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The evening event on 22nd May in the Museum for Art and Trade was the introductory session of a symposium about the protection of cultural assets. The panel discussion centred on the draft law formulated by the Federal Representative for Culture and the Media (BKM) for the implementation of the UNESCO convention of 1970 in Germany and an assessment of the cultural and political implications of the measures contained in the draft law for the improvement of the protection of cultural assets.
The symposium on the two following days was mainly used to discuss international conventions, laws and alternative measures for the protection of cultural assets.
In this summary, the results of the entire symposium are ordered under the two main topics.
Part I: The situation in Germany - Discussion of the draft law for the implementation of the UNESCO convention of 1970
Do we need a new law for the protection of cultural assets?
In her introductory statement in the panel discussion Mrs Dr. Bias-Engels, group leader in the Department of the State Minister for Culture and the Media, declared that a large proportion of the illegal trade in cultural assets in Germany publicly claimed by members of the state criminal department cannot be proved. German laws already covered all the legal possibilities for the return of cultural assets when national regulations for protection have been broken and that is why Germany is now ratifying the this convention, said Dr. Bias-Engels.
Mr Dr. Michael Müller-Karpe, archaeologist at the renowned Roman-Germanic Central Museum in Mainz and a critic of the government plan, maintained that the existing laws were by no means sufficient. This was clearly exemplified by the trading in Iraqi cultural assets which cannot be stopped despite the fact that a comprehensive prohibition makes it in effect a crime in Germany.
Prof. Günther Schauerte (Deputy General Director of the State Museums in Berlin) emphasised that the state museums in Germany had already committed themselves to observe the laws of the countries of origin of cultural assets, e.g. to the ICOM Code of Ethics. They therefore expect the government to join them in agreeing to the minimum standards. Prof. Ernst-Rainer Hönes (German National Committee for the Protection of Historical Monuments) declared that the existing laws were not sufficient; the problem, however, was not the legal position but rather the attitude to laws and legality which were unsatisfactory.
Figures named by UNESCO and Interpol also show that the current laws and their enforcement have obviously not been adequate, as turnover in illegal trading amounts to around 4.5 - 6 billion dollars per year. Alexander Sandmeier (Chairman of the German Art Trade Association e.V.) protested, maintaining that this was not provable and a discriminating statement. The art trade had committed itself to adhere to its own code of behaviour and only to trade in legal cultural assets.
The Evaluation of the Draft Law
There were three central themes in the debate on the existing draft law: the listing procedure, the obligation of the art trade to make records and the reversal of the burden of proof.
I: The listing procedure
Article 5 of the UNESCO agreement provides that all the contracting states are obliged to create lists of the significant public and private cultural assets on the basis of a state inventory naming all those objects the export of which would represent a noticeable loss to its cultural heritage.
The listing procedure contained in the draft law according to which only individually identifiable single objects may be included in the lists and published in the Federal Publications was deemed by most experts to be hardly practicable as countries such as Greece, Egypt or Cambodia cannot be realistically expected to list all significant cultural assets of which the export is to be prevented and to publish them in the Federal Publications.
In this form and including the requirement of publication in the Federal Publications , however, the listing procedure ignores the fact that the convention gives each country the right to determine itself what cultural assets it regards as worthy of protection.
This procedure proves completely unsuitable in particular in the case of the protection of non-excavated antiquities, as these are unknown and therefore cannot by their nature be listed. Mrs. Dr. Bias-Engels defended the planned listing procedure and she requested that suggestions for alterations be made.
II: The Obligation of the Art Trade to make Records
In the government´s draft law, the obligation of the art trade to record the origin of goods is limited with the words "insofar as it is known". This formulation is viewed by most experts as not only unsatisfactory but also incomprehensible, as it is the serious art trade, as Mr. Sandmeier emphasised, which is particularly insistent on the proof of origin.
At the beginning of May the federal government rejected the alteration suggested by the Upper House that a photograph of the cultural asset should be made obligatory in addition to the description - arguing that the additional bureaucratic effort was unreasonable. This attitude of the government was greeted with astonishment as it provokes the suspicion that the interests of the art trade are being given clear priority over the creation of efficient measures of protection.
Questioned on this, Mrs. Dr. Bias-Engels admitted that she also could not understand why the government had rejected this suggested alteration by the Upper House.
