Cultural Property and Contested Ownership: The Trafficking of Artefacts and the Quest for Restitution [1 ed.] 9781138188839

Table of contents :
Contents
List of Figures
Preface
Contributors
Introduction: changing concepts of ownership, culture and property • Brigitta Hauser-Sch.ublin and Lyndel V. Prott
Part I: Plunder, trafficking and return
1 Destruction and plunder of Cambodian cultural heritage and their consequences • Keiko Miura
2 Cambodia’s struggle to protect its movable cultural property and Thailand • Alper Tasdelen
3 Looted, trafficked, donated and returned: the twisted tracks of Cambodian antiquities • Brigitta Hauser-Sch.ublin
Part II: Between profit, authenticity and ethics
4 Struggles over historic shipwrecks in Indonesia: economic versus preservation interests • Mai Lin Tjoa-Bonatz
5 Faked biographies: the remake of antiquities and their sale on the art market • Brigitta Hauser-Sch.ublin and Sophorn Kim
Part III: Negotiating conditions of return
6 The Benin treasures: difficult legacy and contested heritage • Barbara Plankensteiner
7 Pre-Columbian heritage in contestation: the implementation of the UNESCO 1970 Convention on trial in Germany • Anne Splettstößer
8 Return logistics – repatriation business: managing the return of ancestral remains to New Zealand • Sarah Fründt
Epilogue
Index

Citation preview

Cultural Property and Contested Ownership

Against the backdrop of international conventions and their implementation, Cultural Property and Contested Ownership explores how highly valued cultural goods are traded and negotiated among diverging parties and their interests. Cultural artefacts, such as those kept and trafficked between art dealers, private collectors and museums, have become increasingly localized in a “Bermuda triangle” of colonialism, looting and the black market, with their re-emergence resulting in disputes of ownership and claims for return. This interdisciplinary volume provides the first book-length investigation of the changing behaviours resulting from the effect of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This collection considers the impact of the Convention on the way antiquity dealers, museums and auction houses, as well as nation states and local communities, address issues of provenance, contested ownership and the trafficking of cultural property. This book contains a range of contributions from anthropologists, lawyers, historians and archaeologists. Individual cases are examined from a bottom-up perspective and assessed from the viewpoint of international law in the Epilogue. Each section is contextualised by an introductory chapter from the editors. Brigitta Hauser-Schäublin is Professor of Anthropology at the University of Göttingen, Germany. Lyndel V. Prott is an Honorary Professor at the University of Queensland, Australia. She was previously Professor of Cultural Heritage Law at the University of Sydney, Australia, and the former Director of UNESCO’s Division of Cultural Heritage.

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Cultural Property and Contested Ownership The trafficking of artefacts and the quest for restitution

Edited by Brigitta Hauser-Schäublin and Lyndel V. Prott

With the support of

UNESCO United Nations Educational, Scientific and Cultural Organization

First published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 B. Hauser-Schäublin and L.V. Prott The right of the editors to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested. ISBN: 978-1-138-18883-9 (hbk) ISBN: 978-1-315-64204-8 (ebk) Typeset in Times New Roman by Swales & Willis Ltd, Exeter, Devon, UK

Contents

Figures Preface Contributors Introduction: changing concepts of ownership, culture and property

vii ix xi

1

BRIGITTA HAUSER-SCHÄUBLIN AND LYNDEL V. PROTT

PART I

Plunder, trafficking and return

21

1 Destruction and plunder of Cambodian cultural heritage and their consequences

23

KEIKO MIURA

2 Cambodia’s struggle to protect its movable cultural property and Thailand

45

ALPER TASDELEN

3 Looted, trafficked, donated and returned: the twisted tracks of Cambodian antiquities

64

BRIGITTA HAUSER-SCHÄUBLIN

PART II

Between profit, authenticity and ethics

83

4 Struggles over historic shipwrecks in Indonesia: economic versus preservation interests

85

MAI LIN TJOA-BONATZ

vi Contents 5 Faked biographies: the remake of antiquities and their sale on the art market

108

BRIGITTA HAUSER-SCHÄUBLIN AND SOPHORN KIM

PART III

Negotiating conditions of return

131

6 The Benin treasures: difficult legacy and contested heritage

133

BARBARA PLANKENSTEINER

7 Pre-Columbian heritage in contestation: the implementation of the UNESCO 1970 Convention on trial in Germany

156

ANNE SPLETTSTÖßER

8 Return logistics – repatriation business: managing the return of ancestral remains to New Zealand

178

SARAH FRÜNDT

Epilogue198 LYNDEL V. PROTT

Index218

Figures

1.1 1.2 1.3 1.4 1.5 3.1 3.2 3.3 3.4 4.1–2 4.3–5 5.1 5.2 5.3 5.4 5.5 5.6 6.1 6.2 6.3 6.4 6.5 7.1

8.1 8.2

Map of Cambodia The war-damaged temple of Prasat Chen, Koh Ker Broken statues of Ta Kong and Ta Keo Looted carving at Great Preah Khan Missing wall of the temple at Banteay Chhmar Ground plan of Prasat Chen Reconstruction of the duel between Bhima and Duryodhana The two Pandava brothers from the Metropolitan Museum Donated gold regalia, National Museum Phnom Penh The devastated underwater site of the Tek Sing wreck Blue-and-white porcelain from Dehua (China) Faked antiquity as sold in a Bangkok art gallery The certification of (faked) antiquities Faked antique Khmer statues often display mechanical “damage” Replicas are copied from pictures in art books The stone carvers modify their work according to the wishes of the customers Transformation of a replica into an “antiquity” by chemical processes Benin relief plaque Commemorative head of a king, nineteenth century, Benin Kingdom British soldiers with relief plaques found in the royal palace, Benin City, 1897 Oba Akenzua II, former king of Benin Participants at the workshop in Benin City At the exhibition at Santiago de Compostela in 1997, Leonardo Patterson displayed more than a thousand pieces of his Pre-Columbian art collection (reportedly originals as well as fakes) Arrival of ancestral remains at the Te Papa Museum, Wellington Details of a transport crate with human remains

25 29 32 33 37 67 68 74 76 95 99 111 113 116 118 119 122 134 135 138 140 149

163 179 184

viii Figures 8.3 9.1

9.2 9.3

Welcome ceremony for ancestral remains Meeting of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation in Paris, 2010 Participants in the Workshop on the Fight against the Illicit Trafficking of Cultural Property in Melanesia, 2015 Return of the Makonde mask to Tanzania.

185

199 206 211

Preface

It was the personal encounter between the two editors, an anthropologist and a lawyer, at the workshop “The International Law of Culture: Prospects and Challenges”, organised by the Interdisciplinary Research Unit on Cultural Property of Georg-August-University, Göttingen, in May 2012, that gave rise to a continuous exchange of ideas between the two scholars and finally resulted in the production of this book. In 2012, Lyndel Prott, an international expert on the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was invited to be a Fellow at the Göttingen Research Unit on Cultural Property, since one of the Unit’s research projects focused on “Contested Collections. Diverging Claims of Property in Debates and Negotiations 40 Years After the Adoption of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” (directed by Brigitta Hauser-Schäublin, Anthropology, and Tobias Stoll, International Law, and financed by the Deutsche Forschungsgemeinschaft [German Research Foundation, Bonn]; see Groth et al. 2015). In the course of this research project, an interdisciplinary team of scholars (Brigitta Hauser-Schäublin, Alper Tasdelen, Sven Mißling, Keiko Miura and Sophorn Kim) carried out research in Cambodia and Thailand on the destruction of cultural heritage in Cambodia due to looting and the illicit trafficking of antiquities. Lyndel’s presence in Göttingen over a couple of weeks allowed continuous discussions about cultural property, the 1970 UNESCO Convention, its effects, implementation and use as an instrument to protect and reclaim cultural heritage especially by formerly colonised or otherwise suppressed peoples. The interdisciplinary discussions about the examples the anthropologist Anne Splettstößer investigated, the effectiveness/ineffectiveness of the German law destined to implement the 1970 UNESCO Convention in the so-called “Patterson Case” and the claims of heirs of a former African kingdom on museums in Germany in order to have the royal symbols of their ancestors returned, were particularly rewarding. In sum, this volume came into being based on close interdisciplinary exchange and the topics chosen cover the major issues of the discussions we had rather than regional considerations. We are grateful to the Deutsche Forschungsgemeinschaft, the Georg-August University Göttingen, the Ministry for Science and Culture of Lower Saxony and the vw-stiftung, both in Hanover; they made this venture possible.

x Preface

Reference Groth, Stefan; Bendix, Regina F. and Achim Spiller (eds) (2015): Kultur als Eigentum. Instrumente, Querschnitte und Fallstudien. Göttinger Studien zu Cultural Property Vol 9. Göttingen: Universitätsverlag.

Contributors

Sarah Fründt studied social anthropology, palaeoanthropology, legal studies and comparative religious studies in Tübingen, Germany, and social anthropology, legal studies and comparative literature in St Andrews, Scotland, and Bonn, Germany. In 2011, she graduated MA in Bonn with a study on how to deal with human remains in museums (published subsequently as Die MenschenSammler). In 2012, she received an additional diploma in forensic anthropology. Between 2012 and 2014, she worked as an exhibition assistant and curator of the Fijian part of the exhibition “Made in Oceania” at the RautenstrauchJoest-Museum in Cologne. Between 2013 and 2015, she worked as a research assistant at the “Cluster of excellency normative orders” at the Goethe University in Frankfurt, researching restitution politics and policies of ethnological museums in Germany. Since 2015, she has been a research assistant at the University College Freiburg. She has published several papers on repatriation topics and is also the editor of a blog on “Museums and responsibility”. Brigitta Hauser-Schäublin is Professor of Anthropology at Göttingen University, Germany. Having a professional background as a curator at the Ethnographic Museum in Basel, she has been specialising, in addition to other different topics, in material culture studies. She has carried out ethnographic fieldwork in Papua New Guinea, Indonesia (most recently on the indigeneity movement) and Cambodia (on the local consequences of the UNESCO listings of Angkor and Preah Vihear as World Heritage); she published and edited books on the latter two topics in 2011 and 2013: World heritage Angkor and beyond. Circumstances and implications of UNESCO listings in Cambodia, and Adat and indigeneity in Indonesia. Culture and entitlements between heteronomy and self-ascription. She is currently conducting a research project on “Contested collections. Diverging claims of property in debates and negotiations 40 years after the adoption of the UNESCO Convention on illicit trafficking of cultural property”. This project is part of an interdisciplinary research unit on cultural property at Göttingen University. Sophorn Kim is an archaeologist (BA from the Royal University of Fine Arts in Phnom Penh) and holds a MBA (Cambodian University for Specialties in

xii Contributors Battambang). He has completed training in cultural heritage site protection and preservation in Australia, France, Germany and Japan. He is the Chief of the Cultural Heritage Office of the Department of Culture and Fine Arts in Battambang. He is responsible for the registration and documentation of the museum collections and research carried out at archaeological sites in Battambang, and also teaches Khmer art history and Khmer history at the Build Bright University in Battambang. Keiko Miura worked in the Culture Unit of the UNESCO Office in Cambodia from 1992 to 1998. From 1998 to 2004, she was engaged in PhD research in social anthropology at the School of Oriental and African Studies (SOAS), University of London, on the issues related to the Angkor heritage, the local communities and heritage management. Since 2004, she has taught on anthropological disciplines, heritage issues, and South East Asian cultures and societies in several Japanese universities, including Waseda University. At the same time, she conducted follow-up research on Angkor and on the wet-rice culture and rites in Bali, Indonesia. Between 2009 and 2014, she was a research fellow at the “The constituting of cultural property: actors, discourses, contexts, rules” research unit of Göttingen University; carrying out research on Angkor heritage management in the first phase and on the illicit traffic of Cambodian artefacts and restitution in the second phase. Barbara Plankensteiner is the Frances & Benjamin Benenson Foundation Curator of African Art at the Yale University Art Gallery. Until August 2015, she was Deputy Director and Chief Curator at the Weltmuseum Wien, where she was also the responsible curator of the Sub-Saharan Africa collections and a lecturer at the Institute of Social and Cultural Anthropology, Vienna University, teaching courses in museum anthropology, African arts and material culture. She was lead curator of the two international exhibitions “Benin – kings and rituals: court arts from Nigeria” and “African lace. A history of trade, creativity and fashion in Nigeria”. She has published extensively in scholarly journals, exhibition catalogues and edited books. From 2014 to 2015, she was a project leader of the EU-funded large cooperation project of ten European Museums of Ethnography and World Cultures SWICH – Sharing a World of Inclusion, Creativity and Heritage – where she continues to be a consultant. Lyndel V. Prott, AO (1991), Öst. EKWuK(i) (2000), Hon. FAHA; LLD (honoris causa), BA, LLB (University of Sydney), Licence spéciale en Droit international (ULB Brussels), Dr. Juris (Tübingen) and member of Gray’s Inn, London, is the former Director of UNESCO’s Division of Cultural Heritage and former Professor of Cultural Heritage Law at the University of Sydney. She has had a distinguished career in teaching, research and practice. She was responsible at UNESCO between 1990 and 2002 for the administration of UNESCO’s Conventions and Standard-setting Recommendations on

Contributors xiii the Protection of Cultural Heritage, and also for the negotiations on the 1999 Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and for the Convention on the Protection of the Underwater Cultural Heritage 2001. She contributed as an Observer for UNESCO to the negotiations for the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995. She has authored, co-authored, or edited over 300 books, reports and articles written in English, French and German and translated into nine other languages. Currently an Honorary Professor at the University of Queensland, she has taught at many universities, including long-distance learning courses on International Heritage Law. Anne Splettstößer studied Social and Cultural Anthropology and South East Asian Studies at Heidelberg and Berlin and graduated in 2008 (MA) with a thesis on “Socially engaged Buddhism in Myanmar”, based on 13 months of fieldwork. Since 2011, she is a PhD candidate at the Institute for Cultural and Social Anthropology at Göttingen University and Research Associate in the interdisciplinary DFG Research Unit on Cultural Property in Göttingen as part of the subproject “Contested collections. Diverging claims of property in debates and negotiations 40 Years after the Adoption of the UNESCO Convention on illicit trafficking of cultural property”. In the course of the project in Göttingen, she carried out fieldwork at the two largest German ethnological museums in Berlin and Munich, as well as at several sites in Cameroon in 2012/2013. Her research interests focus on material culture studies, museology, return and restitution claims and legal anthropology. Alper Tasdelen is a Legal Trainee at the Hanseatic Higher Regional Court of Hamburg. He has recently submitted his PhD thesis on “The return of cultural artefacts – hard and soft law approaches” to the Faculty of Law of the University of Göttingen, to which he was also affiliated as a Research Associate of the Institute for International Law and European Law and the interdisciplinary DFG Research Unit on Cultural Property between 2012 and 2014. He graduated from the University of Göttingen with a first law degree, an MA in Turkic and Central Asian Studies and a MLE (Magister Legum Europae). Afterwards, he continued his studies with the NYU@NUS Dual LLM Degree Program, for which he was awarded a LLM in Global Business Law by New York University and a LLM in International & Comparative Law by the National University of Singapore. Mai Lin Tjoa-Bonatz holds a PhD in Art History from the Technische Universität of Darmstadt and an MA in Art History, Archaeology and South East Asian regional studies from the Goethe Universität Frankfurt am Main, where she currently holds a teaching position. She was previously a research assistant for excavations conducted in Syria and Indonesia. She formerly held the position as Visiting Research Fellow at the Asia Research Institute in Singapore and

xiv Contributors as research coordinator in Palu, Indonesia, of the Georg-August-Universität Göttingen. Recent notable publications include Im Schatten von Angkor. Archäologie und Geschichte Südostasiens (Philipp von Zabern, 2015); two volumes of Proceedings of the EurASEAA13 Conference (NUS Press, 2012), and From distant tales: ethnohistory and archaeology in highland Sumatra (Cambridge Scholars Publishing, 2009).

Introduction Changing concepts of ownership, culture and property Brigitta Hauser-Schäublin and Lyndel V. Prott

In public discussions, cultural artefacts, such as those kept and trafficked between art dealers, private collectors and museums, have increasingly become localised in the Bermuda triangle of colonialism, looting and the art (black) market as well as ownership and claims for return. In this triangle, antiquities and ethnographic artefacts disappear from the find-spot or original cultural setting and resurface sometime later, often under “mysterious” circumstances, in other cultural, mostly transnational, locations. This triangle of displaced artefacts, the various methods and routes of their travel, and the way these artefacts are claimed in order to be returned constitutes the framework of this book.1 These contexts – colonialism, looting and contested ownership – are, of course, not identical with each other. Moreover, public ethnographic and antiquity museums cannot be equated with the art (black) market, dealers and private collectors. They share some commonalities, but many differences also exist, the major being the time factor. Artefacts that came to museums during colonialism refer to a different, hegemonic, world order that had its own regulations; these have to be acknowledged in their historical setting. Anton emphasised that the determination whether cultural goods have been transferred legally or illegally needs to take into account the conditions of time and place (2010:66). Nevertheless, this still allows one to critically assess these former acquisitions and their circumstances from today’s perspective. The chapters are written by scholars from different disciplines (anthropology, law, cultural studies, art history and archaeology). They explore various aspects of how highly valued cultural goods – sacred heirlooms for some actors, mere material remains, commodities or much sought-after works of art for others – are traded and negotiated among diverging parties and their interests. The starting point of these investigations was the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Subsequent questions arose: how has this Convention been implemented since its coming into force? How has it raised awareness about cultural property and ownership? How has such cultural property, first and foremost ethnographic artefacts and antiquities from non-European countries, mostly located in museums in the North, become contested and claimed by “source nations” that had suffered colonisation or other forms of oppression.

2  Brigitta Hauser-Schäublin and Lyndel V. Prott

Cultural exchange and ownership in historical perspective Cultural diversity has always been a major focus of anthropology, as have been commonalities and similarities in cultural expressions among many cultures. The circulation of goods and ideas, the various forms of movements of people and interactions between communities, whole regions, or polities have always contributed to cultural richness. This exchange has stimulated human ingenuity and boosted inventions. It also promoted people’s awareness of their own traditions and the endeavour to deliberately sustain what they considered as at the core of their cultural self-understanding. In the late nineteenth and early twentieth centuries, it was diffusionism that traced the distribution of similar types of artefacts, styles, or decorations, and even of social institutions and beliefs, over large areas. Although one of the basic assumptions of diffusionism – that great innovations take place only once and then spread to large areas – proved to be wrong, the exploration of how things and ideas (including people and relationships) move through large regions and even beyond also produced insights into the interactions between communities. From a different (nevertheless similar) perspective, the anthropology of globalisation has also been investigating the flows of goods, ideas and people across the world in different directions and intensities, and at different paces since the second half of the twentieth century. Many studies have dealt with questions of how such “things” travel, how they are localised, adapted to local cultural conditions, transformed, reinterpreted, locally reproduced – or even refused. Such studies show that complex networks of people, things and ideas arise whereby political, economic and social conditions and institutions, as well as the agency of individual actors, shape the framework within these movements taking place. Different forms of interactions are at the core of the processes of the dissemination and travelling of goods, ideas and peoples.2 These interactions comprise marriage and other alliances between kinship groups and polities, market, trade and other exchange relations, gift relations – but also violent interactions, such as assaults, raids and wars. All these forms of interactions and the subsequent movement of tangible and intangible cultural property have contributed to cultural diversity, notwithstanding the context of armed conflict, which is estimated as unacceptable from today’s perspective (see also the section on “The development of property laws”). The idea that an artefact, especially if it is a sacred one or identity-generating, belongs to a “source community”3 dominates many negotiations about the return of cultural property.4 In the current discussions about the return or restitution of cultural property acquired under dubious conditions, by violence, including plunder, or during the colonial era, the time factor no longer appears to be a major point, since ethical questions and issues of reconciliation seem to have become more important (Prott 2009a; Ulph 2012a:22–3; Hauser-Schäublin 2013a).5 Nevertheless, the time factor remains significant – for example, the problem of the lack of retroactivity of the international conventions – and also needs to be considered today, especially against the backdrop of historical cases that seem to be “time-barred”.

Introduction 3 We would like to briefly discuss this problem, which also touches the problem of contested ownership of the cultural property, by presenting two historical examples from Europe in which the cultural property was transferred in the form of war booty, but resulted in opposite consequences. In both cases, the corpus delicti has survived up to the present. The first case concerns the relics of the Magi kept in Cologne Cathedral, which was listed as a UNESCO World Heritage site in 1996. These relics are the result of what is called in today’s phrasing “war booty” or “pillage”. They are stored in “the largest reliquary shrine in Europe”, which was constructed in the late twelfth and early thirteenth centuries (http://whc.unesco.org/en/list/292 (accessed 12 January 2015)). These relics were said to have been taken from Constantinople and transported to Milan in the fourth century. According to the legend, these bones were kept in a sarcophagus dating back to the third century in Milan’s S. Eustorgio church. When Friedrich Barbarossa, Holy Roman Emperor of German descent, conquered and sacked Milan in 1162, he seized the relics as war booty. He presented them to one of his close advisors, Rainald von Dassel, Archbishop of Cologne and Imperial Chancellor, who had accompanied him on his Italy campaign. In 1164, the relics were transferred to Cologne and placed in the centre of Cologne Cathedral. A precious reliquary was made for them in which these relics are still kept and venerated. The relics became important symbols of power, especially in the coronation ceremonies of kings, thus giving rise to new traditions. The relics have become an inseparable part of Cologne Cathedral, as the UNESCO listing illustrates.6 Relics have their own biography of acts of violence and dispossession, and illustrate how such artefacts have moved through many countries over centuries and become inalienable “heritage” (Geary 1994). Thus, as the example of Cologne illustrates, these artefacts have got rid of their stigma of war booty, theft and plunder.7 Such cases can be classified as what Cornu and Renold called “purged by time” (2010:15).8 The UNESCO listing has indirectly legitimated the relics of the Magi as part of the heritage of Cologne. Other items still serve as a memorial for an injustice suffered and the successors of their former owners have kept claims for restitution alive, even through centuries. Such is the case in what is called the “cultural property conflict” (Kulturgüterstreit) which followed the plundering of the abbey of Saint Gall in 1712 in the context of the Konfessionsstreit between Protestant and Catholic cantons in Switzerland. In addition to 11,000 precious manuscripts and books from the abbey library, the aggressors (the cantons of Zurich and Berne) also took a number of works of art with them. Among them was a unique earth and celestial globe (Erd- und Himmelsglobus; 121 centimetres in diameter, more than 2.33 metres high) dating back to the second half of the sixteenth century (probably made in Augsburg). The globe was later kept in the Landesmuseum in Zurich. Peace negotiations between Zurich and the library of the abbey resulted in the restitution of only parts of the collection of manuscripts and books in 1720. However, the plundering never fell into oblivion.

4  Brigitta Hauser-Schäublin and Lyndel V. Prott It was in 1995 that the parliament of the canton of St. Gall addressed the issue of the restitution of the globe again; it even considered filing a constitutional lawsuit (staatsrechtliche Klage) against Zurich and asked the Swiss Federal Council for mediation. Complex negotiations followed which resulted in an agreement between the parties and terminated the cultural property conflict in 2006. The agreement was a compromise: First, St. Gall agreed to recognise the property rights concerning the plundered artefacts of Zurich as a consequence of the 1712 events. Secondly, forty manuscripts of special value (“identity value”, Identitätsrelevanz) were returned to the abbey library on loan, but remained the property of the Foundation Central Library in Zurich, for an unlimited period (subject to notice after 38 years for the first time). It was agreed that the earth and celestial globe would remain in Zurich, but a replica of it was made and paid for by Zurich. This replica was presented as a gift to St. Gall in a ceremony in 2009 (Präsentation 2009; Cornu and Renold 2010:20).

The start of a new era? Thus, events of war have turned the plunderers (or rather their heirs) into the owners of the stolen goods – at least as far as some historical periods are concerned.9 From today’s perspective, the international discussions and negotiations about the return or restitution of stolen cultural property during armed conflicts (also during colonial times) may, at first sight, appear rather astonishing. However, the international situation has changed substantially in the meanwhile, not least due to the international community, such as the UN, but also regional organisations, such as the EU with their policy of fostering international understanding, cooperation and peace. The return and/or restitution of plundered or stolen cultural goods are seen as an important step in achieving these goals. Consequently, the post-colonial looting and clandestine trafficking of artefacts/ antiquities are no longer tolerated and the international communities, such as the UN, UNESCO and other actors, have developed international conventions and national laws to fight this (see, for example, Prott 2009a; Mackenzie 2005; Ulph and Smith 2012). From today’s perspective and taking the current legal frameworks as a benchmark, the question of ownership is raised when works of art are offered at auctions, by art dealers or on the Internet, and also regarding already existing collections in public museums. The question is, under what circumstances an artefact – whether ethnographic artefact or antiquity – has been acquired and traded to the institution where it is held. Thus, the provenance or the collection history of the artefact or antiquity has become prominent, especially in the international art market.10 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (see Lalive 2009) are the two most important international governing instruments to protect cultural property and aim to prevent its illicit trafficking in peacetime.11 The 1970 UNESCO Convention, which is binding for the states parties that have ratified it, has contributed substantially to the awareness of the problem of

Introduction 5 unlawful appropriation of cultural goods, their significance as symbols of identity and self-determination of formerly oppressed communities and states, and of illicit trafficking. The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, which came into being in 1978, promotes the implementation of the Convention in cases where assistance is sought. It is an important actor that facilitates bilateral negotiations between requesting and holding states. It assists those member states of UNESCO which “have lost certain cultural objects of fundamental significance and are calling for their restitution or return, in cases where international conventions cannot be applied” (UNESCO 2015a). Although there have only been eight cases dealt with by the Committee in the course of over 35 years, and only six have been solved (with the contested artefacts returned), the impact it has had on many other cases of return cannot be overestimated. Additionally, the UNESCO Committee often acts successfully behind the scenes (see Chapter 3). The repatriation of reclaimed artefacts to the country of origin requires administrative and regulatory efforts to ensure the correct handing over to the rightful owner, be it a museum or a local community. The complexity and sensitivity of such logistics becomes apparent especially in the context of ancestral remains (see Chapter 8). The public discussions during the UNESCO Intergovernmental Committee’s sessions between claiming and holding nations about contested artefacts are anything but status-enhancing for the holding states and the museum on behalf of which they are acting. As a consequence, museums and states try to avoid entering such formalised processes which are publicised to a worldwide audience. Instead, bi-national and confidential negotiations are preferred and solutions found that include a broad variety of methods of “return”, such as gifts, loans, or replicas (Cornu and Renold 2010; Hauser-Schäublin 2013b). Some renowned states have not signed the 1970 Convention (or have done so only lately) for different reasons. However, the 1970 UNESCO Convention and the Intergovernmental Committee have had an impact on such states as well. Several of them have preferred to establish bilateral agreements to regulate the illicit trafficking of art and the return of illegally exported or imported artefacts, such as Cambodia and Thailand, with differing success. This is not due to the contents of the agreements, but, first and foremost, to their implementation and the authorities responsible for it (see Chapter 2). In sum, conventions and agreements work effectively only in so far as they are implemented in the way required.

From admiration to scepticism Most of the ethnographic artefacts and antiquities are housed nowadays in western museums (not to mention the innumerable private collections all over the world).12 Most of these artefacts were acquired during imperial expansion or conquest and colonialism. These collections, which sometimes developed in the course of centuries, have become archives of human cultural diversity, aesthetic achievements, skills and knowledge (Cuno 2006). Moreover, most of these artefacts are unique historical testimonies, as the majority of the societies from whence the

6  Brigitta Hauser-Schäublin and Lyndel V. Prott ethnographic documents came had no records in writing and all these societies have changed fundamentally since. Additionally, most of these societies continuously produced new artefacts, replacing old ones whenever they felt that the latter had lost their powers, while a substantial number of the ethnographic artefacts were more or less recently made when they were acquired.13 Over the past forty years, the way of looking at such collections has shifted from mere admiration for their expressiveness and beauty to questioning their provenance. For a long time, such artefacts were implicitly assumed to be owned and rightfully kept and exhibited in public institutions with an educational mission and under the custody of researchers and conservation experts. The ideology of these institutions were/are implicitly legitimated by an imagined sense of global responsibility for such art pieces as unique cultural documents of humankind and an attitude of cultural internationalism (in Merryman’s sense, 1986, but see Prott 2005). The Declaration on the Importance and Value of Universal Museums (signed in 2002) underlines this aspect (but see Prott 2009a:116–49). However, these “objects” developed an agency when “source countries” or even “source communities” raised their voices and claimed legitimate ownership of the artefacts which, thus, needed returning.14 What museums had considered as collections of inert objects suddenly developed an agency of their own, which turned them into “subjects”. For the countries of origin, they became symbols of colonialism, violent appropriation and wrongful assertion of ownership. The reasons for this change in the perception of artefacts and ownership are manifold.15 One of the most important reasons is certainly the changing world order, which has brought forward many voices that were formerly either unheard or silenced. These voices came from communities and nations that were formerly colonised or otherwise oppressed. The first and most prominent claims came from those peoples who lived in countries which remained dominated by western invaders and settlers, the so-called “settler states”. The native or aboriginal inhabitants in the United States of America, Canada, Australia and New Zealand became the vanguards in a movement that gradually spread to all continents. They started to demand their recognition, their dignity and their rights (Merlan 2013). Among these rights were, first and foremost, their customary rights over land and landownership and resources in general.16 They also demanded, apart from being granted full citizenship, the right to keep control of their culture and to perform and develop their own identity according to their own will. Thus, these communities – who have chosen new names for themselves, such as First Nations peoples or natives and indigenous peoples, formerly rather derogative terms (see Kuper 2003) – have freed themselves from being defined by others. Instead, they present themselves with a new self-chosen identity.

Cultural empowerment of the dispossessed Tangible and intangible cultural features serve as essential testimonies of the particular history over which those communities which call themselves First Nations or indigenous peoples struggle to regain control (see Coombe 1993; Hauser-Schäublin 2013a). Human remains and artefacts were taken from them

Introduction 7 by colonisers in various ways (not simply stolen or forcefully taken, but explorers were often invited to buy such artefacts; see, for example, Schindlbeck 2013), almost always in an unequal power relationship. Meanwhile, these things have become important material and immaterial elements in the struggle of the communities for cultural self-determination and autonomy. These communities are usually denominated as “source communities”. The revitalisation of traditions and, accordingly, the recourse to “traditional cultural expressions”, as spelled out, for example, in the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression, have fostered local communities’ endeavours to re-evaluate artefacts manufactured by former generations of individuals and communities whose direct heirs they claim to be.17 Viewed from a different angle, a claim for the return of human remains and artefacts allows formerly dispossessed communities a repositioning towards those formerly more powerful (Li 2000). Although many of these material testimonies had been acquired corresponding with the regulations and moral understanding of the colonisers and their time, it is today’s ethical imperative that endows these claims with authority and prompts museums to return claimed artefacts (first and foremost ancestral remains, see Chapter 8).18 Consequently, many of the formerly colonised or otherwise oppressed communities and countries have identified some ethnographic and archaeological artefacts predominantly housed in museums of the countries in the North as their particular heritage and, therefore, material symbols of their identity (Kuprecht 2014). Since such communities consider such artefacts as inalienable, as cultural heritage, they claim to be the one legitimate owner. Subsequently, many museums in many countries in Europe, the United States and Canada have been confronted with claims from such countries and communities to return single artefacts or whole collections (see Chapter 6).19 As briefly mentioned previously, the situation of indigenous communities in settler states differs from other countries. Yet, the communities in these settler states led a pioneering effort in this movement for recognition and self-determination, including the restitution of cultural goods. A cornerstone in this by now worldwide move was the Native American Grave Protection and Repatriation Act (NAGPRA), an American federal law enacted in 1990. This law promotes the return of Native American “cultural items”, such as sacred or otherwise important objects including human remains, to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organisations (see Prott 2009a: 263–302). Furthermore, this law states that federal institutions (those receiving federal funding) are obliged to set up an inventory of all sensitive objects; the latter shall be repatriated on request. The question of ownership and whose property these contested artefacts really are, has prompted many museums to trace the history especially of contested collections and artefacts. However, the identification of unambiguous legal circumstances which would allow a distinct decision about the ownership of a contested artefact is difficult. In such cases of claims for return or restitution, the legal situation in the source and destination country at the time when the

8  Brigitta Hauser-Schäublin and Lyndel V. Prott artefact or the collection was acquired, as well as at the time of the dispute, must be considered.20 Consequently, legal procedures are complicated. Additionally, the existing legal instruments are often cumbersome, which makes their application difficult and results in failure (see Chapter 7).

Provenance and the trafficking of artefacts Today, antiquities can rarely be officially traded without documentation of the origin of the artefact and its collection history. An artefact without provenance poses the risk to the art dealer or collector of becoming confronted with data that prove its illegal origin. The obligation to provide an artefact with documentation of its acquisition history has resulted in a proliferation of “certificates” that should dissipate any doubts about theft or looting. For decades (or even centuries), questions of provenance and circumstances of acquisition and ownership did not surface prominently, but remained hidden behind the aesthetic fascination of connoisseurship and the appreciation of enduring preservation. Nevertheless, the black market for antiquities is flourishing and artefacts are moved around the globe faster than ever before. This market is said to have stepped into the second position of the worldwide black market after drug trafficking, by replacing the arms trade. As a consequence of the increasing demand and the shortage of supply, the profits from the illicit art trade have risen to those gained from drug trafficking (Anton 2010:37).21 It is, therefore, not surprising that each time a new conflict hotspot erupts, the art trade criminals immediately appear and loot everything – whether from museums and archaeological sites, but also private dwellings, religious institutions and workshops – that seems to be a promising commodity for supplying the illicit art market. The plundered artefacts are quickly transported outside the conflict zone and away from the country of origin and appear only a short time later on the art market for sale, preferably through the Internet. Even renowned auction houses and art fairs have sold artefacts originating from such hotspots and possessing only poor or non-verifiable provenances (Davis 2011; see also Chapter 1). Some academics often co-operate with illegal traffickers of artefacts – whether these are ethnographic artefacts or antiquities – when they, perhaps rather thoughtlessly or unaware of their decisive role, agree to authenticate these cultural testimonies (Brodie 2011a:129–31). Only when they provide these artefacts with information based on their expertise, do these commodities gain the status of a “real” piece of art that is worth its price (or rather vice versa: the price of a piece of art rises with its verification), since fakes constitute a considerable portion of these marketable goods (Ulph 2012a:3; see also Chapter 5). Academics, therefore, contribute substantially to the functioning of the art black market (Brodie 2011b). However, most of the stolen pieces remain hidden by dealers and are offered only in “backrooms” to those private collectors who are not bothered about illegality. The antiquity collectors (whatever their moral attitude towards illicit trafficking) form the majority of the targeted “consumers” of the goods offered on the market; in contrast to drug consumers and combatants equipped with weapons from the

Introduction 9 black market, antiquity collectors always belong to a social and economic elite that takes pride in its connoisseurship, of which antiquities and other works of arts are thought to give testimony.22 Many of these antiquities cannot be identified and confiscated, and it seems to be only the tip of the iceberg that is tracked down and identified, for example, by Interpol (see Kind 2011). Getting hold of stolen or looted artefacts implies that a detailed description, including pictures, exists. However, most looted or stolen artefacts from archaeological sites and sacred shrines are either unknown or have never been registered as “objects”, such as museums usually do (Ulph 2012b:259–62; Hauser-Schäublin 2012:75–6; see also Chapter 7). As briefly mentioned previously, plundering – at least regarding the initiators and the final links in the chain – is a white-collar crime, thus, a crime of the powerful (Mackenzie 2011). Local people – most of them poor and deprived of a decent means of living – mostly serve as stooges. They perform what Brodie (following Staley 1993) called “subsistence digging”, and sell the items they get hold of for a minimal price for the sake of survival (Brodie 2010; see Chapter 1). Such plundering has happened in Iraq, Afghanistan, Egypt and Syria, to mention only a few countries (Brodie 2010; Bogdanos 2011). The market for antiquities over the past ten years has rapidly expanded into countries with rich elites far beyond Europe or North America (Anton 2010:41). Therefore, the art market demand is still rising and exceeds the supply by far.23 The plundering of archaeological sites and museums is the consequence of this insatiable demand. The current urgent appeal by UNESCO to draw the attention of the international community to the immense devastation and plundering of antique sites in Syria, and many countries’ bans on the import of antiquities from Syria are the most recent examples.24 Although the plundering of archaeological sites, including those underwater, and thefts from museums are a worldwide problem, the situation in economically and/or politically unstable countries is much worse (see Chapter 4). Other loopholes are the inadequate protection of sites, corruption and weak institutions responsible for the protection of such locations and the control of export/import. The flow of antiquities is directed and, therefore, goes from such countries, often called “source nations”, to “market nations” (Merryman 1986). Yet, market nations, or rather “destination nations”, are those countries where the artefacts finally enter private collections or museums. It is also useful to speak about transit nations, those which often serve as an intermediary between source nations and destination nations. These transit countries play a crucial role as market places of – especially Asian – antiquities, since some of them are free transition ports where stolen antiquities or fakes are whitewashed and provided with a new biography. One of the main goals that is achieved in these free transition ports is to turn cultural artefacts that were illegally removed from one country and then transported across the border into a market country into licit artefacts by providing them with “certificates” and to, subsequently, launch them into channels of the legal art market (Anton 2010:52; see Chapter 5). Most of these transit countries have not ratified the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. However, ratification of the

10  Brigitta Hauser-Schäublin and Lyndel V. Prott latter does not imply that illicit trafficking of antiquities or other cultural documents is non-existent in every state party. Considerable discrepancies sometimes exist between the two, as our research has shown (see Chapter 2).

Property, heritage and ownership The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions has raised the awareness of the value of cultural diversity worldwide. Together with the 1972 UNESCO World Heritage Convention and the 2003 UNESCO Intangible Heritage Convention, culture has become an important governing instrument to achieve the recognition of cultural minorities. Simultaneously, a propertisation of culture has set in, not least as a result of the conventions’ emphasis on culture. The identification and description of particular cultural elements leads to an objectification of culture and suggests that people not only have, but also own, “culture”. The UNESCO listing of some cultural elements or achievements as outstanding accomplishments of humankind emphasise the idea that culture can be owned. The term “cultural heritage” has largely replaced the term “cultural property” in the international, mostly legal, debates about the return and restitution of artefacts that were illegally trafficked, removed without consent by the owners or even plundered (for example, war booty, Splettstößer 2014; see also Chapter 6). Prott and O’Keefe argued from a legal perspective by pointing out that property law deals primarily with the protection of the rights of the owner, while the “fundamental policy behind cultural heritage law is protection of the heritage for the enjoyment of present and later generations” (2012:5). Since the aims of the two laws differ substantially from each other, they plead for using the term “heritage”. This change of terminology, which expresses the awareness of the goals of these laws and the institutions that rely on these concepts, is also expressed in international conventions. Thus, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict coined the concept of “cultural property”, as well as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. However, the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage uses, as Prott and O’Keefe show (2012:14), the phrase “cultural heritage” instead. All later international conventions use this term too, such as the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage and the 2007 UN Declaration of the Rights of Indigenous Peoples. All these conventions share the goal of protecting and preserving cultural heritage for present and future generations. This normative end even considers the possibility that other people than the owner may have access to a particular cultural heritage: “It may involve restrictions on the right of the possessor whether that be an individual, a legal person, a community or a State” (Prott and O’Keefe 2012:5). Not all states have followed this terminology, as suggested, for example, also by the 2001 UNESCO Convention on the Protection of the Underwater Cultural

Introduction 11 Heritage (in force since 2009; UNESCO 2015b). Indonesia, for instance, does not use the term “heritage” (warisan, pusaka) in the laws relating to shipwrecks, but speaks of “cultural property”. The reason is that Indonesia thereby reserves its right to either economically exploit shipwrecks or protect them (see Chapter 4). Warisan or pusaka would exclude economic exploitation. From an anthropological perspective, cultural heritage is not an analytical category but a value-loaded concept, since it anticipates that a material or immaterial “thing” is considered by the people concerned and/or by outsiders as a heirloom, something handed down from the ancestors to the present generation (or particular members of it), who will forward it according to rules of inheritance to the next. Heritage as a concept is primarily a culture-specific notion with its specific definition and application and not an abstract pervasive category. Heritage, in this generalising sense as used in conventions, is, to use a famous formulation by Kirshenblatt-Gimblett (1998), already the result of “a cultural production that has recourse to the past and produces something new. Heritage as a mode of cultural production adds value to the outmoded by making it into an exhibition of itself” (1998:149). In short, heritage as a generalising concept is a normative concept (associated with safeguarding, preservation and conservation) and expresses an added value: those items declared as cultural heritage are ranked above others that are not classified as such. Yet, both concepts – property as well as heritage – imply ownership. Most of the discussions dealing with the rightful ownership of artefacts take the (Western) notion of private property as a starting point (Hann 1998:1–5). This implies that there can be only one rightful party of a material object, whether this is an individual (private property) or a community (common property). Thus, the Western concept of ownership implies a relationship between a (mostly living or once living) human being that “owns” an inanimate object, but rarely the other way round. The division between a subject (the owner) and object (the owned) is a basic assumption in this concept.25 From a culture-comparative perspective, however, we must also acknowledge different relationships between “subject” and “object”, even to the extent that the latter is provided with an agency that goes far beyond an (“inert”) object, but is, rather, an agent on its own (Gell 1998). On the other hand, different forms of ownership may exist simultaneously which create a complex set of property relations between the people associated with the artefact. The owning of the material aspect, the artefact, is prioritised in most of the debates about a contested artefact or collection. However, property as a material thing covers only one aspect of ownership or property rights. The factual authorship, that is, the artist or craftsman/craftswoman who created the artefact, and their possible rights or those of their descendants are rarely considered. Instead, most of the non-Western works of art are dealt with as anonymous objects or as if they were genuine “folk art”, art produced by an (imagined) community. Additionally, there may be a number of rights, each with a particular notion of ownership linked to it: the right to carve or paint a particular statue or to reproduce an ornament, the right to tell the story linked to the artefact, the right to display, store, or even destroy it, the right to see it and to bequeath it as a heirloom to a particular heir and the right to

12  Brigitta Hauser-Schäublin and Lyndel V. Prott sell or pass it as a gift to somebody. All these rights, which imply different forms of ownership and property, need to be considered equally in the analysis of claims for return and restitution of cultural property.

The development of property laws From the seventeenth to the nineteenth centuries, Western nations jealously developed their own law, often seeing their national law specifically as their own and unique, not infrequently departing from the general Roman law revived as the basis of the differing continental European codes, even though they were in the same family. The Common Law developed by the English judges was used widely as a basis for most English-speaking countries. There was indeed even rivalry between states as to who had the best law: in that period, there was little interest in harmonising legal rules in Europe, and this desire to have a distinct national law was followed by other countries around the world. One key concept widely accepted by both Roman and common-law legislators was that of “property”, though some states trumpeted property of the individual (English common law) while others enforced the concept of state property (communist countries) and yet many other states proceeded somewhere on the scale between these two extremes. This was particularly interesting concerning artworks, since France adopted the rule that the contents of all state museums, including municipal museums, were state property, whereas the United Kingdom regarded all its museums as private owners. During the twentieth century, there has been a significant movement away from that point of view. International law, based first on multilateral treaties, has developed an important corpus of multilateral conventions, bilateral treaties, recommendations, guidelines and standards, some created by the new international bodies (the League of Nations, United Nations) and by their now many subsidiary bodies (such as UNESCO) which, by the end of the last millennium, provided a substantial body of law and appropriate standards, increasing every day. The last hundred years have also shown a much greater interest in harmonising these principles, largely because of the immense destruction caused by two world wars and by the need to regularise the processes of non-violent contact, trade and other matters where intense interaction was taking place. Thus, the sacrosanct national laws on property and heritage are now challenged by the principles of widely accepted international conventions. The term “cultural property” was adopted in 1954 when the drafters of the Hague Convention of Cultural Property in the Event of Armed Conflict were searching for a useful phrase to cover the complex list of the movables and immovables of artistic, historical or archaeological interest defined in it (Art. 1). The use of the phrase “cultural property” seemed to be related to national property laws since “international property” was hardly conceivable. Since then there has been a striking development of efforts to protect cultural objects and structures which are significant for understanding past and present cultures and needed for the education and appreciation of the world’s most inspiring achievements.

Introduction 13 The texture of international law is different from that of national laws: the rules of national laws and their implementation are, for the most part, clearly implemented and contribute to generally peaceful resolutions. International law has a much looser texture: it has to accommodate very different cultures and find compromises, often very difficult to achieve and frequently using ambiguity to patch together some kind of consensus. It may also take a very long time to achieve such a consensus. Efforts to restrain “illicit traffic” by law began in 1932, resulting in four draft conventions on the subject in 1933, 1936, and two versions in 1939, but abandoned with the outbreak of war. It was taken up again in the 1960s and finally achieved with difficulty in 1970 with the adoption of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. It thus took 38 years to achieve a widely accepted compromise text and another 30 years to achieve 90 ratifications (currently 129 of the 195 UNESCO member states). Five of the major art-trading states only ratified after 2000. So it should be clear that making rules at the international level in particularly contentious areas of activity needs a great deal of patience and persistence. Implementation is key to an effective legal system. Unfortunately, the international structure does not have workable, let alone reliable, implementation. This happens for a variety of reasons. Legalistic cultures, such as Europe and the Islamic states, insist on very clear rules and have had, for many centuries, systems of implementation. They try to have very clear wordings and tend to be suspicious of more extensive mandates and in general insist on compliance. For example, the International Covenant on Civil and Political Rights 1966 was drafted in a way that satisfied legalistic cultures: parties to this Covenant must provide an effective remedy for any failure to respect the rights which are listed in this Covenant and it also clearly insists that there be no restriction upon, or derogation from, any of the fundamental human rights clearly stated in it. Many other states, however, are not so precise: they are often more interested in general principles and, indeed, are satisfied with “aspirational” goals rather than strictures. A separate International Covenant on Economic, Social and Cultural Rights 1966 recognises the right of everyone to an “adequate standard of living for himself and his family, including adequate food, clothing and housing” and requires “appropriate steps to ensure the realisation of this right” (Art. 11) while asking each state party to respect and implement these rights “to the maximum of its available resources” (Art. 2(1)). This Covenant certainly represents clearly the aims of many developing states, but it is also evident that there are no words in this second Covenant which are as compelling as those of the other Covenant – the chief reason being that many developing states simply do not have the resources to reach these goals, however noble their aspirations may be. It is not surprising, therefore, that the single article of this Covenant which deals with culture speaks only of “steps to be taken . . . to achieve the full realisation” of the right to take part in cultural life, to enjoy the benefits of scientific progress and to benefit from his or her scientific literary or artistic production (Art. 15). There is no way of measuring compliance with the rule, a notable difference to the first Covenant. This is not in any way to suggest

14  Brigitta Hauser-Schäublin and Lyndel V. Prott that the developing states are less committed to the economic, social and cultural rights than the legalistic states are to the obligations of the first Covenant, but it does mean that defining international rules between states of very different cultures is far more difficult than the process within national legislatures. For the first half of the twentieth century, many states saw an absolutely clear separation of international law and national law. For example, dealings with civil status, family matters and property rights were the business only of the national state. Each state would decide how far they would accept decisions in other jurisdictions on those transactions which involved more than one legal system – the so-called “private international law”. “Public international law” dealt mainly with foreign affairs. However, these divisions have been melting away since international conventions have been developed on such personal issues as recognition of marriage, abduction of children and, as we shall see, the vexed question of property. A number of international legal bodies have been working to harmonise these disparate rules which are now very significant because of the exchange of persons and extended trade. Many art and antiquities dealers were taking advantage of the differences between the varying legal systems of national laws by passing goods through countries which had the lowest protection of owners’ rights. Many now-notorious art traders certainly made use of the shortest time limitations for making claims and the weakest or non-existent provisions on “good faith”. In 1995, UNIDROIT, an organisation designed to harmonise conflicting national rules in matters of trade, drafted a Convention on Stolen or Illegally Exported Cultural Objects. There is yet another factor which affects the development of cultural heritage law today. Many of the areas of national law are now being directly regulated by international bodies. A clear example is the European Union which, after issuing a Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a member state, has now substantially amended it (Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a member state and amending Regulation [EU] No 1024/2012 [Recast]). The Directive is mandatory for all member states of the European Union. It does not need to be ratified, and it incorporates some significant provisions of the UNIDROIT Convention on time limitations and specific tests for “good faith”. The EU has also directed its member states to ratify the UNIDROIT Convention. It can be seen therefore that dramatic changes in the status and volume of international law making has had profound effects on the legitimate art trade and illicit traffic. At the same time, the demands of increasingly vocal states with rich cultural heritages have stimulated the making of international law to a previously unimagined degree and resulted in a new specialisation in International Law. *** This volume follows the “triangle” outlined above: the clandestine removal of artefacts from their original context, their resurfacing and trafficking on the art (black) market, and finally, their identification and the negotiations about their

Introduction 15 return. Part I begins with case studies about the plundering of ancient Khmer temples in Cambodia and the trafficking of artefacts across the border to Thailand (Chapter 1), and the way Cambodia tries to prevent the illegal export of antiquities by using a bilateral agreement with Thailand (Chapter 2). Many of the looted antiquities have resurfaced at auction houses and in renowned museums; claims for return have led to investigations of provenance and the way in which traces have been covered up. Some of these cases finally resulted in the return of the contested Khmer antiquities (Chapter 3). Part II highlights the contestation of retrieved antiquities from maritime archaeological sites (Chapter 4) and the illegal ways in which art dealers try to satisfy the needs of the market (Chapter 5). Part III deals with claims for return and the complex negotiations about ownership of the claimed or confiscated artefacts: the “Benin Treasures”, which were appropriated during a colonial armed conflict (Chapter 6), and a pre-Columbian collection of a private art dealer confiscated in Germany (Chapter 7). The final chapter, Chapter 8, describes the management of repatriated ancestral remains to New Zealand (or rather Aotearoa) and the logistics involved in identifying the communities from where these remains originally came. In the Epilogue, Lyndel Prott sums up and comments on the chapters from the perspective of international law.

Notes   1 For a discussion of the terms return, recovery, retrieval, recuperation, restitution and repatriation, see Prott 2009b:xxi–xxiv; Stamatoudi 2011:14–19.   2 The new technical means (especially the Internet) by which goods (and also capital) have been moved around the globe within seconds since the late twentieth century is a distinct issue and would need to be discussed separately; it cannot be treated within this introduction.   3 The term “source community” should designate only the community that produced the artefacts when they were collected. Thus, “source community” has its particular historicity and has no time-and placeless validity, especially if cultural and demographic changes have taken place since. Therefore, the term “source community” is mostly used for political reasons in today’s debates about claims for return or restitution. “Source country” is the complementary concept to “heritage”.   4 For an overview about the law relating to the return of cultural property and the legal procedures applied, see Prott 2009a:303–55.   5 None of the international conventions fighting illicit trafficking of art and illicit ownership are retroactive. They are binding on the parties only after ratification by the member states.   6 The historian Patrick Geary came to the conclusion that Rainald von Dassel created the legend about the relics of the Three Magi and their origin only in retrospective (1994: 246–56). In the Web presentation of Cologne Cathedral (http://www.koelner-dom.de/ index.php?id=18821&L=1 (accessed 18 December 2015)), as well as in the exhibition catalogue on the occasion of the 850-years celebration of the relics being in Cologne (Beer et al. 2014), Geary’s historical evidence is either ignored or enigmatically paraphrased.   7 The standing of monuments such as the Cathedral of Cordoba, Spain, which had been first a Roman Janus temple and then a Christian church in the sixth century, are even more delicate. When the Caliph of Damascus set up his court in Cordoba,

16  Brigitta Hauser-Schäublin and Lyndel V. Prott he began building the Great Mosque. When Ferdinand III conquered the city (reconquista) in 1236, the Great Mosque was turned into a church. This cathedral is part of the UNESCO World Heritage “Historic centre of Cordoba”: http://whc.unesco.org/en/ list/313 (accessed 16 January 2015). Up to the present day, this Mezquita-Catedral is used as a Roman Catholic Church. However, it has become a contested heritage site since the Muslim minority claims this building for their worship (Ruggles 2011).   8 Thus “purging by time” is evidenced by the phrasing in the official UNESCO text about the outstanding value of Cologne Cathedral: “Despite its generous dimensions, this cathedral was found to be too small to accommodate the throngs of pilgrims who visited it after the relics of the Magi were brought there from Milan in 1164”: http:// whc.unesco.org/en/list/292 (accessed 12 January 2015).   9 The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (and its predecessors, such as the Hague Regulations of 1899 and 1907) must be recognised as a (theoretical) watershed in dealings with the destruction and plundering of cultural property in armed conflicts (see O’Keefe and Prott 2011). However, acceptance of rules does not guarantee implementation, and adequate enforcement by ratifying states is often lacking (see Gerstenblith 2013). As our investigations have shown, cultural property was harmed or destroyed (and probably also looted) by states parties that have ratified the Convention (for example, in the conflict between Thailand and Cambodia about the UNESCO World Heritage site of Preah Vihear; Hauser-Schäublin and Missling 2013). 10 For a general discussion of the terms provenance (history of ownership of an artefact) and provenience (the original find-spot/cultural context of an artefact), see Joyce 2012. 11 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property has been ratified by 129 states parties (http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_ TOPIC&URL_SECTION=201.html: accessed 21 September 2015). The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) has been ratified by 37 states: http://www.unidroit.org/status-cp (accessed 16 January 2015). 12 While some states parties to the 1970 Convention have legislation implementing the 1970 UNESCO Convention enabling the seizure of items in private collections and private museums and which have been stolen or illegally exported, not all seem to have done so. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects does require such a provision, but litigation between individuals is also allowed. 13 This statement, of course, does not apply to the category of what are locally considered as heirlooms. 14 According to the 1970 Convention (but not in the case of the UNIDROIT Convention which allows for litigation between private individuals or private individuals and another state), the state is the official representative in all negotiations between states concerning contested artefacts, and usually decides according to its own considerations. If artefacts are returned, they are mostly kept in national museums, thus, they rarely go back to the “source community” (except for human remains if their social origin is identified). 15 Factors that certainly promoted international attention regarding the claims of oppressed minorities were the Holocaust claims, the Nazi Raubkunst trials and the numerous claims for restitution (Bertz and Dorrmann 2008; see Vrdoljak 2013 on the corresponding international regulations). 16 The court decision in the Mabo case in Australia in 1992 was ground-breaking; Russel 2005.

Introduction 17 17 For the text of the 2005 UNESCO Convention, see http://portal.unesco.org/en/ev. php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 18 January 2015). There are other international conventions and declarations which have empowered formerly oppressed communities and First Nations, such as the UN Universal Declaration of Human Rights of 1948: http://www.un.org/en/documents/ udhr/ (accessed 3 February 2015) and the UN Declaration of the Rights of Indigenous Peoples of 2007: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (accessed 3 February 2015). 18 The International Council of Museums (ICOM) adopted a Code of Ethics in 1986 (revised in 2004), which is binding for all member institutions: http://icom.museum/ the-vision/code-of-ethics/ (accessed 29 December 2014). Yet, whether and how this code is implemented is another question. Many museum curators we contacted in the course of our research were not familiar with this code. UNESCO has also issued a Code of Ethics for Dealers in Cultural Property: http://unesdoc.unesco.org/ images/0012/001213/121320M.pdf (accessed 29 December 2014); in addition, other codes of ethics adopted by associations of dealers in art and antiquities also exist. 19 The notion of heritage can also apply to states or communities which have preserved and valued a contested artefact/collection for a long time and, therefore, has become part of their own heritage (Cornu and Renold 2010:16). Such seems to be the case with the relics of the Magi in Cologne Cathedral. 20 It needs to be added that many of today’s claimant nation states were parts of colonies. 21 There seem to exist no detailed investigations about the ranking order of the different forms of illicit trafficking such as drugs, weapons and artefacts. 22 The high demand for antiquities is also due to the fact that many rich people, also outside “western countries”, are buying such goods as investments. “Art banking” is apparently an established business category of banks (Anton 2010:39). 23 Some scholars have made a number of suggestions of how to reduce the unequal relationship between demand and supply; see, for example, Polk 2013. 24 Under the caption “safeguarding Syrian cultural heritage”, UNESCO reports that the Necropolis of Palmyra has been attacked by looters. “A number of sources report that numerous archaeological sites in Syria are being systematically targeted for clandestine excavations by well-organised and often armed groups. Excavated archaeological objects of cultural significance make a lucrative trade for unscrupulous dealers operating both locally and internationally”: http://www.unesco.org/new/en/safeguarding-syriancultural-heritage/ (accessed 29 December 2014). 25 It goes beyond the scope of this introduction to enter fully into the anthropological discussion about today’s dominant Western property concept which divides people from things, but see Hirsch 2010.

