What is the Practical Effect of the Dealing in Cultural Objects (Offences) Act 2003?

“Dealers are Confident their methods won’t trigger the offence…”

Yesterday evening I had the great pleasure in attending a program by Dr. Simon Mackenzie at the Institute for Advanced Legal Studies in London. He gave some of his initial findings on a survey of important players in the antiquities market he had just completed with Professor Penny Green. Mackenzie was just starting to interpret his data quite obviously. A couple things he said really jumped out though, and should make the scholarly output from this project much sought-after.

According to Mackenzie, many of the respondents thought the act was of minimal effect. This is my view as well. There have been no completed prosecutions under the act, though apparently some charges have been brought for altering parts of registered buildings, but no convictions have been achieved. As I’ve argued before, prosecutions under the act will almost certainly be few and far between The reason for that is the difficulty of proof. The market does not operate with provenance or chain of title. Any given vase could have been in a collection for 150 years, or could have been unearthed last week. There is no way of distinguishing them once they have been restored.

I found one interview response from London’s law enforcement community quite fascinating. The respondent basically stated that the job of the police is to protect London, not to recover Iraqi or any other antiquities. Mackenzie labeled this problem national self-interest. On one level, I can completely see this police perspective. After all, if Londoners were going to allocate enforcement resources, wouldn’t most of them choose safety and security for London first? I think so. However this becomes problematic for the illicit trade in cultural property, which is truly international in character.

Another issue was the fact that these dealers are “powerful constituencies in their own governance”. Essentially, dealers have a great deal of say in how their own regulations are created. In conclusion, Mackenzie summarized the quandary by putting forward two different forms the antiquities market might take: (1) the market would end, or (2) the market would function along the lines of partage. In the latter model, experts would excavate sites, source nations would keep important objects, and then the excess antiquities would be auctioned off to finance the dig itself. In theory that seems a workable model. I’m not an archaeologist, and I have only a cursory knowledge of what they do, but that seems to be a difficult model for them to implement. One possible compromise might be for archaeologists to begin to commercialize their research, and thus allow for responsible commercial exploitation. In turn, dealers could implement some truly effective self-regulatory measures.

In the end, what I took from the discussion was a new-found respect for the Cultural Objects offence. I have been quite critical of it in the past, but I think, that only a truly draconian regulatory framework can effectively police the market as it currently operates. The best means of reform is to convince dealers that more money can be made by selling provenanced antiquities. That is a big job, and quite daunting, but achievable in my view.

Questions or Comments? Email me at derek.fincham@gmail.com

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