMD), did no more than update guidelines for ancient art—one of a number of such policy refinements by the association in recent years. In fact, however, it announced a tectonic shift in museum thinking about collecting art and artifacts of the distant past, a change that was unimaginable even five years ago.

For one, the moratorium implicitly concedes that the antiquities trade is rife with works that recently left the ground and were plundered, or illegally exported, or both. It also stakes out a position that goes well beyond the requirements of US law. But far more important, in choosing 1970 as a cutoff date—the symbolic year of a UNESCO convention against the illicit circulation of material deemed by particular nations to be their cultural property—the museums have eliminated the possibility of acquiring most of the ancient art available for sale today. In effect, the museum directors have made it clear that, for American museums, collecting antiquities has largely come to an end; and with it the system of private collectors and dealers that has sustained it since the late nineteenth century.

What accounts for this remarkable decision? After all, the conflict between large museums, which have depended on the free trade of art and artifacts to build their collections, and archaeology-rich nations, which have long sought to restrict or prohibit such trade, is not new. In the past, museums tended to dismiss charges by archaeologists and foreign governments that their collecting practices have abetted the plunder of ancient sites. Indeed, as recently as 2002, a group of top American and European museum directors signed a “Declaration on the Importance and Value of Universal Museums” that in no uncertain terms defended the dispersal of antiquities to encyclopedic museums in countries such as Britain, France, and the United States, and warned against efforts to “narrow the focus” of their collections by “calls to repatriate objects.”

But much has changed since that self-confident statement. In 2003, the US Second Circuit Court of Appeals in New York used an Egyptian national ownership law to convict Frederick Schultz, former president of the National Association of Dealers in Ancient, Oriental, and Primitive Art, for dealing in stolen art. Collectors and museums had long assumed that sweeping laws like Egypt’s—declaring all ancient heritage to belong to the state—would not be recognized in the United States; but the Schultz case demonstrated unequivocally that such laws can be used to designate stolen property in US courts. Around the same time, the horrific looting of the Iraq Museum in Baghdad brought intense public scrutiny on the international trade in ancient art.¹

Then, in April 2005, Marion True, former curator of the Getty Museum, was indicted in Rome for allegedly taking part in a conspiracy to traffic in Italian antiquities. That relatively little of the extraordinary evidence in the case directly concerns True herself is beside the point: the investigation has touched nearly every major US museum, showing that each one had acquired objects that were likely plundered from Italian soil in recent decades. Since the True indictment, no fewer than five leading museums have turned over dozens of prized objects to Rome, conceding Italy to be their rightful owner: the Metropolitan Museum of Art, the Boston Museum of Fine Arts, the Getty, the Princeton Museum of Art—and, in late November 2008, the Cleveland Museum of Art.

On top of all this, a further change has been occurring within the museums themselves. Since the early 1990s, directors and curators who had been trained according to the freer collecting practices of earlier decades, and who believed that museums were justified in acquiring objects of world importance even if their archaeological provenance was unknown, have been giving way to a younger generation who are sensitive to the squalid reputation of the antiquities market and to the growing complaints of field archaeologists about damage to sites by looters. Nowhere has the change been more pronounced than at the Getty itself. Despite having a collection of Greek, Roman, and Etruscan art that consists, to an overwhelming extent, of works of unknown origin acquired since 1970, its leadership has gone further, and sooner, than that of any of its large peers in renouncing the antiquities market.²

Still, this shift in values has not been everywhere embraced. James Cuno’s controversial defense of antiquities collecting, Who Owns Antiquity? Museums and the Battle Over Our Ancient Heritage, was circulating at AAMD meetings last spring even as its members were putting the new policy in final form. And Cuno has now edited a second volume, Whose Culture? The Promise of Museums and the Debate Over Antiquities, which includes essays by senior museum leaders and scholars who share in his skepticism—if not his single-minded fervor—about restricting the circulation of ancient works.³ Among them are Philippe de Montebello, the recently retired director of the Metropolitan Museum of Art, Neil MacGregor, the director of the British Museum, philosopher K. Anthony Appiah, classicist John Boardman, and cuneiform scholar David I. Owen.