References Anton, Michael (2010) Illegaler Kulturgüterverkehr. Band 1. Rechtshandbuch Kultur güterschutz und Kunstrestitutionsrecht. Berlin: De Gruyter. Beer, Manuela, Metje, Iris, Straub, Karen, Werth, Saskia and Moritz Woelk (eds) (2014) Die Heiligen Drei Könige. Mythos, Kunst und Kult. Museum Schnütgen, Köln. München: Hirmer. Bertz, Inka and Michael Dorrmann (eds) (2008) Raub und Restitution: Kulturgut aus jüdischem Besitz von 1933 bis heute. Begleitbuch zur Ausstellung “Raub und Restitution” des Jüdischen Museums Berlin. Göttingen: Wallstein.

18  Brigitta Hauser-Schäublin and Lyndel V. Prott Bogdanos, Mathew (2011) Thieves of Baghdad: the global traffic in stolen Iraqi antiquities. In: Manacorda, Stefano and Duncan Chappell (eds): Crime in the art and antiquities world: illegal trafficking in cultural property, pp. 143–71. New York: Springer. Brodie, Neil (2010) Archaeological looting and economic justice. In: Messenger, Phyllis Mauch and George S. Smith (eds): Cultural heritage management, policies and issues in global perspective, pp. 261–77. Gainesville: Florida University Press. —— (2011a) The market in Iraqi antiquities 1980–2009 and academic involvement in the marketing process. In: Manacorda, Stefano and Duncan Chappell (eds): Crime in the art and antiquities world: illegal trafficking in cultural property, pp. 117–33. New York: Springer. —— (2011b) Congenial bedfellows? The academy and the antiquities trade. Journal of Contemporary Criminal Justice 27(4):411–40. Coombe, Rosemary (1993) The properties of culture and the politics of possessing identity: native claims in the cultural appropriation controversy. Canadian Journal of Law and Jurisprudence VI(2):249–85. Cornu, Marie and Marc-André Renold (2010) New developments in the restitution of cultural property: alternative means of dispute resolution. International Journal of Cultural Property 17(1):1–31. Cuno, James (2006) View from the universal museum. In: Merryman, John Henry (ed.): Imperialism, art and restitution, pp. 15–36. Cambridge: Cambridge University Press. Davis, Tess (2011) Supply and demand: exposing the illicit trade in Cambodian antiquities through a study of Sotheby’s auction house. Crime, Law and Social Change 56(2):155–74. Declaration on the Importance and Value of Universal Museums (2004) ICOM News1:4:http://icom.museum/fileadmin/user_upload/pdf/ICOM_News/2004-1/ENG/p4_ 2004-1.pdf (accessed 13 December 2015). Geary, Patrick J. (1994) Living with the dead in the Middle Ages. Ithaca, NY: Cornell University Press. Gell, Alfred (1998) Art and agency: an anthropological theory. Oxford: Oxford University Press. Gerstenblith, Patty (2013) Models of implementation of the 1970 UNESCO Convention: can their effectiveness be determined? In: Prott, Lyndel V.; Redmond-Cooper, Ruth and Stephen Urice (eds): Realising cultural heritage law. Festschrift for Patrick O’Keefe, pp. 9–25. Builth Wells: Institute of Art and Law. Hann, Chris M. (1998) Introduction: The embeddedness of property. In: Hann, Chris M. (ed.): Property relations: renewing the anthropological tradition, pp. 1–47. Cambridge: Cambridge University Press. Hauser-Schäublin, Brigitta (2012) The diversion of the village gods. A criminal turn in the biography of Balinese copperplate inscriptions. Bijdragen tot de Taal-, Land- en Volkenkunde 168(1):74–99. http://traffickingculture.org/wp-content/uploads/2014/08/ Diversion-of-the-village-gods-print-version.pdf (accessed 7 September 2015). —— (ed.) (2013a) Adat and indigeneity in Indonesia. Culture and entitlements between heteronomy and self-ascription. Göttingen Studies in Cultural Property vol. 7. Göttingen: Universitätsverlag. —— (2013b) Entangled in artefacts. Governing differing entitlements to cultural objects at UNESCO. In: Müller, Birgit (ed.): The gloss of harmony. The politics of policy-making in multilateral organisations, pp. 154–74. London: Pluto Press. Hauser-Schäublin, Brigitta and Sven Missling (2013) The enduring agency of borderland regimes: the aftermath of serial regulations with different scopes and temporal

Introduction 19 scales at Preah Vihear, Cambodia. The Journal of Legal Pluralism and Unofficial Law 46(1):79–98. Hirsch, Eric (2010) Property and persons: new forms and contests in the era of neoliberalism. Annual Review of Anthropology 39:347–60. Joyce, Rosemary A. (2012) From place to place: provenience, provenance and archaeology. In: Feigenbaum, Gail and Inge Reist (eds): Provenance. An alternate history of art. Los Angeles, CA: The Getty Research Institute. Kind, Karl-Heinz (2011) The role of INTERPOL in the fight against the illicit trafficking in cultural property. In: Manacorda, Stefano and Duncan Chappell (eds): Crime in the art and antiquities world: illegal trafficking in cultural property, pp. 175–81. New York: Springer. Kirshenblatt-Gimblet, Barbara (1998) Destination culture: tourism, museums, and heritage. Berkeley: University of California Press. Kuper, Adam (2003) The return of the native. Current Anthropology 44(3):389–402. Kuprecht, Karolina (2014) Indigenous peoples’ cultural property claims: repatriation and beyond. Cham: Springer. Lalive, Pierre (2009) A disturbing international convention: The UNIDROIT Convention on Cultural Objects. In: Prott, Lyndel V. (ed.): Witnesses to history: documents and writings on the return of cultural objects, pp. 322–25. Paris: UNESCO. Li, Tania Murray (2000) Articulating indigenous identity in Indonesia: resource politics and the tribal slot. Comparative Studies in Society and History 42(1):149–79. Mackenzie, Simon R.M. (2005) Going, going, gone: regulating the market in illicit antiquities. Builth Wells: Institute of Art and Law. —— (2011) Illicit deals in cultural objects as crimes of the powerful. Crime, Law and Social Change 56:133–53. Merlan, Francesca (2013) From a comparative perspective: epilogue. In: Hauser-Schäublin, Brigitta (ed.): Adat and indigeneity in Indonesia: culture and entitlements between heteronomy and self-ascription, pp. 185–200. Göttingen Studies in Cultural Property vol. 7. Göttingen: Universitätsverlag. Merryman, John Henry (1986) Two ways of thinking about cultural property. American Journal of International Law 80(4):831–53. O’Keefe, Patrick J. and Lyndel V. Prott (eds) (2011) Cultural heritage conventions and other instruments. A compendium with commentaries. Builth Wells: Institute of Art and Law. Polk, Kenneth (2013) The trade in antiquities: is it time for additional approaches to reducing destruction and theft. In: Prott, Lyndel V.; Redmond-Cooper, Ruth and Stephen Urice (eds): Realising cultural heritage law. Festschrift for Patrick O’Keefe, pp. 111–20. Builth Wells: Institute of Art and Law. Präsentation Erd- und Himmels-Globus. Ausstellung 22. August bis 13. September 2009. St. Gallen: Stiftsbibliothek. Prott, Lyndel V. (2005) The international movement of cultural objects. International Journal of Cultural Property 12(2):225–48. —— (ed.) (2009a) Witnesses to history. Documents and writings on the return of cultural objects. Paris: UNESCO. —— (2009b) Note on terminology. In: Prott, Lyndel V. (ed.): Witnesses to history: documents and writings on the return of cultural objects, pp. xxi–xxiv. Paris: UNESCO. —— and Patrick J. O’Keefe (2012 [1992]) “Cultural heritage” or “cultural property”? In: Nafziger, James A.R. (ed.): Cultural heritage law, pp. 3–16. Cheltenham: Edward Elgar. Ruggles, D. Fairchild (2011) The stratigraphy of forgetting: the great mosque of Cordoba and its contested legacy. In: Silverman, Helaine (ed.): Contested cultural heritage:

20  Brigitta Hauser-Schäublin and Lyndel V. Prott religion, nation, erasure, and exclusion in a global word, pp. 51–67. New York: Springer. Russel, Peter H. (2005) Recognizing aboriginal title: the Mabo case and indigenous resistance to English-Settler colonialism. Toronto: University of Toronto Press. Schindlbeck, Markus (2013) Human remains zwischen Politik und Ahnenverehrung. In: Stoecker, Holger; Schnalke, Thomas and Andreas Winkelmann (eds): Sammeln, erforschen, zurückgeben? pp. 370–91. Berlin: Ch. Links. Splettstößer, Anne (2014) Transkulturelle Perspektiven des Bewahrens – Der Tange oder Schiffschnabel zwischen Instrument der Tradition und Museumsobjekt. In: Ziemer, Anke (ed.): Zur Ethik des Bewahrens: Konzepte, Praxis, Perspektiven; Jahrestagung von ICOM Deutschland; 17–19 Oktober 2013 Köln. pp. 58–68. Beiträge zur Museologie, 4. Berlin: ICOM Deutschland. Staley, David P. (1993) St. Lawrence Island’s subsistence diggers: A new perspective on human effects on archaeological sites. Journal of Field Archaeology 20(3):347–55. Stamatoudi, Irini A. (2011) Cultural property law and restitution: a commentary to international conventions and European Union law. Cheltenham: Edward Elgar. Ulph, Janet (2012a) Introduction. In: Ulph, Janet and Ian Smith (eds): The illicit trade in art and antiquities: international recovery and criminal and civil liability, pp. 258–71. Oxford: Hart. —— (2012b) Conclusions: Identification, ownership and changing markets. In: Ulph, Janet and Ian Smith (eds): The illicit trade in art and antiquities: international recovery and criminal and civil liability, pp. 1–26. Oxford: Hart. —— and Ian Smith (2012) The illicit trade in art and antiquities: international recovery and criminal and civil liability. Oxford: Hart. UNESCO (2015a) Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation: http://portal.unesco.org/culture/en/ev.php-URL_ID=35283&URL_DO=DO_ TOPIC&URL_SECTION=201.html (accessed 10 August 2015). —— (2015b) About the Convention on the Protection of Underwater Cultural Heritage: http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/2001convention/ (accessed 10 August 2015). Vrdoljak, Ana Filipa (2013) Gross violations of human rights and restitution: Learning from Holocaust claims. In: Prott, Lyndel V., Redmond-Cooper, Ruth and Stephen Urice (eds): Realising cultural heritage law. Festschrift for Patrick O’Keefe, pp. 163–87. Builth Wells: Institute of Art and Law.

Part I

Plunder, trafficking and return In its preamble, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property states that “cultural property constitutes one of the basic elements of civilisation and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.” Many countries have suffered the same fate: material witnesses of unique cultures have become the focus of looting or voluntary destruction, causing immeasurable damage to the nation’s cultural heritage. The example of Cambodia impressively illustrates the dimensions of destruction, looting and illicit trafficking, and the three authors in Part I have jointly investigated this. Foreign art collectors, people in high society and entrepreneurs of wealth, traders from within and outside the country, Cambodia’s own military, police, municipal administrators, farmers and villagers – poor and less poor – have combined to make Cambodia one of the most ransacked countries for its artistic heritage, as Miura’s essay evidences. This country’s experience shows the necessity of international collaboration, such as that established by the 1970 UNESCO Convention. The destruction began centuries ago, but, despite international assistance, some of the worst destruction was in the 1970s. The provisions of this Convention seek to control illicit export (Art. 3) – a major feature of the exit of Cambodian sculptures – to engage international co-operation to protect other countries’ cultural property (Art. 2), to encourage states to improve their national administration and protection of cultural heritage (Art. 5), to educate and inform the population of the country (Art. 10), and to seek co-operation from other states to prevent their citizens pillaging abroad (Art. 9). Cambodia ratified the Convention in 1972, but Thailand, one of Cambodia’s neighbours, has not yet done so. As a consequence, both countries have signed a bilateral agreement which should prevent the illicit trafficking of antiquities. However, as Tasdelen’s analysis shows, one of the major obstacles in efficiently preventing the illicit export of Khmer antiquities from Cambodia to Thailand does not lie in the contract as such, but in its consequent and strict implementation from both sides. Nevertheless, Cambodia was able to repatriate some of the major sculptures from its looted temples (at Koh Ker) during the Khmer Rouge regime. These statues had entered the international art market and finally ended

22  Plunder, trafficking and return up in renowned US museums, as Hauser-Schäublin’s chapter reveals. Thanks to the bilateral agreement between the US and Cambodia, complemented by UNESCO’s commitment, Interpol’s support and French scholars’ dedication as well as growing international pressure, these sculptures were finally returned to their country of origin.

1 Destruction and plunder of Cambodian cultural heritage and their consequences Keiko Miura

Introduction Prior to and even after the adoption of the so-called “Hague Convention” in 1954 (UNESCO 1983:13–31), the protection of cultural property (most often included in cultural heritage in the contemporary use of the term) was extremely precarious, with inadequate or no protection systems available in the respective countries, particularly in times of war. The destruction and vandalism of cultural heritage in Cambodia, as in many other countries, had mostly been conducted at sites with historical buildings, the royal palace and temples. Similar situations occurred well after the twentieth century, also in the museums and storage facilities of antiquities, during the invasions and occupations by foreign armies, war and its aftermath. The acts of destruction and vandalism were mostly conducted to cause maximum damage to the enemy, attacking their most revered achievements and erasing the material symbols of their power, spirit and unity, while trying to make profit from the trophies, booty and aggrandisement (cf. Brodie 2002:6). The most notable cases were the Siamese attacks and invasions in Angkor in the fifteenth century, when the latter collapsed, and again in Longvek1 – the capital in the sixteenth century. The destruction of the capital city and the ransacking of sacred and valuable objects, statues and precious texts went hand in hand with the removal of ideas, institutions and thousands of people, including members of the royal family, intellectuals, and skilled and religious men, to Siam, as the stories were transmitted to local villagers and also recorded (cf. Chandler 1992:79, 84–6; Groslier [1958] English translation 2006:3–19; Ngoun 2006:44–6). The case of the French removing antiquities from Cambodia was motivated mainly by a passion for Khmer art, while some other cultural treasures were also removed for economic benefits. The first Frenchman to be recorded removing antiquities from Cambodia in the late nineteenth century was Louis Delaporte of the Mekong Exploration Commission. He brought back “some seventy pieces of sculpture and architecture” which he claimed to have acquired from King Norodom in exchange for a number of French art objects, according to Dagens (1995:62–8), or “with a doubtful agreement with the Siamese authorities on site”, because Angkor was still part of Siam until 1907 (Baptiste 2013a:66). The Cambodian objects that Delaporte brought back to France mostly ended up in the Indochinese Museum of

24  Keiko Miura Trocadéro, where he was curator until his death in 1925, and later in the Guimet Museum (Baptiste and Zéphir 2013; Baptiste 2013a:63–79; Dagens 1995:68). Tourism of ancient sites in Cambodia became fully developed in the first decade of the twentieth century. Visitors included French officials, administrators on holiday, sailors on leave, writers, poets, photographers, artists, scientists and even activists. The majority of tourists were said to have visited southern Cambodia and Cochin China (the region encompassing south-eastern parts of Cambodia and southern Vietnam today) more than Angkor and other sites in the north, because Angkor had been in Siam until 1907 and the other sites were relatively inaccessible (Dagens 1995:68–106; Lafont 2004:20–22). Angkor, after having been incorporated into French Indochina, saw an influx of more than two hundred tourists, and the number of tourists visiting there by 1920 became quite significant. Some of the visitors to such ancient heritage sites in Cambodia took back souvenirs: at times entire statues, more often heads or small bronzes that were easier to transport. Some of those artefacts ended up in large museums, such as the Trocadéro and Guimet, or lesser-known ones, while a number of objects remained in private homes or were sold to antique shops, which stimulated interest and passion among collectors and antiquarians (Dagens 1995:68, 84; Lafont 2004:20–22). While vandalism, graffiti and theft by disrespectful visitors to Angkor were noted at that time, original pieces and moulded copies of original statues were on sale at the École Française d’Extrême Orient (EFEO) in a pavilion in front of Angkor Wat or at the Albert Sarraut Museum in Phnom Penh, as recorded in the late 1920s by Henri Marchal, an EFEO conservator based at the Angkor Conservation Office (Clémentin-Ojha and Manguin 2007:84; Falser 2013:99; see also Singaravélou 1999:264–66). The sale of antiquities and replicas may have been conducted to stop the vandalism of ancient structures, but the selling of original pieces suggests that EFEO itself had contradictory roles of conservation and facilitating the outflow of antiquities from Cambodia, even though the country was then part of French Indochina.2 One of the most famous Frenchmen who, together with his wife and a friend, tried to bring back Khmer antiquities to France was the writer and art dealer André Malraux. He had an official permit to study the monuments and architecture in French Indochina, but not to remove anything from the sites, which, he was warned, was illegal. Malraux was motivated to remove several stone pieces constituting a goddess figure from Banteay Srei Temple in Angkor in 1923 not only by his passion for Khmer art, but also by his need to secure funds. Malraux and his friend were arrested by the colonial authorities and tried in the law court in Phnom Penh. The pieces were subsequently returned to the original site and restored (Clémentin-Ojha and Manguin 2007:83–4; Dagens 1995:105–6; Lafont 2004:20).3 The legislation concerning the historical monuments of Indochina at that time was vague and inadequate; however, this was rectified by the decree of December 1924, most likely responding to this well-publicised incident. A new law relating to the classification, protection and conservation of historical monuments and art objects in French Indochina was adopted in 1925 (Clémentin-Ojha and Manguin 2007:84; Greenfield 2007:392–5; Lafont 2004:2, 21).

Destruction and plunder of Cambodian cultural heritage 25 The disappearance of cultural property from the Angkor area alerted the inhabitants of Siem Reap, who wrote a letter of petition to their king in 1949, four years before Cambodia’s independence, lamenting that Angkor Wat and Angkor Thom had been depleted of all their treasures over the past fifty or sixty years: statues made of wood, stone, emerald, or silver (Hauser-Schäublin 2011:46; Singaravélou 1999:265–6). This chapter, however, will mostly discuss the period since the eve of the 1970s when the civil war intensified and the extent of the removal of cultural objects from the heritage sites (in this case, plunder) had become considerable, in response to the increase in the international demand for Khmer antiquities. I use terms such as “plunder”, “pillage” and “looting” of cultural heritage interchangeably regarding the relevant existing laws in Cambodia. In the midst of socio-economic instability, thick tropical jungles infested with malaria and people fleeing conflict, it was not so difficult for some military personnel with substantial manpower, equipment, vehicles and networks for illicit trafficking of antiquities to conduct a wholesale destruction of cultural heritage, some of which was witnessed by local villagers or former soldiers whom I interviewed between 2011 and 2013, and are reported elsewhere (see also Brodie 1999, 2002:6–7; Chaumeau 1997; D.A.C. 2010:28; Doole 1999; Lafont 2004; Mydans 1999; Nagashima 2002; Stark and Griffin 2004).

Figure 1.1 Map of Cambodia with major cities and archaeological sites (italics) mentioned in this chapter.

26  Keiko Miura The destruction and looting of antiquities also continued during and after the Pol Pot period (1975–79) carried out by the Khmer Rouge. It was further intensified during the national reconciliation process in the 1990s. In addition to military personnel, some individuals and groups, often stimulated by the arrival of buyers, also began to engage in robberies of cultural property from monasteries and heritage sites despite their traditional regard for sacred materials and sites. The Cambodian authorities more or less confirm this as they estimate that “since 1986 more than half of the nation’s heritage has been stolen from the country” (Lafont 2004:67). From the 1990s to the early-2000s, some communities also began to conduct digging, including at prehistoric sites that, in most cases, have no standing monuments, often fomented by the appearance of buyers of antiquities and/ or chance discoveries (cf. Aglionby 2013; Gharbi 2013; Huffer 2009; Meo 2007; Reinecke et al. 2009). In short, the issue of looting and illegal trafficking is fairly complex, to say the least, and involves many actors who may sometimes collaborate, but in other cases have conflicting interests (cf. Lafont 2004). This chapter will first illustrate an overview of the major heritage sites in Cambodia, the kinds of cultural heritage there and give an outline of the plunder, which will be followed by a study of the range and types of destruction and pillage of cultural property in selected sites in Cambodia and their consequences. The objective is to analyse the extent of the damage and loss, who the actors are, how they are involved, what kind of alliances or negotiations there may be and how various actors deal with the consequences.

Heritage sites, kinds of antiquities and looting Cambodia has a whole range of heritage sites covering periods from prehistoric to Funan (first c. ce–550), Chenla (late-sixth c.–802), Angkor (802–1431), Longvek (sixteenth c.), Udong (eighteenth–nineteenth c.), western sites with strong Siamese political influences (fifteenth c.–1906), and finally, the modern heritage of Phnom Penh (1866–present) (cf. Ang et al. 1998; Aymonier 1999; Chandler 1992; Dagens 1995; Falser and Juneja 2013; Freeman and Jacques 1999; HauserSchäublin 2011). Inevitably, some historical sites overlap different periods of construction and influence. During the French Protectorate, French scholars registered over a thousand heritage sites in Cambodia, and it is estimated that over 98 per cent of temples have been destroyed completely or partially by looting (Lafont 2004:67). The extent of pillage can be well estimated from the fact that there is hardly any ancient temple with sacred deposits left beneath the statues of Hindu gods, the Buddha, other figures or the lingam. At the height of the Angkor civilisation, the kingdom stretched well beyond the present national boundaries. Khmer artefacts, therefore, can be found in neighbouring countries, such as Thailand, Vietnam, Laos, and even in Myanmar (Jacques and Freeman 1997:13; Lafont 2004:1; Rooney 1994:28; Siribhadra et al. 2001; Thosarat 2001:7–17). In particular, Thailand – the main transit country for looted Khmer objects – has itself a number of Khmer sites, which makes it difficult to identify the exact provenance of the objects in question. This matter,

Destruction and plunder of Cambodian cultural heritage 27 among many other factors, facilitates the trafficking and trade of Khmer objects via Thailand to the international art market. Cambodian antiquities exposed to such trade include palm-leaf manuscripts, pottery, ceramics, precious and semi-precious stones, glass beads, other kinds of jewellery, bronze drums, wooden, metal or stone sculptures or objects, inscriptions, and architectural elements and fragments which might have been carved out of monuments, stolen, looted, or clandestinely excavated (cf. Bunker and Latchford 2004, 2008, 2011; ICOM 2009; Khun 2008; Lafont 2004; Nagashima 2002; Stark and Griffin 2004; Reinecke et al. 2009; Thosarat 2001).4 Among them, stone sculptures are the most coveted and demand high prices on the international market. Because of the weight and size of prominent statues, looters would normally break them into smaller pieces or behead them to facilitate transportation (Lafont 2004:67; The History Blog 2013). When the operations failed, robbers sometimes threw broken statues into ponds or abandoned them in isolated places, as described by the local villagers and monks of heritage sites. The damage and loss of such objects from the original heritage sites have been facilitated by unstable socio-political and economic conditions of the society, as mentioned before, and, in any case, by the deficient governance of the country. While there are many complicated factors causing the looting and illicit trafficking of antiquities, the primary cause is no doubt because “trade in cultural property has become a major international business” (UNESCO 1997:9), in parallel with other underground businesses, such as narcotics and weapons (Davis 2006; Gharbi 2013; Lafont 2004; Nagashima 2002:56). In addition, there are individuals and institutions that covet and purchase cultural objects, even at exceedingly high prices, regardless of suspicions of illegality surrounding the trade. Lafont (2004:69) writes that a twelfth-century statue from Angkor can easily fetch US$100,000 (see also Gharbi 2013; Stark and Griffin 2004:126). Moreover, the effectiveness of laws, international conventions and ethics for museums to prevent such trafficking has been limited (see Chapter 2). The looters’ identities are often unknown, apart from pillaging by some military personnel and the cases where looters have been found and arrested (cf. Freeman 1992:12). Even when local villagers may know who was/were involved in the act, they dare not say for fear of revenge as long as the chief looters are alive. Stories related to plunder and similar circumstances gradually began to unfold due to advanced security, clearing of land mines and improvements of road access and heritage management in large but remote sites, such as Koh Ker, Beng Mealea, the Great Preah Khan and Banteay Chhmar, which will be discussed next.

Koh Ker Koh Ker, the tenth-century capital of Angkor built by Jayavarman IV in present Preah Vihear province, is one of the sites that have incurred extensive looting (Brodie 2002:7; Chaumeau 1997; Davis 2006, 2011; Doole 1999; Lafont 2004:56). As far as I know, local villagers have not been involved in the pillage of the Koh Ker temples. The Koh Ker heritage area has two villages nearby:

28  Keiko Miura Koh Ker and Srayong. Koh Ker village is close to Prasat Thom (“Large Ancient Temple/Ruins”) – the major temple with a pyramid called Prang; Srayong is a few kilometres away from all the temples. Some local women said that before the civil war, they were so scared of temple sites where tigers and large snakes abound that they avoided going near them. In addition, Prasat Thom was believed to have such enormous magical power that birds flying over it would drop dead. All these natural and supernatural factors kept many people away from temples, which could well be exploited by looters of antiquities. According to an achar (ritual officiant) in Srayong village, in the past, only the French had not been afraid to go into the temple sites. However, after the arrival of the French, the local villagers started to organise ceremonies at Prasat Thom on the occasion of the Khmer New Year. The first phase of looting was from the latter half of the 1960s to the early 1970s, which must have been facilitated by the construction of a new road via Kulen Mountain after 1965 giving looters access to Koh Ker. A number of these temples used to have fairly attractive stone and bronze statues, some of which had disappeared from the sites sometime between the late 1960s and the 1970s. One villager from Srayong who used to go to temple sites in his youth said that there had been extensive looting of statues and heads during this period. Some of these objects began to re-emerge in the West starting in the 1970s (cf. US District Court Southern District of New York 2012:7). “Adoration and Glory: The Golden Age of Khmer Art” (Bunker and Latchford 2004:126–73) shows about twenty objects in Koh Ker style or are known to have come from Koh Ker, many of which are owned by private collectors or museums in the US. In August 2013, I showed senior villagers seventeen photos from Koh Ker published in “Adoration and Glory” and ten photos of statues from this area taken by EFEO conservators between 1934 and 1954. A 75-year-old woman could identify figures in three of the old photos, i.e. a Garuda, a male figure with a long necklace, and Śiva and Uma (unclear identity), all from Prasat Thom. Younger people could identify only a few statues among the old photos; many recognised the statue of the Ganeśa from Prasat Bak, though some thought it might have been in Prasat Damrei (“Elephant Temple”), perhaps because this temple is nearby and contains a number of elephant statues. Concerning the figure of Rama (Bunker and Latchford 2004:158–9) that is now in the Denver Art Museum, an informant stated that some Lon Nol soldiers had taken the statue away, but her father, then the village chief, had shot at them, recovered the statue and brought it back.5 The statue was, however, lost later when Vietnamese and Khmer Rouge soldiers were fighting (some time during 1979–89) in the area, and the villagers ran away. Another 64-yearold woman identified a number of statues from about fifty years ago (around 1962), which included stone statues of Śiva and Skanda, Ganeśa from Prasat Bak, Dvarapala, Durga Mahishasuramardini, Uma (unclear identity), the rampant lion, the torso of a hunchback, and a bronze sculpture of a female torso from Prasat Neang Khmau in “Adoration and Glory” (Bunker and Latchford 2004:142–3, 149–53, 156–7, 164–70, 173), as well as a statue of Surya (unclear identity) with a large disc at the back, as the photo taken in 1935 shows. Another 63-year-old woman recognised most of the statues listed above and the respective temples

Destruction and plunder of Cambodian cultural heritage 29 where those statues had been located during the Sihanouk period (1954–70), except for the bronze statue and that of Surya (unclear identity). In fact, she could recognise more from the same book: the head of Brahma and the lintel from Prasat Krâhom (“Red Temple”) – the red brick entrance tower of Prasat Thom – and three bronze figures of the monkey, the four-armed female deity and the standing Yakśa, all from Prasat Damrei (Bunker and Latchford 2004:136–45, 149–53, 156–7, 164–71). All these statues in Koh Ker style depicted in the aforementioned book were, according to the villagers, unlawfully removed from the temples. When the civil war intensified after Lon Nol’s 1970 coup, the maintenance of temples soon stopped and the site turned into a battlefield. The next period of destruction and looting was during the Pol Pot period, when Prasat Krâhom was partially destroyed by bombs and local villagers were relocated to other areas, such as the central or northern area of the province. According to an informant, the road to the Thai border was widened during the Khmer Rouge period when many statues in ancient temples were plundered, as the villagers realised upon their return to their village. The third period was during the fighting between the government and Khmer Rouge soldiers from 1993 to 1998, when nearly half of the population were forced by the Khmer Rouge to come onto their side in the north, while the other half were on the government side in the south. In other words, this area was subject to civil war, and the Khmer Rouge maintained its influence and control longer than in most other areas of the country. Prasat Chen was damaged by bombs in the middle of the fighting between the government soldiers and the Khmer Rouge after 1979.

Figure 1.2  The war-damaged temple of Prasat Chen, Koh Ker. Photo: Keiko Miura, 2013.

30  Keiko Miura There have also been several accounts of Ta Mâk, one of the Khmer Rouge leaders, saying that he took stone statues away from Koh Ker during the time he was in control of this area. According to an informant, Ta Mâk came by car one day and told the villagers that the enemy was approaching by helicopter, hence they should run away; each family was given some Thai baht, and rice and other food. After the helicopter had gone, villagers returned to the village and realised that a Garuda6 about one metre high and about 30–40 cm wide had disappeared from Prasat Thom. Today, people think it might have been Ta Mâk who organised the removal of the statue. In the early 1990s, when Ta Mâk asked people to cut trees and grass around Prasat Thom, they found a statue of a kaevnama, a man with a horse’s head, about two metres high and about 60 cm wide, near the moat.7 Ta Mâk gave a bag of rice (approximately 50 kg) to the people and took the statue away by car. People were too frightened of him to protest. In 1999, before Ta Mâk was arrested by government soldiers, a collection of 61 stone sculptures and friezes were discovered and confiscated from his home in Anglong Veng. These artefacts had been taken to Siem Reap for safekeeping in the Angkor Conservation Office in 1997 (Brodie 2002:7; Doole 1999; Lafont 2004:65; Nagashima 2002:52; Stark and Griffin 2004:126). Massive plunder by government soldiers from the site was also reported in February 1997 (Chaumeau 1997; Lafont 2004:56). Ten tons of sculpture, including 19 nagā8 statues and nine large apsaras,9 were hacked off a temple in Koh Ker and were neatly cut up into pieces to be reassembled later. The looted objects were discovered at a military police (MP) checkpoint in the Krâlanh district in Siem Reap province on the border of Banteay Meanchy province. They were transported by a military truck destined for Thailand. The truck was guarded by seventeen heavily armed soldiers, including at least five bodyguards of General Khan Savoeun, a member of the Funcinpec political party and the commander of Military Region No. 4 in Siem Reap. The soldiers aimed their guns at the MPs at the checkpoint as well as showing them a permit signed by Savoeun which allowed them to transport “wood”. The soldiers then offered the MPs up to 20,000 baht (US$800) to allow them to pass. Despite the threats and offers of bribery, the truck was searched and the artefacts were discovered, which were subsequently taken to the Angkor Conservation Office. The soldiers were all allowed to leave, and no one was arrested. The MPs knew that they could not make any arrests because “the small cannot reprimand the big ones.” Savourn said that none of the soldiers should be arrested because they were poor and offered a lot of money, so they were not to blame. According to him, middlemen offered up to two million baht to people who smuggled artefacts from Siem Reap temples to Thailand (Chaumeau 1997; Lafont 2004:56). Other incidents of the looting and destruction of cultural property at Koh Ker have also been witnessed by some local villagers. During the Vietnamese military presence (1979–89), robbers took away the body of their village neak tā (tutelary spirit) statue carved in sandstone. They fastened one arm of the statue to a water buffalo to drag it away, but the arm broke off. Another neak tā called Ta Moeurng used to reside in a statue of a seated smiling man whose height and width were both over one metre; it was located at the hill or tomb of Damrei Sâ (“White

Destruction and plunder of Cambodian cultural heritage 31 Elephant”).10 It was destroyed by the Khmer Rouge soldiers who were stationed there after the Pol Pot regime (1975–79). The broken pieces were brought to the shrine of the village neak tā. This shrine used to be located nearer to Prasat Thom, but was moved several times and, finally, brought to its present location at the request of the APSARA Authority managing this site. A young villager, now in his twenties, saw three unknown men riding motorbikes near Prasat Khnar one evening when he was ten years old (between 2001 and 2003). The next morning, he saw that three male figures on the bas-relief were missing. According to another villager interviewed in 2012, illicit digging was still continuing at the Koh Ker site at night, undertaken by people from other areas and government officials with guns. Nowadays, local villagers visit temples, such as Prasat Krâhom, Prasat Thom, Prasat Neang Khmau, Prasat Pram, Prasat Balang and the tomb of Damrei Sâ, on holy days, Khmer New Year and the Festival of the Dead. On Khmer New Year, the governor comes to attend a ceremony at Prasat Thom, as do people from distant areas. Older local villagers consider that the loss of the neak tā statues has not diminished their belief in their power, including the power of healing illnesses through spirit mediums. Younger people, however, tend to rely on Western medicines to treat illnesses rather than mediums. Spirit mediums at heritage sites can be possessed by the neak tā believed to be dwelling in ancient statues, such as guardians (Dâmbong Daek/Dvarapala) or Viśnu figures. Having lost such statues, young people have grown up without seeing or associating with many statues in the temples, which may have affected their ways of looking after themselves without resorting to the ancient cultural ways.

Beng Mealea On the way to Koh Ker from Siem Reap, via the market town of Dâm Daek, many tourist buses stop at the large ruined temple of Beng Mealea, which was built in the late eleventh century or early twelfth century (Briggs 1999:184). The temple had incurred heavy destruction by looters in the past: The remaining ruins have been reorganised for tourism development by the APSARA Authority over almost the last two decades. Because of the improvement of the road conditions in recent years, the temple has become a popular tourist destination as it depicts a romantic ruined temple in the jungle, reminding visitors of the excitement experienced by early explorers. The village chief mentioned that the looting took place during roughly three periods: from 1953 to 1955, in 1970 and, lastly, from 1993 to 1997. According to him, from 1993 to 1995, artefact buyers came from Siem Reap and Thailand and asked some of the villagers to dig around the temple grounds for antiquities. More than ten villagers were involved, all of whom are dead now. Because of the bad road conditions, the buyers used ox-carts to take away the carved stones. From 1996 to 1997, soldiers came and took just the heads of some statues and walked off with them. Another informant also said that many statues were also lost during the Lon Nol and the Pol Pot periods. In addition, at some point in time, bombs made of hand grenades were said to have been used to destroy the temple structures, resulting in the extensive destruction and ruins.

32  Keiko Miura

Figure 1.3 Broken statues of Ta Kong and Ta Keo at the compound of the Angkor Conservation Office. Photo: Keiko Miura, 2013.

In the old days, there were ten neak tā figures in the temple, which are now all gone. In 2001, the villagers asked the Angkor Conservation Office to safeguard two headless neak tā statues called Ta Kong and Ta Keo that used to stand in front of the east gate. There were more than two headless statues from Beng Mealea lying outside one of the depots of the Conservation Office, but according to the village chief, he would not be able to recognise them even if he went there to identify them. The annual neak tā festival is organised in front of the shrine of the village neak tā, whose figure was lost, next to a huge beng tree.11 A new golden statue looking like a Chinese god is now placed there. The villagers can recognise four neak tā – Ta Kong, Ta Keo, the village neak tā and Ta Prohm Meas – without a statue being present. They can be communicated with through about thirty mediums (rup) who live in the village, three of whom have healing powers (gru). In other words, their spiritual association with the temple is still strong, regardless of the loss of many statues.

Great Preah Khan Another site in Preah Vihear Province well known for extensive destruction and looting is the large temple complex of the Great Preah Khan (Preah Khan of Kampong Svai or the Bakan), thought to have been built by three Angkor kings, namely Suryavarman I, Suryavarman II and Jayavarman VII, from the

Destruction and plunder of Cambodian cultural heritage 33 eleventh to the thirteenth centuries, from a combination of inscriptions and architectural styles (Briggs 1999:192–3, 221–2; Henrickson et al. 2010; Tourism of Cambodia 1999–2013).12 The famous head of Jayavarman VII in meditation in the National Museum in Phnom Penh and a serenely smiling Buddha on the nagā in the Guimet Museum in Paris (Baptiste and Zéphir 2013: 237; Bosc 1879:30, 35; Briggs 1999:213) are both from this temple. The temple has the largest enclosure of ancient Cambodia, covering nearly 5 square kilometres (Briggs 1999:154; D.A.C. 2008:29). The first well-known removal of Khmer artefacts from this and other temples in the Angkor area to be transported overseas was conducted by Delaporte of the Mekong Exploration Commission, as depicted in his Voyage (de Tournemire 2013:59–60, Baptiste 2013b: 115–16; Bosc 1879:24–35; Delaporte 1888 cited in Dagens 1995:65–8; Tourism of Cambodia 1999–2013).

Figure 1.4  Looted carving at Great Preah Khan. Photo: Keiko Miura, 2012.

34  Keiko Miura In recent times, this temple became one of the last major temple sites in Cambodia to be spared from looting, due to bad road access. It had been nearly impossible to get there during the rainy season until the road conditions were improved in 2010. The site was, however, heavily pillaged by soldiers and local villagers in the 1990s, based on accounts related by several informants and reported briefly elsewhere (D.A.C. 2008:26; Gharbi 2013; Pottier 2000:171). According to several informants, between 1993 and 1998, soldiers forced the local people to take the sculptures out of the temple, use metal detectors to find precious metals underground and cut chunks of carvings off the temple walls and lintels with saws, hammers and chisels, while the soldiers used hand grenades or dynamite to destroy the temple (see also Gharbi 2013; Noce 2013). Even the village and commune chiefs were involved, according to one of the informants who heard this story from one of the looters in his native village in this province. A local temple guard also mentioned that, during the period mentioned above, buyers of antiquities had come from Siem Reap city, also with metal detectors, and asked the local villagers to find artefacts, which would then be taken to Thailand. Subsequently, many local villagers, joined by people from other villages, started digging in the grounds to find stone statues or anything else valuable to sell. These actions were taken despite their strong beliefs in the power of the neak tā in the temple, where they used to pray to it on holy days, the Khmer New Year and the Festival of the Dead, or whenever they became ill or desired to make a wish. Locals were paid in baht based on the weight of the gold artefacts unearthed; the prices of stone or alloy statues would be calculated according to their size and quality. Those who had participated in the pillage, however, fell ill, lost money, or were struck by other misfortunes, which, according to local belief, was the punishment of the neak tā. The villagers who looted are said to be regretting their past acts of selling their neak tā. In March 2000, a military squad captured suspected smugglers of antiquities who were believed to have looted 97 carvings and statues from this temple, including a Buddha figure, and an original bust of Jayavarman VII. The military squad was acting on a tip-off that smugglers were planning to take artefacts across the border for sale in Thailand. Three smugglers were killed in the raid and a fourth escaped. UNESCO sent a team to investigate the damage in 2011; they found the temple in a lamentable state with enormous piles of rubble at the site, and learnt about some unsuccessful attempts which left sculptures with partially smashed heads (Deutsche Presse-Agentur 2000; Noce 2013).

Banteay Chhmar The most widely reported vandalism of Khmer antiquities is the case of another remote and grand temple, Banteay Chhmar, built by Jayavarman VII during the thirteenth century (Global Heritage Network 2012; Sanday 2013; Visit Banteay Chhmar 2013). This grand temple, with minor temples in the vicinity, is located near the Thai-Cambodian border in Banteay Meanchey province. According to a local achar, the temple incurred a lot of damage in the 1960s and the jungle

Destruction and plunder of Cambodian cultural heritage 35 around the temple site was cleared during the Pol Pot regime in 1976. Mr Chet (a pseudonym), a local staff member of the Ministry of Culture and Fine Arts, mentioned that all the people in the four nearby villages had not been dislocated during the Pol Pot regime, unlike most other people in the country. A stone lion was stolen from the temple by robbers in 1976 and was cut into several pieces to facilitate its transportation from the temple. The pieces were, however, left at the back of a house in the south. The local villagers fled to Thailand from 1980 to 1983 to avoid fighting among political factions, and from 1983 to 1989, the villagers again fled to other places, such as Thmor Puok, about 16 kilometres from their village. Based on the accounts told by several local informants, it appeared that extensive destruction and looting took place at the site from around 1993 to 1997. In 1993–94, Thai buyers arrived, giving metal detectors to local villagers to find artefacts made of gold or other precious metals or stones. Subsequently, a number of bronze statues were found. Then everyone, soldiers and villagers alike, looted the site, making sure that no one would be excluded. The local villagers are mostly farmers, as well as working as traders between Thailand and Cambodia. They mainly use three methods to conduct antiquities transactions. In the first method, the looters take photos of artefacts and show them to buyers in Thailand. After the buyers have selected the artefacts they wish to purchase and prices agreed upon, the locals organise the removal of artefacts from their storage places and deliver them through the border towns of Poi Pet and Aranyaprathet. The second way is to sell to Cambodian art dealers, who come directly to the villages to view the artefacts for sale. The third method is used only for small statues, which come from anywhere in Cambodia to be sold to Cambodian collectors, either directly or indirectly. According to the two looters from local villages whom Mr Chet interviewed, the buyers would place a specific order with them, such as a lion, Buddha statue, nagā, apsara, or Avalokiteśvara; they would then go to temples to find the exact objects to sell. It is said that the looters gained only small amounts of money compared with the huge profits that the buyers would make. Besides, plunder can result in casualties, such as those depicted in the famous story of looters who died under collapsing stones in 1994, as told by local villagers and also reported in a magazine (D.A.C. 2010:28). Some of the looted objects began to appear in antique shops in Bangkok’s River City shopping complex. In December 1998, Claude Jacques, a French expert of Khmer epigraphy, identified a stone inscription from Banteay Chhmar in one of the shops there. It was on sale for US$10,000 (Lafont 2004:52–3; Mydans 1999; Thosarat 2001:11).13 The largest looting operation of Cambodian cultural property in recent history was discovered in the Thai province of Prachin Buri on 4 January 1999, when a truck loaded with 117 pieces of sculpture in 85 sacks from the temple at Banteay Chhmar was stopped by the Thai authorities and police officers. The investigation revealed that Cambodian soldiers delivered the bas-reliefs in six pick-up trucks. Witnesses reported that several hundred soldiers worked for four weeks with heavy machinery to remove a nearly 12-metre-long section of the

36  Keiko Miura south-western wall, with four sets of Avalokiteśvara carvings, but only two sets were recovered, with the other two sets untraced. The value of two sets was evaluated at 100 million baht or approximately US$2.6 million. The looting of these objects was instigated under the order of a Thai art dealer, who even allegedly tried to bribe officials in Prachin Buri to declare them as replicas (Doole 1999; Thosarat 2001:11). According to Japanese journalist Masayuki Nagashima, the Thai collector who ordered these artefacts is a well-known figure in Thailand’s telecommunications industry. Somprasong, an NGO activist whom Nagashima interviewed, told him that the looting of artefacts from Banteay Chhmar had been approved by a high-level Cambodian government official and that a mechanism for art smuggling already existed at the highest levels of society in both countries (Nagashima 2002:137–40). In 1999, Thai police made an astonishing discovery in Ayutthaya, where they found more than five hundred ancient artefacts in the residence of Sunthorn Sowapi, a well-known sculptor and reputedly the best maker of reproduction artefacts in Thailand. The number of artefacts confiscated from Sunthorn made up more than half of what the police seized in Thailand that year. The police also found out that Sunthorn and his family were acting as brokers between the art thieves and dealers. He and his two sons repaired Buddha images or damaged lintels stolen from heritage sites in Thailand and Cambodia in order to create finished goods, and then sold them to antique dealers in Bangkok. Some of the artefacts showed clear traces that portions had been added (Nagashima 2002:101), in a similar way to the Ganeśa statue from Prasat Bak, Koh Ker, that was shown to have been altered from the original in “Adoration and Glory” (Bunker and Latchford 2004:168–70; Porte 2004:173–7). Interestingly, among the seven pieces awaiting restitution in Bangkok and Phimai in 1999, one piece was attributed to Jayavarman VII from Banteay Chhmar, and only three out of five items in the group were genuine (Doole 1999); in other words, two items were fakes. Originally, there were eight sets of Avalokiteśvara carvings in Banteay Chhmar; after the looting of four sets, the wall with two sets became destabilised and toppled. Today, the remaining two sets stand with a huge gaping space between them, showing the extent of the plundering. The Global Heritage Fund, an international NGO, is planning to undertake the restoration of the remaining carvings in partnership with the Cambodian Ministry of Culture and Fine Arts, the Department of Scientific Computing (IWR) at Heidelberg University, and Friends of Khmer Culture (cf. Global Heritage Network 2012). The two sets returned to Cambodia are now on display at the National Museum in Phnom Penh after having undergone restoration. The experts reached the conclusion that the looting in Banteay Chhmar had been carried out with professional stone cutters. I accompanied a German documentary film team and a western stone conservator to Banteay Chhmar in August 2013, when Mr Chet told us details about the looting. He said that professional stone carvers from Thmor Puok had been involved in the cutting of the stones. In 2011, the achar mentioned that it was the local battalion’s military commander who was responsible for the destruction and removal of the Avalokiteśvara carvings. He could tell me the

Destruction and plunder of Cambodian cultural heritage 37 name of the person accountable because this man had already died. According to Mr Chet, who investigated the illicit traffic of artefacts in Banteay Chhmar, the looting in 1996–97 was conducted not only by the military, but also the police and the commune authorities. After they tried to load the cut pieces onto the trucks, the soldiers shot into the air to warn the local people not to approach them. The villagers consequently ran away, leaving no one to witness the act, but the looters themselves. Mr Chet also mentioned that most local villagers who are over 50 years old have been involved in pillage, and that there are about a hundred metal detectors currently distributed throughout the village. When people sold statues, they gave 10 per cent of the sales to the police. The police and the looters are often accomplices. People stopped looting inside the temple sites after 1998, but during the rainy season, some have been engaged in illicit digging in prehistoric graveyards located on higher ground, such as Kôk Treas, Kôk Ta Nem, Kôk Ta Ten, Kôk Amâk, and others around the villages. The local villagers are said to understand that looting is wrong, but because they are poor, they cannot resist when buyers come to ask for artefacts. In 2012, before the construction of the bypass road between the road to Siem Reap and the one to Sisophon, archaeologists from the Ministry of Culture and Fine Arts excavated Kôk Treas and found four corpses. Nowadays, the police regularly check these prehistoric heritage sites to see whether anyone is looting. If they find a newly plundered area, they report it

Figure 1.5  Missing wall of the temple at Banteay Chhmar. Photo: Keiko Miura, 2013.

38  Keiko Miura to the Ministry staff members. However, one wonders how much the police can resist should they be offered bribes from plunderers. Mr Chet mentioned that Thai and Cambodian antiquities buyers used to come to the village and offer money to the landowner for the purpose of digging. If the owner agreed, the land would be returned to the owner after the search for artefacts had been completed. Antiquities discovered included gold rings, diamonds, necklaces, earrings, armrings, bronze armour and bronze drums about 1.50 metres in diameter. Mr Chet and his colleagues would patrol the area at night with torches. Even though Mr Chet fears attacks from looters, he investigated the pillage among local villagers and asked the Ministry not to punish those who carried out the plunder. He says he loves Khmer art and considers that looters are not just destroying artefacts, but Cambodian culture as well. Similarly, the achar lamented the loss of carvings from the temples in the area, saying that they had been so beautiful before and he was heartbroken at their loss. He laments that the Khmer have lost all their culture and heritage. Despite so much loss, the local villagers organise ceremonies in Banteay Chhmar, such as bon ktoum neak tā or the festival of the neak tā shrine in March, and celebrate the Khmer New Year in April when they pray to the tevoda (god) and the Buddha to ask for sufficient rain for rice cultivation. Both the ancient temple and a nearby monastery continue to play important roles in the spiritual lives of the communities, regardless of their great losses. In addition, a group of mostly young local villagers established Banteay Chhmar Community-Based Tourism (CBT) in 2007, with the aid of a French NGO, Agir Pour le Cambodge. It was dedicated to preserving and protecting the cultural heritage of the area as well as creating a sustainable tourism industry in co-operation with the Global Heritage Fund (cf. Sanday 2013), Heritage Watch and about twenty Cambodian travel agencies.14

Conclusions The destruction and looting of cultural heritage in Cambodia since the 1970s show clear tendencies regarding the role of military personnel as predominant actors who mostly targeted stone statues and bas-reliefs in remote temples. Factors such as bad road access, prevalent landmines, insecurity, and thick tropical jungle at such sites, as well as high-ranking connections in many cases, created easy situations for them to achieve their objectives before the 2000s. They have, at times, involved local police and even commune authorities as accomplices. In some cases, they coerced local villagers, or middlemen lured the villagers into looting by bringing them metal detectors and offering money for any items discovered. Some people in the local communities of heritage sites have had opportunities to become willing partners of illicit excavations, despite their traditional moral codes based on the spirit cult and Buddhism. “Poverty” is almost always used as the reason to condone such acts, and indeed, most people who live in remote areas are fairly poor compared with urban populations. However, not all the poor villagers were involved in the pillage and many of those who have participated seem to

Destruction and plunder of Cambodian cultural heritage 39 regret their conduct. When looters of cultural property suffer from consequential misfortune or death, other people often consider that is the punishment of the neak tā – the guardian spirit. In any case, ancient temples, even after heavy plunder, are, nevertheless, still considered as sacred. Local villagers and even Cambodians from other areas would go there to pray for their well-being or ask for salvation, and to participate in the New Year celebrations or visit on the occasion of the Festival of the Dead after rituals conducted in monasteries. The country has steadily made progress concerning peace and socio-economic development since the 1990s, as has the national framework to manage major heritage sites with temples and prominent buildings. While the remnants of the illegal trade in antiquities continues in such sites, buyers began to turn to prehistoric sites with which the military, per se, has little to do. It is the members of some local populations who often have no hesitation in excavating their own property to find ancient treasures with which they have no religious associations. Any discovery of treasure is regarded as a fortune for them without having to feel guilty for selling the artefacts, because they do not consider them as being related to the neak tā. Archaeologists, conservators and officials in cultural agencies are challenged by the local populations who tend to consider that objects found on their own land belong to them, as stated by Reinecke et al. (2009). There has also been mistrust of government officials and police on the part of the Cambodian population for a long time, because of endemic corruption among the authorities (cf. Mackenzie 2011b). This is exacerbated by the locals’ inadequate understanding of the significance of ancient cultural objects for academia and national implications. The involvement of local populations in heritage education, training and management, coupled with assistance in improving their socio-economic lives, may help reduce hostility and confrontations, as the possibilities have been witnessed in Banteay Chhmar and other sites mentioned in this volume and elsewhere (Reinecke et al. 2009). In terms of the illicit trafficking of Cambodian cultural property, the significant role played by Thailand as one of the major regional transit centres of illicit antiquities poses serious problems. Stolen objects often head to Ayutthaya – the foremost centre of collecting, restoring, remodelling and producing forgeries of such artefacts. There are obvious networks and established routes between Cambodia and Thailand involving people of both high and low rank; however, those who are high up in society are often spared legal prosecution, but the ones lower down are punished (cf. Mackenzie 2011a). Cultural heritage and antiquities stimulate passion – whether for love or money, and often both – for a great number of people throughout the world. This chapter has demonstrated the multiplicity in the valuation of cultural property from religious to aesthetic, historical to economic, and from ethnic, national and regional to global. Those who are part of the game sometimes collaborate with or confront each other, feign innocence, bribe, preach, or turn a blind eye to the actions of the others. However, they rarely admit that they are accomplices in the destruction of their own or other peoples’ culture and history, which seems to be the core aspect of the enduring problem.

40  Keiko Miura

Acknowledgements Throughout the research for this paper, I am indebted in various ways to HE Chan Tani and Teruo Jinnai at the Council of Ministers; HE Hab Touch, Prak Sonnara, Kim Sophorn and Mr Chet of the Ministry of Culture and Fine Arts; Keo Sereyvuth and In Phally of the Angkor Conservation Office; Dr Dominique Soutif (Director) and Bertrand Porte of EFEO; Anne Lemaitre (Director), Phillip Delanghe and Bun Hok of the UNESCO office in Cambodia; Dr Ly Vanna and Dr Ea Darith of the APSARA Authority; Simon Warrack of SACRA; Wolfgang Luck of Luck Film, Germany; CBT staff; Ang and Rithy (research assistants/ drivers), and last but not least, the villagers and monks of the Siem Reap-Angkor region, Beng Mealea, Koh Ker, Great Preah Khan and Banteay Chhmar.

Notes   1 It is often written as Lovek, however, the spelling close to the local pronunciation is applied here.   2 Cambodia had been ruled by the French as a Protectorate from 1863 to 1887, and as a part of French Indochina from 1887 to 1953.   3 Ironically, many decades later in the 1960s, Malraux became the French Minister of Cultural Affairs and fought for the independence of colonial states and protection of their cultural identity (Lafont 2004:20).   4 See the Red List of Cambodian Antiquities at Risk with the kinds of artefacts at risk categorised according to the historical periods in ICOM (2009) and also missing objects from Angkor listed in ICOM (1997).   5 Lon Nol was a general and twice prime minister during the Sihanouk regime. He launched a coup d’état in 1970 when Sihanouk was abroad. Lon Nol pronounced himself president of the Khmer Republic.   6 Garuda is a celestial bird in Hindu mythology and a vehicle of Viśnu.   7 Khun (2008:72) refers to this statue as Kalkin, whereas Bunker and Latchford (2004: 182–3) call it Hayagriva, a minor avatar of Viśnu.   8 The nagā is a mythic snake depicted in Hindu and Buddhist iconographies and normally represented with three, five, seven, or nine heads.   9 The apsara is a celestial nymph depicted in Hindu mythology. 10 There is a legend of a white elephant king and his daughter, which relates that upon the death of the elephant, his tomb was constructed there. See Asia Finest Discussion Forum (2009) for the legend. For archaeological findings there, see Bourdonneau (2009). 11 Afzelia xylocarpa can be found in lowland primary forest, and its timber is in the first category of luxury wood for cabinet-work and coffins. The seed pulp serves as an adhesive for cigarettes and the bark is used in local medicine (Dy Phon 2000:12). 12 The province where this temple is located used to be called Kompong [Kampong] Svai, which was later incorporated into Kompong [Kampong] Thom, and is presently in Preah Vihear. Preah Khan of Kompong [Kampong] Svai was named by archaeologists and researchers in order to distinguish it from Preah Khan in Angkor (Vachon, 17 June 2013). 13 Doole (1999) and Mydans (1999) report the price as US$8,000. 14 Heritage Watch is an international NGO dedicated to saving Cambodian cultural heritage. The activities of the CBT may create a successful model for community-based tourism development that the rest of the country can emulate, superseding the old local custom of destruction and pillage and losing both local and national cultural heritage.

Destruction and plunder of Cambodian cultural heritage 41

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42  Keiko Miura Davis, Tess (2011) Supply and demand: exposing the illicit trade in Cambodian antiques through a study of Sotheby’s auction house. Crime, Law and Social Change 56(2):155–74. Deutsche Presse-Agentur (2000) Phnom Penh: National Museum gets smuggled items back. Lolei Travel (Cambodia). Newsletter March 2000.: http://asiatours.net/cambodia/ newsletter/mar00.html (accessed 21 September 2015). Discovery Asia in Cambodia (DAC) (2008) Discovery series. Thoroughly Angkor: the 6th century: at the end of the Royal Road II: a grand temple sleeping the jungle – Great Preah Khan ruins (in Japanese) 6:22–31. —— (2010) Discovery series. Thoroughly Angkor: the 11th century at the end of the Royal Road III: grand temple collapsed and looted – Banteay Chhmar temple ruins (in Japanese) 11:26–34. Doole, Jenny (1999) Post-war Cambodia. Culture without context 4:6–7 The Illicit Antiquities Research Centre: http://traffickingculture.org/wp-content/uploads/2012/07/ CWC-42.pdf (accessed 17 September 2015). Dy Phon, P. (2000) Dictionary of plants used in Cambodia. Phnom Penh: Imprimerie Olympic. Falser, Michael (2013) From colonial map to visitor’s parcours: tourist guides and the spatiotemporal making of the archaeological park of Angkor. In: Falser, Michael and Monica Juneja (eds):‘Archaeologizing’ heritage? Transcultural entanglements between local social practices and global virtual realities, pp. 81–106. Heidelberg: Springer. Falser, Michael and Monica Juneja (eds):‘Archaeologizing’ heritage? Transcultural entanglements between local social practices and global virtual realities. Heidelberg: Springer. Freeman, Michael (1992) A golden souvenir of Angkor. Hong Kong: Pacific Rim Press. Freeman, Michael and Claude Jacques (1999) Ancient Angkor. Bangkok: Asia Books. Gharbi, Sylvain (2013) Khmer heritage plundered. Phnom Penh Post, 18 January: http://www. phnompenhpost.com/7days/khmer-heritage-plundered (accessed 21 September 2015). Global Heritage Network (2012) Restoring an artistic treasure at Banteay Chhmar: http://globalheritagenetwork.ning.com/group/banteaychhmarcambodia/forum/topics/ restoring-banteay-chhmar (accessed 22 December 2012). Greenfield, Jeanette (2007) The return of cultural treasures, 3rd edition. Cambridge: Cambridge University Press. Groslier, Bernard-Philippe (2006 [1958]) Angkor and Cambodia in the sixteenth century (translated by Michael Smithies). Bangkok: Orchid Press. Hauser-Schäublin, Brigitta (2011) Preah Vihear: from object of colonial desire to a contested world heritage site. In: Hauser-Schäublin, Brigitta (ed.): World heritage Angkor and beyond: circumstances and implications of UNESCO listings in Cambodia, pp. 33–56. Göttingen Studies in Cultural Property. Vol. 2. Göttingen: Universitätsverlag: http://www.univerlag.uni-goettingen.de/handle/3/isbn-978-3-86395-032-3 (accessed 10 August 2015). Henrickson, Mitch et al. (2010) Industries of Angkor project Preah Khan of Kompong Svay (Bakan): December 2009 Field Campaign Report. Sydney: University of Sydney: https://kerdomnelkhmer.files.wordpress.com/2011/07/hendrickson-m-et-al-2010_ preah-khan-kampong-svay.pdf (accessed 21 September 2015). The History Blog (2013) Met to return looted Khmer statues to Cambodia: http://www. thehistoryblog.com/archives/25111 (accessed 8 September 2013). Huffer, Damien (2009) Conserving the past through play: educational, gaming and anti-looting outreach in Cambodia. IPPA Bulletin 29:92–101. ICOM (International Council of Museums) (1997) One hundred missing objects. Paris: ICOM.