From the viewpoint of the art trade, the obligations to make records are a considerable burden, creating additional costs and making trading more difficult, said Mr. Sandmeier.
III. The Reversal of the Burden of Proof
The central controversy of the debate was triggered by the statement of Mr. Dr. Müller-Karpe that the trade in undocumented findings from illegal digs could only be achieved by means of the reversal of the burden of proof of the legality of the origin.
Dr. Bias-Engels disagreed, pointing out that a reversal of the burden of proof was not to be reconciled with German law which always assumes that a party is innocent until proven guilty and that it cannot be reasonable to demand this of the party purchasing in good faith.
Dr. Müller-Karpe in turn disagreed, pointing out that in the case of the protection of species the reversal of the burden of proof is already customary practice. For example, ivory is confiscated at every German border if there is no proof of legal origin. If this is possible in the protection of species, then it should also be valid in the area of the protection of cultural assets.
All the participants welcomed the fact that Germany, in ratifying the UNESCO convention is also entering into the obligation to record its own considerable cultural heritage and to protect it from loss through sale, theft etc. In Germany up to now only cultural assets in private ownership have been listed and the representatives of museums regard this as insufficient. Prof. Günther Schauerte maintained that the listing of significant items is generally of extreme importance and that many museums do not even keep inventory records. For protection to be effective, similar systems and categories must therefore be developed for the recording of cultural assets.
Summary and Changes to the Draft Law
The federal government is correct in its comments that the convention leaves considerable scope for realisation by the different countries. This openness to interpretation and the relatively low degree of obligation are certainly deficits of the convention. The federal government has made use of this scope and all the experts present doubted whether it has given sufficient consideration to the actual intention of the convention. To sum up, the draft law in its current form presents lower requirements than the voluntary obligations of the art trade and the museums.
The experts (archaeologists, representatives of the museums associations, international law and the art trade) were all in agreement that the draft law must be urgently reviewed so that the protection of archaeological goods is improved. Prof. Kurt Siehr, an international lawyer from the Max-Planck Institute has already prepared some suggested alternations: A §6a is to emphasize the particular protection of archaeological cultural assets, creating more extended rights to return and duties to make records. For the regulation of the art trade Prof. Siehr intends records to be made for all cultural assets, not only for "significant" cultural assets. The archaeologists present welcomed Prof. Siehr´s initiative, but they pointed out that these suggestions for alterations are not sufficient to protect the non-excavated antiquities better in future. Dr. Müller-Karpe therefore demanded that there be a general prohibition of trade in finds from digs. The turnover from these objects was economically negligible, whereas the damage created by the loss was considerably higher. As nearly all countries today have declared their non-excavated antiquities to be an unsaleable part of their cultural heritage, objects from digs can therefore only be found in museums and a prohibition of trading in these items would be the next logical step, which is also covered by the already existing self-obligation of the art trade. Mr. Sandmeier maintained that a prohibition of trade was out of the question. The turnover of 1 % (finds from digs) was essential for some traders. Apart from that, clean trading in antiquities and finds from digs were also of great service in maintaining the finds.
Prof. Rainer-Maria Weiss, Director of the Helms-Museum Harburg, disagreed, pointing out that the private ownership of archaeological goods inevitably means that destructive behaviour has taken place. Only a prohibition of trade would be able to prevent superfluous destruction of cultural heritage. A deadline could be named giving a date at which objects are excavated, preventing objects already on the market from becoming questionable.
Outlook
As the UNESCO convention of 1970 does not prescribe binding regulations and this convention, despite much international support has not been able to achieve the effective protection of cultural assets from destruction, theft and illegal trading, this having been the original intention. In the opinion of the museum and legal experts, the next step to be undertaken will be the ratification of the far more efficient UNIDROIT Convention of 1995.
However, the government has already pointed out in the explanatory text on the draft law for the implementation of the UNESCO convention of 1970 that a ratification of the UNIDROIT convention would be superfluous due to the adequacy of the legal situation in Germany. This is a further indication that it is not the cultural assets but rather free trading which has priority for protection.
With the exception of the German Art Trade Association and the Association of German Coin Traders, represented by Detlef Macco, who are categorically against the convention, all the experts were in favour of the ratification of the UNIDROIT, only differing in their assessment of when this convention will also be ratified by Germany.