In stressing the multiple meanings— aesthetic, textual, political, ritual—that an object may have, these contributors oppose the claim that art divorced from its archaeological setting is a cosa morta (“dead thing”), as an Italian cultural official described the Euphronios krater to de Montebello. “Few, I expect who have marveled at the scale and majesty of the Euphronios krater and the precision and elegance of line and its poignant depiction of a Homeric epic of the death of Sarpedon would concede that it is a cosa morta,” de Montebello writes.

Although having not been properly excavated, it is far from meaningless…. All great works of art have, in addition to their historical and other learned contexts, an aesthetic context as well.

Leading the charge, though, is Cuno himself. The director of the Art Institute of Chicago, Cuno is not quite old enough to belong to the earlier twentieth-century tradition of museum collecting. Nor has the Art Institute been a target in the recent restitution campaigns by Mediterranean nations. And yet, not only does he not share the younger generation’s changing attitude toward the antiquities market; he seems in many ways even less accommodating toward foreign governments than the old guard.

2.

Who Owns Antiquity? is an impassioned argument for what Cuno calls the “cosmopolitan aspirations” of encyclopedic museums. By this he means not only collecting and showing art from every place and era, but also, and more crucially, the promotion of an essential kind of cultural pluralism, or, as Neil MacGregor puts it in an essay about the British Museum in WhoseCulture?, using art as “a way of creating a new kind of citizen for the world.” For by juxtaposing such disparate objects, Cuno reminds us, these institutions

direct attention to distant cultures, asking visitors to respect the values of others and seek connections between cultures. Encyclopedic museums promote the understanding of culture as always fluid, ever changing, ever influenced by new and strange things—evidence of the overlapping diversity of mankind.

Thus, Cuno writes, at the Art Institute of Chicago we may discover an exquisite ivory box that was used as a Christian reliquary in thirteenth-century Sicily, yet features an Arabic inscription; it was made from an elephant’s tusk likely found in southern Africa and brought to Sicily by “Muslim traders from the Swahili coast.” Such a work may in turn remind us of pieces in neighboring rooms—a carved ivory tusk from the nineteenth-century court of Benin, perhaps; or a fourteenth-century German monstrance—another kind of reliquary—consisting of gilt silver around a translucent vessel, the holder for the relic, that “was originally a perfume bottle made in Fatimid—Muslim—Egypt.”

But the book is less a discourse on the virtues of museums like Cuno’s than a polemic against cultural property laws that he believes are increasingly standing in their way. As a legal concept, “cultural property” can include almost any form of artistic or intellectual work deemed of national value by particular nations, and Cuno worries that cultural property laws have given some states vast powers over world art. The Italian government, for example, may forbid an Italian citizen from taking a Matisse or even a Jackson Pollock out of the country; China recently requested the US State Department to ban the import of all Chinese art created before 1911. (In a compromise reached shortly before George W. Bush left office, the US agreed to a more limited ban on Chinese objects created before the end of the Tang Dynasty, in AD 907.)

But Cuno’s primary concern is art and artifacts from the distant past. For Cuno, all the recent controversy about collecting “unprovenanced” antiquities—works that do not have a documented place and date of discovery and hence may likely have been looted—is a distraction. The more important question is whether collecting museums should be beholden to the national prerogatives of countries such as Italy, Turkey, and China, which invest the state with ownership of antiquities found within their borders, and forbid or severely limit their export.

Indeed, Cuno lays much of the responsibility for the accelerating destruction of archaeological sites to such nations. In the absence of legitimate ways to acquire antiquities, their categorical and unenforceable prohibitions have simply made the looting worse. And where they have succeeded in preserving sites and monuments, he maintains, their laws have just as often caused a “perversion” of cultural heritage for the purposes of national identity and parochial politics.