Destruction and plunder of Cambodian cultural heritage 43 —— (2009): Red list of Cambodian antiquities at risk: http://icom.museum/fileadmin/ user_upload/images/Redlists/Cambodia/RL_CAMBODIA.pdf (accessed 21 September 2015). Jacques, Claude and Michael Freeman (1997) Angkor: cities and temples. London: Thames & Hudson. Khun, Samen (2008) The new guide to the National Museum, Phnom Penh, 3rd edition. Phnom Penh: Ariyathoar. Lafont, Masha (2004) Pillaging Cambodia: the illicit traffic in Khmer art. Jefferson, NC and London: McFarland & Company. Mackenzie, Simon (2011a) Illicit deals in cultural objects as crimes of the powerful. Crime, Law and Social Change 56(2):133–53. —— (2011b) The market as criminal and criminals in the market: reducing opportunities for organised crime in the international antiquities market. In: Manacorda, Stefano and Duncan Chappell (eds): Crime in the art and antiquities world: illegal trafficking in cultural property, pp. 69–85. New York: Springer. Meo, Nick (2007) Cambodian prehistoric looting highlighted. Heritage Watch: http:// www.heritagewatchinternational.org/cambodian-prehistoric-looting-highlighted.html (accessed 21 September 2015) Mydans, Seth (1999) Lost temple looted by Cambodian raiders. Guardian, 2 April: http:// www.guardian.co.uk/world/1999/apr/02/cambodia (accessed 21 September 2015). Nagashima, Masayuki (2002) The lost heritage: the reality of artifact smuggling in Southeast Asia. Bangkok: Post Books. Ngoun, Kimly (2006) The legend of Preah Ko Preah Keo and its influence on the Cambodian people’s perception of the Thais. MA thesis. Bangkok: Chulalongkorn University: http://arcmthailand.com/documents/documentcenter/THE%20LEGEND% 20OF%20PREAH%20KO%20PREAH%20KEO%20AND%20ITS%20 INFLUENCE%20ON.pdf (accessed 25 September 2015). Noce, Vincent (2013) The smuggling scandal that’s ready to erupt. The Art Newspaper, 16 September: http://www.theartnewspaper.com/articles/The-smuggling-scandal-thats-readyto-erupt/ 30304 (accessed 21 September 2015). Porte, Bertrand (2004) Curieuses sculptures khmères. Arts Asiatiques 59:173–7. Pottier, Christophe (2000) A propos de la statue portrait du Roi Jayavaran VII au temple de Préah Khan de Kompong Svay. Arts Asiatiques 55:171–2. Reinecke, Andreas, Vin Laychour and Sonetra Seng (2009): The first golden age of Cambodia: excavation at Prohear. Bonn: Thomas Müntzer. Rooney, Dawn F. (1994) Angkor: an introduction to the temples. Bangkok: Asia Books. Sanday, John (2013) Between on site-conservation and scientific computing: a future for the twelfth-century Banteay Chhmar temple complex. In: Falser, Michael and Monica Juneja (eds): ‘Archaeologizing’ heritage? Transcultural entanglements between local social practices and global virtual realities, pp. 183–97. Heidelberg: Springer. Singaravélou, Pierre (1999) L’École Française d’Extrême-Orient ou l’institution des marges (1898–1956). Paris: L’Harmattan. Siribhadra, Smitthi, Elizabeth Moore and Michael Freeman (2001) Palaces of the gods: Khmer art & architecture in Thailand. Bangkok: River Books. Stark, Miriam T. and P. Bion Griffin (2004) Archaeological research and cultural heritage management in Cambodia’s Mekong delta: the search for the “cradle of Khmer civilization”. In: Rowan, Yorke and Uzi Baram (eds): Marketing heritage: archaeology and the consumption of the past, pp. 117–41. Walnut Creek, CA: Altamira Press. Thosarat, Rachanie (2001) The destruction of the cultural heritage of Thailand and Cambodia. In: Brodie, Neil, Jennifer Doole and Colin Renfrew (eds): Trade in

44  Keiko Miura illicit antiquities: the destruction of the world’s archaeological heritage, pp. 7–17. Cambridge: McDonald Institute for Archaeological Research. Tourism of Cambodia (1999–2013) Bakan or Preah Khan Kampong Svay Temple – Preah Vihear; http://www.tourismcambodia.com/travelguides/provinces/preah-vihear/what-tosee/395_bakan-or-preah-khan-kampong-svay-temple.htm (accessed 21 September 2015). Tournemire, Anne-Karen de (2013) Louis Delaporte à travers sa correspondance privée. In: Baptiste, Pierre and Thierry Zéphir (eds): Angkor: naissance d’un mythe. Louis Delaporte et le Cambodge, pp. 54–61. Paris: Gallimard/Musée Guimet. UNESCO (1983) Conventions Concerning the Protection of the World Cultural and Natural Heritage. Paris: UNESCO: http://whc.unesco.org/archive/convention-en.pdf (accessed 25 September 2015) —— (1997) Preventing the Illicit Traffic in Cultural propert. A resource handbook for the implementation of the 1970 UNESCO Convention. Paris: UNESCO: http://unesdoc. unesco.org/images/0011/001187/118783eo.pdf (accessed 25 September 2015). US District Court Southern District of New York. (2012) Art Crime Complaint: http://unl. edu/eskridge/Art%20crime%20complaint.pdf. (accessed 14 September 2013). Vachon, Michelle (2013) The northern stars. Cambodia Daily, 17 June: http://www.cam bodiadaily.com/selected-features/the-northern-stars-31149 (accessed 21 September 2015). Visit Banteay Chhmar (2013) About – Visit Banteay Chhmar: http://www.visit banteaychhmar.org/about (accessed 21 September 2015).

2 Cambodia’s struggle to protect its movable cultural property and Thailand Alper Tasdelen

Introduction Cambodia has been home to various civilisations throughout its history, bequeathing the country with thousands of historical sites (Cultural Property Observer 2013) ranging from prehistory to Funan (fifth c. bc–550 ad), Chenla (late sixth c.–802), Angkor (802–1431), Longvek (1553–93), Udong (1618–1866) (see Chapter 1), to colonial (1863–1953) and modern day sites (1953–the present). Apart from immovable monuments, these various communities also left behind a plethora of movable cultural objects, which have been valued for their aesthetics ever since their manufacture. Unfortunately, like the empires to which they belonged, the sites and their cultural objects have always drawn the attention of pillagers, even though the looters’ intentions changed over time. Early plunderers, such as the Thais pillaging the Angkorian Empire in the fifteenth century, primarily looted monuments and sacked cultural objects as spoils of war and in order to obtain the (spiritual) power of their enemies, which was believed to be embodied in certain objects (Dagens 1995:20–21). During the colonial period, however, it was predominantly Frenchmen who removed objects from the sites, conducting scientific excursions to fill their national museums as well as private collections (Davis 2011:168). With the international art market’s increasing demand for Cambodian artefacts (ICOM 2009:3), particularly in the US, Japan, France, Belgium and Switzerland (Cultural Property Observer 2013), the character of removal has shifted again in the last few decades – gaining a more commercial nature. As I will show in this chapter, the malfunction in combating the illicit export and advocating the return of Khmer artefacts in past decades can easily be explained by both the default of sufficient regulations on the international level and the conditions within the country. Starting with the Vietminh beleaguering eastern parts of Cambodia during the Vietnam War, which led to a coup d’état in Cambodia resulting in the Khmer Rouge regime and eventually a Vietnamese invasion, the country has been shaken by (civil) wars. This rendered the fight for the culture heritage impossible, as more urgent matters had to be addressed, and the illegal export of cultural objects at the same time came in handy to fund these wars and regimes (see Chapter 1). Only when the (civil) war ended with the peace treaty of 1991 and effectively with the surrender of the last Khmer Rouge in 1998, did Cambodia

46  Alper Tasdelen come gradually to peace. With the fragile interim governments strengthening the peace step-by-step and the government regaining control of the entire state territory, it could have been expected that the malfunction in combating the illicit export – at least gradually – would come to an end and that the government would begin to reclaim illegally exported objects. Cambodia has undertaken considerable measures to protect its cultural heritage, as it had done earlier when the circumstances permitted.1 However, with peace achieved in Cambodia, ironically, the illegal export has risen (Davis 2011:169). Repeatedly, Khmer artefacts with a dubious provenance appear in art auctions in western market states (see Chapter 3). Thailand plays a key role in this context as an intermediary not only for the legal, but also for the illegal, distribution of Cambodian artefacts, with the Thai-Cambodian border being highly porous and with its markets for Khmer objects (Cultural Property Observer 2013). This raises the question about the reasons for the continuous malfunction: are they based on a remaining lack of legislation, both on the international and national level? Are they owed to a deficiency on the level of implementation – or perhaps even an insufficient co-operation between both neighbouring countries?

The international legal regime While there have been efforts to protect cultural property prior to the Second World War, the first international treaty exclusively devoted to this purpose on a global scale was only adopted on 14 May 1954 – the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.2 The 1954 Hague Convention featured a number of novelties. The agreement abandoned the idea that cultural property is a merely national issue (Odendahl 2005:118–19) and introduced the notion that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind (Preamble, 1954 Hague Convention). Consequently, the Convention prohibits military actions against cultural property and its military usage – unless, however, military necessity imperatively requires it (Article 4(1) and (2) of the 1954 Hague Convention).3 The Hague Convention is also relevant for the Cambodian case, since, in accordance with its Article 19, the treaty also applies to merely national conflicts (Pabst 2008:165), such as the civil war in Cambodia during the Khmer Rouge era between 1970 and 1991.4 While, however, the Convention primarily focuses on the protection of cultural property and only touches on matters of removal, containing a general prohibition of pillaging and vandalism (Article 4(3) of the 1954 Hague Convention), the matters of removal and return are left to its 1st Protocol. This protocol requires each state party to prevent the exportation of cultural property from a territory occupied by it during an armed conflict (Article 1 of the 1st Protocol) and to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the mentioned principle. Furthermore, such property may never be retained as war reparations (Article 3 of the 1st Protocol).5

Cambodia’s struggle to protect its cultural property 47 Since then, however, the international community has focused on another aspect of protecting cultural property – the return of illicitly exported objects in times of peace.6 The process was initiated by Mexico and Peru, two member states heavily affected by the illicit selling of their cultural objects (Thorn 2005:58), both countries calling upon UNESCO in 1960 to prepare a convention protecting cultural property also in times of peace. As a consequence, UNESCO adopted on 14 November 1970 the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which has been ratified by 131 states to date (UNESCO 2016). The 1970 UNESCO Convention is the first treaty for times of peace defining cultural property (Odendahl 2005:118–19). Its Article 1 determines cultural property to be, on religious or secular grounds, specifically designated by each state as being of importance for archaeology, prehistory, history, literature, art or science and additionally fall within one of the detailed enlisted categories.7 It is, in addition, the first international agreement providing a legal basis for reclaiming cultural property exported illicitly in times of peace. At the request of the state party of origin, the other state party must take appropriate steps to recover and return any cultural property stolen from a museum or a religious or secular public monument or similar institution provided that such property is documented as appertaining to the inventory of that institution. However, the obligation is only applicable to objects imported after the entry into force of the convention in both states concerned and the requesting state must pay just compensation to an innocent purchaser or to a person who has valid title to that property (Article 7(b)). The treaty additionally imposes obligations on state parties such as establishing national services for protecting cultural property (Articles 5 and 14), introducing appropriate export certificates (Article 6(a)) and respecting foreign ones (Articles 6 and 7(b)(i)). Moreover, it actively encourages cooperation amongst state parties (Articles 9 and 15).8 However, since the 1970 UNESCO Convention has only limited scope regarding the right to reclaim cultural property and, furthermore, was tailored towards administrative actions, it raised more private law matters and prompted problems regarding the compatibility with national property laws in practice. Thus, the need for a further treaty was soon recognised (Stamatoudi 2011:68; Thorn 2005:81; von Schorlemer 2007:78–9). Hence, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was adopted on 24 June 1995 as a follow-up agreement complementing the 1970 UNESCO Convention. It bestows a private law dimension to the question of the return of cultural property (Kurpiers 2005:101; Preamble, 1995 UNIDROIT Convention). The UNIDROIT agreement establishes a harmonised minimum standard for the purposes of the preservation and protection of cultural heritage by imposing obligations concerning the return of stolen cultural objects (Articles 3 and 4) and the return of illegally exported ones (Articles 5–7). Furthermore, the treaty regulates matters of time limitation (Articles 3(3)–(8) and 5(5)), compensation (Articles 4 and 6) and jurisdiction/arbitration (Article 8(1)–(2)). However, it has been ratified so far by only 37 states (UNIDROIT 2015).9

48  Alper Tasdelen To summarise, the international legal regime concerning the protection and the return of movable cultural property has made remarkable progress since the Second World War. Nowadays, states have appropriate instruments at hand – at least for willing states. Cambodia has always been eager to support new international treaties concerning the protection of cultural heritage and has swiftly ratified all of them and is thus a state party to all the conventions mentioned. By contrast, Thailand is only a state party to the 1954 Hague Convention. It is not a state party to the 1970 UNESCO Convention, nor to the 1995 UNIDROIT Convention.

The Cambodian-Thai Bilateral Agreement The Thai-Cambodian border is highly porous and Thailand is a key actor in the distribution of Cambodian antiquities (Cultural Property Observer 2013). Hence, its reluctance to ratify the key international conventions concerning the protection and the return of illicitly exported cultural objects constitutes a major obstacle for Cambodia in its struggle to protect its cultural heritage. Therefore, Cambodia entered into negotiations with Thailand to prevent a continuous leakage of cultural property to Thailand, which led to the adoption of a Bilateral Agreement to Combat Against Illicit Trafficking and Cross-Border Smuggling of Movable Cultural Property and to Restitute it to the Country of Origin, on 14 June 2000. It was adopted conscious of the need to co-operate in the field of criminal justice and, thus, wishing to add to the effectiveness of the co-operation between both countries in combating criminal activities involving movable cultural property (Preamble).10 Consequently, the treaty is applicable to all movable cultural property, as defined in Article 1(1) of the agreement, stolen in or illicitly exported from one state party to the other state party (Article 1(2)). The definition provided for in Article 1(1) of the treaty, however, differs from the definitions of the 1970 UNESCO and 1995 UNIDROIT Conventions mentioned above. Movable cultural property is defined as archaic movable property, whether produced by humans or by nature or being any part of an ancient monument or of a human skeleton or animal carcass which, by its age or characteristics of production or historical evidence, is valuable or useful in the field of archaeology, prehistory, history, religion or art. Hence, the bilateral treaty uses general terms to define cultural property rather than detailed categories that appear in the 1970 UNESCO and 1995 UNIDROIT Conventions. Nevertheless, it requires objects to be specifically designated by the party as being subject to export control (Article 1(1) of the Bilateral Agreement). One might interpret this as requiring state parties to enumerate every piece individually, with its specifications to fall under the protection of the treaty. However, this would mean that cultural property which has been unearthed in an illicit excavation or is otherwise unknown to the state party is, due to a lack of knowledge and, thus, the impossibility of designation, excluded from the scope of the Bilateral Agreement. Hence, using lists with general categories of objects and regimes of

Cambodia’s struggle to protect its cultural property 49 classifications of cultural objects must be seen as sufficient in order to fulfil this requirement (O’Keefe 2007:36; Raschèr 2000:54). Another aspect constraining the applicability of the Bilateral Agreement is its missing retroactivity. It is only applicable to cases occurring after it came into force in 2000 (Article 1(2)). However, Article 1(3) of the treaty notes (in analogy to Article 15 of the 1970 UNESCO and Article 10(3) of the 1995 UNIDROIT Conventions) that the parties may also regulate matters that date back to a time before the treaty came into force. Another novelty in its generality is the requirement to take the necessary measures to prohibit the import and export as well as the acquisition of and dealing with stolen or illicitly exported movable cultural property (Article 2(1)(a) and (b) of the Bilateral Agreement). The requirement to introduce a system whereby the export of movable cultural property is authorised by the issuing of an export certificate (Article 2(1)(d) of the Bilateral Agreement) as well as the use of all means at the country’s disposal, including fostering public awareness to combat the illicit transfer and excavation (Article 2(1) (e)), can at least be found in a similar form in the multinational conventions.11 A provision demanding that state parties prohibit the export from their own state territory of movable cultural property which has been stolen in or illicitly exported from another state party in this explicitness is, however, unprecedented. A novelty is also the regulation concerning an international database which must be provided with information concerning the state party’s stolen or illicitly imported movable cultural property (Article 2(1) (c) of the Bilateral Agreement). In the same manner, the scope of the sanctions provided for under the Cambodian-Thai treaty is much wider than in the previous multilateral conventions. The bilateral treaty requires Thailand and Cambodia not only to undertake the imposition of sanctions on persons responsible for the illicit import or export of any movable cultural property, but also on those knowingly acquiring or dealing with stolen or illicitly imported movable cultural property (Article 3). Thus, even the known acquisition of such property must be sanctioned by the state parties. Furthermore, Article 2(2) of the Bilateral Agreement requires each party to take the necessary measures to recover and return at the request of the other party, any movable cultural property stolen in or illicitly exported from the other state party. However, this obligation is restricted by the phrase “in accordance with its laws and regulations”. Hence, state parties are not required to impose new legislation which would be inconsistent with or even contrary to their existing legal regime. They may always allege that they are not able to issue new legislation for protecting cultural property, since to do so would be to contradict existing laws. However, one of the major obstacles for the effectiveness of the regime on return is the fact that the agreement does not provide for an unconditional legal basis to reclaim stolen or illicitly exported movable cultural property. Thus, the state party responding to a claim may, in turn, demand that the claiming party fulfils certain requirements, such as compensating the bona fide purchaser, before returning the object. The treaty, furthermore, refers Cambodia and Thailand to diplomatic channels for this purpose (Article 4(1) of the Bilateral Agreement). Therefore, one of

50  Alper Tasdelen the greatest achievements, particularly of the 1995 UNIDROIT Convention, to clearly provide for an unconditional legal basis for return and restitution which can be invoked in court, is disregarded in the Bilateral Agreement.12 The Bilateral Agreement does not include any clause explicitly allowing Cambodia or Thailand to bring the other party to court in the case of violating any obligations imposed by the agreement. They may only make use of diplomatic channels in order to request recovery and return, which they could have done anyway – even without the agreement. The further regulations with regard to the procedure are well-known from the multilateral conventions: the requesting state must furnish, at its own expense, evidence to establish its claim (Article 4(1) of the Bilateral Agreement; Article 7(b)(ii) of the 1970 UNESCO Convention) and bear the return-related expenses (Article 4(2) of the Bilateral Agreement; Article 7(b)(ii) of the 1970 UNESCO Convention). No compensation must be paid to anyone who participated in the illegal acquisition or sending abroad of the object (Article 4(2) of the Bilateral Agreement; Article 4(1) of the 1995 UNIDROIT Convention) and no customs or other duties shall be imposed on movable cultural property returned in accordance with the agreement (Article 4(3) of the Bilateral Agreement; Article 7(b)(ii) of the 1970 UNESCO Convention). Additionally, Thailand and Cambodia agree upon further cooperation by making available to each other such information that will assist in combating illicit trafficking and in returning respective objects (Article 4(4) of the Bilateral Agreement). The parties additionally agree to provide information concerning their national laws protecting movable cultural property to each other and to an international database (Article 4(5) of the Bilateral Agreement).13 However, the Bilateral Agreement contains a slightly hidden provision which is of the utmost importance: its Article 5(4) states that nothing in the agreement shall be interpreted as prejudicing the rights of any person who has acquired movable cultural property in good faith, in accordance with the national laws and regulations of the party concerned. Thus, unlike the 1970 UNESCO and 1995 UNIDROIT Convention which strike a compromise (Thorn 2005:117) by demanding compensation for the good faith purchaser, but, nevertheless, require him to return the cultural property and, thus, penetrate national legal regimes, the Bilateral Agreement provides for an absolute protection of the national legal regime with regard to the good faith purchase.14 This means that the requesting state has no chance of regaining the movable cultural property in any cases where it has been purchased in good faith, as the state parties are only required to take necessary measures to recover and return in accordance with their laws and regulations (Article 2(2) of the Bilateral Agreement). Thus, if the national regulations attribute ownership and property of a particular cultural object to a good faith purchaser, he or she is not required to return it at all. In summarising this paragraph, we can say that the Bilateral CambodianThai Agreement features a number of novelties, such as the requirement to impose sanctions on persons who knowingly acquire stolen or illegally imported

Cambodia’s struggle to protect its cultural property 51 movable cultural property and the obligation to prohibit the further export of movable cultural property which has been stolen in or illicitly exported from the other state party. However, the Agreement also carries with it many weaknesses of earlier multilateral conventions, such as the missing retroactivity and the requirement of special designation. Its greatest deficiency is its missing unconditional legal basis for a claim for return complemented by the absolute protection of the good faith purchaser. Thus, in practice, it is basically left to the goodwill of the contracting parties to what extent the bilateral treaty will be in general effective in fostering the return of movable cultural property.

Cambodia’s and Thailand’s national legislations General introduction While the willingness or reluctance to ratify agreements concerning the protection and the return of cultural property on the international floor is normally a reliable indication of the general attitude of a state in this regard, the level that really matters is the national one. An international convention – however sophisticated it may be – remains ineffective as long as it is not sufficiently implemented in the state parties. On the other hand, a firm and sophisticated national legislation can be much more advantageous for the achievement of certain goals, making even the ratification or accession to some international conventions redundant. Therefore, in this chapter, I direct my attention to the national level and analyse the Cambodian and Thai legislations. With regard to the Cambodian legislation, I begin with a review of the constitutional provisions and those norms relating to cultural property which can be found in general, not cultural property-specific legal documents. Afterwards, I turn to the two major acts particularly enacted by Cambodia to protect cultural property. Finally, I address the Thai legislations, focusing on the specific legislation protecting cultural property. Cambodian constitutional provisions and non-cultural property specific legislation The Cambodian Constitution of 1993 contains certain state responsibilities, such as the preservation of ancient monuments and artefacts and the restoration of historic sites (Article 69(2)). Furthermore, the government must impose severe punishment on anyone carrying out any offence affecting cultural and artistic heritage (Article 70). In order to satisfy these obligations, the Cambodian legislature has enacted provisions on various legislative levels. According to Article 141(1) of the Cambodian Civil Code (2011), a landowner cannot assert the ownership over any cultural artefact discovered in the ground. Such items comprise assets of the state and the landowner is obliged to hand them over to the Ministry of Culture and Fine Arts.

52  Alper Tasdelen Law on the Protection of Cultural Heritage and the Subdecree Respecting Implementation of Cultural Heritage Protection There are two major Cambodian acts dedicated exclusively to cultural property: the Law on the Protection of Cultural Heritage (1996) and the Subdecree Respecting Implementation of Cultural Heritage Protection (2002). Laws in Cambodia are adopted by the National Assembly and the Senate and promulgated by the King or the acting Head of State (Article 28 of the Cambodian Constitution). Subdecrees, on the other hand, are executive regulations usually prepared by relevant ministries, adopted by the Council of Ministers and signed by the Prime Minister (Article 13 of the Law on the Organisation and Functioning of the Council of Ministers [1993]). This distinction is common in many jurisdictions and owed to a number of reasons which coincide. Parliaments have a limited capacity, which is why they frequently content themselves with regulating the essential, i.e. important issues, and mandate the executive to regularise, in particular, technical issues and matters of administration using subdecrees. Another reason for this delegation is the fact that the professional expertise for regulating technical and administrative issues lies generally with the respective ministries and not with the parliament. Last, but not least, the enactment process of subdecrees is commonly much shorter (Brenner 2010:2312–2315). Thus, both legislative acts, the Law and the Subdecree, must be seen as a complementary unit. Aims of the acts and their notion of cultural heritage and cultural property The Heritage Law aims at protecting the national cultural heritage and cultural property in general against illegal destruction, modification, alteration, excavation and alienation exportation or importation (Article 1 of the Heritage Law). The Subdecree deals with the implementation of the cultural heritage protection by defining cultural property and archaeological excavations; it aims at regulating the trade in cultural property and controlling the export and import of cultural property (Article 1 of the Subdecree). Thus, the Law covers a larger variety of topics, but in a more general manner, while the Subdecree focuses in a much more detailed way on matters of trade, archaeological excavations and the export and import of cultural property – issues which have proven to be of critical importance in the struggle for national cultural heritage. However, even though both legal documents use the terms “cultural heritage” and “cultural property”, they do not use uniform definitions. The Heritage Law uses much more general terms in the context of cultural heritage and cultural property, comparable to the definition of the Bilateral Agreement – albeit different in substance.15 The Subdecree, on the other hand, is orientated, both in structure and in substance, by the 1970 UNESCO and, thus, the 1995 UNIDROIT Convention. Its definition of cultural heritage and cultural property is based much

Cambodia’s struggle to protect its cultural property 53 more on exemplary categories.16 Even though in theory this may lead to cases in which objects may fall within the scope of one legal document without falling within the ambit of the other, in practice, this seems rather unlikely, as the categories of the Subdecree as well as the general definition of the Heritage Law are so comprehensive that both cover all relevant cases. Nevertheless, the strangeness of not using a uniform terminology in both documents remains. Regulations specific to the Heritage Law As mentioned above, the Heritage Law has a wider scope and contains regulations on a number of issues not regulated within the Subdecree. These are, first, the establishment of the competent authority, second, rules on inventory and classification and, thirdly, chance discoveries. The Heritage Law, in its chapter on special provisions, institutes the Supreme Council on National Culture (SCNC) and Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA) for the region of Siem Reap and Angkor as the institutions responsible for management and implementation (Article 5). In its Article 6, the Law, moreover, regulates the establishment of protected sites. Later on, it addresses the issues of inventory (Articles 7–10) and classification (Articles 11–27), including their purposes, procedures and consequences. Two matters of considerable importance in this context are those of maintenance and inalienability. The Law determines that the owner of cultural property is responsible for its maintenance (Article 25). Anyone failing to ensure, through negligence, the protection of classified cultural property of which he or she is the owner is penalised with a sentence of imprisonment of a maximum of five years and a fine equal to the value of the cultural object in question, to be determined by expert opinion (Article 63(a)). The penalty is even to be extended to imprisonment for a minimum of two and a maximum of eight years and a fine equal to twice the value of the object in question, again, to be determined by expert opinion, if the offender is acting intentionally (Article 63(b)).17 The owner also must bear the costs of the maintenance which may be reimbursed by the competent authority (Article 25). However, it is the competent authority that has the final say regarding maintenance issues (Articles 24 and 26). Additionally, classified cultural property, whether of private or public ownership, is inalienable (Articles 19 and 20), as are fragments illegally removed from such property (Article 22). Furthermore, the protective effect of the classification starts not with the classification itself, but with the proposal for classification (Articles 27 and 23). Consequently, the competent authority has the rights of preemption and expropriation (Articles 28–30). In addition, the Heritage Law contains a small section on chance discoveries (Articles 37–39). Movable cultural property found by chance is public property. The competent authority has to provide within three weeks a reward to the finder of the discovery, the amount of which is to be fixed by agreement or by expert opinion (Article 39). In the case where construction work or any other activity

54  Alper Tasdelen brings to light cultural property, in particular such that is likely to be of interest to science dealing with the past or of human sciences in general, the person finding the property and the owner of the site where it was discovered are obliged to stop the construction work and immediately make a declaration to the local police, who shall transmit the information to the Governor of the province without delay. The Governor, in turn, must inform the competent authority and take the measures necessary to ensure the protection of the objects and the site (Article 37). A breach of this provision is again subject to the penal sanctions provided for in Article 63(a) and (b). Trade in cultural property The Heritage Law’s section on trade in antiquities (Articles 31–36) contains regulations concerning the trading permits (Article 32) and obligations of dealers, such as keeping detailed records of the cultural property which they possess and of day-to-day sales and purchases (Article 33(c)). The Law also provides for inspections (Article 34) and the withdrawal of the permit (Article 35) and its consequences (Article 36). Furthermore, the penal sanctions provided for in Article 63(a) and (b) – mentioned above – also apply to anyone carrying out or attempting to carry out, without authorisation, work subject to the regulations on authorisation under the terms of Article 31 and failing to fulfil the obligations entailed by Article 33. However, the procedures concerning the trade are completely mandated to the Subdecree (Article 31). The Subdecree complements the rules of the Heritage Law concerning trade in cultural property in its Chapter III. The chapter itself is divided in two sections. The first one regulates the procedure for the granting of approval of the right to trade in cultural property (Articles 5–9 of the Subdecree), containing a definition of trade in cultural property (Article 5) and provisions regarding the application (Articles 6 and 7). Furthermore, this part contains rules on approval (Article 8(1) and (2) of the Subdecree) and renewal (Article 8(2)–(4)) of a permit. Moreover, Chapter III has – compared with the Heritage Law – a much more detailed section on the obligations of merchants (Article 10 of the Subdecree) and on the required register (Articles 11–16), right up to such detailed regulations as the requirement that the information appearing in the register shall be written in indelible ink, with no blanks, erasures, or abbreviations (Article 13). The Subdecree, furthermore, provides that when a merchant in cultural property is in breach of one of his or her obligations as provided for in Article 10 of the Subdecree, the Ministry of Culture and Fine Arts is allowed to withdraw the merchant’s permit on a temporary basis or permanently in the case of a repeated offence (Article 69). Archaeological excavations The Heritage Law then continues with a section on archaeological excavations (Articles 40–50), which is also the next topic of the Subdecree (Articles 17–42).

Cambodia’s struggle to protect its cultural property 55 The Heritage Law requires that archaeological excavations may only be conducted with a revocable and prior authorisation (Articles 40 and 49). It dictates that only scientific institutions whose expertise is recognised and which have the necessary experience and financial resources may be empowered to carry out excavations; furthermore, foreign scientific institutions which have been granted excavation authorisation must associate with national scientific institutions (Article 41). Moreover, it regulates which obligations (Article 42 of the Heritage Law) and rights (Article 43) these persons and entities have and that found cultural property, as a general rule, is state property (Article 44).18 Additionally, the penal sanctions provided for in Article 63(a) and (b) – mentioned above – apply to anyone carrying out or attempting to carry out, without authorisation, work subject to the regulations on authorisation under the terms of Article 40 and failing to fulfil the obligations entailed by Article 42. The Subdecree carries these deliberations forward by defining archaeological excavations (Article 17), by regulating the application and issuing process for excavation permits as well as their terms and conditions (Articles 23–31), and by imposing certain obligations on the institutions conducting the excavations (Articles 32–34).19 Besides certain liabilities (Article 32(2)), they must, for instance, comply with local traditions and customs (Article 32(1)). In this context, the Subdecree also clarifies that when an institution that is the holder of an archaeological excavations permit is in breach of the obligations, the competent authority is allowed, depending on the gravity of the offence, to withdraw its right to scientific ownership of the excavated material, withdraw its excavation permit, or refuse to grant it any further excavation permit for a maximum period of five years (Article 70). The Subdecree, on the other hand, acknowledges the scientific ownership of the institution (Articles 35 and 36) in return for their obligation to bear all the costs related to the excavation (Article 37) and to register and devolve the materials excavated (Articles 38–42). Export and import of cultural property The Heritage Law turns next to the regulation of matters concerning exporting cultural property (Articles 52–57) which it considers to be prohibited, unless accompanied by a special export licence (Article 51). This, however, must be granted for objects donated to a foreign scientific institution which holds an excavation permit, objects sent abroad temporarily for exhibition or for other scientific purposes, objects exchanged for other objects obtained from museums or similar foreign institutions and objects legally imported into Cambodia (Article 55 of the Heritage Law). Otherwise, an export licence may be granted as long as the proposed export will not result in the impoverishment of the national cultural heritage, the public collections contain a cultural object similar to the one for which an export license has been requested, and the cultural object to be exported is not of irreplaceable importance for a study of a particular branch of the sciences of the past or of

56  Alper Tasdelen the human sciences in general (Article 54). However, anyone who exports or tries to export, without authorisation, a cultural object or fails to comply with the conditions implied by a temporary export is also subject to the sanctions provided for under Article 63(a) and (b). Additionally, the competent authority may claim, on behalf of the public collections in return for the payment of a fair price decided by mutual agreement or fixed by an expert, any cultural object for which an export licence has been denied, provided that there are strong indications that the cultural object may be the subject of a fraudulent export attempt (Article 57 of the Heritage Law). The Subdecree elaborates further on this issue. However, it contains separate sections on the exporting procedures (Articles 43–53) and illegal exporting (Articles 54–59). After specifying that an export license is required for any cultural property falling within the categories listed under Article 4 of the Subdecree (Article 43), the Subdecree clarifies the application procedure, its terms and conditions. The illegal exporting section contains the regulations regarding the competence of the competent authority once a cultural property has been exported illegally and what happens to the artefacts once returned. The import of cultural property is another topic of both the Heritage Law and the Subdecree. Here – as a general rule – the Heritage Law prohibits the import of cultural objects contrary to the export regulations of the country of origin (Article 58). In the case of illegal import, on condition of reciprocity however, the Cambodian Government ought to cooperate with the government of origin in order to return the artefact (Article 59), provided that the requesting state bears the costs (Article 60). In addition, the Heritage Law dictates that anyone who illegally imports a cultural object or fails to declare to the customs authorities, the legal importation of a cultural object is subject to the sanctions mentioned above provided for in Article 63(a) and (b). With regard to the issue of illegal import, the Subdecree elaborates further on the cooperation procedure and requirements in this context (Articles 60–68). Summary of Cambodia’s legislation In summing up this paragraph, the description and analysis of both the Heritage Law and the Subdecree has evinced that Cambodia has a quite sophisticated national legislation both protecting cultural property and regulating its import and export, which, furthermore, lives up to international standards. Thailand’s Act on Ancient Monuments, Antiques, Objects of Art and National Museums However, since Thailand is the major trafficking centre for Khmer artefacts, its national legislation concerned with the import and further export of Cambodian cultural property is of crucial importance and needs to be discussed as well. The Act on Ancient Monuments, Antiques, Objects of Art and National Museums, issued in 1961 and last amended in 1992, is the Thai counterpart to the Cambodian

Cambodia’s struggle to protect its cultural property 57 legislation. There are some noteworthy points regarding the Act: First, it does not provide for any regulating concerning the import of cultural property. The Act does not contain any provision prohibiting imports contrary to the export regulations of the state of origin. Neither does it require the cultural property to be accompanied by any sort of export certificate. Nevertheless, antiquities and objects of art are restricted goods in terms of customs and, thus, importing them requires written permission from the Fine Arts Department. This is done in order to ensure that all relevant laws and regulations are followed properly (Thai Customs 2015), in particular, those protecting the objects. Additionally, there are no restrictions regarding national cultural property. Instead, the Act covers all archaic movable property irrespective of its origin, whether produced by man or by nature, or being any part of an ancient monument or of a human skeleton or animal carcass which, by its age or characteristics of production or historical evidence, is useful in the field of art, history or archaeology (Article 4(2) of Thailand’s Act). Thus, even foreign cultural property located in Thailand, which might have been imported illegally, is covered by the Act. Moreover, no person is permitted to export or take out of Thailand any antiquity unless a licence has been obtained from the Director-General. This is not necessary for artefacts not older than five years, those not registered and those in transit (Article 22 of Thailand’s Act). Thus, objects that do not originate in Thailand and are not destined for Thailand, but are only on their way through the country are not covered by the licence requirement. However, a violation of this provision is punishable by fine and even imprisonment (Articles 38 and 39 of Thailand’s Act). Hence, even though the Thai national legislation does not provide strong preventive measures regarding the illegal import of illicitly exported Cambodian artefacts, it regulates the further export of these objects. Thus, it provides sufficient grounds to fight the further illicit trafficking of Khmer objects.

The other side of the coin – implementation Although relevant international treaties and sophisticated and sound national legislation concerning the protection and return of cultural property are very important, there is another side to the coin – implementation. Any legislation without sufficient implementation and enforcement mechanisms remains ineffective. Besides ratifying the international conventions and adopting the Bilateral Agreement with Thailand, Cambodia has also undertaken considerable efforts in order to ensure the effectiveness of its legislative struggle for its cultural heritage. APSARA was effectively founded by Royal Decree 0295/12 in 1995. Two years later, the Special Police Corps for the Protection of Cultural Heritage of the Angkor Park was established under the responsibility of APSARA (Subdecree 60/ANKR/ PK). Thus, the Cambodian government did not only – with APSARA – set up an organisation responsible for the administration and management of the World Heritage Site and for the training of qualified personnel in all domains of research, restoration, conservation, management and tourism (Article 2 of the Decree), but also backed it with a special police force in order to maintain law and order

58  Alper Tasdelen in the Angkor Park as well as to combat looting (Article 2(a) of the Subdecree). APSARA has trained relevant officials and police and staged several sensitising campaigns for the protection of the cultural heritage with local communities living near or within the heritage sites. Educational measures have also been undertaken by the staff of the National Museum in Phnom Penh, who travel to schools in the provinces in order to educate children in this respect (see Chapter 1). Additionally, cultural property in danger of being looted was moved for safeguarding to special facilities, such as the National Museum in Phnom Penh, Angkor Conservation and regional museums (Davis 2011:171–2; Cultural Property Observer 2013; see Chapter 1). This measure also facilitated the registration process already in progress in order to establish an inventory of the national property (Cultural Property Observer 2013). Additional efforts, including measures such as the École Française d’ExtrêmeOrient’s (EFEO) archaeological survey mapping of the World Heritage Site (EFEO 2013) and also diplomatic endeavours, have improved the situation of cultural property protection. The sensitising of national and international actors involved in the art trade, such as art dealers and museums, is of particular importance. Subsequently, a number of objects were returned, also in cooperation with the Thai police, and the looting of major touristic archaeological sites has decreased (McGeown 2004).20 However, even though there has been some progress regarding the protection and return of cultural property, the looting and the illicit trafficking of Cambodian artefacts remains a major issue. While the scale of looting in major (tourist) heritage sites has dropped dramatically by now, the pillagers have shifted their attention towards new targets, mainly sites not yet archaeologically investigated. With the ultimate surrender of the Khmer Rouge, the subsequent de-mining of remote areas and, thus, their accessibility, which was additionally fostered by infrastructural measures, looters gained access to a multitude of new archaeological sites which had been beyond their reach previously (Davis 2011:172; McGeown 2004; see Chapter 1). These unexplored archaeological sites constitute perfect targets for looters for a number of reasons. First, governmental protective measures focus primarily on the major tourist sites, such as Angkor, neglecting remote areas and thus permitting pillagers to operate there mostly unhindered (McGeown 2004).21 Secondly, many of these places are pre-Angkorian sites of which the local communities did not have knowledge before the excavation started. They were, therefore, not spiritually or ritually tied to these sites (see Chapter 1) and, thus, had few scruples unearthing them. Furthermore, taking into account the financial situation of many villagers (Winter 2004:4) and also of many other sections of the population, who suffer from tremendous poverty, it is not surprising that such sites are looted by local people. Another severe problem in Cambodia is corruption (Transparency International 2014).22 The lack of education and knowledge of the respective law (see Chapter1), which can be ascribed to a general deficiency regarding the implementation of laws in Cambodia (Schrey and Brauer 2012:1), contributes furthermore to the problematic situation.

Cambodia’s struggle to protect its cultural property 59 Thus, in Cambodia, further educational measures, making the villagers aware of the value of cultural property and the laws, and also supplying the relevant police forces with adequate personnel and equipment and training them is essential to combat the illegal excavations and illicit trafficking of Cambodian cultural property.23 Another obstacle is Thailand’s lack of willingness to implement the provisions protecting Cambodian cultural heritage, which allows art galleries in Bangkok to sell, relatively unhampered, Cambodian cultural property of questionable provenance.

Conclusion Many factors have affected and still do affect Cambodia’s struggle to protect and retain its movable cultural property. Some of these factors have proven to be disadvantageous from Cambodia’s perspective, such as Thailand’s attitude and the fact that once inaccessible places have become more or less easily accessible. On the other hand, it has benefited quite a bit from other factors, such as the remarkable progress which has been achieved with regard to the international legal regime concerning the protection and the return of movable cultural property since the Second World War. The 1954 Hague Convention, the 1970 UNESCO Convention and the 1995 UNIDROIT Convention introduced and embodied (legal) concepts, such as the promotion of international cooperation, the establishment of a clear and (unconditional) legal basis for claims of restitution and the return of stolen and illicitly exported cultural property. They also defined the subject matter – cultural property – for the first time; they constitute milestones in the establishment of an adequate legal regime to combat the illegal trafficking of cultural property. Additionally, the conventions have fostered public awareness and, thus, also sensitised the international community with regard to Cambodia’s problems concerning its cultural heritage (Cultural Property Observer 2013). Furthermore, these conventions have provided Cambodia (and, of course, other countries as well) with appropriate instruments and measures to protect and reclaim its cultural property on the international level. Cambodia has, furthermore, complemented the international conventions by issuing corresponding sound national legislation. Thus, it can be argued with good reason that Cambodia has benefited from international development and, from a legal and formalistic perspective, Cambodia has done everything in order to protect its cultural property. However, there are some factors – partly out of Cambodia’s reach – which jeopardise Cambodia’s endeavours. To start with, as good as Cambodia’s legal regime might be, there are some deficiencies with regard to its implementation: Villagers are not sufficiently educated concerning the relevant legislation. The fact that they live in poverty and thus cannot be expected to turn down the monetary offers from middlemen encouraging them to conduct or support them in their illicit excavations does not improve the situation. Furthermore, the Cambodian government neglects the protection of archaeological sites situated in more remote areas by only focusing on major tourist sites. Finally, there is

60  Alper Tasdelen the issue of corruption, which allows the sophisticated international criminal networks of middlemen and art dealers to operate relatively undisturbed and enrich themselves relying on the demand for cultural property coming from market states (Davis 2011:155). It is only if/when Cambodia addresses these issues adequately, will its ultimate aim, to protect its cultural property, be achieved. Another problematic matter is Thailand’s attitude as one of the most important intermediaries for the distribution of Cambodian artefacts. Thailand is reluctant to ratify the international conventions. In addition, the Bilateral Agreement it signed with Cambodia does not contain any sort of judicial mechanism which could be used to force Thailand to make any provisions protecting Khmer artefacts effective. Since Cambodia’s national measures alone have proven to be insufficient in order to protect its heritage (Davis 2011:172), it is of crucial importance for Cambodia to improve its relations with Thailand. This appears to be the only promising way to induce Thailand to give effect to the Bilateral Agreement and its national legislation. Cambodia’s struggle for its movable cultural property will only be crowned by success when both measures – increasing the effectiveness of the national legislation and improving the Thai-Cambodian relations – go hand in hand.

Notes   1 Despite its inner state crisis, Cambodia was, for instance, the seventh state party to ratify the 1970 UNESCO Convention on 26 September 1972.   2 The Hague Conventions, adopted in 1899 and revised and further elaborated in 1907, are the first international agreements that prohibit the militarily not necessary destruction of certain immovable cultural property as well as pillaging.   3 The 1954 Hague Convention was amended by a second protocol on 26 March 1999 introducing a new category of cultural property of the utmost importance which may under no circumstances be used militarily (Articles 10–14 of the 2nd Protocol).   4 The regulations of the 1954 Hague Convention are also found similarly in the 1949 adopted IV Geneva Convention relative to the Protection of Civilian Persons in Time of War and its two protocols.   5 For a more detailed analysis on the 1954 Hague Convention and its protocols, see Toman (1996). See also O’Keefe (2006) and Chamberlain (2013).   6 First efforts in this regard had been undertaken by the Office International des Musées, which had been mandated by the League of Nations, and had prepared three draft conventions between 1933 and 1939 on the return of either lost or stolen cultural property. However, the outbreak of the Second World War had brought the work to an end.   7 See Article 1 of the 1970 UNESCO Convention.   8 For a more detailed analysis on the 1970 UNESCO Convention, see O’Keefe (2007).   9 For a more detailed analysis on the 1955 UNIDROIT Convention, see Prott (1997). 10 The Bilateral Agreement is much shorter than the 1970 UNESCO and the 1995 UNIDROIT Conventions; the preamble also digresses much less. 11 See Article 6 (b) of the 1970 UNESCO Convention and Article 6(2) of the 1995 UNIDROIT Convention for export certificates and their respective role in the treaties as well as Article 10 of the 1970 UNESCO Convention for educational matters raising public awareness.

Cambodia’s struggle to protect its cultural property 61 12 See Articles 3(1) and 5(1) of the 1995 UNIDROIT Convention. 13 This database is distinguished from the one they have to administer concerning their stolen or illicitly imported movable cultural property according to Article 2(1)(c) of the Bilateral Agreement. 14 See Article 7(b)(ii) 1970 UNESCO Convention and, in particular, Articles 3, 4, 5 and 6 of the 1995 UNIDROIT Convention. 15 See Articles 2, 3 and 4 of the Law. 16 See Articles 2, 3 and 4 of the Subdecree. 17 The same sanctions are also applicable to a number of other cases; see Article 63(a) and (b) of the Law. 18 For the rights and obligations, see Articles 42 and 43 of the Law. 19 However, Article 22 of the Subdecree explicitly excludes religious sites where worship is practised regularly and is therefore outside of the scope of this chapter. 20 The Australian Government, for instance, returned a collection of Iron Age artefacts in early 2011 which had been stolen from graves in Cambodia (Australian Government 2011). In addition, the New York Metropolitan Museum of Art returned two statues known as the “Kneeling Attendants” to Cambodia (see Chapter 3, on the looting and returning of Khmer antiquities). In addition, many pieces of cultural property have been seized by the Thai police both on the Thai-Cambodian border and directly in art galleries in Bangkok over the last few years. The confiscated artefacts were generally not returned to Cambodia, but are exhibited and stored in the National Museum of Bangkok. However, Khmer artefacts were and are returned to Cambodia: For instance, recently 16 ancient artefacts recovered from smugglers were returned by Thailand to Cambodia (Bangkok Post 2015). 21 However, even the Heritage Police responsible for the World Heritage Site of Angkor with its size of approximately 400 square kilometres is only staffed with some five hundred police officers (Winter 2004:2; Cultural Property Observer 2013). 22 Cambodia is ranked 154th out of 176 countries in the Corruption Perceptions Index 2014. 23 However, it will still remain questionable if the looting can be stopped without improving the living conditions of the local communities. As long as villagers live in conditions in which they cannot afford to turn down an offer of a few dollars for a night’s work, it is likely that looting will continue.

References Agreement between The Government of the Kingdom of Cambodia and The Government of the Kingdom of Thailand to Combat Against Illicit Trafficking and Cross – Border Smuggling of Movable Cultural Property and to Restitute it to the Country of Origin (2000) http://www.unesco.org/culture/natlaws/media/pdf/cambodia/cambodia_ agreement_thailand_engtno.pdf (accessed 8 September 2015). Australian Government – Attorney-General’s Department – Ministry for the Arts (2011) Ancient artefacts returned to Cambodia (September 2011): http://arts.gov.au/resources/ newsletters/art-and-culture/2011/09/ancient-artefacts-returned-cambodia (accessed 17 August 2015). Bangkok Post (2015) Thailand returns 16 smuggled artefacts to Cambodia, 12 July: http:// www.bangkokpost.com/news/general/620172/thailand-returns-16-smuggled-artefactsto-cambodia (accessed 17 August 2015). Brenner, Michael (2010) Art. 80 GG. In: Mangoldt, Hermann v., Friedrich Klein and Christian Stark (eds): Kommentar zum Grundgesetz, vol. 2. 6th edition, pp. 2307–356. München: Franz Vahlen.

62  Alper Tasdelen Chamberlain, Kevin (2013) War and cultural heritage: an analysis of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols, 2nd edition. Leicester: Institute of Art and Law. Cultural Property Observer (2013) CPAC Meeting on renewal of Cambodian MOU, 28 February 2013: http://culturalpropertyobserver.blogspot.de/2013/02/cpac-meeting-onenewal-of-cambodian-mou.html (accessed 17 August 2015). Dagens, Bruno (1995) Angkor: heart of an Asian empire. London: Thames & Hudson. Davis, Tess (2011) Supply and demand: exposing the illicit trade in Cambodian antiquities through a study of Sotheby’s auction house. Crime, Law and Social Change 56(2):155–74. École française d’Extrême-Orient (EFEO) (2013) Christophe Pottier: Biography: http:// www.efeo.fr/en/biographies/notices/pottier.htm (accessed 17 August 2015). International Council of Museums (ICOM) (2009) Red list of Cambodian antiquities at risk: http://icom.museum/fileadmin/user_upload/images/Redlists/Cambodia/RL_ CAMBODIA.pdf (accessed 21 September 2015). Kingdom of Cambodia (1966) Law on the Protection of Cultural Heritage: http://www. autoriteapsara.org/en/apsara/about_apsara/legal_texts/decree4_text.html (accessed 8 September 2015). —— (2002) Subdecree Respecting Implementation of Cultural Heritage Protection: http:// www.unesco.org/culture/natlaws/media/pdf/cambodia/cambodia_sousdecret_98_eng_ tno.pdf (accessed 8 September 2015). Kurpiers, Olaf Rafael (2005) Die lex originis-Regel im internationalen Sachenrecht: Grenzüberschreitende privatrechtliche Ansprüche auf Herausgabe von abhanden gekommenen und unrechtmäßig ausgeführten Kulturgütern. Berlin: Peter Lang. McGeown, Kate (2004) Race to save Cambodia’s heritage. BBC News Online, 9 June: http://news.bbc.co.uk/2/hi/asia-pacific/3784135.stm (accessed 17 August 2015). O’Keefe, Patrick J. (2007) Commentary on the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Leicester: Institute of Art and Law. —— (2006) The protection of cultural property in armed conflict. Cambridge: Cambridge University Press. Odendahl, Kerstin (2005) Kulturgüterschutz – Entwicklung, Struktur und Dogmatik eines ebenenübergreifenden Normensystems. Tübingen: Mohr Siebeck. Pabst, Friederike (2008) Kulturgüterschutz in nicht-internationalen bewaffneten Konflikten. Berlin: Duncker & Humblot. Prott, Lyndel V. (1997) Commentary on the UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects. Leicester: Institute of Art and Law. Raschèr, Andrea F. G. (2000) Kulturgüterschutz und Globalisierung: UNESCO – Konvention 1970 – UNIDROIT-Konvention 1995 – EG-Verordnung 3911/92 – EG-Richtlinie 93/7 – Schweizerisches Recht. Zürich: Schulthess. Schorlemer, Sabine von (2007) UNESCO Dispute Settlement. In: Yusuf, Abdulqawi A. (ed.): Standard-setting in UNESCO: Volume I – Normative action in education, science and culture, pp. 73–103. Paris: Martinus Nijhoff Publishers. Schrey, Denis and Rabea Brauer (2012) Foreword. In: Peng, Hor; Phallack, Kong and Jörg Menzel (eds): Introduction to Cambodian law, pp. 1–2. Phnom Penh: Konrad-Adenauer-Stiftung. Stamatoudi, Irini A. (2011) Cultural property law and restitution. A commentary to international conventions and European Union law. Cheltenham: Edward Elgar.

Cambodia’s struggle to protect its cultural property 63 Thailand – The Customs Department (2015) General prohibitions and restrictions: http:// www.customs.go.th/wps/wcm/connect/custen/traders+and+business/prohibited+ and+restricted+items/general+prohibitions+and+restrictions/generalprohibitionsandrestrictions (accessed 17 August 2015). Thorn, Bettina (2005) Internationaler Kulturgüterschutz nach der UNIDROIT-Konvention. Berlin: De Gruyter Recht. Toman, Jiří (1996) The protection of cultural property in the event of armed conflict: commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on May 1954, in The Hague, and on other instruments of international law concerning such protection. Aldershot: Dartmouth/UNESCO. Transparency International (2014) Corruption Perceptions Index 2014: http://cpi. transparency.org/cpi2014/results/ (accessed 7 February 2016). UNESCO (2016) State Parties: list in chronological order: http://www.unesco.org/eri/la/ convention.asp?KO=13039&language=E (accessed 17 August 2015). UNIDROIT (2015) Status of the UNIDROIT Convention on stolen or illegally exported cultural objects: signatures, ratifications, accessions: http://www.unidroit.org/status-cp (accessed 17 August 2015). Winter, Tim (2004) Cultural heritage and tourism at Angkor, Cambodia: developing a theoretical dialogue. Historic Environment 17(3):3–8.

3 Looted, trafficked, donated and returned The twisted tracks of Cambodian antiquities Brigitta Hauser-Schäublin Introduction The plundering of historical and archaeological sites, the illegal export of stolen or looted Cambodian – Khmer – antiquities, and their sale via traffickers in Cambodia’s neighbouring countries to private collectors in rich countries in the North has been a common practice since the 1960s (see Chapter 1). Such antiquities were often put into auction houses, such as Sotheby’s or Christie’s, for resale. Others were given by private collectors as generous donations to renowned museums, such as New York’s Metropolitan Museum of Art or the Norton Simon Museum in Pasadena, California. Over the past few years, such cases have been brought to the attention of an international audience since Cambodia reclaimed some tenth-century sculptures that were stolen from the temple ruins of Koh Ker in Preah Vihear Province. Koh Ker, therefore, has received special attention since the Metropolitan Museum of Art and Sotheby’s auction house were involved in cases which resulted in the return of the contested artefacts – and also in the tarnishing of their reputations or even the loss of face of these prestigious institutions. In this chapter, I will present and discuss these cases of successful return which are basically the result of a wellfunctioning bilateral agreement between the United States and Cambodia, decisively complemented by UNESCO’s commitment, Interpol’s support and French scholars’ dedication to protect and retrieve Cambodian cultural heritage. However, the ways in which the restitution was achieved differ. It was the US Attorney’s Office in Manhattan that pursued, on Cambodia’s behalf, the statue located at Sotheby’s. An agreement was only reached after lengthy negotiations in which the allegation that the auction house and its consignor knew of the statue’s disputed provenance before importing it for sale (New York Times, 12 December 2013) was at the core of the dispute.1 The Metropolitan Museum of Art (Met) negotiated directly with Cambodia, with the Office of the Council of Ministers (Council of Ministers 2013), and sent its representatives to Cambodia, not least to avoid an even bigger public scandal. As Tom Mashberg and Ralph Blumenthal wrote in the New York Times: The Met’s decision reflects the growing sensitivity by American museums to claims by foreign countries for the return of their cultural artifacts. Many

The twisted tracks of Cambodian antiquities 65 items that have long been displayed in museums do not have precise paperwork showing how the pieces left their countries of origin. (New York Times, 3 May 2013) Thus, the increasing sensitivity of the museums, closely interrelated with the pressure of public opinion concerning such a renowned institution and its prestige that was at stake, led to the return of the two sculptures known as the “Kneeling Attendants”. In the case of the Metropolitan Museum of Art, this return took place in a ritualised form when Buddhist monks blessed the two statues upon their arrival at Phnom Penh airport. The occasion, the 37th session of the UNESCO World Heritage Committee in Phnom Penh in June 2013, was quite prestigious too. This action and, one year later, Sotheby’s return of the contested Duryodhana statue to Cambodia caused the breaking of a dam (New York Times, 6 May 2014). Along with Sotheby’s restitution, two more sculptures from the same site (Koh Ker), looted during the civil war in the 1970s, were also handed over to Cambodia – one, Balarama, owned by Christie’s and the other, Bhima, by the Norton Simon Museum in Pasadena; Christie’s return of the Khmer sculpture was unsolicited.2 In May 2015, the Cleveland Museum of Art also voluntarily returned its Koh Ker statue, Hanuman, to Cambodia. The cases of Sotheby’s and the Met presented below are only the tip of the iceberg of looted and illegally exported artefacts from Cambodia (let alone from other countries around the world) that are nowadays housed in museums or, even more, in private collections. It must be noted that many of these pieces, even from Koh Ker, are certainly also in European – private and, perhaps, even public – collections and have not yet been identified. Furthermore, these cases reveal the intricate routes such stolen objects have taken, allegedly often bought “in good faith”, but certainly without bothering much about questions of provenance (see Chapter 5). The following cases also illuminate some aspects of the trafficking of stolen or looted antiquities that finally ultimately have an economic value of millions of US$ per item.

