Regulating the Market in Illicit Antiquities
Mackenzie, Simon, Trends & Issues in Crime and Criminal Justice
For centuries antiquities have been bought and sold, often with little regard to their historic ownership. To some, cultural artefacts are regarded as the property of the state, while to others they belong to those who find them and may therefore be freely traded.
There are cultural "nationalists" who argue that relaxed export laws would result in an increased outflow of their heritage. They have little sympathy for collectors in market nations whom they accuse of having plundered their objects. Cultural "internationalists", on the other hand, believe that antiquities belong wherever the market distributes them, and oppose retentionist attitudes displayed by some source states, suggesting that strong export controls foster black markets.
Given that there is a thriving trade in antiquities, an unknown proportion of which are stolen, this paper provides a brief analysis of the global systems of supply and demand that govern this trade, and the regulatory challenges that exist in this complex market.
For the purposes of this analysis, the market in illicit antiquities might usefully be split into three stages: the supply of antiquities emanating from source nations, the demand created by consumers in market nations, and the chain of transportation which links the two. By considering these "divisions of labour", targeted solutions to the problem may be easier to identify than if the market as a whole is considered. This paper deals only with the supply and demand stages; the transport networks which move illicit goods are discussed in an earlier paper in this series (Mackenzie 2002).
Merryman (1986, p. 832) provides a succinct description of the supply and demand aspects of the antiquities market:
...the world divides itself into source nations and market nations. In source nations, the supply of desirable cultural property exceeds the internal demand. Nations like Mexico, Egypt, Greece and India are obvious examples. They are rich in cultural artefacts beyond any conceivable local use. In market nations, the demand exceeds the supply. France, Germany, Japan, the Scandinavian nations, Switzerland and the United States are examples. Demand in the market nation encourages export from source nations. When, as is often (but not always) the case, the source nation is relatively poor and the market nation wealthy, an unrestricted market will encourage the net export of cultural property.
The chain of supply has many permutations. A simplified chain is depicted in Figure 1. In reality, this chain might have many more links, as the item passes from dealer to dealer often in a series of rapid transactions, resulting in a chain of supply so convoluted it is very difficult for an end-consumer to unravel.
Looting of temples, tombs and other sites of archaeological interest is often carried out by poverty-stricken locals in source countries. Peasant populations in these countries may consider buried artefacts to be their birthright, to do with as they please, perhaps left for them providentially by their ancestors precisely for the purpose of making money. This being the case, criminal penalties that have been imposed by source countries to try to stop looting have had little effect.
In addition to criminal penalties, two other measures have been implemented by many source countries:
* export prohibitions; and
* transferring ownership to the state.
These measures, however, do not usually achieve the desired result. The reasons why are discussed below.
Courts in Western market nations do not routinely enforce source country claims based on the source country's laws prohibiting export. In the absence of a treaty or other special legal provision, a source nation seeking the return of a cultural object that has been legally obtained but illegally exported is limited to using diplomatic or executive channels. …