Part II: International Experience and Perspectives
Dr. Ulrike Koschtial (UNESCO Paris) emphasised that over the last 30 years the convention has in particular made an important contribution to the harmonisation of the protection of cultural assets at an international level. As the UNESCO convention of 1970 is not sufficient to provide effective protection, additional measures will be required to protect cultural asset from theft and illegal trading.
The implementation of the conventions in Africa
Even if Prof Siehr´s contribution made clear that cultural assets are best protected in their country of origin, the African representatives in particular, on the other hand, showed what problems can arise in the protection of cultural assets in the countries of origin. Lorna Abungu, General Director of the African Council of Museums AFRICOM, said that the central problem is the fact that most African countries do not have the topic of "culture" on their agendas and that the significance of the cultural heritage is simply not recognised at all on the state level. She pointed out that the ministers responsible for this area are often uncertain about the ratification procedure as they are unsure what they should be doing. She very much welcomed Kurt Siehr´s suggestion that a handbook for the implementation of conventions should be created. Mr Siehr mentioned that a Nigerian colleague, Prof. Follarin Shyllon, would soon be working for some time at the Max-Planck Institute and that he could be asked to undertake the work on the handbook.
Lorna Abungu indicated that the political decision to place culture at a national level on the governmental agendas in Africa would lead to the integration of the topic of culture in the development programmes of the North. This is something which the representatives of AFRICOM and culture protectors have been demanding for years in their lobby work.
Example: Object ID
As am example of development programmes for the protection of cultural assets, Marjolein Beumer, anthropologist at the KIT, presented the pilot project "Object Identification", in short Object ID, for the identification and recording of the contents of collections. The evaluation of the ID programme carried out recently showed that the participating museums were in general thankful for being offered a computer programme for the digital recording of their collections as part of the pilot project. However, there were some technical problems in the practical application and this slowed down the process of creating records. One of the problems was that many partner museums had not been sufficiently involved in the planning and implementation process and had requirements which could not be covered by the programme. Many museums claimed that they needed advisory services on museum management, and that this had not been included in the ID programme. Marjolein Beumer pointed out that it is often the lack of specialist staff and technical equipment which are central problems in the implementation of such protection measures. It was apparent, however, that KIT had failed in this pilot project to take into account the structural situation and the specific conditions of the countries applying the programme and that this had diminished the success of the programme considerably. The software developed by KIT has now been revised and is still available to all museums free of charge via ICOM.
Perspectives for international protection of cultural assets
Asked how improved protection could function at an international level, Lorna Abungu stated that an increased exchange between North and South and long-term cooperation between museums with an option to carry out join exhibition projects is an important prerequisite particularly in view of the acquisition and purchasing practice of the museums in this part of the world. She did, however, name an exhibition recently carried out by the British Museum and the National Museum of Kenya as a negative example of cooperation between museums. The exhibition had been planned with an African curator, but with its Eurocentric presentation and viewpoint it failed completely to communicate the current reality in Kenya. She registered a plea in this connection for an international exchange and joint project work in the area of museums which are based on the principles of equality and partnership.
Dr. Anette Rein, Director of the Museum of World Cultures in Frankfurt, made clear in her statement that the question as to where cultural assets are best protected depends not only on the observation of conservation and legal aspects but also on the attitude of the people involved and affected.
North-South cooperative projects are important but so too are the North-North dialogues and the mutual exchange of experience between the countries of Asia, Africa and Latin America. From the beginning of the nineties, campaigns carried out by ICOM have been drawing attention worldwide to the subject of illegal trading in cultural assets. In some Latin American countries, such as Columbia, the governments have been actively combating illegal trading and setting up national programmes for the protection of their cultural heritage. In Africa this has been successfully realised by means ICOM´s AFRICOM Programme. Numerous handbooks in which stolen objects have been listed and information campaigns have contributed to some significant cultural assets being returned to African countries. In this context, Dr. Norbert A. Kayombo, Director of the National Museum of Dar es Salaam, pointed out that despite these successes the extent of the loss of cultural assets is extremely worrying and that illegal trading in significant treasures of Africa´s cultural heritage is on the increase. The African colleagues were in agreement that the increasing demand for antiquities and cultural objects from outside Europe on the European art market are heating up illegal trading and that a permanent exodus of cultural assets can only be prevented if the Europeans combat the black market in their countries with effective laws, increased checks that the existing laws are being adhered to and policies of intensive information.
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