The site and its looted statues Koh Ker was the royal Khmer capital from 928 to 944 ad. It was set up by a noble who proclaimed himself the king, well-known as Jayavarman IV, when his rival and predecessor died in Angkor in 928. Previously, Angkor had been the capital and, after a short period of only 16 years, Angkor became the capital again; this interim period was apparently an important phase in old Cambodian history. Koh Ker (originally called Chok Gargyar, “iron-tree forest”) lies about 100 kilometres north-east of Angkor (with today’s town of Siem Reap) and is famous for its temple-mountain, a step pyramid, which housed a lingam. Cambodia has placed it on its Tentative List, an inventory of those properties which a state party to the World Heritage Convention intends to nominate for entry on the World Heritage List (UNESCO World Heritage 2013:92–3). This temple-mountain dedicated to Shiva is today called Prasat Thom and was part of a royal cult (Chandler

66  Brigitta Hauser-Schäublin 2003:39–41). Apart from this impressive building, Koh Ker encompassed further individual temples. One of the most famous is Prasat Chen, a temple dedicated to the worship of Vishnu, conceived as the preserver of the universe. The whole temple complex of Koh Ker includes about 35 shrines and displayed a great number of statues (in different conditions of conservation) when Louis Delaporte, the first French explorer to reach Koh Ker, arrived there in 1873. In the first half of the twentieth century, Koh Ker was researched by members of the EFEO (École Française d’Extrême Orient; see, for example, Parmentier 1939). Some of the statues were transported to France during the colonial regime and are now housed in the Musée Guimet. A famous pair of statues, wrestling monkeys, is on display in the National Museum in Phnom Penh. A new road was built to the area in 1965 which facilitated access to this formerly isolated temple complex. During the civil war in the 1970s, Koh Ker began to be plundered and most of the large stone statues became victims of illicit trafficking. Unfortunately, after the EFEO studies in the 1930s, no further detailed studies documenting each statue and its location were carried out. This facilitated the plundering of Koh Ker with its many statues still in situ in the first half of the twentieth century. Moreover, this lack of detailed studies complicates the efforts of today’s archaeologists to identify the sculptures looted. Apparently many acts of looting took place “on demand”, that is, art dealers ordered artefacts from photographs taken at Koh Ker and the looters subsequently hacked sculptures to pieces, bit by bit, as investigations showed. The pieces were then transported in whole “convoys of trucks, some with a military escort” to Thailand “where they were sold to wealthy Westerners” (Art Newspaper, 16 September 2013). The extent of the plundering can be conjectured or even determined thanks to EFEO’s most recent research (Bourdonneau 2011, 2013a:197). When experts revisited the temple complex of Koh Ker in the early 2000s, after the long civil war, they noticed that many sculptures had disappeared. In several cases, only the statues’ feet were left on their pedestals, testimony of a forceful removal that cannot have taken place without heavy moving gear. Bourdonneau lists an impressive number of statues he was able to identify, some of them in the Bunker and Latchford book (2004) where they are euphemistically paraphrased as “Koh Ker style” (though their Koh Ker provenance can be asserted). These statues are, as Bunker and Latchford state, nowadays “preserved” in private collections in the United States (2004:105). They were all definitely looted. There were two groups of almost life-size stone statues at Prasat Chen, one at the eastern gate tower (gopura) and one at the western gopura. Altogether, there were 15 sculptures; those which were still in situ before the civil war have been looted and smuggled out of the country, ending up on the international art market. The sculptures were dismembered, as the separate parts of the statues (the head separated from the body) that later re-emerged in different collections showed. As the feet still in place proved, the sculptures had been broken off at the ankles. This later became an important testimony in the claim for restitution.3 A group of nine statues had been arranged into one scene at the western gopura: the four Pandava brothers (warriors), and Krishna, Balarama and Dhrstadyumna

Figure 3.1 Ground plan of Prasat Chen, Koh Ker, with the location of statues which were stolen and illegally exported; they were subsequently identified in US public collections and Sotheby’s: 1) Two Pandava brothers (“Kneeling Attendants”), acquired by the Metropolitan Museum of Art in four pieces between 1987 and 1992; they were returned to Cambodia in 2013. 2) Bhima (“Temple Wrestler”), acquired in 1976 by the Norton Simon Museum, Pasadena, from the New York dealer William H. Wolff (New York Times, 6 May 2014). The statue was returned to Cambodia in June 2014. 3) Duryodhana (“Athlete”), offered at auction at Sotheby’s New York; the statue was returned to Cambodia in June 2014. 4) Balarama, sold by Christie’s to an anonymous collector in 2009. Christie’s bought it back in 2014 after the auction house had determined that the sculpture had been looted; it was voluntarily returned to Cambodia in June 2014. 5) Hanuman, acquired in 1982 by the Cleveland Museum of Art and returned to Cambodia in 2015. 6) Torso of Rama, acquired in 1986 by the Denver Museum of Art. Diagram (modified) after the New York Times, 15 May 2013 (originally based on Bourdonneau 2011).

68  Brigitta Hauser-Schäublin who were watching the ritual fight between Bhima and Duryodhana, according to the Indian epic the Mahabharata (see the reconstructed arrangement by Bourdonneau and his interpretation, 2013b:95). There was also an ensemble of statues at the eastern gopura. The statues of two fighting monkeys, representing Valin and Sugriva, were in the centre of this scene; they are now located in the National Museum in Phnom Penh (Bourdonneau 2011:122). This pair of monkeys was probably surrounded by a group of other sculptures. Two of them representing Rama and Hanuman surfaced in the Denver Museum and the Cleveland Museum, respectively (Bourdonneau 2011:122).4 Six looted statues from the two gopura of Prasat Chen were identified by French archaeologists when they re-emerged in public spaces in the United States. Four of them originated from the western entrance tower: two Pandava brothers resurfaced in the Metropolitan Museum of Art, designated as “Kneeling Attendants”, and were on display between 1994 and 2013. Another statue with the same gesture, but in the shape of a monkey was in the Cleveland Museum.5 A further statue representing Bhima was at the Norton Simon Museum in Pasadena, California, and his partner fighter, Duryodhana, was consigned for an auction sale at Sotheby’s in March 2011 for an estimated amount of US$2–3 million. The auction house finally removed the artefact from the auction after Cambodia claimed ownership and returned it to Cambodia. A sixth statue, Balarama, resurfaced at Christie’s only in 2014 (see above). The French EFEO archaeologist and historian Eric Bourdonneau examined the pedestals with the feet still in place in conjunction with the broken-off ankles of the statues in 2007 that had resurfaced in museums. He compared them digitally

Figure 3.2 Reconstruction of the duel between Bhima and Duryodhana, western gopura of the Prasat Chen in Koh Ker (concept and research: Eric Bourdonneau/EFEO; modelling: Grez Production). By courtesy of the French Archaeological Mission at Koh Ker/EFEO.

The twisted tracks of Cambodian antiquities 69 and was able to prove that Bhima’s and Duryodhana’s ankles each matched with one pair of the feet (Bourdonneau 2011; US Attorney for the Southern District of New York 2012, paragraphs 3 and 4).

Contested provenance Rarely has an ensemble of Khmer antiquities stirred up such a public discussion about looting, the international networks of looters, middlemen, art dealers, and renowned museums and auction houses like the group of stone statues from Koh Ker did (see Mackenzie and Davis 2014). The Sotheby’s and the Met cases were paradigmatic; they allow some glimpses into the international art (black) market and its diverse actors including renowned institutions. I will start by discussing the Sotheby’s case. According to documents, the Duryodhana sculpture was on sale on the international art market for the first time in 1975 at the London auction house Spink and Sons (the latter was owned by Christie’s after 1975). Spink’s sold the piece to a Belgian collector in 1975. In 2010, Decia Ruspoli di Poggio Suasa, the widow of the former owner of the Duryodhana sculpture, also based in Belgium, entered into a consignment agreement with Sotheby’s to sell the statue at auction. Consequently, the statue was transported from Belgium to the United States; it arrived at JFK Airport, New York, on 23 April 2010. The private collector executed an affidavit stating that “to the best of my knowledge, the [artefact] is not cultural property documented as appertaining to the inventory of a museum or religious or secular monument or similar institution in Cambodia” (US Attorney for the Southern District of New York 2012). Nevertheless, the import of the statue touched an agreement between the United States and Cambodia about the import of Khmer antiquities. Based on the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (which has been ratified by both countries), the two states had signed an agreement, US-Cambodia Cultural Property Agreement, in 2003. This was amended for the first time and extended for a further period of five years in 2008 and again in 2013 (US-Cambodia Cultural Property Agreement 2013). According to Article I, this agreement aims at restricting the importation of certain categories of Khmer archaeological material described in a “designated list” (Designated List 2003) into the United States, unless the Cambodian government issues a documentation which certifies that such an exportation was not in violation of its laws.6 The US government “shall offer for return” to Cambodia any material described in the Designated List. These are the major issues of the agreement which triggered the intervention of the US Attorney as the plaintiff who finally sought forfeiture of all right, title and interest in the tenth-century stone statue consigned to auction at Sotheby’s (US Attorney for the Southern District of New York 2012). The question of the statue’s provenance was an issue of which Sotheby’s was well aware. This was the reason why the auction house asked a scholar, Emma C. Bunker, to research the statue’s history of ownership. Bunker stated, “If I can push the provenance back to 1970, then U.S. museums can participate in the

70  Brigitta Hauser-Schäublin auction without any hindrance” (New York Times, 13 November 2012). Through her research, Bunker became aware of the fact that the statue had probably been stolen from Koh Ker and advised Sotheby’s not to sell the statue: . . . at a public auction. The Cambodians in Phnom Penh now have clear evidence that it was definitely stolen from Prasat Chen at Koh Ker, as the feet are still in situ . . . Please do not give this report to anyone outside of Sotheby, as I often have access to such material, and don’t want to anger my sources. (US Attorney for the Southern District of New York 2012:11–12) Sometime later, after she had made inquiries in Cambodia about the intention of Cambodian officials, she learned that: There are no plans at all for Cambodia or the National Museum of Cambodia in Phnom Penh to attempt to ask for the return of anything at the . . . Museum or the [Museum] etc. . . . I think that Sotheby can therefore go ahead and plan to sell the Koh Ker Guardian, but perhaps not good to show or mention the feet still in situ at Koh Ker in the catalogue . . . [I] think that legally and ethically you can happily sell the piece, and since it is probably the last chance to buy such a treasure, should get a very good price. (United States Attorney for the Southern District of New York 2012:13–14) Evaluating the situation in Cambodia, she wrote to Sotheby’s: “The Minister of Culture has stated that Cambodia will not try to get back the [Museum] piece, even though the feet have been found at Koh Ker.” According to a Sotheby’s document, she wrote about the director of the National Museum in Cambodia, that he: . . . is a person who is familiar with the finances of that institution and hasn’t a clue about the art. [The Minister of Culture] has told me that Cambodia will not go after the [Museum] piece which was acquired the same time as yours. (US Attorney for the Southern District of New York 2012:15) The reference to the other – museum – piece concerns the Bhima statue, at that time still located at the Norton Simon Museum in Pasadena. A photograph of the statue was finally put on the cover of the Sotheby’s catalogue for the auction in March 2011. The catalogue entry in Sotheby’s auction catalogue praised the exceptional tenth-century Khmer sculpture. Again, the entry was written by Emma C. Bunker, an expert on Khmer art and a research consultant at the Denver Art Museum which also holds a contested statue from Koh Ker: This large and spectacular tenth-century Cambodian sculpture, 160 centimeters in height and exceptionally well carved, is the highlight of the current auction. The figure represents a powerful athletic male and was expressly commissioned by Jayavarman IV to enhance his grandiose capital at Lingapura

The twisted tracks of Cambodian antiquities 71 located northeast of Angkor in present-day Koh Ker (Bunker, Emma C. and Douglas Latchford. Adoration and Glory, Bangkok and Chicago: Art Media Resources, 2003, 149–51) . . .  The splendid heroic figure is mate to the Koh Ker-style athlete at the Norton Simon Museum in Pasadena that is almost identical in posture and physical appearance . . . The two figures were probably once shown in handto-hand combat, so would have originally faced each other, producing an ensemble similar to the wrestling contest between the two simian brothers in the Reamker, Valin and Sugriva, in the Phnom Penh Museum that was found in the entry tower (gopura) of Prasat Chen in the temple complex at Koh Ker . . .  If one could choose only one sculpture to represent the glory of Khmer art, this figure could fulfil such a challenge. Held in a private collection in Europe for the last forty years, this example of the best of Khmer sculpture is now available for purchase by a major buyer to share with the world. (Bunker 2011) Bunker is, together with the private collector and expert on Khmer art, Douglas A.J. Latchford, the co-author of one of the standard books on Khmer antiquities, Adoration and glory: the golden age of Khmer art, in which many unprovenanced artefacts owned privately by anonymous collectors are represented. Anne Lemaistre, the director of UNESCO’s field office in Phnom Penh, called this book “the inventory of the missing cultural patrimony of Cambodia”, especially since the authors are not prepared to say where the objects are located (New York Times, 12 December 2012). The scholar’s role in the service of the trafficking of art, especially antiquities of unclear provenance, makes her a candidate for what Brodie called a “congenial bedfellow” of private collectors (2011). Immediately before the auction, in a letter dated 24 March 2011, the Secretary General of the Kingdom of Cambodia requested, the director of Sotheby’s to pull the sculpture from the auction and to facilitate its return to Cambodia (US Attorney for the Southern District of New York 2012:18). Cambodia, supported by the US Attorney’s office in Manhattan, blocked Sotheby’s sale of the statue representing Duryodhana, although the auction house had disputed the allegation that the statue had been illegally imported into the US (CBC News, 12 June 2013). According to the findings of the prosecutors, Spink’s records (provided by Christie’s) state that the sculpture had been stolen from Prasat Chen in 1972 (US Attorney Southern District of New York 2013:5). Furthermore, this document suggests that “the original seller of the piece [to Spink’s] . . . conspired with the looting network to steal it from Prasat Chen (the “Collector”), and Sotheby’s own retained art expert . . . [Bunker] was herself a longtime associate of the Collector” (US Attorney Southern District of New York 2013:5). “The Collector” refers to Douglas Latchford, a famous art collector who lives in Bangkok, “in an apartment brimming with Asian artifacts” (New York Times, 12 December 2012). He has donated a number of Khmer antiquities both to museums in the United States and in Cambodia and is, therefore, a highly respected sponsor in museum circles and a person above reproach. Latchford acknowledged that the “Collector” in the

72  Brigitta Hauser-Schäublin official documents refers to him, but he “denies ever having owned the work” (though he admitted to having had “the figure on reserve from Spink’s in 1970”); instead, he said that Spink’s had bought the statue on his recommendation from a Thai dealer in Bangkok (New York Times, 12 December 2012). The allegation that the statue of the ritual warrior was looted and illegally exported from Cambodia was countered by the senior vice president and worldwide compliance director for Sotheby’s, Jane Levine, who said that “the statue could have been removed any time in its thousand-year history” (New York Times, 28 February 2012). “This sculpture was legally imported into the United States, and all relevant facts were openly declared”, Sotheby’s statement literally states: “We have researched this sculpture extensively and have never seen nor been presented with any evidence that specifies when the sculpture left Cambodia over the last 1,000 years, nor is there any such evidence in this complaint” (New York Times, 4 April 2012). Furthermore, the auction house emphasised its ethically correct behaviour. Sotheby’s compliance director Jane Levine was, ironically, formerly a federal prosecutor in the US Attorney’s Office for the Southern District of New York, where she worked with the FBI’s Art Crime Team (Sotheby’s 2014).7 She said, “Sotheby’s approach to the Khmer sculpture is one of responsible and ethical market behavior and international cooperation between private and public entities” (New York Times, 28 February 2012). However, in a letter to the District Judge, dated 11 September 2013, the US Attorney, Southern District of New York, Preet Bharara, reached a different conclusion: In short, Sotheby’s chief compliance officer provided false and misleading provenance information to the Government while discouraging the Government from obtaining the documents that ultimately showed that asserted provenance to be false. Both before and after this action, Claimants have sought at every turn to prevent the Government from unearthing the facts about the theft and sale of the Duryodhana. At every stage of this proceeding they have invented a new reason why going forward with discovery would be inappropriate. (US Attorney Southern District of New York 2013:5) Meanwhile, Cambodia, without much experience in such matters, had started negotiating with Sotheby’s and a wealthy Hungarian antiquities collector (and former diplomat in the region). He had offered to buy the statue for US$1 million and donate it to Cambodia as “an act of good will” (New York Times, 28 February 2012). This negotiation seems to have started because the auction house had “told Cambodian officials that it viewed the statue as the lawful property of its consignor, Ms Ruspoli, and that Cambodia should consider purchasing it directly through Sotheby’s” (New York Times, 12 December 2013). However, the US investigator of cultural property crimes at Immigration and Customs Enforcement, Brenton Easter, told the Cambodian official to stop negotiating so that the US government could pursue its legal case against the auction house (Chasing Aphrodite 2013).

The twisted tracks of Cambodian antiquities 73

Agreeing on the return After a dispute lasting two years, during which Sotheby’s vehemently denied the charges of the US Attorney, an agreement between Sotheby’s and Cambodia was reached. An agreement was preferred by both parties since the legal situation was rather difficult to assess. One of the main questions from the US Attorney was: which cultural property law of Cambodia – pre-colonial regulations, different French colonial and Indochina decrees, state regulations after independence, international agreements – was valid and applicable in this case?8 All of them were impugned by Sotheby’s. Therefore, both sides agreed to the settlement since “the additional litigations ‘would be burdensome and would require resolution of disputed factual issues and issues of US, Cambodia, French Colonial, and other law’” (New York Times, 12 December 2013). The agreement was signed on 12 December 2013. Sotheby’s and its consignor agreed to transfer the antiquity to a Cambodian representative in New York within 90 days. As a spokesman for Sotheby’s declared: “The consigner and Sotheby’s voluntarily determined, in the interest of promoting cooperation and collaboration with respect to cultural heritage, to arrange for the transfer” (Phnom Penh Post, 17 December 2013). Sotheby’s expressed the willingness to cover the cost of shipping the heavy 230-kg statue (New York Times, December 12, 2013). In exchange, US federal attorneys agreed to withdraw allegations that the consignor and Sotheby’s knew of the statue’s disputed provenance before importing it for sale. The withdrawal of the allegations (for whose correctness concrete evidence existed), therefore, refers to the “good faith” argument. The return of the Duryodhana statue took place in 2014 without any compensation, that is, the estimated revenue of up to US$3 million, which is tantamount to a substantial loss for the consignor. The Sotheby’s spokesman commented, “the agreement confirms that Sotheby’s and its client acted properly at all times” (New York Times, 12 December 2013). On the occasion of the signing of the agreement, Cambodia’s representative explained that the next quest would turn to the Norton Simon Museum in Pasadena, where Duryodhana’s twin statue, Bhima, had been housed since 1980.9 The museum reacted promptly: the statue was returned to Cambodia in June 2014. The negotiations between the Metropolitan Museum of Art and Cambodia concerning the two Pandava Brothers (“Kneeling Attendants”, see above) were much less dramatic than the Sotheby’s case and apparently more rapidly came to the conclusion to return the statues to Cambodia. The museum had sent “two of its top executives” to Cambodia to explore whether these statues had been stolen: In days they had their answer. The statues donated to the Met in four pieces as separate gifts between 1987 and 1992 had indeed been smuggled out of a remote jungle temple around the time of the country’s civil war in the 1970s. (New York Times, 3 May 2013) The origin of the two statues at the Metropolitan Museum – and probably also the route and the networks by which these sandstone statues were smuggled out of

74  Brigitta Hauser-Schäublin

Figure 3.3 The two Pandava brothers from the Metropolitan Museum repatriated to the National Museum in Phnom Penh in 2013. Photo: Brigitta HauserSchäublin, 2013.

the country – displays the same fingerprints as the Sotheby’s statue: the first gift donated to the Met in 1987 came from Spink & Son’s auction house in London and Douglas A.J. Latchford, who was an associate of Spink’s at that time (Art Newspaper, 16 September 2013). This gift consisted of one of the heads of the statues. A second head was donated by Raymond G. and Milla Louise Handley in 1989; they had bought the head two years before, also at Spink’s. In 1992, Latchford donated the two torsos of the Pandava brothers to the museum. A year later, the heads and bodies were rejoined by museum conservators (New York Times, 3 May 2013). As the same newspaper states, Latchford had donated “at least seven other items to the Met, including the stone head of a Buddha and the bronze head of a Shiva”. He also gave four statues to the Denver Art Museum. Furthermore, he lent singular artefacts for exhibitions around the world, including the Berlin Museum for Asian Art; the latter, too, did not bother about questions of provenance, for example, when it took a Ganesh statue from Koh Ker as a loan (Art Newspaper, 16 September 2013).

The twisted tracks of Cambodian antiquities 75

Museums and donors: a community of fate? The intricate relationships between auction houses and art dealers, collectors and museums shine forth under different guises, as the cooperation between Emma Bunker and Douglas Latchford as well as Sotheby’s has already shown. The donation first of the head of one of the Koh Ker sculptures by Spink & Son Ltd. and Latchford, and later of the torso by Latchford to the Metropolitan Museum took place, as the entry shows, “in honor of Martin Lerner”, former curator of Asian Art at the Met (until 2005), “with whom Latchford appears to have been on excellent terms” (Art Newspaper, 16 September 2013). Astonishingly, questions of provenance seemed to bother even renowned curators only minimally (see, for example, Lerner 1994). The insufficient acquisition budgets of museums rarely allow the purchase of exceptional artefacts on the art market. On the contrary, many museums, such as the Tropenmuseum in Amsterdam among others, just have to be content with the fact that they are not shut down (one of the most renowned ethnographic museums, the Tropenmuseum was threatened with closure due to severe budget cuts in 2012). These economic (and political) limitations make them dependent on “benefactors” or rather sponsors, especially if the curators or directors want to add special artefacts, such as a Khmer antiquity, to their existing collections. Furthermore, the attractiveness of a museum – measured in attendance figures – largely depends on the display of spectacular objects, preferably those thus far never presented. In fact, such sponsors are fawned over by museums, their directors and boards since they know that a lack of reverence will make the sponsors turn to other, more “grateful” institutions. Even government institutions belong to these networks, since they must back their public institutions. Hab Touch, for example, former director of the National Museum in Phnom Penh and now director-general of the Heritage Department of the Ministry of Culture and Fine Arts in Phnom Penh, praised the donations Latchford had given to the National Museum over the years: “His gifts are very important because these artifacts teach the Cambodian people about their history . . . We hope his generosity will set a good example for others” (New York Times, 12 December 2012). It was also for Latchford’s “generosity” – gifts of unknown provenance – that the Cambodian government knighted him (New York Times, 1 June 2012). He presented a unique bronze boat-prow ornament representing Garuda, dating from between 1080 and 1181, to the National Museum in Phnom Penh (Phnom Penh Post, 11 July 2011). It was on this occasion that Latchford was awarded the Royal Order of Saha Metrey Thnak Thib Badin by the Government of Cambodia.

Gift exchange and its benefits By publicly donating prestigious objects to renowned museums, intended and understood as acts of generosity, rich private collectors gain recognition. No collector will give an outstanding artefact to a dusty provincial museum, unless for sentimental reasons. A prestigious donation also attracts the attention of the media and contributes to the sponsor’s reputation. Moreover, a donor also benefits substantially from tax deduction (see, for example, The Metropolitan Museum,

76  Brigitta Hauser-Schäublin http://www.Metmuseum.org/en/give-and-join/donate – accessed 26 February 2014). On the other hand, such an art collector will become a “friend” of the museum and even of government officials, a person above reproach. Such acts – offering a gift and accepting it – turn the public attention away from the collectors’ activities that are perhaps less laudable. Exclusive circles of renowned collectors, who bask in the glamour of their generous donations, exist worldwide. In 2013, even after the restitution of the Koh Ker statues from the Metropolitan Museum to Cambodia, Latchford’s name still figured as a prominent donor on the labels of artefacts displayed in the showcases of the National Museum in Phnom Penh, in spite of the transparent role he played in the cases discussed above. The issue of provenance had already arisen earlier in Cambodia with regard to a donation that Douglas Latchford had made to the National Museum in Phnom Penh. In 2008, he had given a set of gold royal regalia, said to date back to the Angkor King Jayavarman VII (1125–1218), to the National Museum (see also Bunker 2013:35). In this case, the authenticity of the artefacts was questioned and the sponsor was asked about the provenance of the set. Previously, in 2004, when Latchford had donated a silver bowl, also said to have originated from the era of Jayavarman VII, to the museum, the question of its provenance had come up, but the museum official who had raised it had to “retract his claim” (Phnom Penh Post, 8 February 2008). Latchford commented on inquiries about provenance in

Figure 3.4 Gold regalia allegedly of Jayavarman VII, National Museum Phnom Penh. Donation by Douglas Latchford. Photo: Brigitta Hauser-Schäublin, 2013.

The twisted tracks of Cambodian antiquities 77 Phnom Penh: “‘Making allegations like this is detrimental to the country and to the museum’ . . . ‘Why would one give something back to risk having it criticized by someone who doesn’t understand? It is a great shame for the museum’” (Phnom Penh Post, 8 February 2008) Emma Bunker once again supported Latchford, who was opposing the “mudslinging”, by saying “that without private collectors Cambodia would have lost much of its gold heritage as it would have been melted down” (Phnom Penh Post, 8 February 2008). In a subsequent article, she fervently defends collectors like Latchford: Our views in the United States tend to be hugely unsophisticated and provincial, resulting in our lack of respect and appreciation for private collectors and dealers. Passionate private collectors have served as custodians of artifacts and have furthered scholarly knowledge. They are not all greedy looters motivated by their social position or attempting to lessen their taxes by gifts to museums. Many museum donors live in countries where tax breaks are not available, and their donations are actually made for scholarly and related altruistic reasons. (Bunker 2013:33) No one ever seems to have raised the question how all these artefacts came into the hands of an expat, under what conditions they had been unearthed – and why he may call his act a grand gesture to “give something back” to the country from which Latchford had appropriated it.

Conclusion The tracks of the looting of the tenth-century site of Koh Ker and how these stolen artefacts reached Spink’s auction house in London have remained covered, although there must still be people alive who know about it. Thus, the whole network of plunderers, smugglers, traders, art dealers and collectors who make the illicit trafficking of antiquities possible has remained obscure in the cases discussed in this chapter. However, the web of their interdependence and their mutual indebtedness and profit is at least as intricate as the relationship between collectors of unprovenanced artefacts, their activity as sponsors and the museums involved. The relationship between donors and museums is a kind of symbiosis; each is dependent on the “gift” from the other: the museum receives an artefact of singular quality that the institution could otherwise not afford. The sponsor receives honour, recognition and reverence, briefly: social capital in Bourdieu’s sense. Together, the two partners form a community of fate (Schicksalsgemeinschaft): both will enjoy glamour and status enhancement if their cooperation proves successful. If the reputation of one partner – usually the sponsor, as the cases of obscure provenance have shown – is damaged, the other will suffer from a loss of prestige as well. Yet, this relationship has its taboos; one of the most crucial is – or perhaps rather was – the

78  Brigitta Hauser-Schäublin taboo of asking questions about provenance, as the example of the Metropolitan Museum of Art has shown. Twenty years ago, the Met’s policy allowed the acceptance of artefacts without a detailed provenance. Only after renowned museums’ repeated entanglements in quests for return did they set up stricter guidelines for acquiring artefacts (New York Times, 1 June 2012). Nevertheless, it needs to be added that ICOM (the International Council of Museums) had adapted its Code of Ethics for Museums in 1986, and it should have been effective for all its members.10 The discourse about ethics has become increasingly important in dealing with claims of return and restitution over the past few decades (see Hauser-Schäublin 2013). However, behind these negotiations which result in amicable agreements rather than court decisions, the international regulations, institutions and bilateral agreements between states constitute the framework or even the credible front of force in which such settlements may be achieved.

Notes   1 These were not the first cases of a quest for the return of a looted artefact from Cambodia with which the Metropolitan Museum and Sotheby’s had to deal (Brinkman 2006:66; New York Times, 3 May 2013). As Davis has pointed out, Sotheby’s has put 377 Khmer items on auction between 1988 and 2010; 71 per cent of these antiquities had no published provenance. Not one of these 377 artefacts included a provenance from an official scientific excavation. Hence, most of these pieces seem to be the result of illicit excavations and trafficking (Davis 2011).   2 On this occasion, a grand ceremony was held at the Council of Ministers in Phnom Penh and Christie’s representatives were each conferred with the title of a Commander of the Royal Order of Sahmetrei (Christie’s 2014).   3 Since the claimant Cambodian authorities were afraid that these proofs could “disappear” from the site, and thus, their claim would lack crucial evidence, the remnants of the sculptures, the pedestal with the feet, were collected, unfortunately without any further archaeological investigations carried out in situ.   4 After a US$130 million renovation and expansion, the Cleveland Museum of Art had opened an exhibition of masterpieces from Asia in late 2013 in which the contested tenth-century Hanuman statue from Prasat Chen was displayed. The museum sent its own expert to Cambodia to clarify Hanuman’s original site; she neither contacted the French archaeologists who had thoroughly investigated Koh Ker nor the UNESCO office in Phnom Penh (Phnom Penh Post, 23 May 2014). Based on her own studies there, the Cleveland expert claimed that Hanuman did not originate from the site as suggested by EFEO (Cleveland.com, 20 May 2014). Nevertheless, the Cleveland Museum returned the contested statue to Cambodia only a year later (Phnom Penh Post, 15 May 2015).   5 A fourth sculpture is currently preserved at Angkor Conservation in Siem Reap (Bourdonneau 2011:122).   6 Article II of the agreement lists three further topics which actually go beyond the measure of import restrictions of Khmer antiquities to the United States, but are essential for fighting illicit trafficking mainly in Cambodia. These topics are: Raising of Public Awareness, Protection/Conservation (including the fight against corruption) and Collaboration/Interchange (US-Cambodia Cultural Property Agreement 2013).

The twisted tracks of Cambodian antiquities 79   7 In 2011, Jane Levine was appointed by President Obama to serve as a member of the President’s Cultural Property Advisory Committee (Sotheby’s 2014). As Kaye pointed out, Jane Levine’s presence on the committee that discussed the US regulation of Cambodian artefacts, presented “a conflict of interest because of the ongoing dispute between Cambodia and Sotheby’s”. Cambodia had requested that she “recuse herself from deliberations on import restrictions for Cambodian antiquities” discussed by the Committee (Kaye 2013:188).   8 In commenting on the application of US law to stolen cultural property, Kaye states: “In the U.S., litigation over cultural patrimony begins with a simple, fundamental rule: No one, not even a good faith purchaser, can obtain good title to stolen property” (Kaye 2013:189).   9 In fact, officials from the Pasadena museum visited Cambodia in March 2014. They acknowledged the statue’s original location at Prasat Chen, Koh Ker. After a meeting with government officials in Phnom Penh, the museum agreed to give that statue back as a gift (New York Times, 6 May 2014). 10 ICOM Codes of Ethics states in paragraph 2.3, “Provenance and due diligence”: “Every effort must be made before acquisition to ensure that any object or specimen offered for purchase, gift, loan, bequest or exchange has not been illegally obtained in, or exported from its country of origin or any intermediate country in which it might have been owned legally (including the museum’s own country). Due diligence in this regard should establish the full history of the item since discovery or production” (ICOM 2013).

References The Art Newspaper (2013) The smuggling scandal that’s ready to erupt (by Vincent Noce). 16 September: http://www.theartnewspaper.com/articles/The-smuggling-scandal-thatsready-to-erupt/30304 (accessed 3 February 2014). Bourdonneau, Éric (2011) Nouvelles recherches sur Koh Ker (Chok Gargyar). Jayavarman IV et la maîtrise des mondes. Monuments et mémoires (Fondation Eugène Piot) 90:93–141. —— (2013a) Le pantheon sivaite de Koh Ker. In: Baptiste, Pierre and Thierry Zéphir (eds): Angkor. Naissance d’un mythe. Louis Delaporte et le Cambodge, pp. 195–9. Paris: Gallimard/Musée national des arts asiatiques Guimet. —— (2013b) Koh Ker Prasat Chen and its sculptures. In: UNESCO World Heritage, Special Issue World Heritage in Cambodia, 68:94–6. Paris: UNESCO. Brinkman, Manus (2006) Reflexions on the causes of illicit traffic in cultural property and some potential cures. In: Hoffmann, Barbara T. (ed.): Art and cultural heritage. Law, policy, and practice, pp. 64–7. Cambridge: Cambridge University Press. Brodie, Neil (2011) Congenial bedfellows? The academy and the antiquities trade. Journal of Contemporary Criminal Justice 27:408–37. Bunker, Emma C. (2011) Description Lot 27: athlete sandstone Khmer, Koh Ker period. Indian and Southeast Asian Works of Art by Sotheby’s. 24 March 2011, New York: http://www.invaluable.com/auction-lot/athlete-sandstone-khmer,-koh-ker-period-27-c2f240e3077 (accessed 21 September 2015). —— (2013) The protection of the past by intelligently managing the present and the future. In: Adler, Michael A. and Susan Benton Bruning (eds): The future of our pasts. Ethical implications of collecting antiquities in the twenty-first century, pp. 31–6. Santa Fe, NM: School for Advanced Research Press.

80  Brigitta Hauser-Schäublin —— and Douglas Latchford (2004). Adoration and glory: the golden age of Khmer art. Chicago, IL: Art Media Resources. CBC News (2013) Met museum returns ancient Khmer statues to Cambodia. 12 June: http://www.cbc.ca/news/arts/met-museum-returns-ancient-khmer-statues-to-cambodia1.1391754 (accessed 29 January 2014). Chandler, David (2003) A history of Cambodia. Chiang Mai: Silkworm Books. Chasing Aphrodite (2013) Gloves come off: amid accusations of deceit, Sotheby’s lawsuit reveals how U.S. built its case, 17 September: http://chasingaphrodite.com/2013/09/17/ gloves-come-off-amid-accusations-of-deceit-sothebys-lawsuit-reveals-how-u-s-builtits-case/ (accessed 6 February 2014). Christie’s (2014) Christie’s celebrates return of 10th century statues to Cambodia at official ceremony in Phnom Penh. Press release, 3 June: http://www.christies.com/about/presscenter/releases/pressrelease.aspx?pressreleaseid=7298 (accessed 18 August 2014). Cleveland.com (2014) The Cleveland Museum of Art says it has evidence that its Hanuman sculpture was not looted from Prasat Chen in Cambodia: http://www.cleveland.com/ arts/index.ssf/2014/05/the_cleveland_museum_of_art_sa.html (accessed 15 August 2014). Council of Ministers (2013) Press release: the Metropolitan Museum in New York decides to return ancient Khmer statues. Phnom Penh, 9 May: http://sri.dccam.org/museum/ pdf/The_Metropolitan_Museum_in_New_York_decides_to_return_ancient_Khmer_ statues_second_Eng.pdf (accessed 21 September 2015). Davis, Tess (2011) Supply and demand: exposing the illicit trade in Cambodian antiquities through a study of Sotheby’s auction house. Crime, Law and Social Change 56(2):155–74. Designated List (2003) Import restrictions imposed on archaeological materials from Cambodia. Department of Homeland Security: Bureau of Customs and Border Protection. Federal Register: 22 September, vol. 68, no. 183: http://eca.state.gov/files/ bureau/cb2003dlfrn.pdf (accessed 4 February 2014). Hauser-Schäublin, Brigitta (2013) Entangled in Artefacts. Governing diverging claims and rights to cultural objects at UNESCO. In: Müller, Birgit (ed.): The gloss of harmony. The politics of policy-making in multilateral organisations, pp. 154–74. London: Pluto Press. ICOM (2013) Code of Ethics for Museums: http://icom.museum/fileadmin/user_upload/ pdf/Codes/code_ethics2013_eng.pdf (accessed 5 February 2014). Kaye, Lawrence M. (2013) The fight against illicit trafficking of cultural property: best practices in the United States of America. In: Cordero, Jorge A. Sánchez: The 1970 UNESCO convention: new challenges. México: Universidad Nacional Autónoma de México, pp. 175–210: http://biblio.juridicas.unam.mx/libros/7/3457/13.pdf (accessed 5 February 2014). Lerner, Martin (1994) Introduction. The arts of South and Southeast Asia. The Metropolitan Museum of Art Bulletin, New Series 51(4):4–17. Mackenzie, Simon and Tess Davis (2014) Temple looting in Cambodia. Anatomy of a statue trafficking network. British Journal of Criminology. 54(5):722–40: http://bjc.oxfordjournals.org/content/early/2014/06/13/bjc.azu038.full (accessed 19 August 2014). New York Times (2012) Mythic warrior is captive in global art conflict (by Tom Mashberg and Ralph Blumenthal 28 February): http://www.nytimes.com/2012/02/29/arts/design/ sothebys-caught-in-dispute-over-prized-cambodian-statue.html?pagewanted=all (accessed 29 January 2014). —— (2012) Officials are set to seize antiquity (by Ralph Blumenthal and Tom Mashberg 4 April): http://www.nytimes.com/2012/04/05/arts/design/ancient-cambodian-statueis-seized-from-sothebys.html (accessed 2 February 2014).

The twisted tracks of Cambodian antiquities 81 —— (2012, 1 June) Cambodia says it seeks return of Met statues (by Tom Mashberg and Ralph Blumenthal): http://www.nytimes.com/2012/06/02/arts/design/cambodia-toask-met-to-return-10th-century-statues.html (accessed 21 September 2015). —— (2012, 13 November) Sotheby’s accused of deceit in sale of Khmer statue (by Tom Mashberg and Ralph Blumenthal): http://www.nytimes.com/2012/11/14/arts/design/ sothebys-accused-of-deceit-in-sale-of-khmer-statue.html?_r=0 (accessed 21 September 2015). —— (2012, 12 December) Claims of looting shadow expert in Khmer art (by Tom Mashberg): http://www.nytimes.com/2012/12/13/arts/design/us-links-collector-to-statuein-khmer-looting-case.html (accessed 4 February 2014). —— (2013, 3 May) Met will return a pair of statues to Cambodia (by Tom Mashberg and Ralph Blumenthal): http://www.nytimes.com/2013/05/04/arts/design/the-met-toreturn-statues-to-cambodia.html (accessed 21 September 2015). —— (2013, 15 May) From jungle to museum and back?: http://www.nytimes.com/ interactive/2013/05/16/arts/design/from-jungle-to-museum-and-back.html?_r=0 (accessed 8 February 2014). —— (2013, 12 December) Disputed statue to be returned to Cambodia (by Tom Mashberg and Ralph Blumenthal): http://www.nytimes.com/2013/12/13/arts/design/disputed-statueto-be-returned-to-cambodia.html?hpw&rref=arts&_r=1& (accessed 14 March 2014). —— (2014, 6 May) Christie’s to return Cambodian statue (by Tom Mashberg and Ralph Blumenthal): http://www.nytimes.com/2014/05/07/arts/design/christies-toreturncambodian-statue.html?_r=0 (accessed 8 June 2014). Parmentier, Henri (1939) L’art khmèr classique. Monuments du quadrant Nord-Est. vols 1, 2. Paris: Les Éditions d’Art et d’Historique. Phnom Penh Post (2008, 8 February) Donor slams ‘mudslinging’ at museum (by Cat Barton): http://www.phnompenhpost.com/national/donor-slams-mudslinging-museum (accessed 4 February 2014). —— (2011, 11 July) Ancient bronze back to kingdom (by Sarah Macklin): http://www. phnompenhpost.com/lifestyle/ancient-bronze-back-kingdom (accessed 21 September 2015). —— (2013, 17 December) Welcoming set for warrior (by Vong Sokheng and Laignee Barron): http://www.phnompenhpost.com/national/welcoming-set-warrior (accessed 4 February 2014). —— (2014, 23 May) The relics of Koh Ker (by Emily Wight): http://www.phnompenhpost. com/7days/relics-koh-ker (accessed 19 August 2014). —— (2015, 15 May) Looted statue comes home (by Taing Vida): http://www. phnompenhpost.com/national/looted-statue-comes-home (accessed 18 August 2015). Sotheby’s (2014) Compliance: http://www.sothebys.com/de/sothebys-compliance.html (accessed 2 February 2014). US-Cambodia Cultural Property Agreement 2013: 2003 Agreement, 2008 Amended Extension, 2013 Amended Extension: http://eca.state.gov/cultural-heritage-center/ cultural-property-protection/bilateral-agreements/cambodia/us-cambodia (accessed 27 January 2014). UNESCO World Heritage (2013) Special issue world heritage in Cambodia, no. 68. Paris: UNESCO. United States Attorney for the Southern District of New York (2012) Case U.S. v. 10th century Cambodian Sculpture – 12 Civ. 2600. 4 April: http://www.unl.edu/eskridge/ Art%20crime%20complaint.pdf (accessed 21 September 2015). —— (2013) Case 1:12-cv- 02600-GBD, document 63. 11 September: http://de.scribd. com/doc/168925445/Govt-Oppo-to-Staying-Discovery (accessed 2 February 2014).

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Part II

Between profit, authenticity and ethics The UNESCO Convention on the on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 lists in Article I the range of categories which are subsumed under the term “cultural property”, designated by each state as being of importance, among others, for archaeology, prehistory and history, the arts and science. Although underwater cultural objects, such as shipwrecks and their cargoes are implicitly included, UNESCO also developed a specific Convention on the Protection of the Underwater Cultural Heritage 2001 to deal with its special problems. From amateur digs in the eighteenth century to the early 1970s, many countries were only partly aware of the significance of sites and their critical value in illuminating the history of the past centuries or even millennia. Many were not protected and were consequently plundered by treasure hunters; the artefacts recovered were sold on the international art market and thus destroyed sites which thereby lost their value for further historical or archaeological investigations. Tjoa-Bonatz’ chapter demonstrates the struggles over historic shipwrecks that have taken place in Indonesia over the past few decades. These struggles oscillate between those who want to sell artefacts as goods on the international art market and others who want to preserve them as cultural heritage revealing unknown techniques of shipbuilding, maritime routes and unknown technologies. While it is beyond doubt that both conventions have restricted the art (black) market, there are still break-ins into institutions holding antiquities, and continuing thefts and illicit trafficking, since the demand of the art market exceeds the supply. A side-effect of this situation is the increasing influx of faked artefacts in the international art and antiquities market. The certification of an artefact’s provenience (the find spot) and provenance (its collection history) has become important both for “proving” the authenticity of the artefact and the legality of its trading. As Chapter 5 by Hauser-Schäublin and Kim illustrates, such documents are also often faked, in order either to avoid the requirements and ethics set by the UNESCO cultural property conventions, or to make customers believe that they have bought an authentic work of art (even if it is a fake). Thus, the circulation of artefacts – whether originals or fakes – becomes complex since they move from one actor to the next and each actor has their own specific interests and goals in mind when dealing with them. These interests are mostly inspired by greed for profit rather than respect for ethics.

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4 Struggles over historic shipwrecks in Indonesia Economic versus preservation interests Mai Lin Tjoa-Bonatz

Introduction Some speculate that the density of historic shipwrecks in the extensive Indonesian archipelago is likely to be numbered among the highest of all the seaboard countries with long histories of maritime trade. Sixty-two per cent of Indonesian territory consists of maritime spaces. Counting the length of the coastlines of its 17,508 islands gives an impressive figure of around 81,000 square kilometres, and more than 40 million people live in Indonesia’s coastal areas (Wahjudin 2011). Located between the Pacific and the Indian Ocean, Indonesia has always played an important and strategic role in the international maritime economy of Asia. Remains of boats dating back to the early first millennium ad attest to the intraregional sailing routes of local and foreign vessels which used the sea-routes in Indonesian waters on their way between China, India, Africa and West Asia. Ships carried spices and forest products from South East Asia in one direction for which gold, manufactured goods, such as ceramics, and other luxuries were exchanged and shipped in the other direction. The Europeans entered the Asian sea trade in the sixteenth century. The Dutch Vereenigde Oostindische Compagnie (VOC) provided the European market with porcelain, tea and spices, after the Chinese had dominated the shipping in South East Asia for many centuries. Archaeological wreck sites, therefore, provide precisely dated time capsules of information about the past. The development of marine remote-sensing survey and diving technology in the last fifty years has gradually opened up the finding and possible investigation of previously unknown shipwrecks. Material of cultural, historical, or archaeological significance has been discovered, gathered together under the internationally accepted expression “underwater cultural heritage”, as defined in Article 1(1) (a) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001. Shipwrecks are generally the main focus of underwater cultural heritage and maritime archaeology (Catsambis et al. 2011). Scholars became aware of Indonesia’s submerged cultural material in the 1980s and approached it from three different angles. First, archaeologists, curators and scholars have been concerned about ethics in maritime archaeological practice and the role of museums exhibiting these finds (Green 1988; Miller 1987; Flecker 2002a; Tan 2012; Rohde 2013; Liebner 2014:10–13). Second,

86  Mai Lin Tjoa-Bonatz management issues have been particularly focused on by Indonesian professionals and government advisers (Tahir 2011; Wahjudin 2011; Marbun 2011). To improve heritage conservation in South East Asia, in my opinion, it is necessary to further explore the interface between local perceptions and popular beliefs concerning cultural property – an ethnographic perspective which is rarely touched on in the documentation of divers who recover archaeological remains of the importance of fish, ghosts and spirits (Flecker 2004–05; Ranong 2014). Thirdly, legal aspects with regard to the establishment of ownership rights have been raised by lawyers, but are still rarely discussed in public in South East Asia (Nayati 1995; Sihotang 2013; Coleman 2013). I will adopt three key perspectives to capture the range of rights and obligations relating to the variety of uses and benefits of shipwrecks in the present discourse in Indonesia: first, the diverging perspectives of mainly state authorities and their conflicting policies on forms and uses of cultural property; second, their contrasting dealings with archaeological finds, and finally, the impact which these conflicting policies and corresponding actions have on archaeological underwater sites and their finds. I discuss these perspectives by presenting the case of the Tek Sing wreck with a cargo of archaeological significance found in Indonesian waters in 1999; these finds were sold through a German auction house. My study is based on a broad range of source material including newspaper clippings, film documentation, museum exhibitions, unpublished government papers and interviews carried out in both Indonesian and international contexts.1

Endangered cultural property found at sea The fact that seabeds in Indonesia are relatively shallow is a predisposition for shipwreck sites to be discovered by fishermen or sea-cucumber divers, destroyed by trawl nets, or looted. The pillage and destruction of underwater sites in the region has intensified on a large scale in the past ten years (Flecker 2009, 2011).2 An increasing number of local people – in particular, poor fishermen and younger people with rudimentary, even dangerous, diving equipment – become involved in the looting business in the rivers and the sea (Spitzing 2005).3 Dive teams from neighbouring countries have allegedly removed artefacts from Indonesian underwater sites (Fadli 2014). The use of destructive techniques, such as explosives, is attested at historic shipwrecks.4 Looting during the recovery by licensed companies and post-salvage plundering takes place with the help of the security personnel, the navy and the police (Liebner 2014:13, 17–18, fn. 76; Kompas, 10 July 2014). Diving to obtain marketable objects is just the beginning of a chain of commodification of such antiquities. The artefacts removed are sold in local antiquity shops or traded across the border to supply the booming international trade in antiquities. The increasing awareness of the limitations of the maritime archaeological sites and the pressing need for better protection have resulted in a discussion on safeguarding the underwater cultural heritage in Indonesia. Indonesia has not ratified the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, which entered into force in 2009. So far,

Struggles over historic shipwrecks in Indonesia 87 only 49 member states of UNESCO have ratified it. The Convention’s aim for the protection of underwater cultural heritage is achieved by avoiding human interference in order to afford in situ preservation as the first option (O’Keefe 2014:23; Art. 2(5) (5) of the Convention; Grenier 2006).5 Accordingly, excavations per se are regarded as intrusive because they destroy the context, the archaeological assemblage, of these sites. Potential stable archaeological sites should be preserved for future generations. However, when facing the rampant wreck looting in South East Asia, this approach must be discarded for these endangered sites. The undeniably strong argument of the commercial salvage companies is, therefore, that their salvage operations safeguard at least selective shipwreck histories if professional standards are adopted (Kingsley 2012). Article 2, Para. 7 of the UNESCO Convention further states that underwater cultural heritage should not be exploited commercially. This point of view is in strong contrast to the actual sale of cultural material that leads to the irretrievable dispersal of artefacts and denies public access to information about the operation.6 With the exception of Cambodia, which has signed the 2001 UNESCO Convention, the commercialisation of maritime cultural heritage is legalised in various South East Asian countries, such as in Indonesia, the Philippines, Malaysia and Vietnam but also other countries like the US, where the government issues licences with different sharing models. This allows revenues for the state and assures the coverage of the expenses of the salvors if sold. The high costs involved in such maritime operations severely limit the participation by public institutions.7 In a developing nation, where the public funds are restricted and the local technological expertise is still being developed, joint ventures between governments and profit-oriented groups are common. Commercial ventures in Indonesia are not only supported by the salvage companies, but also by archaeologists and local fishermen (e.g. Utomo 2006; Miksic 2011:xviii). Interviews conducted with fishing families, including the community leaders who lived closest to a historic wreck site, were supportive of the state-licensed salvage, because it generates income for them. For the same reason, others among them were even in favour of illegal retrieval (Lambert 2012). To prohibit all activities which are commercially motivated, e.g. longterm profits in tourism revenues, goes far beyond the scope of the Convention, according to O’Keefe. However, he admits that drawing the dividing line between what is and what is not commercial exploitation is becoming increasingly difficult (2014:39–40). The commercial use of cultural property encompasses many forms and is a highly controversial issue depending on the political agenda, the ownership regulations and the free market. The cases of the wrecks of the Geldermalsen (salvaged in 1985), Tek Sing (salvaged in 1999), Intan (salvaged in 1997), Belitung (salvaged in 1998–99) and Nanhan/Cirebon (salvaged in 2004–05), all found in Indonesia’s waters, have influenced the international debate on underwater cultural heritage and its regulation. The two first cases represent commercial operations and resulted in the dispersal of the archaeological material on the international art market. Maritime heritage legislations in China and Indonesia started with the experience of the Geldermalsen wreck. Consequently, Indonesia established that, henceforth, all

88  Mai Lin Tjoa-Bonatz sunken archaeological remains in its territory are state property. The second case, the Tek Sing wreck, my focal case study, underpins the negotiations about property rights and also clearly reveals that the operation was in direct contradiction with the protection of underwater cultural objects. The three other cases – the salvage of the Intan, Belitung and the Nanhan/Cirebon wrecks – represent different models of commercial cooperation with the Indonesian government.

Displaying historic shipwreck finds in Indonesia Unlike archaeological objects from land excavations, which have gained more attention from the general public in Indonesia, underwater investigations have not yet achieved the same degree of interest. Maritime sites are inaccessible and, therefore, invisible for most Indonesians. The discussion about these sites is restricted to a small circle of politicians, administrators and professionals, such as archaeologists, academics, maritime scholars and treasure hunters. Only a limited number of heritage-concerned non-governmental organisations have started to implement advocacy approaches by conducting campaigns and drawing attention to the loss of the national heritage (Marbun 2011). Apart from a Second World War wreck opened up as a diving spot for recreational divers in Tulamben Bali, historic wrecks and their relics remain marginal and obscure in the public perception. There are only two maritime museums among Indonesia’s 275 state museums: these are in Ende on Flores and Jakarta on Java, and focus on fishery, seamanship and navigational history, but lack the archaeological perspective. Archaeologists and the government opt for a special-purpose maritime museum on Belitung Island (Sudaryadi 2011). None of the maritime collections in Indonesia describes the circumstances under which the underwater objects were recovered. They do not tell about the struggles over property rights, nor do they raise public awareness of the fragility of the underwater cultural heritage. The Fine Arts and Ceramic Museum in Jakarta, for example, exhibits the cargo of the Intan wreck, which represents the largest surviving assemblage of sunken artefacts in an Indonesian museum: at least 664 ceramic pieces and up to about 3,000 artefacts, including organic, ceremonial and utilitarian wares made from stone, glass and metal (Wahjudin 2011:Table 3; Wibisono 2013).8 This tenth-century ship is of intrinsic value for Indonesian history. The locally built ship was on its way from South Sumatra to Java when it sank in the Java Sea with an extremely rich cargo from various places in East and South East Asia. The finds allow a glimpse into its early international transhipping in the heydays of the Srivijaya empire which flourished from the seventh to fourteenth century in South Sumatra. In 1997, the salvage yielded 13,463 objects retrieved by a joint venture between the Indonesian licensee and the German, later New Zealand-based, company Seabed Explorations (Flecker 2002b). The material retrieved was first brought to Germany in 2002, then returned and exchanged with the Belitung cargo (see below) as partial payment to the Indonesian government, which sold the latter to the Singaporean Sentosa Leisure Group in 2005 (Flecker 2011:25–6).9 In contrast to all the wreck cases mentioned above, the total

Struggles over historic shipwrecks in Indonesia 89 cargo of the Belitung wreck, a ninth-century Arab dhow, remained together as the largest assemblage of artefacts from the Tang Dynasty (618–907). Most of the 60,000 ceramic artefacts retrieved, in addition to glass and metal objects, are welldocumented and were displayed to the public at Singapore’s Asian Civilizations Museum in 2015 (Krahl et al. 2011; Tan 2012).

Cultural property: terminologies and concepts Perceptions about the nature and worth of underwater archaeological sites have been changing, especially in Indonesia. This becomes obvious in the evocation of semantic fields where the subject matter in the national language is addressed by different stakeholders. In the non-state discourse, the Indonesian term harta karun is employed for historic shipwrecks and their associated relics, which is translated as “treasure/ treasury”. The expression includes the Sanskrit root artha (treasure, affluence, wealth) and an Arabic loanword karun (compassion, also the name of an Arabic man of wealth and avarice) (Jones 2007:145). This word is frequently used in the popular media by authorities, journalists and professionals referring to economic values and, more recently, also to non-materialistic values. Treasure salvage implies an economic gain and addresses the spectacular and adventurous. It finds an enthusiastic audience in the general public by depicting the imagination and curiosity of treasure hunting against all odds, lured by the thrill of discovery. The ship metaphor as an image of prosperity due to trade and connected to political power has a long continuity in the region. An overseas ship fully laden with rich cargo appears in the myths of origin of many societies of islands in South East Asia, joining with local tales of treasure-bearing seafarers which are retained and retold in the Islamic period. Similarly, in the Ming dynasty (1358–1644), Chinese who travelled to the South China Sea called their junks “treasure-ships” (baochuan), which are still vital in the seafarer cults of the localised Chinese merchant communities in coastal centres in South East Asia (Manguin 1991:50). A gradual shift away from the focus on the material profit in the public media has created alternatives, such as more mundane terms referring to the tangible aspects as artefacts or objects (artefak, objek) or addressing the historical nature, such as relics (tinggalan), underwater remains (peninggalan bawah air), or historical evidence (bukti-bukti sejarah). By contrast, there are two legal terms which address maritime artefacts, but which are highly contentious within the governmental discourses. First, the wording “valuable objects from the cargo of sunken ships” (benda berharga asal muatan kapal yang tenggelam) has been adopted in the historic shipwreck acts since 1989, addressing what is perceived as the most valuable part: the cargo and other tangible objects. Benda berharga refers to objects deemed to hold a historical, cultural, economic, or other value, but are crucially limited to VOC, Spanish, Portuguese and Second World War ships (Presidential Decree No. 43 of 1989, Art. 1b). The act was responsible for gaining state control of historic wreckage in a legal vacuum before the first Act on cultural property was enacted in 1992. In

90  Mai Lin Tjoa-Bonatz 2007, the newly created acronym BMKT (Benda Berharga Asal Muatan Kapal yang Tenggelam, see Presidential Decree No. 19 of 2007) was introduced: a disingenuous term within the governmental discourses which avoids a wording which is connected to the protection of cultural property. In Article 1, Para. 4–5, BMKT are defined as all objects from wrecks of historical, cultural, scientific and economic significance which are more than fifty years old. The state has the right to use this valuable material for the welfare of the nation and nation building. Accordingly, this promotes the salvage and allows for the disposal of historic shipwrecks with their relics on the open market. The acronym formerly employed by state actors trickled into both the scientific and public media. This technical term is commonly preferred by stakeholders who open up wrecks to commercial exploitation, such as the salvage companies and governmental bodies, and is used in business reports or administrative contexts. Meanwhile, a figurative sense of its value is added to the purely economic validity in the original sense. This is the reason why it is being adopted by both of the opposing parties in claiming market and non-market values. Second, shipwreck remains are addressed as “cultural property” (cagar budaya) consisting of the words cagar (protected, guaranteed) and budaya (culture). This term for historic objects was first introduced in the Act of 1992 (Act No. 5 of 1992; see the translation of the Ministry of Culture and Tourism 2003). Budaya is a loanword, probably an acronym inspired by the creation of two closely related but different words (budi-daya), alluding to the Sanskrit term buddhi meaning intelligence or wisdom (Jones 2007:44). Cagar budaya draws on an empowerment through knowledge around the notion of cultural objects and their significance for expressing identity and cultural belonging. It is, therefore, used by both state and non-state advocates for safeguarding historical objects. Article 1, Para. 1a of the Act No. 5 of 1992 mandates a protection of cultural material which is over fifty years old and possesses an important value for history, science and culture.10 These criteria form a qualifying definition of what constitutes cultural property in Indonesia. Among its cultural property, certain categories of objects are made, distinguishing heirlooms, which are inherited or owned by descent (warisan means heir, legacy, will), and historical objects, which are relatively common and representative of similar ones which are already owned by the Republic of Indonesia (Art. 6, Para. 2a–b). Only these two categories of artefacts allow private ownership. A similar differentiation between artefact categories of greater archaeological value than others, which can be sold or marketed, is made when a large ship cargo is recovered with similar artefacts of repeated designs. The concepts are developed further in the Act No. 11 of 2010, in which historic remains are addressed as cultural heritage – warisan cagar budaya – referring to a heavily loaded value statement. In Article 1, Para. 1, cultural heritage objects, structures and sites are clearly addressed on land as well as in the water. Since then, translations into English provided by Indonesian ministerial representatives link their protection issues to the international heritage discussions in which rights and procedures should be harmonised with ideas of a benefit for mankind, e.g. postulated as “cultural heritage of humanity” in the preamble of the UNESCO Convention of 2001 (Ghautama 2012:116–17).