Thus, instead of encyclopedic museums dedicated to gathering and furthering knowledge about objects from many different parts of the world, most archaeological countries have “national” museums, whose mission, Cuno suggests, is to use artifacts found within their own modern boundaries to fill out a spurious national mythology: Etruscan pots (more often than not manufactured in Athens) are used to define Italianness; Sumerian sculptures to define Iraqiness, Hittite jewelry to define Turkishness, and so on. In many such cases, he argues, the modern populations have no historical connections with the ancient cultures whose objects are being collected.

As a result, we have arrived at a situation in which ancient heritage is “divided up and claimed by modern nation-states as theirs, the property of only some of the world’s people, made by their alleged ancestors for them and deprived of its rich diversity of sources and evidence of cultural influences.” From here, it is only a small further step to argue, as Cuno does, that cultural property laws may reinforce the worst tendencies of nationalism:

I do recognize that nationalistic feelings have bred beautiful music, poetry, and works of visual art…. But all too often they have also hardened into ideologies with roots in fear and hatred of the Other, often with racist affinities. They then become dangerous as rep- rehensible means of oppressing others, sources of vicious, even barbaric sectarian violence, persuading colossal numbers of people to lay down their own lives in an effort to kill others.

These are large and provocative claims, and despite Cuno’s protestations to the contrary, seem designed less to forge common cause with archaeologists than to accuse them of “allying with the nationalistic programs of many of these nations” in order to gain access to sites. He also expends little effort confronting unscrupulous behavior by museums that has helped give the recent restitution claims such force. As a result, some critics have viewed Who Owns Antiquity? as so partisan that they have not bothered to scrutinize its arguments. This is a pity, because whatever one makes of Cuno’s thesis, it brings into focus some urgent questions—for museums and for archaeology—that have yet to be given much attention.

3.

Cuno’s Manichaean view of cultural property—with national laws facing off against cosmopolitan museums—draws on several sources. From the Stanford legal scholar John Henry Merryman he appropriates the idea that archaeological countries tend to be “retentionist”—they aim to retain antiquities within their borders—whereas art-market countries like the United States are “internationalist”—supporting maximum dispersal. He also cites the work of the philosopher K. Anthony Appiah, whose recent book Cosmopolitanism: Ethics in a World of Strangers (2006) makes a forceful ethical argument for gathering together the art of different cultures in world museums, so that it can be more widely studied and enjoyed. A third influence comes from various studies of nationalism, including The Myth of Nations (2002), Patrick J. Geary’s eviscerating account of the pseudohistorical claims on which national identities in many European countries are based.

At the heart of Cuno’s analysis, however, are some broad assumptions about Western museums and their relation to the nations from whose territory their collections are formed. Taken together, they form an underlying story that goes something like this:

In the modern era, the discovery and circulation of antiquities have been guided by the rise of large collecting museums, on the one hand, and the emergence of nation-states, on the other. The idea of the museum as repository of world heritage can be traced to the eighteenth-century Enlightenment; the idea of modern nation-states as defined by self-identifying populations in particular territories derives largely from the spread of nationalism in the nineteenth century.

Through the early twentieth century, these two developments were able to coexist to mutual benefit: Western museums were given permits to engage in archaeology in the new nation-states of the Mediterranean and the Middle East; in return, governments in those countries often stipulated a division of finds, known as partage. As a result, the museums made pioneering discoveries and amassed stupendous holdings from around the world; while archaeological countries established important collections of antiquities found in their own territory.

But soon the uneasy alliance broke down. Driven by “the surge of nationalism in the middle decades of the twentieth century,” the archaeological countries began to enact draconian national ownership laws, restricting or even forbidding the export of antiquities. By 1970, these laws had become so pervasive that a UNESCO convention set out to make them the basis of an international system governing all cultural property.