Struggles over historic shipwrecks in Indonesia 91 These legal terms, two different concepts for the same objects, leave a certain margin of ambiguity in the attempts to deal with old shipwrecks when looking at issues such as ownership or the right to raise a wreck. A governmental moratorium was declared, therefore, in 2010 and halted all licensing of salvage operations, awaiting a new set of laws and regulations.

Contested property rights: legislation and implementation The question of property rights regarding sunken ships that have some cultural significance arises in the context of salvage. “Salvage” is intentionally used in this chapter, firstly, to underline that the salvor does not necessarily imply the owner. Secondly, this avoids calling the extraction of objects from the sea-floor excavations or recovery, terms which would comply with best archaeological standards: “The salvor, the person doing the saving [of life and property in danger of being lost at sea], is entitled to a reward taken from the value of the property saved” (O’Keefe 2014:6). A wreck is a disputed area and tracing its ownership is complicated. A ship and the place where it sank, its owner, its cargo and its crew may all have originated in different countries. Issues arise about the ownership of the vessel due to the real or imagined commercial value of the cargo and the personal possessions of the passengers or the crew. The principle of the freedom of the seas was widely applied in Asian countries and allowed commercial shipping and navigation without hindrance for many centuries before European discussion of the freedom of the seas (Anand 1981:444–6). Commercial and maritime usages, though, were codified in written documents as early as the tenth century, e.g. the right of exploiting shipwrecks is guaranteed in the royal edicts of Julah on Bali by sharing the profit among three claimants including the local authority (Hauser-Schäublin and Ardika 2008:286). The maritime codes of the fifteenth century – one of Malacca which was shaped by Javanese traders and one of Makassar which was edited by a local jurist from Sulawesi – recognised not only the ship-owner of a wreck, but also rewarded mariners who found and recovered it. Although these laws addressed small fishing boots ( prahu) and not trading ships with a large cargo, these local regulations highlighted the importance of governing entitlements of salvors and finders by various sharing models. They were entitled to compensation for up to half of the total value: “If the Prahu is driven from the Land without the fishermen, the persons who meet with it and bring it to the shore shall be entitled to demand half its value as a reward” (Raffles 1879: 79). Recognising the original ownership is problematic, therefore, the customary law of finds, a “right of shipwreck” (tawan karang, literally “flotsam”), comes into play. This assumes that the shipwreck is abandoned and the finder is the keeper. An example in history highlights the political tensions which can arise from these two diverging perspectives on admiralty laws regarding wrecked vessels. Since the middle of the nineteenth century, the Balinese and the Dutch governments debated Article 11 of the treaty of 13 July 1849. In 1904, the Dutch

92  Mai Lin Tjoa-Bonatz government accused the Balinese of plundering a Chinese cargo ship Sri Kumala, which had run aground on Sanur’s coast, and asked the local ruler of Badung to pay compensation to the Chinese merchant. When he refused, a military action was undertaken and 1,100 people died (Panhuys 1978:153; Creese 2006:2). These traditional Indonesian maritime laws, including salvage laws as well as laws of finds, encouraged the sale or marketing of the rescued material and were designed not to protect the entire structure of a historic wreck nor the archaeological information it contained. Following the 1982 United Nations Convention on the Law of the Sea (UNCLOS, 1982), Indonesia has special rights in the zone of 200 nautical miles from the baseline of the sea, including the Exclusive Economic Zone.11 The largest part of its territorial seas covers an ocean area of 3.1 million square kilometres, followed by the archipelagic area of 2.8 million square kilometres and the internal waters of 0.3 million square kilometres (Wahjudin 2011). So far, several governmental bodies, in cooperation with commercial companies, have allegedly identified 463 shipwrecks of different origins and dates. There is a clear concentration along the ancient maritime routes in the western part of the archipelago, which are shallower than in the eastern part of the country.12 The governmental institutions that have compiled these data are the Directorate of Safeguarding Underwater Remains (Direktorat Perlindungan Peninggalan Bawah Air) under the Ministry of Culture and Tourism, the Agency for Marine and Fisheries Research under the Ministry of Marine Affairs and Fisheries, Research and Technology on Oceanography (Litbang Oceanologi) under the Indonesian Institute of Sciences (LIPI) of the Ministry of Research and Technology, and the Hydro-Oceanographic Office of the Indonesian Navy (Dishidros TNI AL). By 2000, following the decentralisation policy, Indonesia’s sea territory was further distinguished into three zones: the zone up to four nautical miles from shore falls under the authority of the regencies and municipalities; the zone from 4 to 12 nautical miles from shore is placed under provincial jurisdiction; and beyond 12 nautical miles from shore, under state jurisdiction (Ministerial Regulation No. 48 of 2009, Art. 18–19; e.g., Regional Regulation of 2012, Art. 1, Para. 1). This regional autonomy gives rise to conflicts between different governmental bodies: local, regional and national. The demands of participation by these smaller geopolitical units further complicate property issues, obligations and the right to control. The increasing importance of their involvement is expressed by the number of applications for official permits for survey and salvage operations during the period from 2000 to April 2010. Among the 59 applications made, 18 were addressed to the national government, 8 were made to the municipality and 33 to the regency (Jawa Pos National Network, 5 May 2010). When the shipwreck of the Nanhan/Cirebon from the tenth century was discovered, well offshore, in North Java, the local Sultanate claimed ownership rights and deplored the sale of its artefacts because it is “treasure of the people of Cirebon” (Liebner 2014:18, fn. 63). The technical supervision falls under the responsibility of the local branch of the Monuments Preservation Department (renamed as the Balai Pelestarian Cagar Budaya, BPCB, since 2014), in turn, under the Ministry of Education and

Struggles over historic shipwrecks in Indonesia 93 Culture, which undertakes the protection, preservation, exploration and managing of cultural property. Its structure, location and competence are not always adapted to the special needs of maritime conservation.13 Apart from such intranational controversies about the property of shipwrecks, there are also potential conflicts with neighbouring countries. The deep seabed lies beyond any state jurisdiction, a rule in the UNCLOS 1982 confirming the freedom of the high seas. Its exploration must be agreed on bilateral or supranational terms. Two incidences show that more conflicts between states about the property rights of underwater cultural heritage in these maritime zones will arise in future. Firstly, in 1989, Indonesia faced disputes concerning ownership rights with the Malaysian government over a sunken Portuguese ship from 1511, which allegedly carried the wealth of the Sultan of Malacca. It has never been found (Nayati 1995:6–7; Flecker 2002a:21; Utomo 2006:15). Secondly, since 1999, tension has arisen about territorial demarcations in the South China Sea due to China’s intensifying campaign to assert ownership over natural resources and archaeological sites, leading to violence against Philippine archaeologists (Page 2013). This area is traditionally claimed by China, but overlaps with claims of the Philippines, Brunei, Malaysia, Indonesia and Vietnam. The first notable reference to the potential significance of shipwrecks in Indonesia dates back to 1966 when foreign companies undertook salvage work (Kompas, 25 January 1966). The first, and therefore, iconic case for Indonesia was the salvage of archaeological material from the Geldermalsen in 1985 by the Australian diver Michael Hatcher and his Swiss partner Max de Rahm. The VOC ship with Chinese cargo sank in 1752 in east Bintan, off the east coast of Sumatra. “My motto”, Hatcher always says, “is ‘finders keepers’” (Edwards 2000:127). The case has been extensively covered in the literature and I will, therefore, only summarise some important issues here. Shards and cracked vessels were left unrecorded in the seabed. The wreck was destroyed by the salvor and no documentation of the salvage exists (Hatcher and Thorncroft 1999:87; Flecker 2009:47). Apart from Hatcher’s donation of a small number of items recovered to public collections, the cargo was sold by Christie’s in an auction in 1985.14 It achieved the highest total for an auction of 150,000 porcelain vessels and 126 gold ingots at that time.15 In order to avoid ownership requests from other parties, such as China and Indonesia, the auction house neither provided clear evidence of the location of the wrecked ship, its name, the owner nor the precise amount of the finds retrieved (Miller 1987; Scovazzi 2003:27). The Netherlands claimed on the basis that it was the successor in the title after the VOC went bankrupt.16 Indonesia raised a lawsuit, as the wreck lay within its territory. However, neither Indonesia nor China, the country of origin of the cargo, received a financial share.17 At that time, Indonesia did not have regulations in force dealing with maritime sites. Its laws protecting cultural objects still originated from the Dutch colonial period and did not specifically mention shipwrecks or other objects found underwater (Nayati 1995:152–3). Indonesia’s government realised the loss of valuable state property and set up an agency to control activities arising within its territorial waters. In 1989, the National Committee for Salvage and Utilization of the Valuable Cargo of Sunken

94  Mai Lin Tjoa-Bonatz Ships (PanNas BMKT: Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga Asal Muatan Kapal yang Tenggelam) was founded in order to safeguard valuables recovered from the sea as state property (Presidential Decree No. 43 of 1989). This institution is responsible for the licensing, supervision of the activities of its licensees, exploration and exploitation of the wrecked ships and their cargo. Their first technical regulation dates to 1990 when PanNas BMKT was still under the Ministry of Transportation and Communication. Since 1999, PanNas BMKT has been under the control of the Ministry of Fishery and Marine Affairs, which provides the chairman of the committee. The vice chairman is provided by the Ministry of Culture and Tourism, which established its section, the Directorate of Safeguarding Underwater Remains (also called Directorate of Underwater Archaeology), in 2003 as the strongest body for safeguarding underwater remains and underwater archaeology. Fifteen governmental institutions are subordinate to this, including several branches of law enforcement, such as the coast guard, navy and customs.18 Among these, the Indonesian Navy (TNI AL) forms a strong interest group through their lobbying body, the Institute of Maritime Safety and Security (IK2MI). PanNas BMKT issued 71 survey licences to 19 different Indonesian salvage companies (including one cooperative) between 2000 and 2010, among which only five successfully obtained the permit for nine excavations. Most of these accredited salvage companies were involved before revised technical procedures were issued in 2000. However, the requirements regarding the fulfilment of archaeological standards are still dubious (Liebner 2014:14). The official recovery licence is granted to an Indonesian company as an investor which is allowed to subcontract globally acting commercial companies for the actual handling. The investor must pay the operational costs, fees to the authorities and remunerations to governmental staff from the navy and the police, but nothing is known about the shares between the national and the international companies. The Indonesian government permits the sale of the cargo of a shipwreck on a profit-sharing basis with the salvage firm on a 50/50 basis, divided on the net sale proceeds (Presidential Decree No. 25 of 1992). In addition, by way of negotiation, a certain number of artefacts are reserved for the National Museum. Its latest maritime acquisitions are 39 ceramic vessels from the Belitung and 976 items from the Nanhan/Cirebon wreck, from which artefacts were temporarily exhibited in 2012. The Indonesian government began organising the sale by the state-owned auction house in Jakarta of the rich cargo of about 500,000 objects of predominant Chinese origin recovered from the Nanhan/Cirebon, a tenth-century vessel constructed in the archipelago, in 2009. This cultural origin makes it difficult for the Indonesians to accept it as their cultural heritage. When the auction was announced in 2010 for the state-owned share of 271,834 artefacts, a representative of the Ministry of Culture and Tourism publicly stated what has been frequently repeated in local Internet forums: “Indonesia shouldn’t be disappointed because this treasure does not belong to Indonesia’s culture but to the culture of China” (Rizallulhaq 2010). Nevertheless, archaeologists, local leaders and the public media opposed the sale harshly and, still in 2014 – even after the third auction – no bidders have been found. The other half of the cargo has been sold to the

Figures 4.1 and 4.2  The devastated underwater site of the Tek Sing wreck, Belvidere Reef, Indonesia, where around 350,000 unrecorded shards were left on the seabed. The cargo mainly consisted of early nineteenthcentury porcelain from South China (© Alejandro Raul Mirabal, Arquaeonautas SA).

96  Mai Lin Tjoa-Bonatz National Museum of Qatar (Liebner 2014:22–3). Sihotang (2013) attributes the failure of the auction to organisational errors and falsely grounded auction terms which are not geared to market conditions, e.g. an exaggerated high bidding deposit and restricted timing.

The Tek Sing wreck: licensed but fraudulent After the first national regulations were put into force in 1989, the recovery of the Tek Sing wreck in 1999 shows how Indonesia struggled to claim property rights, while an Australian company freely sold, translocated and transferred the archaeological goods. The large Chinese junk Tek Sing (“True Star”) sank in the Riau Archipelago on its way from Xiamen, South China, to Jakarta in 1822. On board were 1,600 people and a crew of 200. Most of them, mainly Chinese immigrants, drowned. Only 190 people survived and were rescued by an English opium-trading ship. The mercantile load, an enormous quantity of more than 350,000 pieces of ceramics, was compiled from various places in Southern China and designed for the South East Asian market. Porcelain was a highly appreciated and durable commodity in contrast to the unglazed local earthenware made on Java. Blue-and-white painted dishes in matching sets were the predominant types to be redistributed at the destination port. Rare items of high unit value complemented the repertoire of valuables which were either trading goods, items on demand, or personal belongings of the passengers, such as metallic objects, ceramic antiquities and individually inscribed teapots or figurines. A few artefacts, such as gravestones and Buddhist sculptures, had ceremonial significance for the Chinese overseas community. Earthenware jars were used in the foodstuff and opium trade. Utilitarian and artisanal items paint a picture of the volume and diversity of products involved in Chinese maritime shipping to Indonesia. In 1999, the Australian shareholding company Ocean Salvage Corporation, owned by Michael Hatcher, already involved in the Geldermalsen case, took over the salvage of the Tek Sing. The dimensions of the salvage barge of 50 x 14 metres designed for 42 workers underline the size of this costly enterprise. The objects which were estimated as being monetarily valuable, including porcelain, metal and stone artefacts, were retrieved during 2,250 dives. Others which were judged as not worth saving were left on the seabed, human remains were ignored and cracked vessels were dropped back into the sea (see Figures 4.1, 4.2). The amount of neglected and remaining artefacts on the site was so high that recently another firm has exploited the same site (Liebner 2014:12, fn. 21). A legacy of about 350,000 shards from the Tek Sing leave a site of devastation on the seabed (Mirabal 2008:25). The lack of excavation records, either in the context of the archaeological find or the shipwreck, the inappropriate conservation measures and the selective recovery of historic material contravene appropriate archaeological standards. These include the mapping and full documentation of the site, a dive-record, conservation and display of the excavated material to the public. Hatcher is discredited by what UNESCO calls a “treasure-salving company”

Struggles over historic shipwrecks in Indonesia 97 (UNESCO 2009:7). In order to dispel doubts about the company’s expertise, the hardships of the time-consuming and technically well-equipped salvage were extensively described in their publications (Pickford and Hatcher 2000:109–11). Hatcher emphasises that archive sources exist on the wreck and his team preserved material which would otherwise have been unrecorded or sold on the black market, damaged by natural causes, or looted. He also blames the governments and says that their efforts are inadequate to safeguard their heritage (Pickford and Hatcher 2000:115–17). These rationales are often mentioned in favour of profit-oriented enterprises. The economic constraints which led to an end of the company’s exploration in Indonesia were smothered by sensational stories about possible fear of political unrest and constant threat of “pirates”, which cater to a common perception of the assumed adventurous work of maritime “archaeologists” (Pickford and Hatcher 2000:117, 125). Hatcher’s Australian company claimed that the operation was conducted under official licence in cooperation with the Indonesian company PT Pratama Cakrawala Dirga. In September 1999, it turned out that the latter was only a “shell company” for which a general in the Ministry for Political and Security Affairs and other suspects were accused of forging signatures for the purpose of issuing a permit (Jakarta Post, 13 September 2000). Due to this case of fraud and bribery, into which Hatcher’s company was drawn, his divers, who had intended to pursue a second salvage expedition, were detained in prison and their equipment was confiscated (Pope 2007:281–2). During the same period, a Belize-flagged ship hired by Hatcher in Singapore transported to Adelaide the items already retrieved. The number of containers varies between 43 and 47, according to the sources (Pope 2007:267). Australia of its own volition notified Indonesia about shipwreck artefacts apparently illegally exported even before Indonesia’s request was made. The illegal export could not be proven and, before an Indonesian representative arrived, Australia allowed 37 containers to be exported to Germany. Australia’s legislation allowed holding only for 60 days.19 Seven shipping containers were subsequently found by the Australian Federal Police and since Indonesian evidence of the illegality had not yet been received, these were sent back to Indonesia one year later (Pope 2007:312–13). The whereabouts of this portion of the porcelain from the Tek Sing is unknown. In November 2000, the sale at the Nagel auction house in Stuttgart was a fait accompli for the Indonesian government representatives who attended the auction. A total of DM22.4 million (= US$9.7 million) was achieved by selling 16,100 lots.20 The number of the objects retrieved has not been authoritatively established and varies distinctly between 140,000, as reported to the Indonesian government, and 360,000 pieces at the auction (Nagel Auctions 2000:111; Pickford and Hatcher 2000:109; Utomo 2006:15). The literature is also ambiguous about the deal between the Indonesian government and the salvage company made on the very morning of the sale. Indonesian sources reconfirm that their government has received a 50 per cent reimbursement and 1,500 porcelain vessels (TEMPOinteraktif 2000).21 The shareholders expected a high profit engendered by inflated estimations that arose in respect of shipwreck “treasure”. However, at the shareholders’ meeting in Adelaide, they were

98  Mai Lin Tjoa-Bonatz informed that the expenses of the operation of around US$20 million were barely covered and the expected profit sharing did not take place (Pope 2007:344–5). This highlights the fact that salvage operations – even those which do not even meet professional standards – are enormously costly and do not serve as a profitoriented business model. The central issue that causes problems such as occurred with the Tek Sing lies in the contradictory legal policies concerning the management of underwater remains. On the one hand, the salvaged material is addressed as cultural property (benda cagar budaya), which requires preservation and protection. The Act which concerns the protection of cultural property was released in 1992 (see above) and declares historical objects as state property (Act No. 5 of 1992, Art. 1), but it does not clearly address underwater items. On the other hand, the opposite policy which was put into law in the aforementioned Act in 1989 treats the objects as marine resources, allowing recovery (penangkatan) and use (pemanfaatan), which implies the sale, exchange, or auction of the objects (Presidential Decree No. 43 of 1989, Art. 1c–d). These terms are incompatible with safeguarding and preservation. This contradictory attitude of national authorities – that underwater artefacts require preservation and protection, on the one hand, while being treated as marine resources allowing their exploitation on the other hand – is clearly expressed in interviews conducted among the policy-making level employees in the Ministry of Marine Affairs and Fisheries and the Ministry of Education and Culture. Although these two institutions are well aware of the intrinsic cultural and historical value of the wrecked cargo, neither consider the in situ preservation as an option. The former favours the involvement of private companies and commercial exploitation, whereas the latter takes a more protectionist approach and strongly opposes the state selling the artefacts to increase its revenues (Tahir 2011). The sale of porcelain from an unidentified shipwreck turned out to be less profitable at the Christie’s auction in 1983. Therefore, the exhilarating narrative concerning the Tek Sing salvage was most successfully dramatised. The pseudonym “Titanic of the East” coined by Hatcher, picking up a popular maritime icon that is connected to the great loss of life with its sinking, supported the marketing strategy by the German auction house which had newly entered the international art market of Asian antiquities in 1999. The first naming as the “Chinese Titanic” by Hatcher was probably adopted in favour of a more diffuse and oriental name in order to avoid claims from China. The story of the rescued people appears prominently in the narrative and adds to the sentimental value of the objects. Aesthetic and monetary evaluations of the finds were connected to the archaeological objects. The hand-painted design and the glaze have survived nearly unaffected by the seawater even after many centuries, and most of the marine organisms had been removed directly after their recovery (see Figures 4.3–5). Apart from these aesthetic appeals which please and engage the senses, the nearly 200-year-old pottery also provides information about its historical context, the technological standards, craft skills and trading networks. Connoisseurship and art historical knowledge have also established additional qualities affixed to these objects making them highly valued antiquities. From the western perception, this perspective

Figures 4.3, 4.4 and 4.5  Blue-and-white porcelain from Dehua (China) recovered from the Tek Sing wreck which sank in 1822. The coral incrustations on the plate (diameter 18.9 centimetres) document its wrecked history (private collection). Centre: three bowls (diameter 18.9 centimetres), Stiftung Deutsches Technikmuseum Berlin (inv. no. -1/2000/1209/001, -1/2000/1209/002, -1/2000/1209/003). Below: The auction house’s tag with the lot number is stuck on the base of the bowl (diameter 14.3 centimetres) and tells about its provenance (private collection) (© LWL-Industriemuseum Schiffshebewerk Henrichenburg).

100  Mai Lin Tjoa-Bonatz on decorative crafts allows the rehabilitation of the genre, which was formerly considered inferior to art objects, as part of the narratives. A range of visualisation and exhibition techniques caused a new dimension in the auction of decorative arts and transformed the sale of the Tek Sing cargo “into a thrilling experience, not just for ‘professional’ bidders”, but for the man in the street and “even for a person who has everything” (Nagel Auctions 2000:9).22 Adventure novels and a documentary film of the recovery were produced for the publicity campaign (Taylor 2000; Pickford and Hatcher 2000; Edwards 2000). The auction house prepared a bilingual catalogue as a reference book, set up a travelling exhibition in twelve international cities, and held a four-month exhibition in Stuttgart railway station, presenting a reconstruction of the ship which was visited by 20,000 people. The aim to maximise publicity while expanding the range of potential buyers even resulted in the dubious fame of an entry in the Guinness World Records book. The availability of historic artefacts for relatively reasonable prices attracted a wide audience that acquired individual objects for their “souvenir appeal” (Dittmar 2000). Thirteen per cent of the sale bids were carried out via the Internet, which constitutes only seven per cent of the total profit. Among the 3,000 registered bidders were dealers, international department stores like Harrods, collectors, academics and museum curators. Several museums from all over the world bought objects at the auction, such as the Quanzhou Museum in China, the British Museum in England and the Technical Museum Berlin in Germany, which acquired 210 artefacts for their newly established exhibition in 2003. Others have obtained ceramic vessels of the Tek Sing cargo as donations from private collectors, e.g. the Ethnological Museum of Dresden in Germany or the Asian Civilisations Museum of Singapore.

Concluding remarks When the planned exhibition of the Belitung wreck at the Smithsonian in Washington was cancelled in 2011 after an uproar over how the finds were recovered, the museum offered instead a re-excavation of the site. However, just one year later, nothing was left, the site had been completely looted (Rohde 2013:25). The international discussion on underwater cultural heritage has already attracted enough criticism in the past decade that public institutions should raise the awareness of the issues of looting, and economic and legal constraints typical for this region. They should also consider the irretrievable losses to Indonesia’s underwater cultural heritage. This is the museum’s primary responsibility which is connected to their ownership of maritime heritage. Competing actors have claimed their property rights concerning sunken archaeological objects from Indonesia over the past thirty years. Apart from government authorities, other powerful stakeholders have declared their interest, ranging from local and regional communities to internationally operating salvage companies. These right holders justify their claims on various grounds: some claim inherited or territorial-bound rights, and economic rationales are put forward, while others want to ensure the provision of cultural property for the benefit of the public.

Struggles over historic shipwrecks in Indonesia 101 Salvage laws and concepts of historical objects in Indonesia are being redefined in the context of separate legislation enacted for historical wrecks. My three key perspectives, which were adopted to capture the range of rights, conflicting perspective and policies of cultural property and the impact on the wreck finds, underpin the conclusion that underwater cultural heritage is fraught by the opposing concepts of heritage protection issues and the exploitation and economic use of archaeological finds. The treasure salvage of the Tek Sing wreck highlights the loss of cultural material for Indonesia for quick commercial profit, whereas the artefacts from the Belitung or the Intan wreck, which are displayed in museums, have achieved a reasonable compromise and long-term benefit.

Notes   1 The enduring support of Brigitta Hauser-Schäublin, most useful comments of Lyndel V. Prott and the valuable assistance of Meilan Ningsih in Jakarta are highly appreciated. My sincere thanks are also extended to inspiring discussions with Michael Flecker, Horst Liebner and Graf Nikolaus von Sandizell (Arquaeonautas SA). Arda Akkus (Deutsches Technikmuseum Berlin), Arnulf Siebeneicker (LWL-Industriemuseum Schiffshebewerk Henrichenburg) and Alejandro Mirabal (Arquaeonautas SA) have kindly provided the images and additional information. Waruno Mahdi helped with linguistic references.   2 Eleven illegal salvage cases were recorded between 2005 and 2011 (Sudaryadi 2011).   3 E.g. in the Musi River, South Sumatra (Kompas, 8 September 2009).   4 Evidence of dynamiting is given at the Java Sea wreck (Flecker 2012:82).   5 In situ protection is often misinterpreted as preventing underwater exploration but it only mandates that before objects are removed the best modes of preservation should be considered e.g. being used as an underwater tourist site or trail, see Rule 1 in the Annex to the 2001 Convention (UNESCO 2001) http://www.unesco.org/new/en/culture/themes/ underwater-cultural-heritage/protection/in-situ-protection/ (accessed 5 May 2015).   6 Salvage companies restrict information to the public, as the two following examples will show. I was unable to collect any information on the salvage of the Belitung wreck from an employee of this company, Seabed Explorations, since he had agreed by contract to maintain silence about his work (Peter Schwarz, personal communication, 29 October 2014). The same company sued its marketing agent, Baron Nicolai von Uexkull, in 2006 “for breach of confidentiality” when price-sensitive data were distributed (Leow 2009).   7 The monthly costs range from at least US$50,000 to US$1.2 million for deep-sea salvage (Groothuis 2011; Kingsley 2012:146).   8 The documentation has been halted because the storage room was flooded (Naniek Harkantiningsih Wibisono, personal communication, 13 November 2014).   9 This group, a Singapore Government statutory board, bought 53,000 pieces for US$32 million, and later donated the collection to the Singapore Tourism Board (Leow 2009). Oman and China were also interested in buying the cargo. 10 The time limit of 50 years including Second World War relics is even more restrictive than the 100-year limitation of the UNESCO Convention of 2001. 11 Act No. 5 on the Exclusive Economic Zone, 18 Oct., State Gazette R.I. No. 44 of 1983. 12 After Marbun (2011: Table 1): Sumatra (89 sites), Java (231 sites), Sulawesi (11 sites), Sunda Islands (101 sites) and Papua (31 sites).

102  Mai Lin Tjoa-Bonatz 13 Sumatra’s east coast, in particular the Riau Archipelago, is richly endowed with underwater archaeological sites. The Monuments Preservation Department in charge of West Sumatra and Riau lies far up in the highlands in Batu Sangkar and lacks appropriate facilities and the educational background of the staff. The central government has, therefore, funded educational programmes, research publications and launched the journal Varuna. Jurnal Arkeologi Bawah on underwater archaeology in 2007 (Wahjudin 2011:Table 4). 14 In relation to the huge cargo and monetary gain, Hatcher’s donation of an undifferentiated amount of “over 50 pieces” to two Dutch museums and broken vessels to the Asian Civilisations Museum in Singapore appears a rather poor effort to sustain cultural property for public display (Jörg 1986:6, 53; Kwa Chong Guan 2012:Fig. 5). 15 According to a Christie’s representative, the total attained was GB£10 million (= US$18.4 million) (Sheaf 1987:22). 16 By contrast, the Agreement between the Netherlands and Australia concerning old Dutch shipwrecks (ANCODS) of 1972 settled the issue of ownership in favour of Australia (Art. 1) and set out an arrangement for the sharing of the finds: http:// www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1972/18.html (accessed May 2015) see also Dromgoole 2013:110. 17 This sale initiated the establishment of the Underwater Archaeology Centre of China in 1987 (Hilgers 2011). 18 The list of members was put into law by the Presidential Decree No. 19 of 2007, Art. 6. 19 Protection of Movable Cultural Heritage Act 1986 31(5)c. 20 Due to follow-on sales, the total exceeded US$17 million (Pope 2007:309, 312). 21 The actual amount is inconsistent in the literature, e.g. RP90 billion (=US$9.9 million) mentioned in “Dermaga” (2014:48). No records were kept by the Nagel auction house, according to their spokesman (personal communication, 27 October 2014). 22 The last phrase was written on the cardboard packing box used by a bulk buyer at the Nagel auction. He sold individual objects to end consumers (Siebeneicker 2014:88, cat. 4.5).

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Struggles over historic shipwrecks in Indonesia 103 Dromgoole, Sarah (2013) Underwater cultural heritage and international law. Cambridge: Cambridge University Press. Edwards, Hugh (2000) Treasures of the deep: the extraordinary life and times of Captain Mike Hatcher. Harper Collins Publishers Australia. Fadli (2014) More thefts of sunken objects occur in Batam. Jakarta Post, 26 May: http:// www.thejakartapost.com/news/2014/05/26/more-thefts-sunken-objects-occur-batam. html (accessed 27 December 2014). Flecker, Michael (2002a) The ethics, politics and realities of maritime archaeology in Southeast Asia. The International Journal of Nautical Archaeology 31(1):12–24. —— (2002b) The archaeological excavation of the 10th century Intan Wreck (BAR International Series 1047). Oxford: Archaeopress. —— (2004–05) Treasures from the Java Sea (the 10th century Intan shipwreck). Heritage Asia Magazine 2(2): http://maritime-explorations.com/intan.htm (accessed 28 December 2014). —— (2009) Maritime archaeology in Southeast Asia. In: Miksic, John N. (ed.): Southeast Asian ceramics, pp. 34–47. Singapore: Southeast Asian Ceramic Society, Editions Didier Millet. —— (2011) Wrecked twice: shipwrecks as a cultural resource in Southeast Asia. In: Miksic, John N., Geok Yian, Goh and O’Connor, Sue (eds): Rethinking cultural resource management in Southeast Asia, pp. 15–38. London: Anthem Press. —— (2012) Rake and pillage: the fate of shipwrecks in Southeast Asia. In: Tan, Heidi (ed.): Marine archaeology in Southeast Asia: Innovation and adaptation, pp. 70–85. Singapore: Asian Civilisations Museum. Ghautama, Gatot (2012) Underwater archaeology in Indonesia: experiences and prospects. In: Tan, Heidi (ed.): Marine archaeology in Southeast Asia. Innovation and adaptation, pp. 114–19. Singapore: Asian Civilisations Museum. Green, Jeremy (1988) Book review: the Nanking Cargo by Michael Hatcher with Max de Rham and other books on the Geldermalsen. International Journal of Nautical Archaeology and Underwater Exploration 17(4): 357–62. Grenier, Robert (2006) The making of the annex: archaeology and the convention. In: Prott, Lyndel V. (ed.): Finishing the interrupted voyage; papers of the UNESCO AsiaPacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural Heritage, pp. 114–20. Leicester: Institute of Art and Law. Groothuis, Ulli (2011) Millionenfund. MAN-Aussteiger auf Schatzsuche. Wirtschaftswoche, 25 June: http://www.wiwo.de/unternehmen/millionenfund-man-aussteiger-auf-schatzsuche/5299132.html (accessed 12 May 2015). Hatcher, Michael and Anthony Thorncroft (1999) The Nanking Cargo. In: Prott, Lyndel V. and Ieng Srong (eds): Background materials on the protection of the underwater cultural heritage, pp. 84–93 UNESCO: The Nautical Archaeology Society [reprint of 1987]: http://unesdoc.unesco.org/images/0011/001159/115993mo.pdf (accessed 12 May 2015). Hauser-Schäublin, Brigitta and I Wayan Ardika (2008) Burial, texts and rituals. Ethnoar­ chaeological investigations in North Bali, Indonesia. Göttingen: Universitätsverlag: http:// webdoc.sub.gwdg.de/univerlag/2008/GBE1_bali.pdf (accessed 27 December 2014). Hilgers, Lauren (2011) Pirates of the marine silk road. A shipwreck in the South China Sea advances China’s emerging field of underwater archaeology. Archaeology 64(5): http:// archive.archaeology.org/1109/features/south_china_sea_ming_dynasty_shipwreck. html (accessed 28 December 2014). Jakarta Post (2000) More suspects named in case of looted treasure, 13 September: http://www.thejakartapost.com/news/2000/09/13/more-suspects-named-case-lootedtreasure.html (accessed 29 December 2014).

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Struggles over historic shipwrecks in Indonesia 105 Nayati, Pudak (1995) Ownership rights over archaeological/historical objects found at sea: a study of the Republic of Indonesia’s act No. 5 of 1992 and related regulations. MA Thesis, Halifax: Dalhousie University: https://www.academia.edu/11725617/ ownership_rights_over_archaeological_historical_objects_found_in_indonesian_ waters_republic_of_indonesia_act_no_5_of_1992_on_cultural_heritage_objects_and_ its_related_regulations (accessed 2 May 2015). O’Keefe, Patrick J. (2014) Shipwrecked heritage: a commentary on the UNESCO Convention on Underwater Cultural Heritage. Leicester: Institute of Art and Law. Page, Jeremy (2013) Chinese territorial strife hits archaeology: China has begun asserting ownership of thousands of shipwrecks in the South China Sea. Wall Street Journal, 2 February: http://www.wsj.com/articles/SB10001424052702304470504579164873258 159410 (accessed 27 December 2014). Panhuys, Haro F. van (ed.) (1978) International Law in the Netherlands, vol. 1. Alphen/ Rijn: Sijthoff Noordhoff. Pickford, Nigel and Michael Hatcher (2000) The legacy of the Tek Sing. China’s Titanic – its tragedy and its treasure. London: Granta. Pope, Frank (2007) Dragon Sea. A true tale of treasure, archaeology, and greed off the coast of Vietnam. Orlando: Harcourt. Raffles, Sir Stanford (1879) The maritime code of the Malays. Journal of the Straits Branch of the Royal Asiatic Society 3:62–81 and 4:1–20. Ranong, Jetjaras Na (2014) Diving for antiquities. 2.22 min. Video. Bangkok Post, July: http://www.bangkokpost.com/multimedia/vdo/thailand/419844/diving-for-antiques (accessed 28 December 2014). Rizallulhaq, Adam (2010) Di balik layar harta karun. The Cirebon wreck. Antara News, 7 May: http://www.antaranews.com/berita/185925/di-balik-layar-harta-karun-the-cirebon-wreck (accessed 28 December 2014). Rohde, Pelin (2013) Sunken treasures, worldly pleasures: the Smithsonian’s “shipwrecked” exhibition and the museum’s role in the preservation of underwater cultural heritage. MA Thesis, Harvard University: https://harvard.academia.edu/PelinRohde (accessed 11 September 2015). Scovazzi, Tullio (2003) The application of “salvage law and other rules of admiralty” to the underwater cultural heritage: some relevant cases, pp. 19–80. In: Garabello, Roberta and Tullio Scovazzi (eds): The protection of the underwater cultural heritage before and after the 2001 UNESCO Convention. Leiden and Boston, MA: Martinus Nijhoff. Sheaf, Colin D. (1987) The Nanking Cargo of Chinese porcelain and gold. Asian Affairs 18(1):22–9. Siebeneicker, Arnulf (ed.) (2014) Versunkene Schiffe. Abenteuer Unterwasserarchäologie. Exhibition catalogue. Essen: Klartext. Sihotang, Riama L. (2013) Problematika kegagalan pelaksanaan lelang benda berharga asal muatan kapal yang zenggelam, MK Thesis, Jakarta: Universitas Indonesia: http://lib. ui.ac.id/file?file=digital/20334157-T32559-Riama%20L.%20Sihotang.pdf (accessed 20 December 2014). Spitzing, Tamara (2005) Schatzsuche in Asien. Das alte Goldland Srivijaya, Länder, Menschen, Abenteuer. 45 and 53 min. DVD. WDR, ARTE. Sudaryadi, Agus (2011) The Belitung wreck site after commercial salvage in 1998. AsiaPacific Regional Conference on Underwater Cultural Heritage Proceedings: http:// www.themua.org/collections/items/show/1230 (accessed 26 August 2014).

106  Mai Lin Tjoa-Bonatz Tahir, Zainab (2011) Cultural attitude and values towards underwater cultural heritage and its influences on the management actions in Indonesia. Asia-Pacific Regional Conference on Underwater Cultural Heritage Proceedings: http://www.themua.org/ collections/items/show/1641 (accessed 28 December 2014). Tan, Heidi (ed.) (2012) Marine archaeology in Southeast Asia: innovation and adaptation. Singapore: Asian Civilisations Museum. Taylor, Jeremy (2000) Tek Sing – China’s Titanic. 50 min. DVD. DigiComTV, InCA. TEMPOinteraktif (2000) Mengejar sampai Stuttgart, October: http://tempointeraktif.com/ khusus/selusur/harta.karun/page09.php (accessed 27 December 2014). UNCLOS (United Nations Convention on the Law of the Sea) (1982) http://www.un.org/ Depts/los/convention_agreements/texts/unclos/unclos_e.pdf (accessed 1 March 2015). UNESCO (2001) Convention on the Protection of the Underwater Cultural Heritage: http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/2001convention/official-text/ (accessed 4 March 2015). —— (2009) Information kit for the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage: http://www.unesco.org/new/en/culture/themes/ underwater-cultural-heritage/ (accessed 2 May 2014). Utomo, Bambang Budi (2006) If only Indonesia’s underwater treasures are properly taken care of. The Point, November 2006:14–16 [translation of Berburu harta karun di dasar laut Nusantara. Kompas, 8 May 2006]. Wahjudin, Judi (2011) Human resources development in Indonesia’s underwater archaeology, Asia-Pacific Regional Conference on Underwater Cultural Heritage Proceedings: http://www.themua.org/collections/files/original/3c68f6f321e72eec85a3 4155b0f69ec4.pdf (accessed 2 May 2015). Wibisono, Naniek Harkantiningsih (2013) Ceramics from shipwrecks in the waters of the Indonesian Archipelago: evidence of the trade network during 10th–13th centuries. Jakarta: Fine Arts and Ceramic Museum, Department of Culture and Tourism, Provincial Government.

Laws of Indonesia Act No. 5 of 1983 on the Exclusive Economic Zone, 18 Oct. State Gazette R.I. No. 44 of 1983. Available on UNESCO legislative database: http://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1983_Act.pdf (accessed 27 September 2015). Act No. 5 of 1992 on Heritage Objects: Undang-Undang Republik Indonesia no. 5: Benda Cagar Budaya: http://birohukum.pu.go.id/uploads/DPU/1992/UU5-1992.pdf (accessed 1 March 2015). Act No. 11 of 2010: Undang-Undang Republik Indonesia tentang Cagar Budaya: http:// birohukum.pu.go.id/uploads/DPU/2010/UU11-2010.pdf (accessed 1 March 2015). Ministerial Regulation No. 48 of 2009 on Guidelines for Management of Underwater Heritage Culture and Tourism: Pedoman Pelaksanaan Pengelolaan Peninggalan Bawah Air. Ministry of Culture and Tourism (2003): Compilation of law and regulation of the Republic of Indonesia concerning items of cultural property. Jakarta: http://www.unesco.org/ culture/natlaws/media/pdf/indonesie/indonesia_compilation_of_law_2003_engl_orof. pdf (accessed 1 March 2015). Presidential Decree No. 43 of 1989 on the National Committee and utilization of valuable cargo from sunken ships; Keputusan Presiden Republik Indonesia; Panitia Nasional

Struggles over historic shipwrecks in Indonesia 107 Pengangkatan dan Pemanfaatan Benda Berharga Asal Muatan Kapal Yang Tenggelam: http://www.bphn.go.id/data/documents/89kp043.doc (accessed 1 March 2015). Presidential Decree No. 25 of 1992 on Profit Sharing between the Indonesian Government and Salvage Companies with Salved Valuable Objects Retrieved from Shipwrecks: Pembagian Hasil Pengangkatan Benda Berharga Asal Muatan Kapal yang Tenggelam antara Pemerintah dan Perusahaan: www.hukumonline.com/pusatdata/.../parent/21741 (accessed 12 May 2015). Presidential Decree No. 19 of 2007 concerning the Appointment of the National Committee and the Utilization of Valuable Cargo raised from Sunken Ships: Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga Asal Muatan Kapal Yang Tenggelam: http://www.menpan.go.id/jdih/perundang-undangan/keputusanpresiden?limit=10&start=210 (accessed 1 March 2015). Regional Regulation (Yogyakarta) of 2012 on Cultural Heritage Conservation and Heritage: Peraturan Daerah Provinsi Daerah Istimewa Yogyakarta No. 6 tentang Pelestarian Warisan Budaya dan Cagar Budaya Art. 1 No. 1: http://www.tasteofjogja. org/resources/artikel/215/Raperda%20Cagar%20Budaya%20-%20FINAL%20 Tapak%20Astan-Juli.pdf (accessed 27 September 2015).

5 Faked biographies The remake of antiquities and their sale on the art market Brigitta Hauser-Schäublin and Sophorn Kim

Introduction: from theft to sale

Scenario 1 At 2 a.m. on 10 December 2013, thieves broke into a huge “multimillion dollar stupa” (Cambodia Daily, 13 December 2013) which had a marble staircase in the hills of Oudong, the old royal capital of Cambodia; they stole the golden urn said to contain the ashes of Buddha and several statues that were placed on the top of the sacred building. The ashes had been brought by the late King Norodom Sihanouk from Sri Lanka to Cambodia in 1957 on the occasion of the 2,500th anniversary of Buddha’s death. In 2002, King Sihanouk led a grand ceremony in which the relics were moved to the stupa complex in the Oudong hills, where memorial sites of the royal family and other Cambodian heroes are located. The relics were a sacred treasure “giving prosperity, happiness and power to our beloved Cambodia”, as Prince Norodom Ranariddh, President of the Supreme Council of the King said in a statement (Phnom Penh Post, 18 December 2013). Though guards were on duty that night, the theft remained unnoticed with apparently no traces of the break-in, except the broken lock. As it turned out, the guards in charge earned such a small amount of money (about US$42 per month) and apparently were even irregularly paid (if at all) that they did not take the job as seriously as required, and had to look for other means to make a living. Since the guards had not been on duty, several of them and later another man indicted as a thief were arrested.1 In contrast to other thefts of cultural property in Cambodia, this heist set the Buddhist monks, the important intellectual and moral elite in Cambodia, in motion. The Cambodia Daily reported that a hundred monks had gathered on Oudong mountain on 16 December 16 and prayed that the thieves return the relics. Moreover: A separate group of about 200 monks besieged an annual conference of senior Buddhist clergy on Tuesday at Chaktomuk Conference Hall, angrily calling for senior monks to urge Prime Minister Hun Sen to ensure the national treasures are recovered. The protesting monks held a banner that proclaimed in large letters, “Because of corruption, the relics were stolen”. . . . (Cambodia Daily, 19 December 2013)

Faked biographies: the remake of antiquities and their sale 109 The same newspaper quoted the Venerable But Buntenh, head of the Independent Monks’ Network for Social Justice, who said that . . . ultimately, it was the failure of the government to support the men guarding the stupa that was to blame for the lost relics. “When I say corruption caused this, it is because these people [the guards] don’t get their salaries and don’t have money to live on because of corruption.” “The government has requested the board of monks stay quiet, because the government is working on this,” said Venerable Khim Sorn, the Phnom Penh municipal director of monks. He assuaged the protesters by promising that a letter on behalf of the monks would be sent to the government. (Phnom Penh Post, 18 December 2013)

Scenario 2 In an elegant antiquities shop in the O.P. Place Shopping Centre, Bangkok, Khmer stone statues dating back to Angkor time and beyond were stylishly displayed and discretely illuminated by spotlights when we revisited it in November 2013. Some of them were marked with a red dot. The gallery owner explained that he had recently sold these statues and they were ready for shipping. Thus, they were no longer for sale. When asked whether the purchase of such a statue by an art collector and taking it to a European country or the United States would create problems, he pointed out that he would of course provide all the necessary documents for the artefacts. He added that it has become almost impossible to sell undocumented Khmer antiquities on the international art market.

The first scenario is atypical, in so far as the moral and intellectual elite – the monks – publicly intervened by spelling out the problem of corruption and the lack of serious investigation by the government. Stolen or looted artefacts are usually moved out of the country, often overland, to Thailand, by middlemen. Before the objects reappear on the art market, as the second scenario shows, they become “neutralised”, that is, exempted from their stigma of being the result of a criminal act. Instead, such artefacts are furnished with documents of a “clean” biography that allow their lawful export and free circulation on the art market.2 These two examples illustrate the way in which precious objects disappear from their sacred context (here, through theft). The first example is an exceptionally “spectacular” theft, while it seems to be almost a daily occurrence that Buddha statues (and other sacred objects) are stolen from Buddhist monasteries (see, for example, Cambodia Daily, 3 January 2014) and through covered tracks, enter the international art market. The second example illustrates how, after a period of transformation, such artefacts may re-emerge as artwork on the public stage, that is, in art galleries. The diverse manipulating and twisting of artefacts’

110  Brigitta Hauser-Schäublin and Sophorn Kim biographies in order to make them comply with the regulations and demands of the art market is the main issue of this chapter.3 Cambodia has suffered thousands of thefts and lootings of its cultural heritage, Khmer art, especially over the last forty years (see Part I of this volume). Artefacts with a particular history and meaning have been ripped out of their socio-cultural contexts of local communities by thieves or looters. Most of the stolen or plundered artefacts simply “disappeared”, while the culprits, let alone the networks behind the front men, remained mostly unidentified – for various reasons, not least due to corruption on almost all levels of state administration. We begin by briefly discussing the concepts of provenience and provenance, which are crucial on today’s art market: a Khmer antiquity can seldom be openly sold today without proofs of provenience and provenance. We briefly elaborate on the different forms of value (sacred, monetary) associated with such artefacts, the constitution of value, and the way in which the value of an artefact may be increased when it reaches the art market. In the second part of this chapter, we deal with the manipulation of artefacts’ biographies: the manufacture of high-quality replicas of Khmer stone sculptures for export, and the way they are provided with new identities, namely those of authentic or original artefacts (see also Brodie et al. 2000:17–18) and are then exported to Thailand.

Provenience and provenance The concept of provenance is crucial both in legal discourses and in the arena of the international art market and its main actors, as the statement of the art dealer in the second scenario above illustrated. Provenance is normally used to complement the notion of provenience; both are closely interrelated. The latter term designates the find spot of the (archaeological) object, or its last cultural context in the case of ethnographic artefacts when a collector acquired it in situ. Provenance is used to denote the collection history of the object, the chain of ownership, from the time it was first “discovered” or “collected”. However, we would like to point out that it is the story or representation of changing ownership that is summed up under provenance. In other words, provenance, as rendered in such stories, starts with the provenience of an artefact and usually consists of a complete series of transfers of ownership (Mackenzie 2005, Joyce 2012, Higonnet 2012). Both terms imply a number of presuppositions. Provenience assumes that the original find spot or the first act of purchase of an artwork from a living community who used it is the zero-point of an art object’s life history. Provenience also assumes that the socio-cultural context from which it was acquired was the “original” or “authentic” one. Provenience suggests the birth of the artefact, where, in fact, it is only the birth of a potential commodity for the art market. Provenience, therefore, signifies a particular method of acquisition at a certain location. Seen from a broader perspective, as suggested by Appadurai (1992) and Kopytoff (1992), an object’s life or cultural biography starts at the moment it is manufactured and continues by being used by different people and probably in different settings until it is “discovered” by archaeologists or bought by ethnographers, collectors or

Faked biographies: the remake of antiquities and their sale 111

Figure 5.1 Many original and faked antiquities from South East Asia, often displayed side by side, are sold in Bangkok art galleries (here, a faked Khmer torso). The elegant Khmer statues are in very strong demand. Photo: Jörg Hauser, 2013.

colonial officials. Hence, provenience and provenance highlight particular sequences in the life history of an object while eclipsing others. Both terms – provenience and provenance – are embedded in the mechanisms of the capitalistic art market and the flow of cultural property from “source countries”, via “market countries”, to “destination countries”; the former are mostly countries of the South or developing countries (and former colonies), the latter industrialised countries in the North (see Merryman 1986). The direction of the flow of artefacts follows the power relations between the developing countries and the rich countries. On the way, they become subjected to particular “regimes of value”, as Higonnet (2012:206), borrowing from Appadurai (1992), called it, a regime of value largely governed by the economy of the art market. This regime of value mostly differs from those in which such artefacts had been previously

112  Brigitta Hauser-Schäublin and Sophorn Kim embedded. Provenance, or rather the testimony of a flawless history of ownership, largely determines the fate of an artefact. As the art dealer in Scenario 2 emphasised, it has become almost impossible to sell an antiquity without documents of provenance. Conversely, an art collector is prepared to pay more for a well-documented artefact – and the price may even rise when more renowned names of individuals or institutions are listed in the genealogy of ownership. If the genealogy of provenance contains trusted names, such as well-known museums, these are taken as warrantors also of a truthful provenience, authenticity, or originality of the object. This warranty dissipates all fears of “fakes”. Conversely, the issue of provenance collapses – and with it also the provenience – if the object is identified as a fake. As a consequence, the object loses its value. With regard to provenance, one of the strategies some collectors apply to increase the value of their pieces is to offer it to a renowned museum as a loan free of charge. If a museum accepts such an offer, an artefact even of suspicious provenance (whether looted/stolen or faked) gains reputation, prestige and commercial value since the museum’s name or the curator’s knowledge are taken as a testimony of blamelessness. A photograph in a catalogue of the loan exhibited in such a museum reinforces the credibility. The provenance given as “from an old Thai collection” suggests authority, namely a long-standing connoisseurship and decade-long passion, appreciation and expertise of the previous owner. This provenance also brings in the time factor and advocates that the artefact had been acquired long before any ethical or legal norms about acquiring (“collecting”) officially came into being. In short: such a phrasing purports that the artefact is “innocent”. Time (or rather the discourse about time), therefore, makes these antiquities licit (Mackenzie 2005:4). The artefact’s origin “from an old Thai collection” was repeatedly given by several art dealers in Bangkok. When we asked them why the owner was selling the artefacts, we always received almost the same answer: “Because the owner is now old and his children are not interested in art pieces; they want to have the money.” A long list of previous ownerships achieves the same: it suggests that the object had been more or less freely circulated long before any regulation restricted purchase and sale. The time factor has an impact on the value of the object. In the case we investigated, the certificate of the allegedly previous owner of the torso turned out to be faked as well. The identity of an individual had been abused for this purpose. The issue of provenance has become crucial in the world of the art dealers. The famous cases of auction houses that put unprovenanced items or objects of doubtful origin on sale (such as Christie’s or Sotheby’s; see also Chapter 3 by Hauser-Schäublin on the Koh Ker statues), were subsequently sued, and finally, had to return the artwork to the source country without compensation haunts all dealers. The quest for provenance and the increasing screening of objects for sale has led to a scarcity in the supply of certified artefacts – while at the same time increasing their commercial value. The art dealer in Scenario 2 even reinforced this scarcity by marking a number of artefacts on display with a red dot. He hereby wanted to communicate that there was a great demand for his artefacts and any

Figure 5.2 The certification of tribal art or antiquities has become an important instrument of art dealers to “prove” authenticity or provenance. The Art Loss Register (ALR), however, does not testify authenticity or provenance but only that the artefact described has not been registered as stolen (see the clarifying information on the certificate and its limitations at the bottom). In the present case, the torso turned out to be a fake.

114  Brigitta Hauser-Schäublin and Sophorn Kim potential purchaser should not wait too long if they really wanted to own one of the remaining exhibits.

Artefacts and different constitutions of value It is indeed evident, as Simmel has already pointed out (and as Appadurai took as the starting point for his considerations on the value of a thing; 1992), that the value does not lie in the object as such, but in the judgement about it (Simmel 1900). With regard to the arena of the art market, the most important actors are the auction houses, the dealers, the experts (especially academics and their research as well as museums), and the well-funded consumers/collectors. Brodie pointed out how scholars often serve as the henchmen of art collectors when they research private collections, which often include unprovenanced objects, and publish their findings in the art collectors’ catalogues (Brodie 2011). Such cooperation produces a cultural regime of authentication in which expertise and evaluation (including taste) are the main factors (Appadurai 1992:46); the result is a regime of value in which the experts’ knowledge substantially increases the commercial value of such pieces when they are later resold at auction.4 The judgement of these actors about provenience and provenance is crucial. The first scenario with which we began our chapter illustrates a different composition of values. For the Buddhist monks, the urn’s contents – the ashes of the founder of their religion – constituted the substantial value of the artefact. The provenience of the relics, Sri Lanka (or rather Ceylon), one of the centres of Theravada Buddhism, and the occasion at which the king of Cambodia received these relics, the 2,500th anniversary of Buddha, also augment the value of the reliquary and its contents.5 The urn with the ashes is regarded as “a national treasure” which symbolises the wellbeing of the nation; as the president of the King’s Supreme Council formulated it: “giving prosperity, happiness and power to our beloved Cambodia”. In fact, the theft hit all three of Cambodia’s supreme authorities – “nation, religion, king” – as spelled out in the motto of the kingdom. Thus, it is the spiritual and idealistic value as an inalienable part of Cambodia’s national identity that the urn and its contents represent. As a “national treasure” and a symbol of Cambodia’s spiritual power, the relics display some similarities with the Emerald Buddha that was once located in the Cambodian royal capital of Angkor but was stolen and thus was also subject to an act of theft. When the Thais captured Angkor in 1492, they took the sacred statue with them as war booty. Today, it is sited in a special temple in the precincts of the royal palace in Bangkok where it is regarded as “the palladium of Thai society” that “watches over the Thai nation” (Roeder 1999). There may be many motives for stealing relics. However, as Appadurai (by referring to Geary’s work on the trade in relics in medieval Europe) noted, theft and gift were the preferred modes of transfer since the relics stolen or donated had already evidenced their power and were, therefore, more valuable than relics of unknown provenance or with ruptures in the artefacts’ histories (1992:23–4). Theft or gift implies not only the carrying-off of the material object, but also of the knowledge – the knowledge that the artefact is a relic – that accompanies it.

Faked biographies: the remake of antiquities and their sale 115 In the case of the urn stolen from Oudong, the theft was apparently carried out for rather profane reasons. In fact, immediately after the theft, several guards were detained, and two months later a peasant was arrested. The latter confessed that he had stolen the urn for its monetary value. The urn that was retrieved in the course of the police investigation was acknowledged by the monks as “authentic”. It is unknown whether photographs of this reliquary existed prior to its theft. Pictures of the urn were published in the newspapers only after its confiscation.6 The Kandal Provincial Court sentenced the farmer and four guards to seven years in prison and US$2,000 in compensation in August 2015 (Phnom Penh Post, 28 August 2015).7 Thus, at least officially, this case seems to have been solved or rather closed, unless the convicts file an appeal.

The remake of Khmer antiquities and their “birthplace” Apart from cultural goods, which are stolen from their original, mostly ritual, context and illicitly sold on the art market, there exists another category of artefacts with similar whitewashed provenance. An increasing number of objects on the art market have been provided with a biography which they have never lived: replicas. Therefore, we will now turn to the manufacture of replicas of Khmer antiquities, in particular, stone statues, and the way in which they are provided with new “old” identities. We will, consequently, discuss who the producers of these artefacts are and why they make them, the techniques they apply to provide their products with an ancient-looking patina, and the way in which they are sold and transported to other parts of Cambodia or exported. As has already been explained by Tasdelen (in Chapter 2), Cambodia’s regulations are strict and, if applied properly and consistently, they would considerably restrict the illicit trafficking of Khmer antiquities. Regarding Scenario 2 at the beginning of this chapter, we want to state that not all Khmer stone statues on sale in antiquities shops in Bangkok, River City and O.P. Place Shopping Centre are sold as originals or authentic pieces. Some of the antiquity sellers clearly admit that the stone statues on display are replicas. Accordingly, the prices were much lower than the prices demanded for “originals”. Apart from these art dealers, there are others who assert that they exclusively sell “authentic” pieces. The prices they ask for these objects are definitely higher. However, we hasten to add that the price is not a criterion which allows the would-be purchaser to decide whether the statue is an original or a replica (or a creatively modified copy). We visited a number of workshops (in the provinces of Phnom Penh, Battambang, Sisophon and Siem Reap), where some sculptors manufacture excellent stone statues designed after antique Khmer sculptures, the latter mostly dating back to the pre-Angkorian (sixth–ninth centuries) or Angkor period (ninth– fourteenth centuries). All the workshops possessed a licence issued by the Ministry of Culture and Fine Arts, which allows them to produce stone statues designed after old Khmer art; such a licence must be renewed annually.8

116  Brigitta Hauser-Schäublin and Sophorn Kim Most of the workshops were small, sometimes consisting of only a single craftsman, but usually of five to ten people. One workshop in Siem Reap was rather large, with more than twenty people working there. This workshop produces all kinds of artefacts in stone, bronze and other metals. The workshop owner is a well-known artist who also produces modern sculptures; he sells many of his products, modern as well as remakes, in his art shop; he is the only one who runs a shop. The sites of production were, in all cases, part of the living area of the workshop owner and consisted of home industries rather than factories. The degree of the division of labour in the manufacturing process is low. In most workshops, a craftsman creates a statue from the beginning to the end. In one workshop, the owner and master craftsman corrects statues one of his employees has made if necessary. Only one workshop – actually the most ambitious one, that destroys a replica even if it only slightly deviates from the original antiquity – has workers trained for special tasks, such as drawing the outline of the statue on the

Figure 5.3 Faked antique Khmer statues often display mechanical “damage” said to originate from a hoe used to excavate the artefact. Photo: Jörg Hauser, 2013.

Faked biographies: the remake of antiquities and their sale 117 still undressed stone or the rough profiling of the stone. One craftsman chisels the body in more detail; one has a special talent for producing ornamented garments, another faces and yet another is extremely gifted in smoothing the surface of the stone (polishing). No workshop we visited specialised in only one art style; instead, they copied statues of different periods. Often several members (all men) of a (extended) family were engaged in the workshop by actively participating in the production. It was interesting, especially in these cases, to see how the products varied in refinement according to the different skills of the sculptors. The members of a workshop usually shared their judgement about the quality of the products. Sometimes the head of such a workshop was already the second generation of sculptors, having taken over the workshop and learned the handicraft from the father or uncle. If external assistants were needed, the workshop hired gifted trainees rather than fully trained craftsmen. These trainees are instructed by the owner or master craftsmen so that they learn from scratch the craft and the way it is carried out in that particular workshop. One of the major fears the owners have, especially those of successful workshops, is that one of their trained and gifted sculptors would leave his premises and start a business on his own, thereby becoming a business rival. There were different ways in which the leaders of these workshops became sculptors and, more precisely, specialists in producing replicas. Apart from longstanding family businesses – one sculptor told us that the replica business had already started in the second half of the 1950s – some sculptors had learned how to chisel stone in larger workshops, where mostly modern sculptures and decorative vessels were produced. The craftsman added that it was (and still is) very difficult to sell modern works of art. The only customers who order new sculptures, also made following some traditional models, are Buddhist monasteries and sometimes hotels. Moreover, he soon learned that most of the well-funded private customers were not interested in the new creations he had produced, but in “old” statues. Although he had liked the creativity of his profession, he decided to comply with the wishes of the clients in order to make a living for his family. One craftsman had learned the profession in a NGO-sponsored workshop in Pursat Province, where young people are trained in the art of stone processing (mainly marble) to make a living. Another one worked as a trainee in a stone sculpture workshop in another province. When he had learned the skills, he returned home and started his own business with the financial support of family members. One elderly sculptor told us that he had formerly spent some time in a refugee camp on the Thai border during the Khmer Rouge period. While there, he and other young men were taught how to chisel stone by older sculptors. Some expats working for the UN or NGOs in or near the camp liked the statues they made after antique models; subsequently, they (as well as Thai people) bought some pieces to take home, and encouraged the sculptors to continue their work. Some even gave them photographs as models. Another sculptor had worked in a private stone workshop in Thailand for a Thai art dealer. He produced replicas of old Khmer

118  Brigitta Hauser-Schäublin and Sophorn Kim art. However, he decided to return home and to start his own business because he was poorly paid. There is no single method in which a sculptor produces stone statues and makes them look antique, but many individual variations. The owners of the workshops commission the stone for the statues either in the Malai Mountains, Banteay Meanchey Province (granite), or in the ranges of Preah Vihear Province (limestone). They collect the rocks themselves and transport them to their workshops.9

Figure 5.4 The stone carvers mostly produce statues copied from pictures of antiquities in art books. During the carving process, the sculptors use only a few auxiliary devices, except for drafting the features onto the stone. Photo: Jörg Hauser, 2013.

Faked biographies: the remake of antiquities and their sale 119 Many sculptors work with both materials; they have realised that, generally, the price paid for a statue made of granite, which is a very hard material, is better than that paid for one made of limestone. Several of the craftsmen were not aware (or perhaps it simply did not matter to them) of what kind of stone was used to make the model antiquity. One distinct exception was the workshop owner with

Figure 5.5 The stone carvers sometimes provide a statue with a part that was missing from the original. However, often the opposite happens: parts of limbs are cut off at the request of the customers. Photo: Jörg Hauser, 2013.

120  Brigitta Hauser-Schäublin and Sophorn Kim the meticulously made statues: he carefully selects the material, since he is well aware of the different qualities and origins of the stones and the types that had been used for particular antique Khmer statues. He spares no effort in procuring the proper stone corresponding to the model he is going to copy. Almost all craftsmen said that they sculpture statues at their own discretion, as well as on demand from some customers. All of them use photographs of antique Khmer statues published in catalogues and art books as sources. We saw photographs not only from the catalogues of the Musée Guimet in Paris and other museums in the workshops, but also several other glossy books with illustrations of famous private Khmer collections. They serve as pattern books for the customers from which they choose and order a replica. Some workshop owners visit exhibitions, such as in the National Museum in Phnom Penh, and take photographs of the statues there. They need at least four photographs, front, both sides and back view and, of course, the exact measurements to make a good replica; the latter information is usually given in the texts accompanying the photographs in catalogues. If only a front view is available, some artists try to reconstruct the back. Since these sculptors are all experienced and have also made many types of statues from the same period, their creations are not too far from the original model; but they still differ. Some art collectors are quite aware of these deviations, which also serve as an indicator that the piece is a replica. None of the sculptors has used a three-dimensional simulation for determining and outlining the shape of the statue to be copied more easily on the yet undressed stone. Their imagination and spatial sense is admirable, especially the way in which they translate a twodimensional picture into a fully three-dimensional statue. Differences among the workshop owners exist with regard to copying originals. Some feel free to change the scale of the sculptures by either making the replica smaller or larger. Others prefer to stick to scale. However, it is the customer who makes the final decision, especially if it is a production made on demand. The manufacture of a 1.5-metre-high stone sculpture made of granite, one master sculpture explained, takes about two months to complete. If the material is limestone, it takes two weeks less. However, the owner of the workshop that produces the best replicas said that it takes about six months to craft a statue. The careful and meticulous work he and his workmen carry out, therefore, requires much more time than in other workshops.

A forceful twist in the biography: replicas turned into antiquities One of the most important steps after having completed the chiselling of the statue and polishing its surface consists of the ageing process. The goal of these series of processes consists of providing the artefact with traces of ageing and/or a patina that cannot be distinguished from those of an antiquity. Thus, the materiality of the object is changed – though not yet the knowledge of history that is told about it. The material change of the object lays the basis for a faked identity that is

Faked biographies: the remake of antiquities and their sale 121 later added to the artefact by the art dealer. Some of the sculptors have an excellent command not only of chiselling a statue, but also of working its surface so that parts of the topmost layer come off. Many antiquities show these traces of surface weathering. They sometimes look as if the skin of the figure had peeled off. Thus, some of the ageing consists of elaborate mechanical methods carried out by the sculptor. The most drastic changes applied to the finished statues are carried out at the request of the customers. The sculptors often produce complete anthropomorphic statues with head, body and limbs. We saw finely chiselled limbs lying around on the ground in the workshops several times, sometimes only a hand holding an attribute of Vishnu, once even a beautifully carved head. The owners explained that these parts had been cut off at the request of the trader because he insisted on getting “antique” statues with clear traces of age. Thus, a trader instructs the sculptor which parts should be excised. Thereby, a complete statue is turned into a torso. Apparently, the sculptors do this without hesitation. They explain that they make the statues for sale and, therefore, comply with the demands of the purchaser; they say they do it without any regrets or emotions.10 The patina of an “antiquity” is crucial for many art collectors and they will always check it when they want to buy an artefact in an art gallery. However, even experts say that it is, in many cases, impossible to decide whether a patina is the result of centuries-long ageing or of a condensed artificial process. The safest way to ascertain the patina is to take a sample and have it analysed by specialised stone conservators or to make an incision into the stone. An artificially achieved patina can sometimes be identified by a more or less clear-cut fringe or stripe, since the artificially added patina differs markedly from the inner body of the stone. Although there is almost no contact between the owners of workshops who specialise in the remaking of antiquities, each of them applies similar techniques for ageing the artefacts. Those workshop owners who had taken over their business from their father or uncle already had some knowledge about these techniques. Others told us that they had experimented over several months to find out the best way of achieving a patina that looked antique. The series of techniques applied to the crafted statue in one workshop consisted – to give an example – firstly, of sandblasting. Then, the artefact is painted (with black and red layers); the colours will enter the slightly porous surface. The statues are left to dry and later flamed off. The next step consists of boiling the statue in water with some iron pieces in it. Subsequently, it is put into a water hole containing pieces of rusty iron; the statue remains there for about two months. In a further step, the artefact is also buried in a sand-bed containing pieces of iron. When we visited a small workshop where the owner is the only craftsman, he began to dig in the ground just in front of his shelter. After a couple of minutes, the face of a stone sculpture appeared. He did not continue to disinter the work, but just wanted to show that he buries a sculpture in the ground, sometimes for more than a year. He, as well as others, also uses an acid bath for the sculpture, though this seems to be a delicate process that may harm the stone and leave traces that cannot be effaced. The owner of the workshop that produces the best statues also

122  Brigitta Hauser-Schäublin and Sophorn Kim uses acids. He could not tell what kind of acid it is, since his Thai customers bring the chemicals with them. He also buries the stone sculpture in the ground mixed with pieces of iron; he leaves it there for a period of six to twelve months. None of the sculptors had a clear idea of what finally happens to their products after they have sold them. They do not seem to worry about it, probably also due to the fact that they regard their products as commodities from which they can make a living, some more and some less. It would, therefore, be wrong to talk of these sculptors producing “fakes”, because they clearly sell their products as replicas and never pretend that these are authentic antiquities. It is the middlemen and, later, the owners of art galleries who turn the replicas into fakes – by faking the object’s biography, the story that accompanies the artefact. The workshop owners also do not worry about the identity of their customers and their business. The customers, therefore, remain shadowy and we purposely did not ask many questions about this clientele. Most of the workshops we visited had customers who were from Thailand or Cambodians exporting the artefacts across the Thai border. There was only one stone workshop whose products are primarily destined for sale within Cambodia, in an art shop in Siem Reap (Angkor) or the Russian Market in Phnom Penh. The prices for the newly made antiquities vary; the prices are negotiated between the workshop owner and the purchaser. Since there seem to be quite a number of traders around – including Europeans and, more recently, also dealers from “Arab” countries – the workshops still have

Figure 5.6 A number of processes are implemented to turn a modern stone artefact into an antiquity (here, pigmenting in yellow). Photo: Jörg Hauser, 2013.

Faked biographies: the remake of antiquities and their sale 123 some room for negotiation and are not dependent on a single trader and their offer.11 A producer will get US$1,000 for an antique-looking stone statue made from limestone, about 1.50 metres high and of good quality; the price will rise to US$1,500 for granite sculptures. The owner of the best-quality workshop, who invests much more time (about six months) producing an artefact, gets about US$4,500 a piece. Such a statue is sold for about US$45,000-50,000 in an art shop in Bangkok. We also saw 2-metre-tall stone statues in Bangkok which were on sale for US$130,000–150,000 in an art shop in Bangkok. Thus, the prices seem to increase roughly ten-fold between the sale of the artefact at the workshop and an art gallery in Bangkok. In between, however, lies the crucial rite de passage in which a remade “antiquity” is transformed into an antiquity, provided with a faked identity and evidenced by a certificate of its provenance.

“Two ways of exporting artefacts” As briefly mentioned previously, the trade in antiquities or artefacts which look antique in Cambodia is legally restricted and especially so their export. Apart from the production licence of the workshops (and this implies, conversely, that they are registered), further permits are required to move the artefacts from the site of production to an art shop in another province or for export.12 All export permits are issued by the Ministry for Culture and Fine Arts in the capital of Phnom Penh. Only tourists may ask for an export licence in Siem Reap; this takes about two weeks before the artefact can be shipped.13 The certificate for transporting the replica of a Khmer antiquity within the country contains the description of the artefact, the material used and all measurements (including its weight). It states the name of the workshop and its address, the name of the owner/producer of the artefact and the date of production. The application for such a permit (at the Department of Culture and Fine Arts of the province where the workshop is located) must be accompanied by a photograph of the object, a copy of the ID of the applicant (owner of the workshop) and an affirmation about the truthfulness of the details given about the artefact. This certificate is signed by two authorities (the Department of Cultural Heritage and the Department of Culture and Fine Arts). This certificate accompanies the artefact to the art shop in another province and must be shown to the relevant authorities by the art dealer in the case of a check. This document also facilitates the export, or rather the acquisition of an export permit for the newly made antiquity, in case a tourist buys it and wants to take it home. The application for an export permit and the corresponding licence follow a similar pattern. However, an expert from the technical staff of the Department of Archaeology of the Ministry of Culture and Fine Arts in Phnom Penh is required to acknowledge that the artefact for export is not an antiquity. Obtaining an export permit entails some fees, which must be paid to the Ministry of Finance. The fees are relatively small and depend primarily on the material of the artefact to be exported and on its height. The fees for a stone sculpture of 1.5 metre height, for example, amount to 50,000 riels (about US$12).

124  Brigitta Hauser-Schäublin and Sophorn Kim The permit must accompany the artefact and needs to be shown at Customs. One workshop owner told us that sometimes an investigation by state authorities takes place if they are sceptical that the artefact to be exported is really newly made. They then visit the workshop to carry out a check. It is for this reason that the workshop owners set aside the parts of the sculptures they had been asked to cut off by the trader. These excised limbs then serve as “proofs”. Thus, the procedure for exporting new antiquities is clearly regulated. However, to obtain such permits and take them to the different offices, not least of all Customs, takes a long time and is complicated. The figure of only a hundred export permits granted annually to tourists in Siem Reap suggests something different, namely that many of them just buy such artefacts, put them into their luggage and fly away. However, professional traders engaged in illicit trafficking of antiquities take another route. The companion, Mr Soki (pseudonym), whom one of the authors (B. H.-S.) had hired to accompany her as a translator to different workshops in Siem Reap Province (and who turned out to be a plain-clothes policeman who also worked on secret and mostly illegal missions as ordered by his superiors) had already stated in their first conversation: “There are two ways of exporting artefacts, the official one with permits, and a second one by passing money under the table.” By and by, he told her bits of the story about the complex and far-reaching networks in which owners of art galleries, art traders (often acting as middlemen) and state officials up to the level of the government are involved. We will try to reconfigure these bits in order to illustrate why the regulations are inefficient. Mr Soki is embroiled in this network, too, but only as a minor actor, though he was quite proud of the knowledge he has about these illegal missions and the high state officials with whom he comes into contact. He took B. H.-S. to a rather large workshop (twenty stone sculptors working there) which produces the best remakes of Khmer antiquities, and whose owner – the only one we met on our trip – did not want to be photographed. The remade Khmer antiquities from his workshop are exported without export licences. Mr Soki, who is very familiar with the region and its manifold potential, was instructed by officials to accompany a Thai trader, who actually lives in Cambodia and also runs other businesses, and a European owner of art galleries in Bangkok to that workshop a few years ago. As a result of that meeting, these people agreed upon the reproduction of antiquities, the payment and how the statues would be picked up and transported overland to Thailand. The Thai trader regularly provides the workshop with the chemicals used for ageing the stone statues. This middleman and the European art dealer usually select pieces out of catalogues or deliver photographs of sculptures which they want to be reproduced as replicas. This workshop has the privilege (or rather takes it) to commission the original raw material – stone for the statues from Kulen Mountain, where the quarries of Angkor were located – though access to these quarries is forbidden for non-authorised people. The workshop owner is always paid in cash for the statues by the Thai trader, who apparently buys a number of statues (up to twenty pieces) in one deal. These statues are then transported by truck to the Thai

Faked biographies: the remake of antiquities and their sale 125 border. Some distance before the border, the truck is joined by a military convoy which escorts the truck on military side roads across the border. The border control knows what is going on, but since money is involved, they keep quiet. We may wonder why such huge logistics are set up for the export of replicas. A legal export would be relatively easy and without any problems, since permits are available. We can only speculate what happens backstage. We have hints that some original statues in some museums outside the capital are being replaced by replicas, while the originals are probably exported and placed onto the international art market. Perhaps sculptures (and other cultural property) found in the many looting activities of yet undocumented sites in Cambodia are among them as well. In fact, such a risky effort only makes sense if original Khmer sculptures are among the freight carried across the Thai border.

Conclusion All the remade (as well as original) Khmer artefacts transported across the border (and here we focused only on the Thai/Cambodian border) receive a new identity as soon as they surface in those art shops in Bangkok that assert that they only sell originals. The certificates of the factual provenance and provenience (recently made in workshops in Cambodia) “disappear” and their original biographies are wiped out. Instead, the art dealers provide them with a new biography, that is, a couple of certificates, as briefly mentioned in Scenario 2 at the beginning of this chapter. Three different types of documents, the art dealer said, are needed to certify the legality of the artefacts and, consequently, of ownership. He emphasised that each statue he sells will be accompanied by these certificates. These documents are 1) proof that the object is not listed on Interpol’s Databank of Stolen Works of Art,14 2) evidence that it is not listed in the Art Loss Register, London,15 and 3) a certificate that testifies the object’s provenance from an “old Thai collection”; this document will be accompanied by 4) a letter signed by Thai authorities stating that the artefact can be exported from Thailand. Provided with all these documents, the purchasing art collector becomes the legal owner of the artefact and the artefact, now released as a commodity, can be freely moved on the art market. These documents ascertain a completely new identity, a faked identity, consisting of a biography through which the replicas have never lived. The model and the replica share the characteristics of the art style (pre-Angkorian, Angkorian, or any other) and, in some cases, also the same material. However, before the replicas were provided with a faked identity, their life histories differed substantially. The twisted biography turns legally and illegally exported objects, replicas, and unlawfully exported, original artefacts which are the result of looting and theft into whitewashed commodities with a clean passport of provenance so that they can be freely moved – sold and bought – on the international art market. As the monks already pointed out in Scenario 1 concerning the theft of Buddha’s reliquary from the stupa in Oudong, and as other chapters of this volume have shown, most of this illicit trafficking of cultural property is facilitated through

126  Brigitta Hauser-Schäublin and Sophorn Kim the corruption of those whose duty it is, and who have the means, to protect their national treasures. Yet, in many cases, personal profit seems to go before national interests. Under such conditions, regulations will only help a little (see Chapter 2).

Notes   1 According to the police, they discovered the urn under the culprit’s bed. The man, described as a beggar or small-scale farmer (depending on the source), was charged with the theft and with having melted down as many as ten golden statues stolen from Oudong. Even the advisor to King Norodom Sihamoni, Son Soubert, commented sceptically on this arrest: “It’s strange that all the relics end up with a poor man” (Phnom Penh Post, 7 February 2014; Phnom Penh Post, 10 February 2014; Cambodia Daily, 15 February 2014).   2 For the technique of neutralisation that art dealers perform to disclaim wrongdoing, see Mackenzie 2005:203–5; 2011.   3 The authors made two trips together through Cambodia in 2013 (led by Sophorn Kim) to have a look at looted or damaged archaeological and historical sites (Khmer period), on the one hand, and to learn more about the remaking of Khmer antiquities (mostly stone statues) and how they are transformed from a recent product into an old work of art, on the other.   4 A good example is the Barbier-Mueller Museum in Geneva and the many lavish publications with contributions of academic experts including museum curators. Parts of the Barbier-Mueller collection were later sold in auctions.   5 Buddha’s ashes are believed to have been divided into eight parts and were divided among Buddha’s disciples (Sydney Morning Herald, 30 December 2013). Conflicting versions about Buddha’s relics seem to exist; while some histories mention “ashes”, others speak of “bones”. With regard to the provenance of the relics in Ceylon and why they came to that place in terms of (“Western”) history, the following excerpt of a report may serve as an explanation: a small number of bones of the historical Buddha were unearthed in 1892 in southern India which were later, in 1898, presented to the king of Siam (Thailand) as the only reigning Buddhist sovereign. He distributed these relics between the Buddhists of Siam, Burma, Ceylon and Japan (Mukherjee 2013:54). We cannot enter the discussion on the exchange or even trade in relics here. For Europe and the trade in relics in medieval times, see Geary 1992.   6 Earlier investigations carried out by one of the authors on thefts of sacralia kept in Hindu temples in Bali showed that in one case, some of the most sacred daggers (keris) were wrapped in a bundle. The senior men in charge had never dared to open the bundle and look at the sacred objects. When this bundle was stolen and the men reported the theft to the police, they were unable to give any description. Therefore, they had not the slightest chance of ever getting back their heirlooms. In another case, the religious leaders of the village, from where thousand-year-old inscribed sacred copper-plates had been stolen, managed to get the heirlooms back before they left the country. The first thing they did before they reintegrated the copper plates into their ritual contexts was to take photographs – as documentation – of each copper plate (see Hauser-Schäublin 2012).   7 The verdict was accompanied by “cries of desperation” from the convicts’ relatives, all of them being among the poorest of Cambodia (Phnom Penh Post, 28 August 2015).

Faked biographies: the remake of antiquities and their sale 127   8 One of the authors of this chapter, Sophorn Kim, is in charge of the Heritage Department, Ministry of Culture and Fine Arts in Battambang Province and is also responsible for issuing licences. Therefore, he knew most of the workshop owners personally. Only Brigitta Hauser-Schäublin, and not Sophorn Kim, visited the workshops in Siem Reap Province.   9 A licence from the Ministry of Industry, Mines and Energy is required for collecting stone. Most of the workshop owners avoid making an application since administrative processes are complicated and take a long time (and often “speeding-up money” is requested). 10 We tried to inquire to what extent the sculptors are attached to the works of art they produce. One of the questions was whether they made some statues for themselves, perhaps to display them or place them beside the altars of worship they all have in their houses. We could not find any who had made artefacts for personal use or pleasure. By contrast, the altars did not bear any traces of artwork. None of them kept a statue for himself because he considered it a particularly personal work. The sculptors were rather surprised when we asked them about the authorship of their work and whether they ever thought of signing their artworks. All remade antiquities, whether legally sold in Cambodia or in Bangkok, were “no name” products, as one of our interlocutors phrased it. 11 We never had the opportunity to watch traders and the way they negotiate, as we were able to make only brief visits to the workshops. 12 The Head of the Heritage Department of the Ministry of Culture and Fine Arts in Siem Reap estimated that about 90 per cent of the workshops in Siem Reap Province are registered and, therefore, cooperate with the ministry. 13 The Ministry for Culture and Fine Arts in Siem Reap issues about a hundred export permits a year. 14 Interpol cooperates closely with UNESCO and the International Council of Museums (ICOM) with regard to stolen cultural property; see http://www.interpol.int/Crimeareas/Works-of-art/Works-of-art. For Interpol’s role in the fight against the illicit trafficking in cultural property, see Kind 2011. 15 The Art Loss Register (ALR) is said to be the biggest databank of lost and stolen works of art. It was founded by auction houses, such as Sotheby’s and Christie’s, in cooperation with associations of art dealers and insurance companies. The ALR also offers the opportunity to have an uncontested artefact registered which then serves as a testimony of legal ownership; see The Art Loss Register (2014).

References Appadurai, Arjun (1992 [1986]) Introduction: commodities and the politics of value. In: Appadurai, Arjun (ed.): The social life of things: commodities in cultural perspective, pp. 3–63. Cambridge: Cambridge University Press. The Art Loss Register (2014) Terms and conditions of registration: http://www.artloss. com/content/terms-and-conditions-of-registration (accessed 26 December 2014). Brodie, Neil (2011) Congenial bedfellows? The academy and the antiquities trade. Journal of Contemporary Criminal Justice 27(4):408–37. Brodie, Neil, Jenny Doole and Peter Watson (2000) Stealing history. The illicit trade in cultural material. Cambridge: The McDonald Institute for Archaeological Research.

128  Brigitta Hauser-Schäublin and Sophorn Kim Cambodia Daily (2013, 13 December) Relics of Buddha stolen from Odong stupa (by Khy Sovuthy and Denise Hruby): http://www.cambodiadaily.com/featured-stories/relics-ofbuddha-stolen-from-odong-stupa-49255/ (accessed 31 January 2014). —— (2013, 19 December) Stolen Buddha relics as symbol of nation’s ills (by Colin Meyn and Khy Sovuthy): http://www.cambodiadaily.com/featured-stories/stolen-buddharelics-a-symbol-of-nations-ills-49467/ (accessed 23 December 2013). —— (2014, 3 January) Twenty Buddha statues stolen from pagoda (by Ben Sokhean and Eang Mengleng): http://www.cambodiadaily.com/news/twenty-buddha-statues-stolenfrom-pagoda-49966/ (accessed 9 January 2014). —— (2014, 15 February) Unlikely Takeo farmer pulls off major Buddha relics heist (by Phron Bopha and Denise Hruby): http://www.cambodiadaily.com/archives/unlikelytakeo-farmer-pulls-off- major-buddha-relics-heist-52322/ (accessed 12 August 2014). Geary, Patrick (1992) Sacred commodities: the circulation of medieval relics. In: Appadurai, Arjun (ed.): The social life of things. Commodities in cultural perspective, pp. 169–91. Cambridge: Cambridge University Press. Hauser-Schäublin, Brigitta (2012) The diversion of the village gods: a criminal turn in the biography of Balinese copperplate inscriptions. Bijdragen tot de Taal-, Land- en Volkenkunde 168(1):74–99: http://booksandjournals.brillonline.com/content/journals/ 22134379/168/1 (accessed 8 July 2015). Higonnet, Anne (2012) Afterword. The social life of provenance. In: Feigenbaum, Gail and Inge Reist (eds): Provenance. An alternative history of art, pp. 195–209. Los Angeles, CA: Getty Research Institute. Joyce, Rosemary A. (2012) From place to place: provenience, provenance, and archaeology. In: Feigenbaum, Gail and Inge Reist (eds): Provenance. An alternative history of art, pp. 48–60. Los Angeles, CA: Getty Research Institute. Kind, Karl-Heinz (2011) The role of Interpol in the fight against the illicit trafficking in cultural property. In: Manacorda, Stefano and Duncan Chappell (eds): Crime in the art and antiquities world. Illegal trafficking in cultural property, pp. 175–82. New York: Springer. Kopytoff, Igor (1992) The cultural biography of things: commoditization as process. In: Appadurai, Arjun (ed.): The social life of things. Commodities in cultural perspective, pp. 63–109. Cambridge: Cambridge University Press. Mackenzie, Simon R.M. (2005) Going, going, gone: regulating the market in illicit antiquities. Leicester: Institute of Art and Law. —— (2011) The market as criminal and criminals in the market. In: Manacorda, Stefano and Duncan Chappell (eds): Crime in the art and antiquities world. Illegal trafficking in cultural property, pp. 69–85. New York: Springer. Merryman, John Henry (1986) Two ways of thinking about cultural property. American Journal of International Law 80(4):831–53. Mukherjee, Sraman (2013) Between religion and history: afterlives of Buddhist relics. The Newsletter 66:54. Leiden: IIAS. Phnom Penh Post (2013, 18 December) Find Buddha relics: Monks (by Chhay Channyda): http://www.phnompenhpost.com/national/find-buddha-relics-monks (accessed 23 December 2013). —— (2014, 7 February) Stolen Buddha urn reclaimed (by Chhay Channyda, Shane Worrell and Sen David): http://www.phnompenhpost.com/national/stolen-buddha-urnreclaimed (accessed 12 August 2014).

Faked biographies: the remake of antiquities and their sale 129 —— (2014, 10 February) Buddha relic at palace: gov’t. (by Chhay Channyda): http:// www.phnompenhpost.com/national/buddha-relic-palace-gov%E2%80%99t (accessed 22 September 2015). —— (2015, 28 August) Oudong guards found guilty (by Chhay Channyda): http://www. phnompenhpost.com/national/oudong-guards-found-guilty (accessed 30 August 2015). Roeder, Eric (1999) The origin and significance of the Emerald Buddha. Explorations: a graduate student journal of Southeast Asian Studies 3(1):15–34. Simmel, Georg (1900) Philosophie des Geldes. Berlin: Duncker & Humblot. Sydney Morning Herald (2013) Cambodian monks outraged by Buddha relics theft (by Lindsay Murdoch), 30 December: http://www.smh.com.au/world/cambodian-monksoutraged-by-buddha-relics-theft-20131230-hv75o (accessed 27 September 2015).

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Part III

Negotiating conditions of return Protocol I to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 and the UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 aim at fighting the illicit appropriation and trafficking of cultural property. All these conventions are binding for the UNESCO or UNIDROIT member states which have ratified them. Ratification implies the development and putting into force of a corresponding national law, the national implementation of the UNESCO or UNIDROIT convention. This national law sets out the conditions and ways in which it must be applied. Thus, each convention needs to be translated into at least one of the national languages, to use the legal terminology most appropriate in that legal system and to spell out the terms and conditions required by the convention text. It is also often necessary to reinforce an administrative unit for new tasks or perhaps even create a specific new administrative body. How complicated the national implementation of such a convention is and what difficulties such a newly drafted law must overcome to achieve good implementation in concrete cases, is described in Splettstößer’s Chapter 7. The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property of its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP), established in 1978, is an institution that is action oriented and complements the conventions. UNESCO member states which have lost certain cultural objects of fundamental significance and are calling for their restitution or return and, in cases where international conventions cannot be used, may request the help of the Intergovernmental Committee. It seeks ways and means of facilitating bilateral negotiations for the restitution or return of cultural property to its countries of origin and promotes multilateral and bilateral cooperation. The committee and its work – especially the successful solution it has achieved in some individual cases – have a signalling effect on many negotiations beyond those submitted to the committee. Public institutions, such as western museums, which are confronted with requests for return or restitution today, prefer bilateral negotiations rather than widely publicised cases debated at the meetings of the committee. Plankensteiner’s Chapter 6 illustrates the complexity of facts and

132  Negotiating conditions of return arguments claimants and holders bring forward in the negotiations about keeping or returning the contested artefact. Today many – mostly western – public institutions, mainly museums, have decided, not least under the rising ethical pressure, to repatriate first and foremost human remains, which are often composite natural-cultural entities, such as tattooed Maori skulls or heads. However, the return of such entities raises new problems which must be solved with care, as Fründt’s Chapter 8, about the logistics of returned ancestral remains, illustrates.

6 The Benin treasures Difficult legacy and contested heritage Barbara Plankensteiner

Introduction Quests for return of, and emotional discussions about, ethnographic and art collections dating from the colonial era have become steady companions of prominent exhibitions or museum projects featuring such heritage. While in the past, until the late 1990s, such reactions tended to be ignored, many museum professionals today have adopted a different posture to such claims and see reconciliation as a major challenge for future museum work in the field of ethnography and historic non-European art. Within restitution debates, the court arts from the great West African Kingdom of Benin, Nigeria, have assumed an iconic role since the late 1970s as the exemplary case of looted art during colonialism. This chapter should be read as an inside report from a European museum practitioner and scholar responsible for major holdings from Benin at the Weltmuseum Wien acquired in the immediate aftermath of the British Benin expedition in the late nineteenth century. I am not aiming to give a comprehensive overview of Benin restitution claims and discourse, but rather to highlight decisive moments shaping it and to sketch recent developments within a dialogue of European and Nigerian museums in dealing with this difficult shared legacy.

The historic background: the British occupation of Benin in 1897 The historic facts are known, but are themselves subject to differing interpretation and ensuing debate. With the expanding British annexations along the Niger Coast in the late nineteenth century, the pressure on the Benin kingdom, which was already suffering under destabilising internal power struggles, rose constantly. When Oba Ovonramwen was crowned in 1888, the kingdom had already been reduced to its Edo-speaking heartland. Nonetheless, the king continued to dictate the rules for external trade, a royal prerogative since the beginning of the Atlantic trade. In 1892, British Vice-Consul Henry Gallwey succeeded in having Oba Ovonramwen sign a “protective” treaty that guaranteed Britain free trade and handling of external affairs. The treaty, in essence, marked the end of

134  Barbara Plankensteiner

Figure 6.1 Relief plaque depicting a Portuguese with five manillas, sixteenth/seventeenth centuries, Benin Kingdom. Photo: Weltmuseum Wien.

the independence of the kingdom, a consequence that the Oba (king) might not have understood to its full extent because of bad translation and because such a limitation of power did not conform to the traditional concept of the supernatural authority of the king. Oba Ovonramwen, thus, continued to open and close the market as he wished and obstructed free trade. Already here, we see conflicting interpretations on both sides: from the Benin perspective, the exertion of control through the Oba was indisputable, whereas for the British colonialists, it was a breach of contract. While the local British administration first decided to wait and solve the issue by peaceful means, it was clear that it would not be tolerated for too long, as other British actions in the region had demonstrated previously.

The Benin treasures: difficult legacy and contested heritage 135 In 1897, James Phillips, the deputy of Consul General Ralph Moor, who was on home leave at that time, organised a mission to Benin City in order to convince the Oba to abide by the treaty. The mission consisted of a prominent group of nine Englishmen, including members of the colonial administration and representatives of trading companies, plus 250 local carriers. Set out as a peaceful venture, the members of the party did not bear arms but had them packed in their luggage. Phillips ignored the message from the Oba, who had asked for a postponement of the visit as he was involved in important yearly rituals and could not receive visitors. However, Phillips was determined to proceed as planned. Benin soldiers attacked the group on 4 January 1897, and only two Britons and twenty carriers survived. After receiving notice of the so-called “Benin massacre”, the British Empire immediately dispatched 1,200 marines, who invaded the city of Benin on 18 February 1897. They occupied the deserted royal palace, seized the royal treasures and subjected the kingdom to British administration. The fugitive king and his prominent chiefs surrendered seven months later and, while a trial found the high chiefs guilty of the killings and sentenced them to death, the Oba was condemned to exile and brought to Calabar, the coastal seat of the British colonial administration, where he died in 1914. In Edo remembrance, 18 February 1897, will forever be a date marking the end of an irretrievable glorious past and the loss of the royal treasures representing

Figure 6.2 Commemorative head of a king, nineteenth century, Benin Kingdom. Photo: Weltmuseum Wien.

136  Barbara Plankensteiner the magnificent history of the Benin Empire. Although nearly 120 years have passed, the events continue to dominate the local cultural production and figure prominently as a theme for contemporary arts, literature and theatre performances (Layiwola 2007a). Associated with this culture of memory is the continuous wish for restitution of the royal treasures voiced by the Oba and his people on every possible occasion both locally and internationally. However, before looking at such quests, let us summarise the events and the contradicting interpretations of right and wrong in the whole history, as they reappear whenever claims for return are expressed. Discussion The dramatic events leading to the catastrophe for the Benin kingdom seem to have been the results of fatal misunderstandings on both sides: Phillips most probably interpreted the message of the king as a lame excuse and underestimated the importance of royal ceremonies for the Edo nation. His belief in British supremacy and power made him misjudge the imminent danger, as he and his companions obviously could not imagine such a disastrous and fatal outcome for their mission. European accounts often describe Phillips as a young and inexperienced, but highly ambitious, man. Possibly he wanted to use the absence of his superior to solve an issue that had bothered the colonial administration for too long in order to bolster his career. The Edo chiefs and soldiers seemingly did not believe in the peaceful intention of the mission and feared the large group of more than 250 men approaching their capital would threaten the king. While for the Edo, the whole event was a legitimate defence of the sovereignty of their nation, the British understood their invasion as rightful response to a perfidious attack. From the British perspective, the withdrawal of the royal treasures was seen as seizure to defray the costs of this colonial war; for the Edo, it was unrighteous looting. The archival documentation does not give enough evidence to set the record straight and we have to consider that most of what is available depicts the events from the British side, while there is a lack of contemporary local voices. Only some comments in West African newspapers and in news reports of competing European powers in the colonial scramble for Africa, such as Germany, express some doubts on the veracity of the British accounts (Plankensteiner 2007c; Coombes 1997:34f.). There are still conflicting conceptions about the expedition called “punitive” by the British and seen as reaction and retaliation, while from the Benin perspective, the war is considered as a premeditated move to expand the colony into the interior (Erediauwa 1997). The Centenary celebrations commemorating the events of 1897 in Benin City gave evidence of these different readings of history. On this occasion, Oba Erediauwa criticised the Ovonramwen trial as illegal: Since the offense was committed against the British, the British took the position of being a complainant, the prosecutor, the judge, and the jury – in utter violation of the rule of natural justice known very well to the English Common law: nemo judex in causa sua. (Erediauwa 1997:32)

The Benin treasures: difficult legacy and contested heritage 137 In contrast to the Oba’s reprimands, the British High Commissioner to Nigeria, Thorold Masefield, focused on the benefits for the people that the British invasion brought: “For Benin, the advantages of contact with the outside world came in the form of education, technology, trade and prosperity. And slavery and human sacrifice did cease, as British and Nigerian historians have recognized” (Masefield 1997:28). In relation to the loss of the royal treasures, such contrasting views can be best illustrated by a dispute between Ekpo Eyo and William Fagg, both eminent scholars of merit and collegial friends, on the right terminology to be used. As representatives of two institutions that, in this respect, had to take sides, they needed to act as adversaries. Fagg refused the term “sack” to describe the removal of the palace inventory by relying on his reading of the events as a consequence of British action against slavery and human sacrifices. He insisted that no looting happened outside the palace precinct and the official booty, consisting of the bronze relief plaques, was used to cover the costs of pensions for the killed or wounded British soldiers. All other objects removed were not reported officially and were shared between the British officers and were, therefore, in his view, “unofficial loot”, albeit today a deplorable “custom of war in the 19th century” (Fagg 1981). Ekpo Eyo insisted on the term “sack” by referring to the amply described common practice of burning down villages by the British colonisers in some of their own accounts of the time, and the earlier plans of Phillips to depose the king and finance such a move with the expected ivory treasures in the royal palace (Eyo 1997).1 It is not the place here to analyse again all the historic sources and make a judgement, but rather to show how biased views distort historic events and how each perspective conforms to a strategy, on the one hand, to request the return of cultural property seen as unlawfully taken, and on the other, to legitimise the refusal to do so.

Claims for return and quiet diplomacy As described above, the backdrop for the dispersal of the royal art treasures of Benin was a colonial war that marked the end of the independent kingdom. Before resuming and analysing claims and wishes for restitution so far, it is worth looking at the history of Benin treasures in European and American collections to understand the complexity of the matter. In the introduction to the catalogue of the Benin exhibition, I tried to give an overview of the intricate ways in which many works had changed hands several times: first on the Niger Coast, then in Britain, Germany and other places (Plankensteiner 2007b). Such movements have continued until today. Photographs made immediately in the aftermath of the capture of the city of Benin and the occupation of the royal palace document how the British soldiers amassed the works of art they had found in the courtyards of the dilapidated structure after it had been destroyed by fire (Coote and Edwards 1997, Plankensteiner 2007a). They show the huge number of relief plaques, figures and other castings,

138  Barbara Plankensteiner

Figure 6.3 British soldiers with relief plaques found in the royal palace, Benin City, 1897. Photo: Collection Pitt Rivers Museum, Oxford.

as well as piles of ivory tusks waiting to be deported. In contrast to the main interest of the time in ivory as a profitable good to be sold, it was the approximately nine hundred plaques that became the official booty of the British Foreign Ministry, to be sold through the British Museum (BM) to defray the costs of the Benin expedition. Most of the treasures found were distributed among the members of the expedition according to their rank (Plankensteiner 2007b, Home 1982:101). There is still a lot of uncertainty as to how works of art changed hands within the protectorate at the time, as several objects shown in the 1897 photographs ended up later in German and Austrian museums through channels other than the art market in Britain. Most of these artworks were bought through various intermediaries, some known, others not, and reached Europe through the port of Hamburg. The British Museum itself owes the largest part of its Benin holdings to members of the Benin expedition who themselves or their heirs sold or gave them to this or other museums in the UK. Several collections came onto the art market particularly in the 1960s and ’70s and were sold to museums and private collectors chiefly in the United States. The Nigerian museums, still under colonial administration, also acquired important works of art from such sources: the collection of Admiral Rawson in 1948,2 items previously owned by Robert Allman in 1953, and a series of plaques from the BM during the 1950s, two of them after independence in 1972.3 Even up to the present day, objects owned by descendants of expedition members turn up for sale at auctions. Only recently, the heirs of the already mentioned

The Benin treasures: difficult legacy and contested heritage 139 Lieutenant Colonel Sir Henry Lionel Gallwey (1859–1949), Deputy Commissioner and Vice-Consul in the Oil Rivers Protectorate (later the Niger Coast Protectorate) in 1891, and member of the Benin expedition, brought in for auction a group of objects, including a rare ivory mask depicting Queen Idia, to Sotheby’s in 2010. The mask is one of a group of five similar examples considered as the finest ivory carvings from Benin dating to the sixteenth century, and the only one still held in a private collection.4 They became popularly known when the Idia mask owned by the BM was chosen as symbol for FESTAC, the Nigerian Festival for Black Arts and Culture, in 1977. This pendant mask, now commonly known as the “FESTAC Mask”, became iconic for the colonial plunder of Africa, after the loan to Nigeria was not granted by the BM because the Nigerian authorities could not meet the conservational conditions and insurance requirements requested. When the sale of the Gallwey mask was announced, it stirred outrage among Africans in the diaspora and the family withdrew the mask from public sale.5 Its whereabouts are currently unknown, but most probably the family still owns it. It was undoubtedly the symbolic value that caused the anger, considering the fact that Benin works of art regularly appear at auctions and no comment is made about them. In 1892, Henry Gallwey was accompanied by J.H. Swainson, a trading agent from Liverpool, who received a fine brass horseman figure as a gift from the Oba. A carved royal ivory tusk with a cast stand, also put up for auction by the heirs and then withdrawn, was a present to Gallwey at the same time (Karpinski 1984:60). It is unclear if the Gallwey mask was taken in or after 1897, or if it was part of the gift in 1892. The vague historic facts did not count in the debate; it was more the symbolic value because of the FESTAC incident, and the association with Gallwey as the advocate of having the Oba sign a treaty with his fingerprint, considered unlawful from a preseat-day and historic Nigerian perspective. The whole story is exemplary of how emotions and moral principles shape the debate about the return of these cultural treasures, while the question of which law applies in judging the historic events remains a matter of dispute. The Gallwey ownership of the items since 1897 is still perfectly legal according to the governing international conventions, and the family has the right to sell their belongings. Acting on my suggestion, Sotheby’s had informed the Nigerian authorities in advance about the upcoming sale with an official letter to the Nigerian Commission for Museums and Monuments (NCMM).6 The Art Newspaper reported that Nigerian official bodies made no formal claims in the end (Bailey 2011); also, an approach to the family seemingly never happened, although it had been planned by officials of the NCMM. I am not aware of any record that the Oba of Benin made a request for the return of the art treasures during colonial times. However, there was restitution of two coral bead crowns and a coral bead tunic to Oba Akenzua II in 1937. A touching photograph showing Oba Akenzua II clutching the coral items to his heart and wearing one of the crowns records the event and the deep emotions it raised.7 It was not a return by the British Museum, as often corroborated, but a private return by G.M. Miller, son of a member of the Benin expedition, who had deposited the pieces on loan to the BM in 1935.8 While Oba Akenzua II, who

140  Barbara Plankensteiner reigned from 1933 to 1978, supported the early National Museum in Benin with donations from the palace, these precious coral regalia formerly owned by Oba Ovonramwen are reserved exclusively for Benin kings and continue to be used by the actual Oba Erediauwa. The Benin Museum was founded under British colonial administration in 1946 on the initiative of Kenneth C. Murray and Chief Jacob U. Egharevba (1893–1980), who was also its first curator and author of the influential Short History of Benin. Kenneth C. Murray (1903–72) was firstly Surveyor of Antiquities from 1943 to 1957 and, after independence, Director of the Department of Antiquities, a position he took over from his successor Bernard Fagg in 1963, until Ekpo Eyo, as the first Nigerian, replaced him in 1968 (Willett 1973). Murray was the founder of the Nigerian museums and instrumental in protecting Nigeria’s cultural heritage by enforcing the Antiquities Ordinance and fighting against

Figure 6.4 Oba Akenzua II with returned coral insignia. Photo: S.O. Alonge, 1937, Museum for African Art, Smithsonian Institution, Washington DC.

The Benin treasures: difficult legacy and contested heritage 141 smugglers of Nigerian art, of which his correspondence in the archives of the National Museum in Lagos give ample evidence. Murray, as has already been mentioned, tried to bring back Benin works of art to Nigeria in the 1950s by buying what he could afford on the art market; he was able to build a remarkable collection that today stands among the finest worldwide. He received support in this endeavour from the then Keeper of Ethnography at the British Museum, Hermann J. Braunholtz.9 The main focus of the Nigerian museums in the 1960s turned towards safeguarding and collecting what was left in the country. It was a losing battle, as in the aftermath of the Biafra War (1967–70), thousands of objects left the country and ended up in private collections and museums in the US and Europe. In the 1970s, under the leadership of Ekpo Eyo and in the spirit of a nationalist wave for self-definition of the young prospering country, the first steps were taken in seeking for the restitution of cultural treasures. An official letter from the Nigerian Ministry of External Affairs reached the Austrian Embassy in Lagos in 1972. This letter referred to a resolution adopted at the Ninth Triennial General Assembly of the International Council of Museums citing the following sequence: That all large museums holding important collections of foreign origin in their reserves, help by all means in their power (gifts, loans, deposits, exchanges, research scholarships, training of personnel), the countries of origin of these collections, so as to allow them to establish and develop modern museums which are truly representative of their special culture.10 The letter asked for cooperation “in securing the release of Nigerian antiquities from its institutions or citizens”. The petition was a typewritten form with blank spaces into which the country and embassy addressed was filled in by handwritten words and was sent to the embassies of other countries as well, obviously with no recorded results (see also Shyllon 2003:136). The aim of this initiative, according to Ekpo Eyo, would have been to retrieve some Benin objects from museums internationally to add to the Nigerian collections (Adebiyi 2009:122). The Austrian Minister of Science and Research responded that the only Nigerian holdings at the Museum of Ethnology had been acquired in a faultless legal and ethical manner, such as scholarly research, acquisition, exchange, etc. A release, therefore, would be absolutely out of the question. Furthermore, he regretted that loans could not be granted because of conservation and security reasons. However, under certain conditions, an exchange of individual objects against ethnographic artefacts of equal value could be considered directly by the Museum of Ethnology. The offer though was curtailed by the addition that the collection barely contains any disposable objects. Finally, the minister invited Nigerian scholars or students to carry out research at the museum, the cost of which would have to be borne by international scholarships.11 Two announced visits by Ekpo Eyo, one in spring 1973 to select loans for FESTAC and another in 1975, never materialised. After that, no incidence with relation to claims for return was recorded at the museum.

142  Barbara Plankensteiner In the wake and aftermath of the Great Benin Centenary celebrations in 1997, the subject emerged again and, in contrast to the initiative in the 1970s launched by a national institution, the Oba himself became the main claimant. Organised by a local committee appointed by Oba Erediauwa under the leadership of his brother Prince Edun Akenzua, the centenary was to commemorate the events of 1897. From 17–22 February 1997, a scholarly symposium, public speeches, theatre and cultural performances, art exhibitions and a lecture series took place in Benin City (Nevadomsky 1997). The objective of the organisers was to review scholarship on Benin culture of the last hundred years and to put earlier interpretations into perspective. In addition, a further wish was for “sensitizing the world conscience and mobilizing opinion in support of the Oba’s demand for return of the bronze and ivory artifacts looted from the palace” (Akenzua 1998). In 1996, Bernie Grant (1944–2000), a British Labour Member of Parliament and Chairman of the African Reparations Movement, wrote to several museums in the UK asking them to return their Benin holdings (Simpson 2001:275). Grant had also called on the UK Parliament earlier to support the Abuja Proclamation issued in 1993 at the First Pan-African Conference on Reparations, which urged the Organisation of African Unity (OAU) to sensitise the international community to recognise the moral debt owed to Africans and to engage in efforts for reparation and restitutions.12 Grant acted with a letter of authorisation from the Oba of Benin and was supported by the West African Museums Programme (Layiwola and Olorunyomi 2010:199–201). In challenging the lawfulness of the Benin Expedition, he requested a return of the Benin treasures to the Oba himself and not to a museum. Only the reaction by the Director of Glasgow Museums from January 1997 refusing the return is publicly available. The arguments for the refusal can be summarised as follows: Glasgow Museums only own 22 Benin pieces of minor quality that nonetheless play an important role in introducing the public to the great culture and religion of the historic kingdom. Acknowledging the fact that Nigerian museums themselves own one of the finest collections of Benin art, the Glasgow artefacts would not represent a significant addition. A return to the Oba for a future religious use would be out of the question because of their important public role in informing an average of 3 million people yearly about the culture of Benin and also of the history of British imperialism.13 Although Grant formally appealed against the decision, nothing further happened. Glasgow Museums had established their decision with the help of a working group that invited Frank Willett, an archaeologist who had conducted excavations in Ife and an authority in the field of Nigerian antiquities to consult on the matter. He had also been involved in the early years of founding museums in Nigeria. He made a case against the return by referring to the lack of security in Nigerian museums, that had witnessed several thefts in the recent past, and also the Benin palace, from which works of art from the royal altars had been stolen in the early 1980s. Glasgow Museums, furthermore, did not want to create a precedent and felt that the Benin issue would be better approached nationally or intergovernmentally rather than by the unilateral action of a single museum.