The UNESCO regime was initially rejected by “art-market” countries such as Britain, France, Germany, and the United States, where the large encyclopedic museums were located; to maintain their international scope, these museums continued to buy from the art market what they could no longer obtain through partage. But archaeologists and foreign governments attacked the museums for collecting “unprovenanced” artifacts, and under pressure the art-market countries one by one capitulated to UNESCO. Emboldened, the archaeological countries also began using their laws and international agreements to repatriate their “own” antiquities from foreign collections. In this way, the “nationalist-retentionist” approach to cultural property gained dominance in the international system, leaving the cosmopolitan values of the museums increasingly under threat.

Various objections can be raised about this story. To associate encyclopedic museums with the Enlightenment rather than with the rise of the nation- state ignores, for example, the extent to which such museums —in France, Germany, and Britain—were themselves essential (and sometimes rapacious) instruments of late-eighteenth- or nineteenth-century nationalism; they often served to project imperial ambitions and create aesthetic links between their nations and the great civilizations of antiquity. Also, the influence of partage was never as great as Cuno would like us to believe. While there were some exceptional archaeology expeditions by the large collecting museums, they relied heavily on the art market throughout the early twentieth century. Nor is it clear that the UNESCO convention has been much of a factor in recent repatriation efforts.⁴

But even with such caveats, Cuno’s account is telling about the far-reaching implications of some cultural property laws. Take the case of Turkey. Like its Western European counterparts, it is a post-imperial state, the successor to a regime that once conquered and traded with other lands and brought home their treasures. (As Philippe de Montebello observes in Whose Culture?, the first encyclopedic museum was arguably the art collections of the Topkapi Palace founded by Mehmed II in fifteenth-century Constantinople.) Yet it is also, like other Mediterranean countries, a modern nation-state whose rich archaeology was, in a later period, subject to exploitation by the West. And in contrast to the multiethnic Ottoman Empire, modern Turkey, apart from its Kurdish population, which is continually discriminated against, is overwhelmingly homogeneous: “Turkey and Istanbul,” Cuno observes, “have become almost only Turkish and Muslim, when once both included large populations of Arabs, Christians, and Jews.”

As a result, Turkey has developed a narrowly “nationalistic” approach to cultural property—denying, for example, the Kurdish minority control over its rich Kurdish heritage—even as it claims a diverse Ottoman past: it maintains an absolute prohibition on the circulation of antiquities found within its own present-day borders, because of their perceived importance to Turkish identity. Yet Turkish museums are filled with pieces like the Alexander Sarcophagus that were recovered from other former territories of the vast Ottoman Empire—objects, Cuno writes, that “could rightly be considered important to the cultural heritage and national identities of the modern states occupying those lands today.”

In China, meanwhile, Cuno finds a country whose “nationalist-retentionist” approach to artifacts seems to be divorced from the archaeological concerns such a regime is supposed to uphold. As he observes, it is normally impossible to export a Shang bronze out of China legally, and China has sought to restrict the foreign trade in Chinese antiquities. Yet Chinese citizens and corporations are encouraged to buy such antiquities and bring them back to China or, as in the bizarre case of two eighteenth-century bronzes put on auction in Paris in February, to use other means to obstruct their sale (see The Affair of the Chinese Bronze Heads). As Cuno writes:

The Chinese justification is that these are rightfully Chinese property, wherever they may now be. Buying them back for China is a patriotic act regardless of any alleged incentivizing effect such acquisitions may have on the looting of archaeological sites. And the constraints they want the rest of the world to accept—that Chinese antiquities and cultural property proposed for acquisition be accompanied by documentation proving that they were legally removed from China and not excavated or looted—do not apply.