The Benin treasures: difficult legacy and contested heritage 143 The argumentation brought forward by Glasgow Museums followed a pattern that we can discern in statements given by several museum leaders later on. In this particular case, they were informed by a knowledgeable personality who, only a little later, wrote a rare outspoken article in which he criticised the regrettable state of Nigerian museums, the lack of security and the alleged involvement of staff in thefts and illegal exports (Willett 2000). The list of cases he mentioned is long and, to the best of my knowledge, only a few of the objects which had disappeared have been recovered to date. Willett also deplored the slow reaction of the NCMM in replying to reports they received from customs or international colleagues who informed them about detected stolen objects and in officially claiming them back. The article is based on a paper he gave at a conference in 1999, after which the then Director General of the NCMM, Yaro Gella, had reproached him of being inconsistent in view of his reputed support for Nigerian museums, to which he reluctantly replied: I have been keeping an eye on the art market and attempting to arrange for the return of pieces stolen from Nigerian museums ever since I left the paid service of the Nigerian Government in 1963 yet here I am recommending that objects should not be returned . . . Although thefts are not unknown from museums in Britain, they are quite rare. In Nigeria they have been occurring on a grand scale. It would be highly irresponsible to return pieces that are safely kept in British museums to such insecure institutions as the museums (and probably the Palaces) of Nigeria. (Willett 2000:3) In his opening speech at the Benin Centenary, Oba Erediauwa made a clear point about the way in which he preferred to address the issue (Erediauwa 1997). He saw no solution in taking the British government to the International Court of Justice because of the events of 1897, but rather envisioned more to be achieved through quiet diplomacy. He also stressed the responsibility of the Nigerian official bodies: In 1997 I have no doubt that the British government will cooperate in getting some of these things repatriated to us if approached properly by our own government, bearing in mind that many of these looted objects were sold to private collectors. (Erediauwa 1997:33) It is also worth noting that the Oba here, and also in later remarks, never asks for the return of everything but for “some” of the objects.14 In contrast to these words, the requests of his brother, Prince Edun Akenzua, who became the main royal envoy and speaker on restitution, go much further. In 2000, he was invited to speak to the House of Commons in the course of an enquiry about cultural property issues and, “on behalf of the Oba and people of Benin who have been impoverished, materially and psychologically, by the wanton looting of their

144  Barbara Plankensteiner historical and cultural property”, asked for “an official record of the property removed from the Palace of Benin in 1897 be made available to the owner, the Oba of Benin”, and that all this should be returned to the Oba as rightful owner or “the British should pay monetary compensation, based on the current market value, to the rightful owner, the Oba of Benin.” Britain should, furthermore, take on the responsibility to retrieve the property or monetary compensation from all those to whom they sold the objects.15 While there was no special mention made of the Benin case in the “Summary of Conclusions and Recommendations” made after the parliamentary enquiry, reference is made to the importance of close interaction with claimant communities in the report “Museums: Acquisition and Return”.16 It is mentioned that such dialogue can be rewarding for both sides and an opportunity to develop cooperation and partnership. On the other hand, it states: “This Committee sees little merit in cultural nationalism and shares the dismay at the notion of the world’s museums devoid of their global holdings and the opportunities for comparison and greater understanding which they offer.” In the end, the UK parliamentary enquiry leaves the final decisions to the individual museums and their differing governing laws. It is not the place here to recapitulate the whole discussion in detail which others have done already (e.g. Greenfield 2013:85ff.), but rather to point to two central issues that continue to frame the contemporary approach to return: a universalist posture for greater understanding of world cultures and aims to share heritage through collaboration. In 2002, the Nigerian Parliament had called on President Obasanjo to demand the return of the Benin treasures at the BM (Greenfield 2013:125f.).17 In the same year, the British press revealed that President Yakubu Gowon, on a state visit in 1973, had donated a sixteenth-century Benin head from the Lagos museum collection to Queen Elizabeth; this news weakened Nigerian claims considerably. Appeals to return the controversial gift were not heard and seemingly considerations in 1974 to reciprocate the gift with two ivory leopards in the Queen’s collection had not been followed up (Bailey 2002b, 2002c, 2005). The large Benin exhibition opened in Vienna, later shown at the Musée du quai Branly in 2007 and in 2008 at the Ethnologisches Museum in Berlin and the Art Institute of Chicago, again brought the issue into the public spotlight as the debate principally evolved in the media. It is interesting to note that while this debate arose as the main theme in the press coverage in Vienna, in Paris and Berlin it did not occur, and in Chicago only in a subordinate manner. The reason for this was that the Vienna Museum of Ethnology had openly addressed the issue itself and offered a podium to the Nigerian delegates, including the envoys of the Oba (Plankensteiner 2009:208ff). The latter had not been invited in Berlin but the Nigerian Minister of Culture, Prince Kayode, advocated collaboration and access to collections rather than requests for return in his opening speech. Nigerian representatives could not address the press in Paris, and in Chicago, where the local Edo community supported the exhibition to showcase the great art and history of the Benin kingdom, a media debate arose as well. Here, critical voices on the role of the Benin kingdom in the slave trade arose,18 an argument that had been

The Benin treasures: difficult legacy and contested heritage 145 brought up by Moyo Okediji earlier. He posed the question of who the rightful owners of the bronzes are, and alludes to the imported brass rings (manillas) used to cast these objects that were exchanged for the slaves: “Perhaps, then, it is the progeny of those whose bodies were sold to pay for the raw materials who deserve the works” (Okediji 1998:9). His argument also refers to the relational quality of the objects in European and American collections, which gains momentum with the growing diasporic population and evolves into an important perspective for ethnographic collections.19

Dialogue, collaboration, sharing: a solution? The Benin exhibition in 2007–08 also marked a turning point in the exhibition and concurring publishing practices of museums with regard to Benin artworks. For the first time, the project was not confined to a single museum collection, but brought together significant works from major holdings in Europe, the US and Nigeria, and was, therefore, a collaborative effort of a larger group of museums. Since it was clear that the prominence of the project would raise the issue of return, the whole endeavour involved a lot of sensitivity and diplomacy to convince museums to participate as lenders. The collaboration with the Nigerian museums and the royal court was decisive, and representatives of both attended the opening and a symposium that followed suit. The catalogue included contributions by major scholars working on Benin history, art and culture, and aimed to assemble a variety of perspectives, local Edo voices and historic perceptions, art historical and anthropological analyses (Plankensteiner 2007a). This inclusive polyvocal approach and the resulting relationship between institutions and individuals laid the basis for a further engagement. As anticipated, the successful show had engendered a debate about the proper future of the Benin collections and sensitised not only a larger public, but also museum professionals about the issue and the need to act. This experience and the good collaborative climate that emerged between the Weltmuseum Wien (then still called the Museum of Ethnology) and the NCMM laid the ground for the initiative to start a dialogue between Nigerian institutions and European museums on the sensitive matter regarding the Benin bronzes. While in the past, the fact that the Benin treasures were colonial loot was never questioned, on the other hand, no museum has made any step towards returning objects. Apart from the argumentations presented above, the main reason is that the legal framework does not require museums to act. The invasion of Benin happened before the Hague Conventions of 1899 or 1907,20 and the UNESCO and UNIDROIT Conventions are not retroactive. It would, therefore, be a deliberate moral decision for a museum or a country to return objects. A further difficulty lies in the vast dispersal of the Benin treasures throughout Europe and the US in museums and private collections. The sheer number of institutions and governing laws of their organisational structures poses severe limitations and complications on eventual joint action. Until the African Union or any other African official body pressures the international community or powerful states to change or issue laws accordingly, this situation might not change. Even with such legal framework in place, the complexity

146  Barbara Plankensteiner of the governing structures of the individual museums and the large number of countries and their own laws and contingencies would make it an enormous effort with an indeterminable duration. Furthermore, as one can see from the above, the royal court in Benin assumes a different posture from the NCMM in appealing to the magnanimity of museums (Erediauwa 2007)21 to return “some” objects. By contrast, the NCMM asked repeatedly and indiscriminately for the general return of Benin art and everything “Nigerian”.22 European or American museums often use this double reference as an argument of uncertainty of competences and tend to refer rather to the Oba than to the NCMM as the responsible national entity for the cultural heritage. This background and the shared belief that “this question is not going to go away”, as John Picton (1998:11) had pointedly remarked, brought Nath Mayo Adediran, then NCMM Director of Museums, and myself to envision partnership on this sensitive issue and to establish other forms of interaction than return requests from the one side, and denials from the other. With the conviction that questions of such a measure can only be addressed in a dialogue of all parties involved, we wanted to create a platform for a collegial exchange of opinions and joint efforts to seek viable solutions. After Nath Mayo Adediran’s retirement, the Director General of the NCMM, Yusuf Abdallah Usman, took the lead and continued to support and coordinate the initiative. A first workshop, “New Cultures of Collaboration. Sharing of Collections and Quests for Restitution: the Benin Case”, was jointly organised in Vienna in December 2010 to which representatives of the NCMM and the royal court of Benin, assisted by the eminent Nigerian legal expert on cultural property, Folarin Shyllon, were invited, together with representatives from the two European museums with major Benin collections: Jonathan King, then Keeper of the Department of Africa, Oceania and the Americas at the BM, and Peter Junge, curator of the Africa collection at the Berlin Museum of Ethnology. Two colleagues from the Stockholm Museum who had only recently refurbished a gallery devoted to its Benin collection asked to participate as well. The Vienna Museum also invited those responsible for restitution questions at the Austrian Ministry of Culture to the meeting to build awareness about the whole subject. This first workshop concluded with the agreement to continuously enlarge the circle of participating museums and to arrange meetings on a regular basis. As a first step, the partner museums provided lists of their Benin collections for all collaboration partners and explored funding possibilities for the training of Nigerian museum staff. The dialogue continued in Berlin in October 2011, upon the invitation of the Ethnology Museum under the title “New Cultures of Collaboration – Sharing of Collections” (now with additional participation of the Staatliche Ethnographische Sammlungen Sachsen and the National Museum for Ethnology, Leiden). The workshop focused on the presentation of German funding programmes and grants for visiting scholars. Moreover, an agreement was reached to make the various Benin collections accessible online and to subsequently establish an online network to facilitate research. The last meeting took place on 19–20 February 2013 in Benin City upon the invitation of the NCMM under the title “Meeting of Nigerian Officials and European

The Benin treasures: difficult legacy and contested heritage 147 Museum Representatives over the Benin Bronzes in European Museums”. The results of the workshop were presented in a final press conference as a “Benin Plan of Action”, a joint agreement on the content of a memorandum of understanding that the participating museums plan to sign to set an official stamp on the cooperation. It addresses digital and in-print publication of the respective Benin holdings, accessibility of the collections to the staff of the collaborating institutions, waiving of reproduction fees, assistance with expertise and support for curatorial education, and support for the development of libraries and archives of the NCMM. The final aim expressed was to create an enabling environment for the exchange of exhibitions and loans in both directions. It had been decided at the first workshop to keep the dialogue on an internal basis and not to make it public until a further joint agreement on such a step was taken. The initiative was important to create trust and understanding for the preoccupations of the various participants and the politics of their respective institutions, and the first three meetings principally served that purpose. It was clear from the composition of the group that the curators or the court representatives involved could only act as delegates without power for immediate decisions, as they were caught in complex hierarchies. However, it was a decisive gesture of the participant institutions to send envoys and support the process. The workshop in Benin City exposed the fragile nature of the endeavour and the impact of politics on the individuals involved. Upon arrival, on the evening before the workshop, the European delegates realised that a major public event had been planned along with the workshop to which politicians and the press had been invited. This was a serious breach of the earlier consensus to keep the process within the museum group and the royal court and caused distress among the European guests. During the official reception, the Minister of Culture, High Chief Edem Duke, a representative of the Governor of Edo State, and Prince Edun Akenzua, representing the Omo n’Oba of Benin and the Director General of the NCMM, addressed the five European museum officials from Vienna, Berlin, Stockholm, Dresden and Leiden, and the invited guests and journalists. The minister appealed in his speech for “voluntary repatriation” to “reconsider the injustice that led to the uprooting of these cultural icons” and envisioned commercial benefit for Nigeria through its cultural heritage: Nigerian artefacts rank among some of the best in the world; the amounts generated by people holding on to them is immeasurable. I advise that we too take efforts to derive benefits from our patrimony and thereupon use them in such a manner that will bring pride to us as a people.23 Prince Edun Akenzua questioned the competence of the European delegates in impacting decisions on national policy matters for the return of cultural property and lamented that not much had happened since 2007 when he had spoken at the opening of the Benin exhibition in Vienna. He urged the NCMM to advise the Nigerian Government to treat the Benin case as an emergency and to resuscitate the African Reparation Movement. He ended his address by stating “We

148  Barbara Plankensteiner have had enough of these meetings which only end as an academic exercise.” The Director General, Yusuf A. Usman, used more balanced words in compliance with the layout of the dialogue so far, and while he reprimanded the Declaration on the Importance and Value of Universal Museums of 2002, he appreciated the goodwill of the participating museums to move beyond the legal framework of the UNESCO 1970 and UNIDROIT Conventions and the complexity of other laws governing cultural property: “To make sense of this conflicting state of affairs, the drafters suggest that parties may seek other complementary means, other arrangements that will be agreeable to all parties.” The reception raised public emotions through political rhetoric, but during an audience with Oba Erediauwa confined to the core group, several chiefs spoke up, appreciated the presence of the European representatives and welcomed dialogue and diplomacy as a means to move ahead, while the Omo n’Oba himself repeated his wish for the return of at least some of the lost objects. Prince Edun Akenzua, who had earlier expressed rather harsh words, in a private meeting later on gave his support for the formulated Plan of Action presented at the closing press conference.24 The experience in Benin City showed that collaborations of this kind and long-term processes have a serious backlash for the Nigerian colleagues and also the court. The public and political pressure for immediate tangible results and the difficulty to counter emotional simplifications had driven the NCMM to use the workshop for their own agenda. The invitation sent out locally and to the press, as I realised later, had announced the public event under the different heading of International Conference on Prospects for Repatriation of Benin Bronzes,25 which explained the false expectations expressed in the speeches and media reactions (e.g. Sowole 2013). While the dialogue was coined as “discussion on the ownership status of Benin Art Works in foreign collections” in the “local” invitation, the joint understanding driving the dialogue so far had actually been to explicitly move beyond ownership questions that could not be solved in such an initiative, but rather to focus on exchange, loans and other forms of collaboration. Although the European colleagues felt outwitted, it was a crucial moment exposing the difficulties of the Nigerian museum colleagues to engage in such a dialogue. The NCMM has been reproached repeatedly regarding mismanagement, corruption and inactivity in recent years and needed to publicly improve their image, particularly in Benin City, where the climate had been deteriorating for years (Layiwola 2010:8ff). Members of the court have repeatedly voiced their dissatisfaction with the state of the National Museum in Benin City (Ebegbulem 2007). Furthermore, the royal family plans to create a palace museum in Benin City, which the daughter of the Oba, Princess Theresa Erediauwa, had presented at the Benin exhibition opening in Chicago in 2008 and her brother, Prince Omoregbe Erediauwa, had recently confirmed.26 The royal court has also recently been the subject of reprimands about being inconsistent. Invitations of court members after the Vienna Benin exhibition seem to have become standard practice. When the Stockholm Ethnography Museum opened a new gallery devoted to their Benin collection, the Crown Prince Eheneden Evediauwa and Prince Edun Akenzua attended the event and delivered

The Benin treasures: difficult legacy and contested heritage 149

Figure 6.5 Participants at the workshop in Benin City, 19 February 2013. Photo: Barbara Plankensteiner.

speeches (Östberg 2010). The Boston Fine Arts Museum also invited representatives of the Oba to the opening ceremony of the newly installed major donation of Benin works of art from the collection of Robert Owen Lehman. In the forefront, the gift had been heavily criticised and the presence of Benin dignitaries at the opening ceremony was commented on as a severe contradiction (Opoku 2013, Okeke-Agulu 2012).27 For years, European museums have equally become targets for anticolonial activists or groups vehemently demanding the critical reflection of colonial heritage and according actions.28 The collaborative climate established within the Benin dialogue is still easily disrupted as the incidence at the last meeting revealed. However, it also showed that the following open discussion furthered understanding between the partners affected. Suspicions remain on both sides and constantly reappear as another occurrence exposed. Due to unforeseen visa problems, the responsible keeper from the BM had to cancel her planned attendance in Benin City at the last moment.29This was misinterpreted by media reports (Bailey 2013) and, thereafter, also in some European museums as a sign of disinterest by the BM, although it had been present at all former meetings and offers ongoing support within its Africa Programme. The whole dialogue, although criticised as moving on too slowly, remains exceptional and important in leading to an open-ended process of reconciliation. It is a responsibility of museums internationally to invest in partnership and openness in relation to contested cultural property and not to fall into the trap of instigators that strain the process by polarising through misreading and simplification.

150  Barbara Plankensteiner

Conclusions: the future? A recurrent argument from Nigerian politicians and museum professionals for the return of Benin antiquities is the enormous potential they see in cultural heritage to trigger tourism (e.g. Adebiyi 2009). Nigeria certainly has a lot to offer for cultural tourism, with its rich heritage, important historic sites, living cultural traditions and contemporary arts. Returns or long-term loans of some historic Benin pieces would unquestionably add to the exceptional collections in the country. Compared to other African nations, however, Nigeria has yet to develop the necessary infrastructure and to invest in the care of its heritage sites to attract tourists. In this connection, it should be mentioned that important documentary material for Benin history still leaves Nigeria or is left to decay because no provisions are made by national institutions to preserve it. Only recently, a unique photographic archive of the court photographer, S.O. Alonge (1911–94), recording events from 1933 to 1978, has legally left the country and has been bought by the Smithsonian Museum for African Art in Washington, DC.30 Another private archive of the well-known photographer and cultural journalist Tam Fiofori documenting the coronation ceremonies of the reigning Oba Erediauwa in 1979 could face the same destiny (Fiofori 2011). Fiofori himself, together with other Nigerian photographers, has tried in vain to get support to create a national photographic archive to secure for future generations such documentary treasures that are now left to deteriorate in private ownership where necessary provisions to conserve the material in adequate ways cannot be funded.31 Other cases in point are that of the Benin Moats dating to the fourteenth century, nominated as a UNESCO World Heritage Site, and falling under the responsibility of the NCMM, and the Ogiamien house as the only remaining structure to document pre-1897 Edo palaces. A whole department of the National Museum in Benin City with several employees is responsible for safeguarding these unique historic sites, but lack of funding, schooling of these professionals, or interest of the local population who continues to obstruct the sites make it a simply impossible undertaking.32 While such facts are often brought up as arguments against restitution, they are certainly a different matter and should not be confused (Opoku 2010:95). However, they show that there is still a long way to go to build an awareness to preserve the cultural property existent in the country. For Nigeria, it is undoubtedly not only a question of financial resources, but also a question of politics, renewal and restructuring of public bodies responsible for the care of cultural heritage (Layiwola 2010:8f.).33 While private initiatives that invest in culture by building collections and archives or financing research abound, there seems to be increasing mistrust in national institutions that have not managed to keep up with contemporary developments and needs. It would be unfair to blame the many museum professionals of the NCMM, who with real devotion invest so much in the security and care of the national collections; but the equipment, means and conditions under which this has to happen are often deplorable. What John Picton lamented fifteen years ago in reference to the state of the Lagos Museum has changed a bit, but regrettably not considerably: “Now the exhibition shows its age

The Benin treasures: difficult legacy and contested heritage 151 in ways that suggest an institution tragically starved to death by lack of adequate funding, including funding for training in the conservational and connoisseurial skills necessary for a national collection of antiquities” (Picton 1998:86). There is also a need to rethink practices and legislation in Europe and the US. Considering the recent gift of the Lehman Benin collection to the Museum of Fine Arts in Boston that again triggered heated discussion, one could only guess what would have happened if the US tax exemption law would also consider gifts to African museums. This major gift of an exceptional private collection of works of art from Benin bought on the art market could have gone back to Nigeria, since the main background for the gift might have been, in the end, a major tax reduction.34 In conclusion, this chapter shows that the complexity of the matter is not solved by individual museums, but depends on a much larger political and legal framework affecting the colonial period that cannot be solved by single cultural institutions, each with their own different structure of governance and ownership of collections. Apart from their national directives, the museums also operate within an international community of institutions and concurrent dependencies and collaborations. This is true for “Western” and African museums alike, and defines their actions. Private or non-governmental bodies have proven to be more direct and immediate: the most outspoken claimants for restitution are the Oba and members of the royal family as the rightful descendants of Oba Ovonramwen. Equally, the only returns so far have been made by individuals, private owners, themselves descendants of Benin expedition members. Only recently has such a return been announced and the return officially celebrated at the Royal Court in Benin City in late June 2014.35 To nurture their belief that there is little merit in cultural nationalism, European and American institutions must engage with more sustainability and honesty in collaborations and do everything in their means to enable the sharing of their own cultural treasures with African partners. The theme of the International Museum Day in 2014, “museum collections make connections”, perfectly invoked the spirit and should be the promise for the future.

Notes 1 Home (1982:33–4) cites a letter from James Phillips to the Foreign Office in which he pressed for immediate action to depose the king by force to ensure free trade and free the people from the “barbarous” monarch. 2 Letters from Kenneth C. Murray to Braunholtz, 20 June 1948 and 23 July 1948, Archive National Museum, Lagos. 3 The sale of the British Museum plaques at far below market value was initiated by Hermann Braunholtz, then Keeper of Ethnography (Bailey 2002a). 4 The other four are owned by the following museums: the Metropolitan Museum of Art in New York, the Seattle Art Museum, the British Museum and the Lindenmuseum in Stuttgart. 5 An online petition against the sale was organised by an initiative called the Nigeria Liberty Forum, an organisation no longer found on the Internet; see www.ipetitions. com/petition/benin_mask/ (accessed 17 April 2014). While the goal for signatures was

152  Barbara Plankensteiner 5,000, to date 1,190 have signed. See also http://www.artlistings.com/art-news/903benin-ivory-mask-withdrawn-from-sothebys-sale/ (accessed 30 March 2014).   6 Correspondence and personal communication with Jean Fritts, Sotheby’s, on 14 Sep­tember 2010.   7 Photo by S.O. Alonge, 1937. Formerly private collection Flora Kaplan, now Museum for African Art, Smithsonian Institution, Washington. The image was also reproduced on the commemorative cloth designed for the funeral by his daughter, the artist Princess Elizabeth Olowu (Layiwola 2007b).   8 Letter of William Fagg to Bentley Bridgewater, 5 February 1973. Archive, Dept. Africa, Oceania and the Americas, British Museum. See also comment to Picton (2011) by Kwame Opoku.   9 See correspondence between Murray and Braunholtz from 1948 to 1957 kept at the Archive of the National Museum in Lagos. 10 Letter dated March 1972, forwarded to the Austrian Foreign Ministry by the Austrian Embassy in Lagos, 7 April 1972, Archive, Weltmuseum Wien. 11 Dispatch of the Ministry of Science and Research forwarded also to the Vienna Museum of Ethnology on 20 April 1972, Archive, Weltmuseum Wien. 12 See www.parliament.uk/edm/print/1992-93/1987 and www.ncobra.org/resources/pdf/ TheAbujaProclamation.pdf (accessed 17 April 2014). 13 The case was brought forward during an UK Parliamentary inquiry on cultural property and published on the parliament’s website in 2000: http://www.parliament.thestationery-office.co.uk/pa/cm199900/cmselect/cmcumeds/371/0051808.htm (accessed 17 April 2014). 14 See also his often cited introductory note to the Benin exhibition catalogue (Erediauwa 2007). 15 The Case of Benin. Memorandum submitted by Prince Edun Akenzua, www.parliament. the-stationery-office.co.uk/pa/cm199900/cmselect/cmcumeds/371/371ap27.htm (accessed 17 April 2014). 16 http://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmselect/cmcumeds /371/37107.htm#a21 (accessed 17 April 2014). 17 Nigeria wants bronzes back. West Africa, 4–10 February 2002:22–3. 18 E.g. comment by Alan Matthews to Isaacs (2008). 19 See also Basu (2011) and his concept of object diasporas. 20 Only the Hague Convention 1954 protects cultural property in times of armed conflict (Östberg 2010:58). 21 Letter of Edun Akenzua to Board of Trustees, The Art Institute, Chicago, 9 September 2008, Brief Chicago. 22 E.g. at the Conference on International Cooperation for the Protection and Repatriation of Cultural Heritage, 7–8 April 2010, in Egypt and the first meeting within the “Benin Dialogue” in Vienna in 2010. 23 This and the following quotes are made from the handouts of the speeches made available to the audience, 19 February 2013, Benin City. 24 In response to the sudden public representation, a joint document was issued after return to present the dialogue on the websites of the participating museums, see “Benin Dialogue”: http://www.weltmuseumwien.at/en/explore/about-the-museum/co-operations/ national-commission-for-museums-and-monuments-nigeria/?cHash=dfb045333efd09 6a1ea1afd262c4a608 (accessed 1 July 2014). 25 Invitation letter seen in possession of Princess Elizabeth Olowu, 22 February 2013. 26 Taped interview, Benin City, 26 February 2013.

The Benin treasures: difficult legacy and contested heritage 153 27 Prince Edun Akenzua later claimed that the presence of Benin court members had not been in accord with the Oba of Benin’s wishes; see US Museum splits Benin Royal House: Guardian Mobile, 9 September 2013. www.theguardianmobile.com/ readNewsItem1.php?nid=17803 (accessed 19 September 2015). 28 See, for instance, the initiative No Humboldt 21 http://www.no-humboldt21.de/ resolution/and the numerous online articles and comments by Kwame Opoku: http:// www.modernghana.com/GhanaHome/columnist/category.asp?menu_id=50&c_ id=915 (accessed 19 September 2015). 29 E-mail communication with Lissant Bolton, 14 February 2014. 30 See Kaplan (1991) on Alonge and http://africa.si.edu/exhibitions/current-exhibitions/ alonge (accessed 25 September 2015) on its collection at the Smithsonian Museum of African Art. This museum will give digital copies of the photographs to the museum in Benin City and organize an exhibition there. 31 Tam Fiofori, personal communication, 10 April 2010. 32 Several Edo associations appealed to President Jonathan on 14 January 2013, to take immediate action for the conservation of the historic structure, http://saharareporters. com/news-page/edo-united-group-wants-fg-restore-historic-edo-moat-or-face-legalaction (accessed 10 May 2014). 33 A Ford Foundation seed grant for the renovation of the National Museum in Lagos has been waiting since 2009 to be added to by fundraising, see http://aachronym.blogspot. co.at/2009/03/lagos-museum-gets-2million-boost-from.html (accessed 19 September 2015). 34 In summer 2014, the Boston Museum of Fine Arts (MFA) returned eight works of African art to Nigeria from a collection donated by the Teel family. Proactive provenence research by the MFA curator of provenance revealed that these works had been illegally exported within the last forty years, as it turned out that the export papers were not authentic. The restitution included two Benin pieces. Charles Davis, one of the dealers who had sold some of these works, including two Benin pieces, to the Teels, mentions in an article published on the issue that he had harboured the plan to found a non-profit organisation so that American collectors could donate back objects with the benefit of receiving a tax deduction, but the time was not yet ripe for that: http:// chasingaphrodite.com/tag/boston-museum-of-fine-arts/ (accessed 7 July 2014). 35 Mark Walker, grandson of a Benin expedition member had approached the Oba in March 2014 with the wish to return two Benin pieces he had inherited (Aliu 2014); he returned them in person three months later (http://thisisafrica.me/uk-returns-stolenbenin-artefacts-117-years/ (accessed 20 February 2015)).

References Adebiyi, Babatunde (2009) Legal and other issues in repatriating Nigeria’s looted artefacts. Abuja: Lulu.com. Akenzua, Edun (1998) Nevadomsky’s first word: A reply from Benin City. African Arts 31(1):86–8. Aliu, Alemma-Ozioruva (2014) Oba of Benin never endorsed donation of artefacts to foreign museum. Guardian, 4 April: http://ngrguardiannews.com/index.php/artnew/ 156293-oba-of-benin-never-endorsed-donation-of-artefacts-to-foreign-museum (accessed 10 May 2014). Bailey, Martin (2002a) British Museum sold Benin bronzes. Precedent argument will be used by Nigeria. The Art Newspaper 124:1, 5.

154  Barbara Plankensteiner —— (2002b) How the Queen came to own a Lagos museum piece. The Art Newspaper 128:3. —— (2002c) Appeal to Buckingham Palace to return Benin bronze. The Art Newspaper 129:27. —— (2005) Government knew Nigerian gift to Queen was expropriated treasure. The Art Newspaper 155:9. —— (2011) Benin mask withdrawn from auction. Cancellation follows accusations that the object was looted, although no formal claim has been made. The Art Newspaper 221, 24 January: http://www.theartnewspaper.com/articles/Benin-mask-withdrawn-fromauction/23002# (accessed 31 July 2014). —— (2013) Road map agreed to return Benin bronzes – on loan. Leading institutions absent from meeting in Nigeria to foster international co-operation. The Art Newspaper 245, 26 April: http://old.theartnewspaper.com/issues/245 (accessed 19 September 2015) Basu, Paul (2011) Object diasporas, resourcing communities: Sierra Leonean collections in the global museumscape. Museum Anthropology 34(1):28–42. Coombes, Annie E. (1997) Reinventing Africa. Museums, material culture and popular imagination. New Haven, CT and London: Yale University Press. Coote, Jeremy and Elizabeth Edwards (1997) Images of Benin at the Pitt Rivers Museum. African Arts 30(4):26–36. Ebegbulem, Simon (2007) Benin chief seeks inquest on stolen $100m artefacts. Vanguard, 10 October: http://allafrica.com/stories/200710040206.html (accessed 23 September 2015). Erediauwa, Oba of Benin (1997) Opening ceremony address by Omo n’Oba n’Edo, Uku Akpolokpolo, Erediauwa, CFR, Oba of Benin (excerpt of speech). African Arts 30(3):30–33. —— (2007) Introductory note. In: Plankensteiner, Barbara (ed.): Benin. Kings and rituals: court arts from Nigeria, p. 13. Gent and Vienna: Snoeck Publishers and KHM with MVK and ÖTM. Eyo, Ekpo (1997) The dialectics of definitions: “massacre” and “sack” in the history of the punitive expedition. African Arts 30(3):34–5. Fagg, William (1981) Benin: the sack that never was. In: Kaplan, Flora (ed.): Images of power. Art of the Royal Court of Benin, pp. 20–21. New York: New York University Press. Fiofiori, Tam (2011) A Benin coronation: Oba Erediauwa. Lagos: Sun Art. Greenfield, Jeannette (2013 [1989]): The return of cultural treasures. Cambridge: Cambridge University Press. Home, Robert (1982) City of blood revisited. A new look at the Benin expedition of 1897. London: Rex Collings. Isaacs, Deanna (2008) Plunder on a pedestal. At the Art Institutes’s summer show, Benin royals get a good look at the stuff they want back. Chicago Reader, 17 July: http://www. chicagoreader.com/chicago/plunder-on-a-pedestal/Content?oid=1109176 (accessed 3 July 2014). Kaplan, Flora S. (1991) Fragile legacy: photographs as documents in recovering political and cultural history at the Royal Court of Benin. History in Africa 18:205–37. Karpinski, Peter (1984) A Benin bronze horseman at the Merseyside County Museum. African Arts 17(2):54–62, 88. Layiwola, Peju (2007a) The Benin-massacre: memories and experiences. In: Plankensteiner, Barbara (ed.): Benin. Kings and rituals: court arts from Nigeria, pp. 83–9. Gent and Vienna: Snoeck Publishers and KHM with MVK and ÖTM. —— (2007b) Commemorative cloth, funeral Oba Akenzua II. In: Plankensteiner, Barbara (ed.): Benin. Kings and rituals: court arts from Nigeria, pp. 501–2. Gent and Vienna: Snoeck Publishers and KHM with MVK and ÖTM.

The Benin treasures: difficult legacy and contested heritage 155 —— (2010) Resurrecting the disappeared: A recontextualisation of 1897. In: Layiwola, Peju and Sola Olorunyomi (eds): Benin 1897.com. Art and the restitution question, pp. 1–10. Ibadan: WyArt Editions. Layiwola, Peju and Sola Olorunyomi (eds) (2010) Benin 1897.com. Art and the restitution question. Ibadan: WyArt Editions. Masefield, Thorold (1997) Opening ceremony address by Thorold Masefield, British High Commissioner to Nigeria. African Arts 30(3):28–9. Nevadomsky, Joseph (1997) First word: the great Benin centenary. African Arts 30(3):1, 4–10. Okediji, Moyo (1998) On reparations: exodus and embodiment. African Arts 31(2):8–10. Okeke-Agulu, Chika (2012) The Robert Lehman gift to the Museum of Fine Arts in Boston: matters arising. Huffpost Arts & Culture, 11 November: http://www. huffingtonpost.com/chika-okekeagulu/robert-lehman-gift-mfa_b_1661025.html (accessed 21 September 2015). Opoku, Kwame (2010) One counter-agenda from Africa: would Western Museums return looted objects if Nigeria and other African states were ruled by angels? In: Layiwola, Peju and Sola Olorunyomi (eds): Benin 1897.com. Art and the restitution question, pp. 91–107. Ibadan: WyArt Editions. —— (2013) Can we condemn acquisition of looted Benin artefacts by Boston Museum and still participate in activities involving these same artefacts? Modern Ghana News, 12 September: http://www.modernghana.com/news/489159/1/can-we-condemnacquisition-of-looted-benin-artefac.html (accessed 17 April 2014). Östberg, Wilhelm (2010) Whose objects? Art treasures from the Kingdom of Benin in the collection of the Museum of Ethnography, Stockholm. Stockholm: Etnografiska Museet. Picton, John (1998) The restitution of art to Benin City. African Arts 31(1):11, 86. —— (2011) Compromise, negotiate, support. Suppose that a secure display facility were to be built in Benin City that conformed to modern international standards of conservation and climatic control: the moral case would then be very hard to ignore. The Art Newspaper, 24 January: www.theartnewspaper.com/articles/Compromise-negotiatesupport/23003 (accessed 3 July 2014). Plankensteiner, Barbara (ed.) (2007a) Benin. Kings and rituals: court arts from Nigeria. Gent and Vienna: Snoeck Publishers and KHM with MVK and ÖTM. —— (2007b) Introduction. In: Plankensteiner, Barbara (ed.): Benin. Kings and rituals: court arts from Nigeria, pp. 21–39. Gent and Vienna: Snoeck Publishers and KHM with MVK and ÖTM. —— (2007c) The “Benin affair” and its consequences. In: Plankensteiner, Barbara (ed.): Benin. Kings and rituals: court arts from Nigeria, pp. 199–211. Gent and Vienna: Snoeck Publishers and KHM with MVK and ÖTM. —— (2009) The making of . . . Genese und Rezeption einer Benin-Ausstellung. In: Kazeem, Belinda (ed.): Das Unbehagen im Museum. Postkoloniale Museologien, pp. 193–216. Wien: Turia & Kant. Shyllon, Folarin (2003) Negotiations for the return of Nok sculptures from France to Nigeria – an unrighteous conclusion. Art, Antiquity and Law 8 (2):183–248. Simpson, Moira G. (2001) Making representations: museums in the post-colonial era. London: Routledge. Sowole, Tajudeen (2013) Benin plan of action . . . Plotting restitution of Nigeria’s looted artefacts. Guardian, 1 March 2013. Willett, Frank (1973) Kenneth Murray. African Arts 6(2):65. —— (2000) Restitution or re-circulation: Benin, Ife, Nok. Journal of Museum Ethnography 12:125–32.

7 Pre-Columbian heritage in contestation The implementation of the UNESCO 1970 Convention on trial in Germany Anne Splettstößer Introduction The protection of cultural objects valued as cultural heritage and cultural property involves many actors negotiating their intentions in a highly dynamic process. On the international level, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (henceforth, UNESCO Convention 1970) became operative in 1972 and has been currently endorsed by 129 member states. Germany only ratified the convention on 18 May 2007, and it became operative on 29 February 2008. This chapter follows the policy of protecting cultural property, analysing the German implementation of the UNESCO Convention 1970 that resulted in the law on returning cultural property (Kulturgüterrückgabegesetz, henceforth, KultGüRückG).1 This law was considered a compromise between the diverging interests of the art trade, promoting the liberalisation of trade, and archaeologists, some of whom were lobbying to ban the trade of archaeological objects altogether. While analysing the implementation of the UNESCO Convention 1970 in Germany, conflicting actors and lobbies with diverging ideas about protecting cultural property against illicit import, export and transfer of ownership will be discussed against the background of the cultural heritage/cultural property debate. The characteristics of the KultGüRückG will be highlighted by analysing a case involving contested Pre-Columbian heritage claimed back from Leonardo Patterson, the art dealer, by various Latin-American countries. This highly disputed case will exemplarily demonstrate how cases of illicit traffic and return claims are dealt with on the basis of the new German law. I will refer to this case as the Patterson case. These unsuccessful claims resulted in a planned amendment of the law by the Federal Government, that is currently (2015) being publicly and controversially discussed. The planned amendment demonstrates the state’s responsiveness to the ongoing dynamics in the field. The protection of cultural property is framed in the legal context of two major conventions, the other being the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (henceforth, Hague Convention 1954), which came into life among discussions about diverging notions of cultural property and cultural heritage.

Pre-Columbian heritage in contestation 157

The making of cultural property vs cultural heritage in need of protection The Hague Convention 1954 was established following the experiences of the two world wars when cultural property was destroyed on a grand scale. Furthermore, the concern over consequences of the loss of cultural property due to illicit traffic voiced by many newly independent post-colonial states from the 1960s onwards culminated in the drafting of the UNESCO Convention 1970 (see Prott 2012 for an account of the formation of the Convention): The States Parties to this Convention recognise that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property. . . . (UNESCO Convention 1970, Art. 2 (1)) The protection of cultural objects, sometimes called cultural heritage and, at other times, cultural property, or even both in one legal instrument, always carries certain implications – depending on the position and goals of the actor. The notion of cultural property being put forward by actors of the art trade, such as dealers, auction houses and collectors, as well as academics, such as the lawyer Merryman (1986, 2005), an expert on cultural property law, and the philosopher Appiah (2009), highlight the marketability of cultural property that belongs to the person who is able to pay for it. Cultural property in this understanding is alienable and access is exclusive, because it is regulated by the respective proprietor. Free trade in cultural property is propagated by Merryman so that cultural objects can circulate. This circulation is understood as “cultural internationalism” by Merryman, for whom it has the meaning of protecting and sharing cultural property worldwide. On the contrary, authors such as Prott (2005), who has worked in this field since 1982 and has substantially shaped some other UNESCO cultural heritage conventions and who is an expert on cultural heritage law, doubt that free trade results in cultural internationalism, as espoused by Merryman. She stresses that true cultural internationalism is grounded in the understanding of cultural objects as cultural heritage. The notion of cultural heritage being put forward by institutions and actors such as UNESCO, the International Council of Museums (ICOM), archaeologists, several states, and Prott herself, highlights that cultural objects may belong to a state and to mankind as a whole. They are described as universal cultural heritage, being inalienable, inclusive and protected by export and loan regulations. This understanding of cultural objects as international cultural heritage is criticised by Merryman as being one of retention by states, preventing cultural property from circulating freely (Merryman 1986). The term “cultural property” is used in the Hague Convention 1954 and the UNESCO Convention 1970, but is replaced in all of the later UNESCO conventions by the term “cultural heritage”, reflecting a critical assessment of the term

158  Anne Splettstößer “cultural property” being closely interlinked with property rights (Weigelt 2007).2 Article 1 of the Convention defines cultural property as follows: “‘Cultural property’ means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science” (UNESCO Convention 1970, Art. 1). As given in Art. 1, differing notions of categorising and designating cultural property among various nation states were enabled by this broad definition. It is laid down as each state’s task to define what is “important” and, therefore, included in the safeguarding frame of the convention. According to Rietschel, the classification of cultural goods never takes place “ex rerum natura but according to the criteria selected by the authority in charge”. Thereby, a certain dynamic concept of cultural property is maintained corresponding to its highly changing nature (Rietschel 2009:18, translation AS). In the process of the making of cultural property, certain tangible objects are identified, classified and, eventually, valued as cultural property. According to Prott, quoting the Preamble to the UNESCO Convention 1970, the purpose of the Convention is described as follows in two paragraphs of the Preamble: That cultural property constitutes one of the basic elements of civilisation and national culture and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting; that it is incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export; that, to avert these dangers, it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations . . . that the illicit import, export and transfer of ownership of cultural property is an obstacle to that understanding between nations. . . . (Prott 2013:7) One important merit of the Convention is surely to have raised the awareness of the issue of the illicit traffic of cultural property, as many museums now consider the year 1970 as a benchmark for an object’s provenance. Furthermore, ethical guidelines, such as ICOM’s Code of Ethics (1986, revised 2004), are based on the Convention. The UNESCO Convention 1970 is characterised by certain requirements, as is any other instrument of international law. Firstly, it needs to be ratified and implemented by each nation state individually, and secondly, it is non-retroactive, thereby marking the date of ratification as the starting point for any potential claims. However, Prott notes that the former colonised states vigorously fought against nonretroactivity during the negotiations of the convention, and they may develop this matter further in the future, as they continue to acquire increasing power in international negotiations, (personal communication Lyndel Prott, 15 January 2014). A wide discretion found in the Convention permitted the continuance of existing divergent national laws. It also allows for states to develop later diverse legislations.

Pre-Columbian heritage in contestation 159

Implementing the UNESCO Convention 1970 in Germany Compared to the majority of the so-called “source states” that were affected by illicit traffic on a large scale and ratified or accepted the UNESCO Convention 1970 early on, many important art market states, such as Germany, were reluctant to do likewise.3 In a study by Prott on the occasion of the first meeting of the Subsidiary Committee of the UNESCO Convention 1970 in 2013, she stated: However, States with active art and antiquities markets were concerned that the new rules would interfere with collecting and trading art and antiquities in a way not previously seen. Many of them therefore were slow to ratify the Convention, some not until this century. (Prott 2013:6) The lobby of Germany’s art trade, concerned first about the legal compatibility with existing German law and second its conviction that civil and criminal law already covered the protection of cultural property against illicit traffic, was the main influence deterring ratification by Germany for so long (Culture Cooperation e.V. 2006b; Rietschel 2009). A draft law was proposed in the German Bundestag in 2006 only through the initiative of Bernd Neumann, the Minister of State in the Federal Chancellery and Federal Government Commissioner for Culture and the Media (Der Beauftragte der Bundesregierung für Kultur und Medien, henceforth BKM). This initiative caused heated debates that were discussed, for example, at an international symposium “Schutz von Kulturgütern” (Protection of Cultural Property) and at the eighteenth session of the Committee for Culture and Media Affairs (Ausschuss für Kultur und Medien, henceforth AfKult) of the German Bundestag in 2006.4 International and national experts from academic, museum and international law backgrounds were invited, as well as representatives from UNESCO itself.5 Summing up the two opposing positions towards the assessment of the draft law, Rietschel describes the strong criticism coming from the art trade as intending to achieve a weaker protection of foreign cultural property in Germany. On the other hand, criticism voiced by archaeologists was equally strong, stressing the point that the protection of cultural property was not going far enough (Rietschel 2009:162). One argument voiced by a representative of the art trade concerned the stricter requirements in record keeping that would lead to a “shocking” amount of additional bureaucratic work and would threaten the livelihood of art dealers (ADK 2006:18). Furthermore, Henrik Hanstein, the expert from the auction house Lempertz in Cologne, highlighted the many negotiated agreements of the art trade (e.g. CINOA) and the Art Loss Register in London as sufficient for protection against illicit traffic (AfKult 2006:22–3).6 On the other hand, the archaeologist Müller-Karpe called for a reversed burden of proof, so that art dealers would need to prove whether the objects they offer are legally trafficked or not.7 In the eyes of Müller-Karpe, the KultGüRückG promotes illicit traffic rather than prevents it, because only listed objects that are

160  Anne Splettstößer individually identifiable will be protected and all non-listed ones are legalised for the trade by the new law (AfKult 2006:12). Schauerte, the museum expert from the Staatliche Museen Berlin (Berlin State Museums) and an archaeologist himself, praised the “excellent” draft law as the best implementation of the UNESCO Convention 1970 ever done. He spoke in the name of the German Archaeology Institute, the National Museums Berlin, the German Museums Association (DMB), and the National Committee of ICOM, and only advised the stricter adherence to the already existing ethical codes for all parties involved (AfKult 2006:15). With the exception of the art trade, all experts present at the Hamburg Symposium agreed upon the fact “that the draft law would be totally inadequate for sustainably improving the protection of German and foreign cultural property” (Kuhr 2006:3, translation by AS). Overall, the experts of the Hamburg Symposium spoke of the disregard of the central aims of the UNESCO Convention 1970 through the draft law, especially in regard to each nation’s right of determining what cultural property should be protected on the basis of the convention. They noted that the wide discretion of the UNESCO Convention 1970 was strongly interpreted in favour of the art trade, and incomprehension about a draft law that falls behind already existing negotiated agreements of museums and the art trade was voiced (Culture Cooperation e.V. 2006a). Compared to this negative assessment, opinions about the draft law in the meeting of the AfKult a few months earlier were quite positive, except for the estimates by archaeologist Michael Müller-Karpe that mirrored the concerns voiced in the Memorandum (AfKult 2006). Despite the opposition of the art trade and the doubts uttered by the experts of the Hamburg Symposium, the KultGüRückG was passed on 24 May 2007, and became operative on 29 February 2008. Simultaneously with the KultGüRückG, the Directive of the European Commission from 1993 dealing with the return of cultural objects unlawfully removed from the territory of a member state called 93/7/EWG was implemented.

Provisions of the KultGüRückG Viewed from the state party’s perspective, the main objectives of the law according to Kugler (2010) are: 1 To enable claims for the return of illicitly trafficked cultural property to Germany under public law that are nationally registered in state parties to the convention, even if these objects had been unknown before they were trafficked, e.g. objects from illegal excavations. 2 To offer the possibility of inscribing cultural property that had been previously unknown in the national register in the course of one year, starting from the possibility of knowledge of the existence of the object. 3 To offer the possibility of confiscation (Anhaltung) of objects to secure the possibility of return (s. 8 (2)).8 4 To establish a register in Germany organised by the BKM, listing valuable cultural property of all the states parties.

Pre-Columbian heritage in contestation 161 5 To impose restrictions on the import of cultural property listed in this register. 6 To increase the control of the art trade through a series of requirements recording details, such as names, prices and provenance (s. 18), to enhance transparency. Adhering to these main objectives, there are various specifications to be fulfilled for the claiming countries. If an object is illicitly trafficked from one of the states parties, it can only be claimed back if it is registered in a national register as a cultural property of special significance and can be identified individually (s. 6(2)(2)). This register needs to be publicly accessible in Germany. Objects unknown to the state parties prior to being illicitly trafficked, such as unexcavated archaeological objects, can be registered during the year after the possibility of gaining knowledge about the object’s existence (s. 6(1)(1)). Furthermore, s. 18 requires the documentation and description of a cultural property, name and address of the alienator, consignor and buyer, and the artefact’s price and provenance in order to enhance the transparency of the art trade. In regard to “provenance”, the two words “if known” (soweit bekannt), however, cut this ambition short (s. 18(1)(2)). The 16 federal states with their designated central agencies are responsible for operating return claims; in the case of Bavaria, this is the State Ministry of Science, Research and the Arts. They are coordinated by the central agency of the federal state, namely the BKM. In the case of return claims of non-EU state parties to the convention, the Federal Foreign Office (Auswärtiges Amt), jointly with the BKM, fulfils the duties on the diplomatic level (s. 12 (3)). Having introduced the implementation of the UNESCO Convention 1970 in Germany, I will now turn to the case study of an international art dealer and his contested collection.

The career of an international art dealer The highly colourful biography of Leonardo Augustus Patterson is only known to outsiders through numerous newspaper articles about him that need to be read with caution. These articles which describe Patterson as an “antiquities legend”, having tricked the FBI and Interpol for years while leading a lavish lifestyle travelling between the US, Paris and Munich, having several wives and multiple children, is, of course, oversimplified and one-sided (see below).9 As the story goes, Patterson (born in 1942) was a small boy when he dug up an old clay piece in a field in Cahuita in his home country Costa Rica; this constituted the first object of his antiquities collection. He later worked as a jeweller in the capital until “an antiquities salesman recruited Patterson as a jungle guide for a gravehunting expedition in the back country to find ancient artifacts” (Olson and McGroarty 2008b). By the late 1960s, he had come to the US and started working as an art trader in New York: “Patterson started out in the antiquities business as a middleman for treasure hunters and collectors in the 1960s, when the trade in pre-Columbian treasures was a free-for- all” (Olson and McGroarty 2008a).

162  Anne Splettstößer In 1979, Patterson brought a “200-piece collection of pre-Columbian artifacts in stone and ceramic” to Australia and sold it for US$1.2 million to a group of Melbourne businessmen, who then donated it to the National Gallery of Victoria, Australia, under the “Federal Government’s scheme for tax incentives for help to the arts” (Elias 1984:3). The profit gained through this tax relief scheme for a collection in 1981 already worth US$3.4 million was substantial, and led to amendment of the Taxation Act by the Federal Government. Patrick McCaughey, the Director of the National Gallery of Victoria, stated in 1984 that “he was satisfied that all the pieces which were at present and had in the past been on exhibition were genuine” (Elias 1984:3). Patterson first attracted wider public attention in 1984 when he was arrested by the FBI and charged with fraud for attempting to sell a fake Pre-Columbian fresco to a Boston collector (Honan 1995). The piece, later identified as a forgery by Harvard archaeologist Clemency Coggins and coloured with modern acrylic paint, was accompanied by two photocopied letters of authentication from art experts (Elias 1984). Patterson was sentenced and out on probation (Olson and McGroarty 2008b) that was still in force a year later when he was arrested at Dallas-Fort Worth airport and charged with illegal import to the US of, inter alia, a pre-Columbian figurine (Honan 1995). According to journalists Olson and McGroarty, referring to a rare three-hour interview they were able to conduct with Mr Patterson, the culprit told them that he was sentenced to three months in detention in 1985, but only spent one month in jail. Mr Barr, Patterson’s lawyer at the time, is quoted in an article by Honan as stating that it was a “blight on the United States Customs department and our legal and judicial systems [because] the preColumbian artwork Mr. Patterson had with him when arrested consisted of newly made ‘souvenirs’” (Honan 1995). He turned to Europe in the 1990s, curating an exhibition for the Vatican: “He mounted an exhibition of pre-Hispanic art for the Vatican Pavilion at the 1992 World Expo in Seville, Spain, which won him an audience with Pope John Paul II” (Olson and McGroarty 2008b). Along with the success in trading antiquities, came his designation as a counsellor to the Costa Rican Mission to the UN 1995, but “questions about his arrest forced him to resign a few months later” (Olson and McGroarty 2008b). In 2006, Scotland Yard, collaborating with private investigator Michel van Rijn, recovered a gold Moche headdress, allegedly worth US$2 million, in the possession of Patterson’s lawyer and returned it to Peru (Brodie 2008), where it is now kept at Lima’s Museo de la Nacion. The valuable piece, described as one of the most important artefacts of Peru’s cultural heritage or the “Moche Mona Lisa”, disappeared in 1988 when a tomb in Jequetaepeque Valley was raided. Before the headdress was offered on the market by Patterson, it had allegedly been in the hands of Raul Apesteguía, a Peruvian dealer who was murdered in 1996 (Connor 2006). Patterson also exhibited a valuable and highly contested collection of more than a thousand pieces of pre-Columbian art in the Museo do Pobo Galego in Santiago de Compostela, Spain, in 1996 and 1997. This collection was exhibited as the

Figure 7.1 At the exhibition at Santiago de Compostela in 1997, Leonardo Patterson displayed more than a thousand pieces of his Pre-Columbian art collection (reportedly originals as well as fakes). Photo: picture-alliance/dpa/efe/ Lavandeira.

164  Anne Splettstößer “Colección Patterson”, or Patterson Collection, according to the exhibition’s catalogue entitled “El espíritu de la América Prehispánica” (Hombre et al. 1996). In a similar version of the catalogue published in English called “Prehispanic America – Time and Culture”, Patterson himself elaborates: My collection has never been displayed in a global exhibition and book. I never wanted it to be and I never want to repeat the experience. It is also true that on certain memorable occasions it has given me great pleasure to loan some works. . . . However, I have always maintained a discretely reserved, though not secret, attitude to my collection with which, it must be said, many eminent experts are familiar . . . I am fortunate in having managed to compile, over so many years, these appreciable and admirable testimonies which enable all those who contemplate them to feel illuminated by that light and share in this cultural legacy. The visitor will receive the strength, the sensitivity, the spirituality and the beauty of these testimonies of man and his work. (Patterson 1997:9–12) The estimated value of the collection was given at US$100 million or €64 million (Neumann 2008), equalling the sum of the insurance policy that Patterson had contracted. Óscar Arias Sanchez, later President of Costa Rica, and other dignitaries attended the opening of the exhibition. The show also included objects from a German collector, Anton Roeckl. The collection was offered for sale to the Galician government for €18 million. They declined the offer because of warnings from archaeologists, such as Michael Coe of Yale University and Gillet Griffin of the Princeton University Art Museum, uttering doubts about the provenance and authenticity of the collection. Patterson sued them for defamation, but later withdrew the charges (Brodie 2008). Experts from Mexico examined the Patterson collection in 2010 and, as stated by Mexico’s government archaeology agency, Instituto Nacional de Antropología e Historia (henceforth INAH), discovered that 252 of the 1,029 pieces were forgeries (Decision 7 CE 10.1097). The catalogue mentioned above found its way into the hands of Walter Alva, one of the leading Peruvian archaeologists, in 2004, who identified 45 objects as having been looted from Peruvian sites. Charges were, consequently, pressed against Patterson at the Interpol office in Lima. The Peruvian 33rd Criminal Court filed a suit against Patterson for inflicting severe damage to Peruvian cultural heritage (Schoepp et al. 2008). After the end of the exhibition, the Patterson collection was stored in a warehouse of Angel Boquete in Santiago de Compostela for ten years. The Patterson collection was photographed in the warehouse in a concerted action of Interpol and the regional Galician police, and a CD with 1,700 pictures distributed among Latin-American countries. They were requested to make property claims if they wished to (Schoepp et al. 2008). Only Peru used administrative assistance. Subsequently, the Peruvian artefacts claimed back were taken from the warehouse to the Museo de América in Madrid, from where they were later returned by King Juan Carlos and Queen Sofia of Spain during a state visit to Peru in 2008; they were then exhibited in the National Museum in Lima (Peruvian Times 2008).

Pre-Columbian heritage in contestation 165 In order to prevent losing the valuable collection to the state, which had already started giving back some of the objects to Peru, Patterson had the collection packed onto lorries. He paid storage fees of €360,000 and the whole load was driven to a Munich warehouse in April 2008 (Schoepp et al. 2008). Patterson allegedly wanted to return the artefacts to their German owners (McGroarty and Olson 2008). Not long after, on 23 April 2008, the Bavarian State Criminal Police Office (Bayrisches Landeskriminalamt, henceforth BLKA) seized the collection in the Munich warehouse based on an international letter rogatory.10 Berlin experts, in collaboration with curators of the Völkerkundemuseum Munich and the Ethnologisches Museum, began to establish an inventory and a documentation of the more than one thousand objects. According to Detlef Puchelt from the BLKA, this work was done with “awe and respect” (Schoepp and Wimmer 2010). The ownership of the collection is highly contested. In addition to several Latin American countries claiming back their cultural heritage, Spain and Patterson himself are contestants. Patterson denied owning the collection himself and claimed only to have a “Verwaltungsmandat” (mandate of management) of six collectors who are the proprietors of the objects (Schoepp et al. 2008). One of them is Anton Roeckl, Bavarian millionaire and passionate collector of pre-Columbian art for the past forty years. He is quoted saying that 53 artefacts of the seized collection are his sole property and that he owns another 64 artefacts together with Patterson, but is still waiting for the full amount to be paid up by Patterson (Zistl 2008).

A German collector and the Patterson collection Roeckl first came to Peru in the 1960s and, as a keen mountaineer, visited the old pre-Columbian graves on behalf of a social anthropologist (Fechter 1997). He started collecting and transported the pieces in his hand luggage back to Germany (Naya n.d.). According to one newspaper article, Roeckl stated that he had “always been able to take the pieces out of the country” without any certificates (Vogt 2000). At present, his collection consists of around a thousand pieces, which he displayed for some time in his private museum in his hometown of Irschenberg, Bavaria. He maintained that about ten thousand pieces had passed through his hands. The collector proudly highlighted that he had been in touch with the people of Peru during his more than fifty trips there; archaeologists, small dealers and “diggers, who oftentimes risk their lives at work” had been important for assembling his collection (Fechter 1997). An article mentions Roeckl’s involvement with the illicit side of the trade, such as his cooperation with the dealer Raul Apesteguía, later murdered, who allegedly trafficked pieces for Roeckl (Naya n.d.). Nevertheless, according to Roeckl, all the objects seized by the BLKA in 2008 were acquired legally in Europe (Schoepp et al. 2008). Peter Paul Gantzer, member of the Bavarian State Parliament, lawyer and collector of Pre-Columbian art himself, demanded that the seized collection be displayed in the Völkerkundemuseum Munich in 2008. Thomas Goppel, then Minister of Culture and Science, refused this demand as “completely absurd” as long as the question of ownership had not been clarified (Deutsche Presse Agentur 2008). A newspaper article from 2000

166  Anne Splettstößer stated that Gantzer was about to testify for Roeckl in court that all the objects in question acquired by Roeckl were “ordnungsgemäß erworben” (properly acquired) (Vogt 2000). The following incident tells a different story. Two pieces of Peruvian pre-Columbian ceramics that entered the US from Switzerland on 9 August 2009, were seized at JFK Airport by the authorities and later returned to Peru: “The investigation led law enforcement to conclude that invoices created by the seller and exporter of record, Anton Roeckl, which indicated that Roeckl had purchased the property in Germany in the late 1960s, were untrue” (US Attorney’s Office 2010).The return to Peru was made possible by a settlement agreement reached with “a New-York-based collector of Peruvian pre-Columbian antiquities” (US Attorney’s Office 2010). Roeckl emphasised the lack of understanding for the current claims in an interview: “Peru and other source countries are now trying to get back pieces elegantly.” At least, he would be taking care of the exhibits; “over there they would just be left to decay” (Vogt 2000, translation by AS). In order to regulate the illicit trade of cultural objects, the German government ratified the UNESCO Convention 1970 in 2007. Why did this process take nearly forty years and what does the new German law actually mean for cases such as the Patterson case?

Latin-American countries trying to make use of the KultGüRückG In this section, I am going to discuss the court judgments in the Patterson case which all took a similar course. It was the first time that the law had been applied since its ratification in 2010. I will exemplarily introduce the case of Mexico and then complement it with details from the judgments concerning Costa Rica, Guatemala and Colombia, thereby showing how the new law affects the source nations and their policies. After the BLKA had seized the Patterson collection in Munich at the end of April 2008, Mexico, through letters rogatory on 29 April 2008, tried to take diplomatic action for the restitution of 690 objects. This request for restitution was eventually denied by the Federal Foreign Office on 15 October 2009 (Decision M 17 E 09.4958). When Mexico did not succeed through the diplomatic route, its representative filed for arrest (Anhaltung) of the objects on 20 October 2009, based on KultGüRückG (s. 8 (2)). A day later, the arrest of the collection was ordered and, with the ruling from 10 November 2009, Patterson was summoned to court. The defendant, represented by the Bavarian State Ministry of Science, Research and Art, uttered its “reasonable doubts” concerning the return claim because of the difficulty of identifying the objects according to the registers provided by the claiming states whose eligibility, as required by the KultGüRückG, was questioned. Mexico’s national register at the time was only available as a printout and only accessible in Mexico itself, but requests for information from people outside Mexico were possible anytime, and digitisation was underway (Decision M 17 E 09.4958). Nevertheless, the Ministry maintained that the Mexican printout register was inadequate for the standards set by the KultGüRückG and that it was not accessible in the federal territory of Germany (Decision 7 CE 10.1097). Therefore,

Pre-Columbian heritage in contestation 167 the arrest request was denied by the Administrative Court (Verwaltungsgericht) Munich in the first instance by its decision M 17 E 09.4958 without merit, because the requirements by the KultGüRückG were not met. However, the court confirmed that the export of the cultural property in question was undertaken without an export permit (Decision M 17 E 09.4958). Mexico proceeded to the Bavarian Higher Administrative Court (Bayerischer Verwaltungsgerichtshof) in the second instance, where it was maintained that the register could now be accessed online.11 Nevertheless, because online access was only available from 8 July 2010 onwards, the date of access was considered legally irrelevant. The incontestable ruling confirmed the ruling of the first instance. After losing the case in administrative law, Mexico continued to proceed through civil law, which included property law. Therefore, since 2010, experts from INAH in Mexico have been trying to establish a so-called “provenance chain” and render expert opinion for every authentic object of the collection to establish proprietorship. The costs for this time- and money-intensive endeavour are borne by Mexico, which bears the burden of proof. The same objections raised by the Administrative Court and Higher Admini­ strative Court, Munich, regarding the Patterson collection were mirrored in six other judgments involving Colombia12 (claiming 77 objects), Guatemala13 (claiming 369 objects) and Costa Rica,14 all between January and April 2010. Equally, the lack of an adequate register allowing individual identification of each object being publicly accessible, as well as formal errors, such as expired deadlines or the lack of legal representation, as in the case of Costa Rica, led to the refusal of the request for confiscation. All four countries tried to comply in a similar way with the new German law by inscribing significant cultural property in their national registers. The time frame for inscribing archaeological objects formerly unknown is, in the KultGüRückG, defined as one year, starting with the possibility of gaining knowledge of the existence of the object. The date of notice was contested in all judgments. Various dates were discussed as relevant in court, for example, the date of the Patterson exhibition in Spain and the publication of the catalogue in 1996, the distribution of a CD, via Interpol, by the Spanish police with pictures of the objects to all embassies concerned in 2007, and the distribution of the CD made by the BLKA after inventorising the seized Patterson collection in Munich that was similarly given to the embassies concerned by the Federal Foreign Office in June, 2009. In the first instance of the Guatemala case, the court explicitly stated that, according to the KultGüRückG, the actual positive notice of an object was not necessary for the one-year period rule. The court maintained that only the mere possibility of gaining knowledge of the existence of an object suffices, which had already been met with the publication of the exhibition’s catalogue in 1996. It was intended hereby to provide legal security by the law. In the case where the source nation is, in general, denying notice of the one-year period, a starting point for the one-year period would never be fixed and proof of notice would be difficult to obtain (Decision M 17 E 09.4878). The extrajudicial expenditures of Patterson, as well as all legal expenses, had to be paid by the four Latin-American countries (ranging from €2,500 to €10,000

168  Anne Splettstößer for each decision), giving rise to intense criticism from their side about the costly procedures unaffordable to the source nations (Rico 2010). Why did the countries fail to have “their” cultural property returned? When I talked to Franz Weber, the head of Section 622 of the Bavarian State Criminal Police Office that includes art search, he stated that the relatively new law of the KultGüRückG, as applied for the first time in the Patterson case, was characterised by uncertainties and information deficits for the requesting countries. According to Weber (personal communication, 31 January 2012), many countries in the context of the letters rogatory mistook the temporal transfer for an actual return. With letters rogatory, an object is sent back to the requesting state in order to serve as proof in an investigation. The critical points are, firstly, some states found it difficult to identify the responsible authority in charge, both at the state and federal level. Additionally, requirements for an adequate register of cultural property could hardly be met by the requesting states due to the immense amount of work involved in listing and documenting a country’s cultural property. Furthermore, describing each cultural object so that it becomes individually identifiable, as requested by the KultGüRückG, would require pictures taken and accurate descriptions made. This may be possible for pieces kept in museums, but not for artefacts taken from archaeological sites (Mexico has about 250,000 such sites), most of them not yet researched (Kugler 2010). Secondly, the various national registers, already set up in some of the countries such as Mexico and Costa Rica, need to be accessible in Germany (see above), because it was maintained that registers accessible only in the source countries would be prone to manipulation (Mexico Decision M 17 E 09.4958). Contesting this, Kugler points to the fact that Internet servers are as prone to manipulation as printouts (2010). Thirdly, the language problem: the court expressed the view that if the registers were only in the Spanish language, this would prove to be an obstacle (according to KultGüRückG s. 6 (2) (3)) (Decision 7 CE 10.258); English or French would be preferred. In the second instance, Mexico contested the language issue by stating that Spanish was a widely spoken, official, international language and an official UN language as well (Decision 7 CE 10.1097). Fourthly, all the judgments by the administrative jurisdiction are characterised by a strict adherence to the KultGüRückG and a very limited use of the scope of interpretation. Most notably, the strict concept of registers of cultural property collides with diverging notions of other states concerning the protection of their cultural property. Many Latin American countries only protect certain categories of cultural objects or all cultural property of a nation in its entirety. In the case of Mexico, archaeological objects from pre-Columbian times were declared inalienable state property 150 years ago, rendering the trade and export of these objects without a state permit illegal. All archaeological objects are thereby declared cultural property in need of protection by the Mexican state (Kugler 2010). Calling on the UNESCO Convention 1970 in the ruling of the second instance, the representative of Colombia stated:

Pre-Columbian heritage in contestation 169 The Administrative Court, through the strict implementation of the KultGüRückG, misjudges the specifics of the case at hand and the right of every State provided in the UNESCO Convention 1970 to designate whatever cultural property it considers as deserving protection. (Decision 7 CE 10.354, translation by AS) The representative of Colombia went as far as stating that “this law is comprised of nearly unrealisable requirements and, therefore, contravenes the higher law in the form of the UNESCO Convention 1970 . . . ” (Decision 7 CE 10.354, translation by AS). In response to these allegations, the defendant emphasised that the KultGüRückG, whose interpretation was not considered “indefensibly restrictive”, was the authoritative legal basis and not the UNESCO Convention 1970 itself (Decision 7 CE 10.354, translation by AS). The source nations were disappointed by Germany’s inability to facilitate the return of artefacts, even via diplomatic routes (Schoepp and Wimmer 2010), so that the new law repeatedly led to diplomatic unease (Bundesregierung 2013:30). Rietschel had already reasoned in 2009 that the requirements of the KultGüRückG illustrated above were difficult to meet for the claiming states, as expressed by Colombia. She stated that although legal security for the art trade is surely of importance, the UNESCO Convention 1970 did not intend legal security for the art trade to stop returns altogether (Rietschel 2009:143).