Still, an overtly nationalist approach to cultural property may not be the worst fate for a country’s ancient sites. In a discussion of twentieth-century Iraq, for example, Cuno recounts how the successful system of partage established by Gertrude Bell under the British Mandate broke down in the 1930s when Iraqi leaders—in particular the Iraqi nationalist Sat’i al-Husri, who became director of antiquities in 1934—began to see control and ownership of the Mesopotamian heritage as a crucial dimension of nation-building. By the time of Saddam Hussein, archaeological finds had become subject to what Cuno describes as “political manipulation” aimed at serving “the ends of the Ba’thist Party.” Yet he does not mention that such state interest—however questionable its aims—also meant that, until the economic crisis of the 1990s, Iraq had almost no looting, and foreign archaeologists considered its antiquities administration one of the best-funded and most professional in the Middle East.⁵

Cuno is more persuasive in raising questions about recent international bans on Mesopotamian artifacts that, in addition to forbidding their sale, also mandate their repatriation to Iraq. For they may be more at risk in Baghdad than in the safe haven of a museum or repository abroad. Indeed, the recent emphasis on repatriation as a solution to antiquities disputes is unfortunate: tracking down unprovenanced artifacts that may have left a country years earlier does little to address contemporary looting problems, and it rarely makes the objects in question more meaningful to archaeologists or accessible to the public than they were in a foreign museum. But are concerns such as these grounds for doing away with cultural property laws entirely?

4.

As Cuno sees it, the nationalistic overtones of antiquities laws in countries such as Iraq, Turkey, and China reflect deeper claims by states about the origins of their citizens and culture. In its request for a bilateral antiquities agreement with the US, for example, the Italian government wrote that Greek and Roman antiquities found in its territory were “a source of identity and esteem for the modern Italian nation,” because they “constitute the very essence of a society and convey important information concerning a people’s origin, history, and traditional setting.” But all this, according to Cuno, is nonsense:

Antiquities are ancient artifacts of times and cultures long preceding the history of the modern nation-state. And in all but a very few cases, they have no obvious relation to that state other than the accident of geography: they happen to be found within its modern borders.

For Cuno, the disjuncture between modern states and the civilizations of the distant past exposes a central flaw in the concept of cultural property. For if the correlation is arbitrary, he maintains, so must also be the laws in archaeological countries that give the state control of ancient art found within their borders. “I question the premise…that it is the right of sovereign nations to legislate the protection of and access to whatever they consider to be their cultural property,” he writes. Or as he puts it bluntly in the case of Turkey, “Why should state sovereignty determine ownership?”

Of course the extent to which modern peoples are connected to their ancient territorial forebears can be debated—as Ingrid Rowland has argued, the link in the Italian case is much stronger than Cuno allows.⁶ But the larger problem with Cuno’s argument is the assumption that the legitimacy of a country’s laws depends on the veracity of the claims it makes about its origins, rather than on a more basic principle of sovereign power.

Cuno thinks that countries with national cultural property laws can be pressed to do away with them, because they do not have a legitimate association with the antiquities found in their soil. Instead, he suggests, they should cede control of all cultural goods to some kind of “international trusteeship under the auspices of a nongovernmental agency.” Just what he means by this isn’t clear—he also mentions a “return of partage ” that would give museums in the United States and elsewhere a share of new archaeological finds abroad. But he seems to have in mind a system in which encyclopedic museums could go on collecting—while all ancient artifacts, including those now in museums and those yet to be excavated, would be nominally held in trust for “all humankind” by an “international authority” that is independent from the influence of any national government.

Now, philosophically, Cuno’s proposal holds considerable appeal: by removing nation-states from the equation, it would shift the debate over antiquities from disputes about ownership to the more urgent matter of “stewardship”—the term Cuno, following John Henry Merryman, uses for the paramount goals of care and preservation. But even if such a supranational entity could somehow be brought into existence to supervise the circulation of ancient artifacts, it would still require the endorsement of sovereign nations. (Puzzlingly, Cuno laments the “nation-state bias” of UNESCO, as if it might be able to function without such endorsement.)

Professor Appiah, in his formulation of a cosmopolitan ethics, makes it clear that the authority of sovereign states to govern rights and property must continue to be upheld: “the primary mechanism for ensuring these entitlements,” he writes, “remains the nation-state.” Cuno seems to lose sight of this fact. Indeed, now that American museums—including even the very few that strive to be encyclopedic—have signaled their acquiescence to the principles of the 1970 UNESCO convention, there is not really any doubt that the present system is here to stay. The pressing question is how this admittedly imperfect regime can be used to provide a sustainable future—for beleaguered archaeological sites and for embattled museums.

5.

The stark reality facing art museums today is that the era of large-scale collecting of antiquities has come to a close. In the United States, the situation is further complicated by the dependency of large museums on wealthy private donors and patrons, whose contributions have often related to their own interests as collectors. Now that museums have adopted rules that prevent the acquisition of many ancient objects still in private hands, they must find other ways of retaining that support.

Equally important, archaeological countries must recognize that national ownership laws have often been a disastrous failure. Such policies—which were often accompanied by strict limits on antiquities loans to foreign institutions—succeeded only in driving the trade further underground; and museums ultimately had to face the prospect of criminal prosecution for collecting ancient art. Even as these countries fight to reclaim works, some of them, including Italy, have begun to acknowledge the flaws of prohibition.

Yet as other museum directors have demonstrated—including not least some of the contributors to Whose Culture? —the divide between collecting museums and foreign governments is already a good deal less wide than Cuno suggests. One of the last exhibitions organized by Philippe de Montebello at the Met before his retirement, for example, was “Beyond Babylon: Art, Trade, and Diplomacy in the Second Millennium BC.” Dazzlingly international, it conveyed a powerful historical argument for the cosmopolitan museum; its highlight was the contents of a Levantine ship that was transporting goods from a dozen different cultures when it sank off the south coast of Turkey in the late fourteenth century BC. For these Bronze Age civilizations, De Montebello writes in the exhibition catalog,

neither political nor physical barriers appear to have stemmed the flow of cross-cultural exchange, which took the form of booty and tribute, as well as trade and diplomatic gift giving, thus providing the means for the circulation of precious goods while stimulating the exchange of ideas and fostering artistic creativity.

Equally important, the exhibition was a loan show based on extensive contributions from supposedly “nationalist” archaeological countries—including Turkey, Greece, and Egypt, as well as Georgia, Armenia, and Lebanon. (Remarkably, Syria also agreed to send over fifty works, but was discouraged from doing so by recent US legislation concerning countries designated as state sponsors of terrorism.⁷ ) While, as Cuno stresses, the range of antiquities museums can acquire has been severely limited by national cultural property laws, “Beyond Babylon” suggests that there are many ways besides collecting for cosmopolitanism to flourish. It is notable that “Beyond Babylon” was also underwritten in substantial part by private patrons in New York, demonstrating that a loan show can have as much appeal to philanthropists as can permanent acquisitions. (Among the patrons was Dorothy Cullman, a widely admired supporter of the arts, who died this April.)

Indeed, the easing of restrictions on international loans—encouraged, in part, by innovative restitution agreements such as that between the Met and Italy—is already doing much to reconcile collecting museums and archaeological nations. (The Met acknowledges that a number of important antiquities it had acquired belong to Italy, but will continue to show some of them on long-term loan, together with rotating loans from Italy of other works of “equivalent beauty and importance” to the objects that have been restituted.) Past experience has shown that permanent acquisitions may do little to encourage cosmopolitanism in the countries from which the objects derive while increasing the threat to archaeological sites.

In contrast, lending can work both ways: the rich diversity of American, British, French, and German museums can be seen in countries that do not have international art of their own, even as loans from archaeological countries, like those in the Babylon show, provide Western museums with what can no longer be acquired outright. Rather than a threat to the cosmopolitan ideal, then, the new détente between foreign governments and American museums should be seen as an essential step in confronting the urgent problem of the destruction of archaeological sites. For the most crucial challenge is not the aggressive nationalism of some countries or the voracious appetites of some museums: it is the disappearance of the ancient past so coveted by both.