Amendment of the KultGüRückG Against the background of this critique, the estimate by Günther Schauerte from the Staatliche Museen Berlin from 2006 needs to be revisited. He praised the “excellent” German draft law as the best implementation ever done of the UNESCO Convention 1970, speaking for the German Archaeology Institute, DMB and National Committee of ICOM (AfKult 2006). A comprehensive study by the Minister of State for Culture and the Media (BKM) and the Federal Government was undertaken in 2013 to evaluate the five years of KultGüRückG. The report concludes that: Although the Kulturgüterrückgabegesetz (KultGüRückG) from 2007 offers a legal basis, the cases where it was applied in the period under review, 2008–2013, indicate several deficits: Despite multiple return claims by foreign states since 2008, the Kulturgüterrückgabegesetz did not lead to the return of cultural property in a single case. The comparatively high demands of the law could not be met by any state seeking return. The existing difficulties of application could not be remedied by any jurisdiction. The simplification of the return of illegally exported cultural property back to the source nation that was expected by legislative authority in 2007 was not confirmed in practice. (Bundesregierung 2013:5, translation by AS) The same report notes that the massive apprehension voiced by the art trade concerning the surplus workload was unjustified. The Federal Government

170  Anne Splettstößer itself evaluated the law as unsuccessful and in need of amendment because the facilitation of the return of illicitly trafficked cultural property has, so far, not been achieved (Bundesregierung 2013). The UNESCO Convention 1970 supports the right of each state party to the convention to classify cultural property of their choice as inalienable, no matter whether this includes all cultural property of that particular state, only certain categories or a few selected, individually identifiable ones. Kugler (2010), among others, has argued that the German implementation runs counter to this specification. According to the evaluation report of the Federal Government, the demand for registers of all protectable cultural property being accessible in Germany has proven “not feasible” and should be corrected (Bundesregierung 2013:5, 143). Moreover, the report recommends more effective import controls to support customs and, generally, a standardisation of the law on protecting cultural property to achieve more “clarity, transparency and legal security” (Bundesregierung 2013:143–4). Furthermore, the report advises establishing provisions for the right to access and assess a reclaimed cultural object by the claiming state’s experts to enable the verification of its authenticity as well as the establishment of consistent regulations concerning the allocation of costs incurred. In addition, an extension of the one-year period for registering archaeological objects to three years is recommended (Bundesregierung 2013:66; Rietschel 2009). The assumption that whenever an exhibition catalogue is published, states immediately gain knowledge of the objects pictured was presumed by the courts in the Patterson case to be “unrealistic and far from practice” (Bundesregierung 2013:67). The intention of creating a register listing all designated cultural property of all states parties to the convention, a task intended for the BKM, is described as costing millions of euros and in need of amendment (Bundesregierung 2013:73). Apart from that, the report does not give specific recommendations or standpoints on, for example, the question of reversing the onus of proof advocated by MüllerKarpe (2006) and Rietschel (2009:166), or on a suggested embargo on illicitly trafficked and stolen cultural property (Müller-Karpe 2006:12). Instead, stronger regulations against the exodus of cultural property from Germany and a consolidation of the art trade are stipulated (Bundesregierung 2013). On the international level and clearly related to what had happened in Germany, UNESCO summoned an Extraordinary Meeting of the state parties to the 1970 Convention in Paris in 2013 where, for the first time, a Subsidiary Committee came together to start drafting Operational Guidelines for the implementation of the UNESCO Convention 1970. This again illustrates the repercussion from the national to the international level as UNESCO recognised the challenges states are facing when implementing the 1970 Convention. In 2015, the amendment to the Act was initiated as a consequence of the critique voiced by many actors, not least the Federal Government itself. One of the goals of the Federal Government is the implementation of the EU Directive 2014/60/EU. The amendment has several aims.15

Pre-Columbian heritage in contestation 171 The Federal Government’s official statement of 2015 notes that: . . . with the amendment of the Law on the Protection of Cultural Property the coalition is planning to create a . . . coherent law to more effectively return illicitly exported cultural property to other states as well as to better protect German cultural property against the exodus to foreign countries. (Bundesregierung 2015b, translation AS) The newly appointed BKM, Monika Grütters, stated that she intends to strengthen unambiguous due diligence (eindeutige Sorgfaltspflichten) and the disclosure of provenance details for the acquisition of cultural property that could, as she expresses it, strengthen Germany’s art trade in the long run (Bundesregierung 2015a). The necessity for a cultural object being claimed back to be listed in a register (Listenprinzip in KultGüRückG s. 6 (2) (2)) will be abolished (Bundesregierung 2015a). In response to the planned amendment, the German art trade is talking of cold expropriation (kalte Enteignung), because works of art older than 50 years or worth more than €150,000 would require an export permit or may even be classified as of national value and are, therefore, banned from export altogether (Timm 2015). With the restriction of movement of the artefacts, the art trade fears loss of value (Falckenberg 2015). Therefore several collectors (e.g. Hasso Plattner) and artists (e.g. Georg Baselitz, Gerhard Richter) are (planning on) retrieving permanent loans from German museums.16 In an open letter dated July 2015 entitled “Totreguliert. Zum Ende des internationalen Kunsthandels in Deutschland” (Regulated to death. The end of the international art trade in Germany), more than three hundred German galleries and collectors called on the BKM to refrain from the amendment which they claim to be opposed to the constitution and the free movement of goods (Bundesverband Deutscher Galerien und Kunsthändler e.V. 2015). The criticism of the art trade and the opinions of more than forty experts and organisations concerned were given voice in a written and oral hearing in 2014/15 conducted by the BKM. Albeit the public criticism of Grütters and her initiative, the draft of the amendment has not been published so far.17 The Interdepartmental Co-ordination started its work on 29 June 2015. The law is planned to become effective in the first half of 2016.

Conclusion This chapter intended to show how a private collector (Leonardo Patterson), while trading pre-Columbian artefacts over the years, came into conflict with international regulations and the legislations of different nations, namely Colombia, Costa Rica, Germany, Guatemala, Mexico, Peru, Spain and the US. As elaborated here, several Latin American countries tried to apply the German KultGüRückG with regard to claiming back parts of the Patterson Collection, which is currently still stored in a warehouse in Munich. Despite these efforts, Patterson has never been convicted of any serious offence. However, there have been new developments since 2010. Based on an international arrest warrant from Peru and Guatemala

172  Anne Splettstößer from 2004 via Interpol, Patterson was arrested again at the airport in Madrid on 28 March 2013 (Weiss 2013). Peru and Guatemala were trying to have him extradited from Spain. He appeared in court on 22 October 2013, and was, yet again, found not guilty, because the objects were not Spanish cultural property and, therefore, not considered smuggled (NZZ 2013). Nevertheless, he remains in custody in Spain and awaits appeal in a higher court. The prosecution had pleaded for two years of imprisonment and a fine of €28 million. The decision indicates that the import of the “Colección Patterson” to Spain may have been a felony according to criminal law, and that the acquittal does not free Patterson from accountability towards the Latin American claimants who can now start pressing charges based on civil law (NZZ 2013). The careers of art dealers such as Patterson and Roeckl demonstrate their ability to elude jurisdiction time and again. So far, Roeckl does not seem to have contacted the authorities to regain his part of the Patterson collection from the warehouse in Munich. The implementation of international and national regulations for the protection of cultural property against theft and illicit traffic oftentimes faces obstacles. The German implementation of the UNESCO Convention 1970 in 2007 can be considered as a compromise between the interests of the art trade lobby, promoting trade, and archaeologists, among whom some want to ban the trade of archaeological objects altogether. This chapter has illustrated the dynamic process of implementation making and application, the coming into being of the draft law and the diverging interests of actors. Complemented with the corresponding debates that resulted in a compromise, the actual implementation, resulting claims and court decisions that led to diplomatic tensions on the international level have been illustrated. However, the state has recognised the need for amendment of the law due to experiences occurring in the Patterson case, namely the non-success of the KultGüRückG. By initiating the amendment process in 2014, the Federal Government demonstrates reflexivity. Although the various Latin American countries lost their court cases, this negative jurisprudence can surely be seen as having a stimulating effect on the discussion about amending the KultGüRückG by demonstrating the shortcomings. Time will tell how far-reaching these amendments will be. Meanwhile, the global art trade continues to grow and yield quick returns, as various auctions offering pre-Columbian art demonstrate (the Barbier-Mueller collection, Sotheby’s Paris in Spring 2013; Bonhams, NY in November 2013; Gerhard Hirsch Nachfolger, Munich, once a year in September, just to name a few).

Notes   1 The term “cultural property” in both the Hague Convention 1954 and the UNESCO Convention 1970 has been translated into Kulturgut in German, and therefore, Kulturgut/ Kulturgüter is translated into English as cultural property throughout the chapter. I would like to express my heartfelt gratitude for helpful comments on earlier versions of this paper to Anne Clausen, John Comaroff, Brigitta Hauser-Schäublin, Serena Müller and Lyndel V. Prott.

Pre-Columbian heritage in contestation 173   2 These conventions are the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage, the 2001 Convention on the Protection of the Underwater Cultural Heritage and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage.   3 The date of the ratification or accession of the Latin American countries is important for the case discussed here: Colombia (1988), Costa Rica (1996), Guatemala (1985), Mexico (1972), the US (1983), the UK (2002) and Switzerland (2003).   4 The symposium was held 23–24 May 2006 at the Goethe-Institute Hamburg by the association Culture Cooperation e.V. The association is actively engaged in the advancement of international cultural exchange. One of their projects was funded by the EU in 2005–08 and dealt with art and culture in development cooperation. For more information, see http://www.culture-and-development.info/index.htm (accessed 24 September 2015).   5 Invitees to the symposium “Schutz von Kulturgütern” included Kurt Siehr, Max PlanckInstitute for Comparative and International Private Law; Guido Carducci, Chief of the International Standards Section, Division of Cultural Heritage, UNESCO; Anette Rein, Museum der Weltkulturen and ICOM Germany; Lorna Abungu, AFRICOM, Nairobi; Marjolein Beumer, Royal Tropical Institute, and Norbert A. Kayombo, National Museum Dar es Salaam (http://www.culture-and-development.info/project/expertm. htm accessed21 September 2015)). Guido Carducci and Kurt Siehr were again present at the eighteenth session of the AfKult. Other experts included Henrik Hanstein, Kunsthaus Lempertz; Michael Müller-Karpe, Römisch-Germanisches Zentralmuseum; Astrid Müller-Katzenburg, Arbeitskreis Deutscher Kunsthandelsverbände (Working Committee German Art Trade Union), and Günther Schauerte, Staatliche Museen Berlin.   6 The Art Loss Register is the largest databank worldwide registering stolen and lost objects. It also sells certificates to the art trade stating, where an object is not listed in the register, that a check has been made.   7 The joint demand of the participants is to be found in the Memorandum of the Hamburg Symposium, being connected with the call to ratify the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects from 1995 (Culture Cooperation e.V. 2006a). The draft law stated that the ratification of the UNIDROIT Convention is not intended by the Federal Government (Deutscher Bundestag 2006).   8 Confiscation is intended to offer the possibility of establishing identity, authenticity and provenance of cultural property for German government agencies, as well as for requesting state parties (Bundesregierung 2013:63).   9 I was unable to contact Mr Patterson or his (former) lawyer Mr Andrejtschitsch in Munich despite several attempts. The newspaper articles, some of which are based on interviews with Patterson, are the only source of information I was able to access. 10 Based on the judgments of the Prosecution Munich I. Decision 126 AR 2449/08 confirmed by district court Munich Decision Gz. IV Gs 3494/08 on 24 April 2008 (Decision M 17 E 09.5962). 11 http://registropublico.inah.gob.mx/index.php/autenticacion/autenticacion (29 October 2013); consisting of 35,000 entries in April 2013. 12 1st instance Decision M 17 E 09.5962 (25 January 2010) and 2nd instance Decision 7 CE 10.35 (16 April 2010). 13 1st instance Decision M 17 E 09.4878 (25 January 2010) and 2nd instance Decision 7 CE 10.258 (13 April 2010). 14 1st instance Decision M 17 E 09.4833 (27 January 2010) and 2nd instance Decision 7 CE 10.405 (12 April 2010).

174  Anne Splettstößer 15 According to a statement of the Federal Government for the press conference on the amendment, the major aims, in addition to the implementation of the EU directive 2014/60/EU, are the reinforcement of the protection against the exodus of cultural property, reinforcement of the UNESCO 1970 convention, simplification for international loans between museums and reinforcement of the protection of public collections through listing all museum collections as protectable (Bundesregierung 2015b). 16 Georg Baselitz has withdrawn important paintings from three German museums because of the planned amendment. See http://mobile.nytimes.com/2015/07/19/world/ as-germany-tries-to-hold-on-to-its-art-some-works-drop-from-view.html?referrer=&_ r=0 (accessed 25 August 2015). 17 For a discussion of the ministerial draft bill from a legal point of view, see Falckenberg (2015).

References Appiah, Kwame Anthony (2009) Whose culture is it? In: Cuno, James Bash (ed.): Whose culture? The promise of museums and the debate over antiquities, pp. 71–86. Princeton, NJ: Princeton University Press. Arbeitskreis Deutscher Kunsthandelsverbände (ADK) (2006) Für eine kunsthandelsfreundliche Umsetzung der UNESCO-Kulturgutschutzkonvention. IKA Zeitschrift für Internationalen Kulturaustausch 65/66:18. Ausschuss für Kultur und Medien (AfKult) (2006) Wortprotokoll 18. Sitzung. Ausschuss für Kultur und Medien. Berlin: http://www.uni-marburg.de/fb06/vfg/kultur/anhoerung (accessed 21 September 2015). Bayerischer Verwaltungsgerichtshof (2010) Decision 7 CE 10.405. (Costa Rica). München: http://openjur.de/u/483230.html (accessed 21 September 2015). —— (2010) Decision 7 CE 10.258. (Guatemala). München: http://openjur.de/u/335897. html (accessed 21 September 2015). —— (2010) Decision 7 CE 10.354. (Kolumbien). München: http://www.gesetze-http:// openjur.de/u/713066.html (accessed 21 September 2015). —— (2010) Decision 7 CE 10.1097. (Mexiko). München: http://openjur.de/u/625069.html (accessed 21 September 2015). Brodie, Neil (2008) Leonardo Patterson. Stanford Archaeology Center: http://www.stanford. edu/group/chr/drupal/ref/leonardo-patterson (accessed 21 September 2015). Bundesministerium der Justiz (2007) Kulturgüterrückgabegesetz (KultGüRückG). Gesetz zur Ausführung des UNESCO-Übereinkommens vom 14. November 1970 über Maßnahmen zum Verbot und zur Verhütung der rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut und zur Umsetzung der Richtlinie 93/7/EWG des Rates vom 15. März 1993 über die Rückgabe von unrechtmäßig aus dem Hoheitsgebiet eines Mitgliedstaats verbrachten Kulturgütern: http://www.gesetze-im-internet.de/kultg_r_ ckg_2007/BJNR075710007.html (accessed 21 September 2015). Bundesregierung (2013) Bericht der Bundesregierung zum Kulturgutschutz in Deutsch land. Bericht über die Auswirkungen des Gesetzes zur Ausführung des UNESCOÜbereinkommens vom 14. November 1970 über Maßnahmen zum Verbot und zur Verhütung der rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut (Ausführungsgesetz zum Kulturgutübereinkommen) und den Schutz von Kulturgut vor Abwanderung ins Ausland. 24 April 2013: http://www.bundesregierung.de/Content/DE/_ Anlagen/BKM/2013-04-24-bericht-kulturgutschutz.pdf?blob=publicationFile&v=1 (accessed 21 September 2015).

Pre-Columbian heritage in contestation 175 —— (2015a) Gesetzgebungsvorhaben der Beauftragten der Bundesregierung für Kultur und Medien. Novellierung des Kulturgutschutzes in Deutschland. Diskussionspapier für die mündliche Anhörung von Fachkreisen und Verbänden am 22. April 2015. 22 April: http://www.bundesregierung.de/Content/DE/_Anlagen/BKM/2015/2015-0629-diskussionspapier-kgsg.pdf?__blob=publicationFile&v=1 (accessed 25 August 2015). —— (2015b) Statement zur Pressekonferenz. Novellierung des Kulturgutschutzrechts. 15 July: http://www.bundesregierung.de/Content/DE/Artikel/2015/07/2015-07-15-statementnovelle-kulturgutschutzgesetz.html (accessed 25 August 2015). Bundesverband Deutscher Galerien und Kunsthändler e.V. (2015) Offener Brief an Staatsministerin Monika Grütters. Totreguliert. Zum Ende des internationalen Kunsthandels in Deutschland. 15 July: http://www.bvdg.de/sites/default/files/Offener%20 Brief_Gr%C3%BCtters_Deutscher%20Kunsthandel_29.07.2015.pdf (accessed 25 August 2015). Connor, Steve (2006) Solved: Case of the disappearing headdress, the Mona Lisa of Peru. Independent, 18 August: http://www.independent.co.uk/news/uk/crime/solved-case-ofthe-disappearing-headdress-the-mona-lisa-of-peru-412391.html (accessed 21 September 2015). Culture Cooperation e.V. (2006a) “Kulturgutschutz” – Memorandum. Ergebnisse des Symposiums “Schutz von Kulturgütern: Internationale Erfahrungen und Perspektiven” (22–24 May 2006, Hamburg): http://www.culture-and-development.info/project/memod. htm (accessed 21 September 2015). —— (2006b) Podiumsdiskussion “Deutschland – ein Paradies für Hehlerware?”. Ergebnisbericht des Symposiums “Schutz von Kulturgütern” (2006). Hamburg: http:// www.culture-and-development.info/project/ergebnis.htm (accessed 21 September 2015). Deutscher Bundestag 16. Wahlperiode (2006) Gesetzentwurf der Bundesregierung. Drucksache 16/1371: http://dip21.bundestag.de/dip21/btd/16/013/1601371.pdf (accessed 21 September 2015). Deutsche Presse Agentur (2008) Maya Schatz kommt nicht ins Museum. Süddeutsche Zeitung, 15 May. Elias, David (1984) FBI arrest Pre-Columbian art dealer on fraud charges. The Age, 5 June. Falckenberg, Harald (2015) Kulturgutschutzgesetz. Was auf dem Spiel steht. Frankfurter Allgemeine Zeitung, 16 July: http://www.faz.net/aktuell/feuilleton/debatten/entwurf-zumkulturgutschutzgesetz-moegliche-folgen-13704931.html (accessed 25 August 2015). Fechter, Isabel (1997) Aus der Einöd-Scheune wurde ein Schatzhaus. Die Welt, 11 July: http://www.welt.de/print-welt/article639574/Aus-der-Einoed-Scheune-wurde-einSchatzhaus.html (accessed 21 September 2015). Hombre, Xosé Denis, Manuel Fraga Iribarne, Mariluz González Domínguez and Nicholas Hellmuth et al. (eds) (1996) O espírito da América prehispánica: 3.000 anos de cultura. Exposición da Colección Patterson, Santiago de Compostela, 23 de novembro de 1996–28 de febreiro de 1997. Santiago de Compostela: Auditorio de Galicia. Honan, William H. (1995) Art for whose sake? Trading in antiquities: rare Pre-Columbian relics, at any cost. New York Times, 31 July: http://www.nytimes.com/1995/07/31/us/ art-for-whose-sake-trading-in-antiquities-rare-pre-columbian-relics-at-any-cost.html (accessed 21 September 2015). Kugler, Robert (2010) Die Praxis des Kulturgüterrückgabegesetzes. Vortrag zum Jahreskongress der Deutsch-Mexikanischen Juristenvereinigung e.V. am 14. September 2010 in Berlin. Kunstrechtspiegel 4(10): 147–51. Kuhr, Anja (2006) Editorial. IKA Zeitschrift für internationalen Kulturaustausch 65/66:3–5.

176  Anne Splettstößer Merryman, John Henry (1986) Two ways of thinking about cultural property. American Journal of International Law 80 (4):831–53. —— (2005) Cultural property internationalism. International Journal of Cultural Property 12:11–39. Müller-Karpe, Michael (2006) Das Hehlerschutz-und Raubgrabungsförderungsgesetz. IKA Zeitschrift für internationalen Kulturaustausch 65/66:12–17. Naya (n.d.): Noticias de antropología y arqueología: Los tesoros que perdimos. Antón Roeckl es un millonario alemán que tiene un museo con piezas peruanas saqueadas: http://www.equiponaya.com.ar/alertas/sipan_peru.htm (accessed 14 December 2015). Neue Zürcher Zeitung (NZZ) (2013) Gericht spricht Kunstschmuggler Patterson frei. Neue Zürcher Zeitung, 23 October: http://www.nzz.ch/aktuell/panorama/gericht-sprichtkunstschmuggler-patterson-frei-1.18171917 (accessed 21 September 2015). Neumann, Conny (2008) Einzigartige Schönheit. Der Spiegel, 5 May: http://www.spiegel. de/spiegel/print/d-56831264.html (accessed 21 September 2015). Olson, Alexandra and Patrick McGroarty (2008a) An antiquities legend in an ‘intrinsically lawless’ field. Leonardo Patterson’s colorful career includes charges of smuggling and selling forgeries. Los Angeles Times, 11 November: http://articles.latimes.com/2008/ nov/09/news/adfg-antiquities9 (accessed 21 September 2015). —— (2008b) Antiquities dealer has colorful, checkered career. Fox News.com, 11 October: http://www.foxnews.com/printer_friendly_wires/2008Oct11/0,4675,EUAntiquitiesDe aler,00.html (accessed 21 September 2015). Patterson, Leonardo (1997) Presentation. In: Cuesta Domingo, Mariano (ed.): Prehispanic America – time and culture. (2000 B.C.–1500 A.D.), pp. 9–12. New York et al.: Epsy S. Peruvian Times (2008) Spain returns pre-Columbian artifacts from Patterson Collection to Peru. 27 October–: www.peruviantimes.com/27/spain-returns-pre-columbian-artifactsfrom-patterson-collection-to-peru/691/ (accessed 21 September 2015). Prott, Lyndel V. (2005) The international movement of cultural objects. International Journal of Cultural Property 12:225–48. —— (2012) Strengths and weaknesses of the 1970 Convention: An evaluation 40 years after its adoption. Background paper, 2nd edition for participants in the second meeting of States Parties to the 1970 Convention Paris, UNESCO Headquarters, 20–21 June: http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Prott_2_en.pdf (accessed 21 September 2015). —— (2013) Draft Operational Guidelines for the better implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. Subsidiary Committee of the meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (UNESCO, Paris, 1970) First session Paris, C70/13/1.SC/INF.2/REV2, UNESCO Headquarters, 2–3 July: http://www.unesco.org/ new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/INF2-SC1_StudyLVP_en_REV2.pdf (accessed 21 September 2015). Rico, Laura (2010) “El caso Patterson”: En busca del patrimonio perdido. La silla vacia, 28 March: http://lasillavacia.com/historia/8813 (accessed 21 September 2015). Rietschel, Solveig (2009) Internationale Vorgaben zum Kulturgüterschutz und ihre Umsetzung in Deutschland. Das KGÜAG – Meilenstein oder fauler Kompromiss in der Geschichte des deutschen Kulturgüterschutzes? Berlin: de Gruyter Recht. Schoepp, Sebastian, Javier Cáceres and Susi Wimmer (2008) Jäger der verlorenen Schätze. Süddeutsche Zeitung, 11 May 2010: http://www.sueddeutsche.de/

Pre-Columbian heritage in contestation 177 muenchen/nach-muenchner-fund-praekolumbischer-kunst-jaeger-der-verlorenenschaetze-1.591467-2 (accessed 21 September 2015). Schoepp, Sebastian and Susi Wimmer (2010) Die Jäger des gefundenen Schatzes. Süddeutsche Zeitung, 16 February. Timm, Tobias (2015) Kalte Enteignung? Ein Streitgespräch zwischen Staatsministerin Monika Grütters und dem Galeristen Kristian Jarmuschek. Die Zeit, 23 July: http:// www.zeit.de/2015/28/regulierung-kunstmarkt-gesetz-kulturgutschutz (accessed 25 August 2015). UNESCO (1970) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. 14 November: http://portal.unesco.org/en/ev.phpURL_ID=13039&URL_DO=DO_TOPIC&URL_ SECTION=201.html (accessed 21 September 2015). United States Attorney’s Office (2010) Government settles with art collector, allowing two rare ceramic antiquities to be repatriated to government of Peru. 2 November: http:// www.justice.gov/archive/usao/nye/pr/2010/2010nov02.html (accessed 21 September 2015). Verwaltungsgericht München (2010) Decision M 17 E 09.4878. (Guatemala): http:// openjur.de/u/479837.html (accessed 21 September 2015). —— (2010) Decision M 17 E 09.5962. (Kolumbien): http://openjur.de/u/481549.html (accessed 21 September 2015). —— (2010) Decision M 17 E 09.4833. (Costa Rica): http://openjur.de/u/481682.html (accessed 21 September 2015). —— (2010) Decision M 17 E 09.4958. (Mexiko). Vogt, Eberhard (2000) Sammler ohne Grenzen. Focus Magazin 14, 3 April: http://www. focus.de/politik/deutschland/kunst-sammler-ohne-grenzen_aid_182830.html (accessed 21 September 2015). Weigelt, Frank (2007) “Cultural Property” oder “Cultural Heritage”? In: Hemme, Dorothee; Tauschek, Markus and Regina Bendix (eds): Prädikat “Heritage”. Wertschöpfungen aus kulturellen Ressourcen, Studien zur Kulturanthropologie/Europäischen Ethnologie vol. 1, pp. 133–46. Berlin: Lit. Weiss, Sandra (2013) Dollarmillionen für einen Olmeken-Kopf. Der Standard.at, 13 April: http://derstandard.at/1363707824733/Dollarmillionen-fuer-einen-Olmeken-Kopf (accessed 21 September 2015). Zistl, Sandra (2008) Jäger des verlorenen Schatzes. Focus Magazin 20, 24 May: http:// www.focus.de/kultur/kunst/kunst-krimi-jaeger-des-verlorenenschatzes_aid_300916. html (accessed 21 September 2015).

8 Return logistics – repatriation business Managing the return of ancestral remains to New Zealand Sarah Fründt Introduction The return and restitution of cultural property acquired mostly during the colonial era and kept in museums outside the countries of origin is on the agenda of many international institutions, such as the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation. However, some countries, especially the so-called “settler states”, have actively developed programmes for the repatriation of cultural property and, in particular, human remains (hereafter called “remains”) to their original inhabitants. New Zealand (called Aotearoa by Māori) established the Karanga Aotearoa Repatriation Programme (hereinafter referred to as KARP) in 2003. Its purpose is to identify Māori and Moriori remains in overseas institutions and to negotiate and facilitate their repatriation, firstly, to New Zealand and then to their final domestic resting place. It applies to all kōiwi/koimi tangata, which are defined as: “Any part of the human body (skeletal or soft tissue) of Māori or Moriori origin, which is in an unmodified state since death. This includes all Toi Moko” (Te Papa 2010:3).1 The programme has been highly successful in the thirteen years of its existence, enabling the return of 358 individuals from fourteen countries back to New Zealand and repatriating nearly a third of them to the relevant iwi within the country.2 One of the largest single repatriations was the return of the remains attributed to 107 individuals from the American Museum of Natural History in New York in December 2014. The programme was initially set up to run for five years, but has since been extended twice. Notwithstanding the figures, it can be argued that its true success was to establish itself as a widely known and recognised repatriation partner – internationally as well as domestically. KARP has not only raised worldwide awareness about Māori wishes concerning their dead, but has also influenced international repatriation debates and even helped to change national legislation in France. The main aim of this chapter is to present and analyse how KARP works. The first part will explain the historic and political background and how the programme came into existence. The second part will describe ideal return procedures undertaken before and after the international return, particularly emphasising the

Return logistics – repatriation business 179

Figure 8.1 Arrival of ancestral remains from five different European institutions at the Te Papa Museum in Wellington in May 2011. After the remains and their carriers had been welcomed to Te Papa and allowed to enter, the crates were laid down in front of the museum’s meeting house (Te Hono ki Hawaiki). Photo: Sarah Fründt, 2011.

steps within New Zealand. The third part will take a closer look at the practical implementation and the challenges encountered in the process, and then assess and interpret some of the programme’s features with regard to their potential significance for its achievements, before leading to some final conclusions. Materials used include the documents published on the programme’s homepage (http://www.tepapa.govt.nz/AboutUs/Repatriation/Pages/overview.aspx ), secondary literature and a number of personal conversations held during several visits to New Zealand. I was also able to gain first-hand experience of some of the procedures during an internship with KARP between April and July 2011. Information in this chapter not credited to any particular source is derived from these insights.3

Historical and political background Larger historical and political developments in New Zealand must be taken into consideration in order to understand the context in which the programme was established. From the 1960s onwards, the Māori had fought for recognition of the rights that they believed had been granted to them in the Treaty of Waitangi, signed in 1840 by representatives of the British Crown and various Māori chiefs,

180  Sarah Fründt which is today considered the founding document of New Zealand.4 In 1975, the government reacted to the protests by establishing a tribunal to hear Māori claims and to make recommendations for settlement of issues if it discovered existing or potential breaches of the treaty. As well as affecting bicultural relations and politics, this settlement process has also influenced museum practice. New Zealand museums have increasingly incorporated partnerships and collaboration with the Māori into their policies. However, many Māori communities remained hesitant. Some also questioned the legitimacy of museums to own Māori material culture in general. The exhibition “Te Māori”, which toured through the United States and New Zealand in the mid-1980s had an important role in overcoming this scepticism. It raised the status of Māori art and culture internationally and within New Zealand, and brought Māori into direct contact with museums. Both parties realised how important it was to discuss and develop appropriate ways for museums to deal with Māori objects in the future. As much of the continuing resentment related to the fact that many institutions continued to hold custody of human remains, museums realised that if they wanted to establish sustainable engagement with Māori communities, they had to address this issue (O’Hara 2012). Many reacted by removing these remains from public display (Tapsell 2005:154) and engaged in dialogue with local communities about the future of the remains. Although these processes proved to be slower than initially expected, many New Zealand museums today have repatriation policies and are proactively returning remains to the relevant communities.5 Parallel to these general developments, Sir Māui Pōmare, then Chair of the National Museum Council, had tried to raise awareness since the 1970s that human remains had a special meaning to Māori.6 He developed the idea of a dedicated storage place (wāhi tapu) in the museum in Wellington where remains could be safely and culturally appropriately stored until they are returned to their final resting place. This place was identified and then blessed by the museum’s local iwi when today’s Museum of New Zealand Te Papa Tongarewa (hereinafter referred to as Te Papa) was built in the mid-1990s. Pōmare also supported provenance research, established contact with overseas institutions holding remains and facilitated several international repatriations throughout the 1980s and 1990s. Most international museums asked for more information and sometimes proof that the remains belonged to New Zealand and/or were illegally removed. With an estimate of 500–1,000 individual remains abroad (based on first inventories and estimates), it became apparent that the respective research required institutional support. Māori groups, therefore, approached the New Zealand government asking for funding for an official repatriation programme. They based this claim on the fact that the state had to pay back a debt, because New Zealand museums (as state institutions) had greatly benefited from the trade in remains (Te Whenua, personal communication in 2010).7 Two seminars were held in 1998 and 1999 consisting of representatives of iwi, Te Papa and several New Zealand government agencies. They set the stage for the official cabinet decision of 2003 mandating Te Papa to develop and implement an official repatriation programme which was to be the only appropriate body to

Return logistics – repatriation business 181 carry out international repatriation (KARP n.d.). Although this made negotiations with foreign institutions easier and more transparent, some say it also downgraded efforts of other museums, such as the Auckland Museum which, at the time, was also preparing international negotiations (Tapsell 2005). The decision to set up the programme in Wellington can certainly be understood not only in the light of the international links and domestic procedures that Pōmare had already established and pressed, but also as part of the concurrent process to establish Te Papa as a true national museum (officially opened in 1998). Te Papa was to show the ethnic and cultural diversity of New Zealand’s people, while, at the same time, supporting the formation of a bicultural national identity. Establishing the repatriation programme within Te Papa supported this process. The programme needed to establish formal procedures and policies within the government framework that would ensure that human remains were cared for respectfully and that repatriations were facilitated in a consistent, transparent and culturally appropriate manner. This is an ongoing process. The Kōiwi Tangata Policy was drafted in 2010 (Te Papa 2010). It outlines not only repatriation procedures (internationally and domestically), but also gives important definitions and guidelines for culturally appropriate storage and handling of the items returned. There will probably be protocols added in the future dealing with unprovenanced remains or procedures for toi moko research and identification – the two main questions that remain open at the present time.

Structure, funding and government participation KARP is made up of two main bodies: the Repatriation Team and the Repatriation Advisory Panel. Both are staffed exclusively by Māori.8 The team is currently (2015) comprised of three full-time employees, both male and female, from different professional backgrounds. Each has a specific role to ensure the smooth running of all processes: the researcher identifies institutions holding remains, determines provenance and helps prepare restitution requests; the manager negotiates and implements the return; and the coordinator organises logistics and provides additional support. The team is also responsible for administrative tasks, public outreach, documentation, the care of all remains in Te Papa, and continuous communication with both international institutions and iwi. It is supported by other Te Papa teams, such as the Iwi Relationships Team, and can also ask other museum staff, such as conservators or crate makers, for help. The Advisory Panel is formed by various experts and iwi representatives. Te Papa’s Kaihautū (senior Māori Te Papa representative) will usually seek nomination advice from the existing panel and the repatriation manager. The Kaihautū will then determine who is invited onto the panel. Criteria include their commitment to KARP, their understanding of all issues involved with the care, management and repatriation of human remains, their knowledge about Māori customs and protocols, and their ability to establish networks with both iwi and the government. They are usually invited to join the panel for at least three years, but their membership can also last longer. The panel is expected to meet at least twice a year. It guarantees the integrity of cultural and spiritual practices and provides expertise on Māori

182  Sarah Fründt customs and knowledge. Panel members facilitate communication and provide advice and guidance on interaction with iwi, on research priorities and on all other questions with regard to repatriation and the care of kōiwi tangata (KARP n.d.: 8.2). The government mandate provides funding for the repatriation team and the physical repatriations, including costs associated with staff travel and the transport of kōiwi tangata. The total annual budget is NZ$500,000 (including goods and services tax). A number of government institutions, such as the Ministry of Culture and Heritage, the New Zealand Customs Service, the Ministry of Foreign Affairs and Trade, and the Department of Conservation, are also directly involved in KARP by facilitating logistic processes (see below).

Returning the remains – procedures and logistics I will summarise the entire work process, specifically concentrating on the procedures after the international return. In this way, I wish to address a gap that is found in most repatriation literature, which tends to pay more attention to the debates preceding the return. I will, therefore, dedicate much less attention to this former part of the process. Additionally, it should be mentioned that this section will lay out ideal processes. I will complement this in a section below by analysing the problems and challenges that can arise. Preparation and international repatriation The first step of a return process is to identify institutions worldwide which hold remains from New Zealand in their collections. This is usually carried out by research, although some institutions also proactively contact the team wishing to initiate a dialogue and engage in repatriation. In most cases though, after enough information has been collected, the relevant foreign institution is contacted by the repatriation manager, introducing the programme and explaining its purpose. At this point, he is usually asking for confirmation that the institution actually holds remains from New Zealand and requests further information on them (such as copies of inventory records). These are then matched with and compared to the information Te Papa holds. The museum, in turn, will often ask for information on the type of mandate KARP has, on the cultural significance of the remains in question and what would happen to them after their return. Negotiations One of the government principles set out when KARP was established mandates that repatriation can only take part if countries and institutions agree to it voluntarily. If an institution is willing to take the conversation further, the programme will stay in regular contact. Information is exchanged until both sides are content to confirm that the remains are definitely from New Zealand. If New Zealand provenance is the only information available (but no local origin), the remains should still be returned, as all of them “deserve the same level of dignity and

Return logistics – repatriation business 183 respect as any ancestor” (KARP n.d.: 11.1). KARP will submit a formal repatriation request for the governing body of the institution to consider and, thus, start negotiations. Finally, a formal repatriation agreement is composed. Return logistics The planning and organisation of logistic details are usually done in cooperation with the institution. Te Papa will meet the costs of international repatriation, such as the crating, staff time and travel expenses associated with Te Papa, and the transportation costs for the remains (when required). One or more Te Papa staff members well versed in all aspects of protocols and customs will carry out the repatriation and accompany the remains from the foreign institution all the way back to Te Papa. The international ceremony usually has three parts: firstly, a private ceremony, in which the tūpuna (ancestors) will be greeted and prepared for the journey home (including the packing). Secondly, a public part, which comprises the formal handover procedures, such as official speeches and the signing of the documents. The third, a private part, includes the accompanied transport of the crates to the transport vehicle. Remains officially exit foreign countries and enter New Zealand as objects, meaning that they need an export and an import licence with the relevant documents. They are also transported in normal shipping crates. However, the team still tries to ensure that they are treated with respect and dignity: the shipping company can set aside an area at the airport that becomes a temporal wāhi tapu (where access is restricted and protocols are followed). Karakia (incantations and prayers used to invoke spiritual guidance and protection) are present at every part of the journey to ensure safe passage (Tahana 2011). Air New Zealand supports the process by adhering to cultural requirements during transport, the New Zealand Customs Service assist the team with efficient and respectful customs clearance and the Ministry of Agriculture and Forestry facilitates the entry and manages any potential biosecurity risks. Arrival at Te Papa The remains are transported from the airport to Te Papa, still accompanied by the same people who picked them up. The ancestors are welcomed home with a ceremony, pōwhiri. If enough is known about the origin of the remains, representatives from descendant communities are invited to be part of the pōwhiri. Herewini, repatriation manager since 2007, hopes that it will also be possible for them to travel to international repatriation ceremonies in the future, “Because [if] they are Moriori, for me it is appropriate that you have kaumātua from the Moriori doing all the rituals and ceremonies and acknowledgements . . . because it is their ancestors” (cf. in O’Hara 2012:54). Unpacking and storage Kōiwi tangata and toi moko are not classified as objects, but tūpuna (ancestors), hence, they are not officially accessioned into the collection. They receive a kōiwi

184  Sarah Fründt

Figure 8.2  Details of one of the transport crates. Photo: Sarah Fründt, 2011.

tangata (KT) number for identification purposes. They are kept separately from other collections in a wāhi tapu, where they receive the “same degree of respect as any urupā/grave or burial site” (Te Papa 2010:Art. 3.2). Te Papa maintains two wāhi tapu: one at its main building (housing toi moko) and the second at its research and collections facility (housing all other kōiwi tangata). They will stay there until they can either be returned to their iwi of origin or another solution is found (see below). Access to the wāhi tapu is strictly limited (Te Papa 2010:Art. 5): whereas certain Te Papa staff members, both male and female, can enter for research, auditing, checking purposes and during repatriations, public or private media representatives are never allowed inside. Descendants and researchers can make a written request for access (at least six weeks prior to the intended visit) to the Kaihautū, who will decide after consulting with the relevant iwi or hapū. In their application, enquirers must provide information regarding the purpose of their study, evidence that the relevant iwi supports the visit, a list of the people wanting access and information on any anticipated or future products or outcomes of the visit (Te Papa 2010: Appendix 1). There are also strict rules concerning documentation: while photographic and other records may already exist or be required for identification purposes, only staff authorised by the Kaihautū will be permitted to make visual recordings or access these materials (either in hard copy or in the internal database). These records may be made available to iwi or scholars, but only after permission has been obtained from the relevant iwi or hapū authority (Te Papa 2010:Art. 2.4).

Return logistics – repatriation business 185 All cultural protocols are strictly upheld in the wāhi tapu (such as ritual cleansing before entering or using traditional prayers while inside). Usual museum preservation and conservation requirements are also followed: environmental conditions are strictly controlled and acid-free boxes are used to reduce deterioration or damage from external sources. If needed, conservation stabilising treatments are conducted to stop deterioration (Te Papa 2010: Art. 4.6/4.7/4.9). Newly received remains will be checked by conservators and sometimes must undergo quarantine treatments or fumigation to ensure the absence of decomposing agents (Te Papa 2010: Art. 4.5). Domestic repatriation The material on the website indicates that all domestic returns so far have involved kōiwi tangata and not toi moko. This is confirmed by Herewini (personal communication, 2015), although he added that sometimes the distinction is not clear-cut, because some of the remains returned are now skulls, but have traces indicating that they had been toi moko originally. One reason for this is surely the difficulties with provenance research, because even if the original point of removal of toi moko is recorded, this is rarely the place to which they need to be returned:

Figure 8.3 The main part of the welcome ceremony for the ancestral remains (covered by traditional Maori fabrics) was formed by speeches from members of the KARP Advisory Panel, iwi representatives, Te Papa staff members and the foreign ambassadors. Photo: Sarah Fründt, 2011.

186  Sarah Fründt Although there were regional tattooing styles, facial tattoos were highly individual . . . Clearly, the work of individual tattooists could be identified through a process of careful observation . . . Research into hairstyles . . . may suggest regional affiliation. Similarly, recent textile research has demonstrated differing seam styles specific to the North and South Islands of New Zealand. An examination of the stitching on the heads (at the eyelids and the base of the neck, for example) may enable heads to be attributed to one or other island [but] [a]ll these research techniques relate to the tattooing of and preparation of the heads. They do not necessarily identify the home place of the individual concerned, who may have come from one area, but whose head may have been prepared in another (after capture or enslavement, for example). There were recognised tattooists . . . whose skill was sought after, so that they could and did tattoo individuals from a number of different iwi. (Bolton 2007:111) A specific seminar was organised in April 2010, bringing together tā moko experts and practitioners with researchers from KARP in order to learn from each other and identify future options for identification (KARP 2010a, 2010b). Another reason for the seminar was that there was also a lack of agreement about the proper way of treating the remains after the return (see below). According to Herewini, the Repatriation Advisory Panel wants to consider the context of the trade of toi moko in more depth and how Māori can best offer dignity and respect to them if iwi provenance is not achievable, before giving any recommendations (personal communication in 2015). Hence, the following steps mostly apply to kōiwi tangata (although there can be little doubt that similar procedures would also be used with toi moko). Provenance research and identifying iwi The most important step after the return is to research the provenance of the remains. For kōiwi tangata, this refers to the “place of origin or initial point of collection” (Aranui 2012:5). The details provided when the remains arrive at Te Papa are normally used as a starting point, but they must be verified by finding corresponding information from several sources. Materials used for this include institutional accession records, such as inventories, record cards, labels and documents associated with collectors or donors, e.g. diaries or letters, published reports, articles or larger volumes. Records from auction houses, shipping companies or harbours can reveal information on trading networks and the people involved. Reasons for the removal of remains can vary widely and include intentional searches by collectors, trade and theft, natural disturbances (such as earthquakes, flooding or soil erosion), archaeological excavations and accidental finds by private landowners or during commercial developments. Accordingly, different corresponding sources can be helpful: archaeological records of specific areas are checked to see if they, for example, indicate a larger burial ground (Anonymous 2009b, 2009c). Private landowners can sometimes be asked for further information (Aranui 2012). Area maps from different periods can shed light on changing landscapes and place names,

Return logistics – repatriation business 187 and newspapers and records of historical or archaeological societies may include references to finds. The history of a site can also reveal why a large number of remains might have been found, as exemplified in an area around the town of Rotorua which has been subject to epidemic deaths and several wars (Anonymous 2009c). If city records show large-scale development projects (Anonymous 2009c), this can indicate in what context collection took place. However, KARP does not only use traditional historic sources, but it also actively combines them with local knowledge and oral history, including songs, poems and stories. Local iwi are contacted as soon as rough provenance to a certain place is established and they can often add significantly to the information by knowing about changing place names, old burial places, landmarks described in accession records, or certain events associated with collection (see, for example, Smith 2010 and Aranui 2012). Land court files and tribal records contain information about tribal maps and boundaries, genealogy and relationships, burial practices, historic events, wars and battles, shifts in landownership and iwi migration. KARP does not compile any form of invasive research, such as DNA testing (although this is under consideration by the Advisory Panel), even though information from previous research conducted when the remains were still in custody of other institutions might be used. iwi can, however, decide to apply these methods after the domestic return. Opinion about how close the relationship to the ancestors needs to be in order for a return request varies (see interviews with Joe Malcolm and Te Hau Tutua cf. in Hole 2006:67f.), but, in general, a return can only take place when either a kinship or a territorial link can be proven. According to Te Whenua (personal communication, 2010), the former proves impossible in most cases, but the latter can often be established. Tribal boundaries are used according to the Waitangi Treaty of 1840. As she further explains, iwi have not moved significantly over the last two hundred years, so the treaty is a good starting point. As people were not necessarily buried or found in the place where they actually came from, a territorial link does not provide absolute certainty, but in her experience, most people were satisfied with this as long as remains were handled with care and according to customs. Many understand it as a form of binding ties and reconciling the past if there had, for example, been a fight between groups that could now be settled by treating their dead properly. Herewini added (personal communication, 2010) that there was also the idea of a unified Māori people of which these remains were the ancestors. Only remains with no available information about burial context or iwi/regional connection are considered unprovenanced remains (KARP n.d.: 6.1). Negotiation and organisation First discussions with iwi involve the sharing of information and ideas concerning what is known about the remains (see above), what additional research could take place to confirm provenance and what the options are for a domestic return. Discussions occur with an iwi and its related hapū regarding most domestic repatriations. However, in situations where several iwi show a connection to the location or territory in question, KARP holds discussions with all relevant groups.9

188  Sarah Fründt All practical arrangements for domestic repatriation are led entirely by the iwi. They determine the place, time and all other details (such as people or procedures involved). Te Papa will again meet the costs of transport, staff and management costs at Te Papa as well as a koha to the iwi involved if appropriate.10 All other costs, such as travels of iwi members, further research, or the repatriation ceremony, will have to be met by the iwi. Procedures can vary widely: some iwi bring their own burial containers and collect the remains of their ancestors from Te Papa, others have asked Te Papa to escort the ancestors home. Domestic repatriation is formally sealed by an agreement which is signed by both parties (representatives of Te Papa and the iwi). It confirms the handing over of the remains and confers legal custody. KARP also provides the iwi with a report containing copies of all relevant documentation and the results of the provenance research. The original documents remain at Te Papa. So far, most iwi have chosen to bury the remains, but some have also opted to conserve them. KARP outlines five possible options (n.d.: 7.2): long-term care within a museum (with possible access for dedicated groups of people and under certain conditions), vault storage with ongoing access, burial with provision for future access and long-term care, short-term care at Te Papa while the iwi go on with their preparations, or long-term burial. Once repatriation is completed, the iwi can still discuss options relating to the future care of the remains and will be supported by Te Papa if they wish. Once domestic repatriation has taken place, KARP will send a report to the repatriating institution to inform them about the outcome and also share research results. The provenance research report is combined with the repatriation agreement to form a project report and added to the existing repatriation file. Some of these reports have also been uploaded to the homepage. If the iwi agrees to this, interviews with iwi authorities might be conducted which can include discussions of the historical context, repatriation in general, or thoughts and opinions on the repatriation process with Te Papa (KARP n.d.: 3.2).

Challenges – theory and application As mentioned previously, this was an outline of the ideal steps, assuming that provenance can be established and that the original community is interested and in a position to request the return of the remains. However, this is not always the case. There will always be gaps in the historical record and it may prove impossible to establish any clear place of origin for some remains. According to Herewini (personal communication, 2011), this might apply to up to a third of the remains returned. So far, no solution to this problem exists. KARP, as part of its policy to always negotiate further steps with iwi, is currently trying to foster an agreement between all New Zealand iwi with regard to the possible future of these remains. It, therefore, organised a number of regional/district meetings throughout the country in 2010. To make sure everybody can take part in the discussion, reports of the meetings have been uploaded to the homepage and comments by the public invited. Currently, there are two options to consider: a burial place on the northern

Return logistics – repatriation business 189 tip of the North Island (close to Te Rerenga Wairua) or a type of mausoleum in Wellington.11 iwi can also offer alternative suggestions. KARP published a background document in August 2011 which stated that, after all local meetings had been conducted, a special meeting would be held to finalise the preferred options (KARP 2011:9). The decision would be placed on the website shortly afterwards. So far, this has not happened, indicating that the process is more difficult than originally presumed. This assumption is strengthened by the 2013 newsletter in which the team announced it would schedule another series of meetings for the end of the same year (KARP 2013:4). Finding a solution that is supported by all parties will take time and will be difficult for a number of reasons: firstly, there has never been a total unity of views among Māori regarding death and the afterlife. There has always been a considerable range of burial traditions both geographically and temporally. Other traditions have also appeared, e.g. Christianity, and are sometimes mixed with more traditional ones. Accordingly, there is considerable debate on the type of burial procedure for older remains. Secondly, people have always made a very strong distinction between members of their own group and strangers or enemies: whereas the correct care for remains of the community was highly important, bones of slaves or enemies could be used for utilitarian purposes; they were made into spear points, fish hooks and flutes, and the desecration of burials was a common method of taking revenge (Hole 2006). A notion of this separation can still be found today: many Māori will declare it of utmost importance that relatives are buried in the right spot (usually the family burial ground). This often becomes apparent when families fight over the remains of the deceased as s/he belonged to more than one iwi (see Tomas 2008–09). On the other hand, when Bolton visited New Zealand in 2007, she found that: Many iwi are reluctant to rebury remains which may not be their own ancestors. Some see it as a heavy responsibility, which they may nevertheless accept . . . Others express a specific reluctance to bury among their ancestors someone who may have been an enemy. (Bolton 2007:110) An additional explanation is offered by Herewini, who explained that the Repatriation Advisory Panel decided that it was still too premature to decide on a final resting place for the unprovenanced kōiwi tangata, and that more time should be given to the decision. Part of the reasoning for this was that the majority (two-thirds) of Māori and Moriori skeletal remains that were, or are, still overseas are the result of collecting and trading by people associated with museums in New Zealand. Therefore, it would also be appropriate to consider the role of the New Zealand government and its agencies in this trade, and how they should contribute to the decision and the final resting place as well (personal communication, 2015). Challenges can also arise while dealing with iwi who may be in difficult situations which do not allow them to engage in repatriation: they might be involved in land rights negotiations (and, therefore, lack a proper burial place), they may be uncertain about the proper way of dealing with the remains, or they may not have

190  Sarah Fründt the financial resources to carry out repatriation (Herewini personal communication, 2010). There may also be sensitivities concerning human remains which impede open discussions (O’Hara 2012:48). As burial customs in the past have sometimes been very different from what is done today, two sets of traditions often need to be reconciled. Bolton also found that taking remains back was not “necessarily an easy matter for individual iwi, which may find accepting bones a difficult responsibility (financially, and in terms of finding appropriate protocols), although one which they would not reject” (2007:110). Even in simple cases, a lot of relationship-building and dialogue is needed before repatriation actually takes place. As iwi determine the timing and all processes, negotiations require a large degree of flexibility in KARP’s procedures and sometimes long periods of waiting until people have made their decisions or collected enough money to conduct a ceremony. KARP has to deal with international law and the repatriation processes or policies of other museums in international repatriations. Many of them start from a position of suspicion towards repatriation. As there are no legal imperatives, negotiations can become very adversarial and long-winded. There can be difficulties (i.e. legal impediments) even in cases where both sides agree on the return (O’Hara 2012). It is interesting to note in this context that KARP members are entirely aware of the fact that Māori were actively involved in the trade of toi moko and sometimes also of other remains. Hence, negotiations never imply – as in many other international cases – that remains were stolen and, hence, needed to be restored.12 Instead, it is stressed that – no matter what happened in the past – it is of great importance for Māori today to have the remains returned and that through this return, the dead as well as their living descendants retrieve their dignity. Neither diplomatic nor media pressure is used, and in cases where an agreement cannot be reached, the team will keep this result on file and move on to another institution. They might, however, resume negotiations later. Aranui stated, for example, that they would resubmit a request to the British Museum, which decided against returning toi moko (while returning other remains), once they had built up a better case. Herewini said he knew some people needed time to resolve their (legal or personal) issues with repatriation and success would not be achieved through animosity. He would, however, not regard this as “a big issue because we’ve got other things we can do” (both cf. in O’Hara 2012:50). While some might take this flexibility and resetting of priorities as a sign of a lack of interest, reality is more complicated: given the principles of the programme (in particular the “voluntary approach”), not much can be done if an institution refuses discussion and – as Herewini stated – there are other institutions to contact and other directions to follow. Looking at the broader picture, it seems wiser to use energy productively and balance difficult cases with those that offer easy solutions. Additionally, with the increasing success and international popularity of the programme, many institutions which were initially refusing repatriation are now reconsidering their position and sometimes actively approach the team (Herewini personal communication, 2010). Herewini believes that this is partly because “Te Papa has a growing reputation amongst museums of doing this work well, with respect (for the ancestors and also the institutions that house them)” (personal

Return logistics – repatriation business 191 communication, 2015). He also adds that a number of private collectors, informed by media coverage of repatriation cases, had also actively contacted the team. Although KARP has reasonable financial resources, budget constraints still limit activities. According to Herewini, it is possible for a couple of Te Papa and KARP staff to travel once to either Europe or the United States or, instead, up to two trips to Australia within each financial year. However, since funding will continue for several years, strategic planning of how to combine repatriations of certain areas is possible (cf. in O’Hara 2012:51). The annual target – at the moment five international repatriations and one domestic one, but this has changed slightly over the years – sheds some light on priorities: international repatriations are clearly favoured against domestic ones. This can easily be explained: returning remains to New Zealand is an important step nearly all Māori can agree on, and also something that can be done in the early stages of provenance research. These priorities also allow for the fact that domestic repatriation can require more time and work, as it implies confirming a place of origin without any doubt and the entire negotiation process with the relevant iwi (see above). Added to that is again the question of efficiency: Herewini explains that although the programme had already established good provenance for a number of remains overseas, as well as for some in Te Papa’s wāhi tapu: . . . the thinking at the moment is to wait until all the kōiwi tangata and kōimi tangata with specific provenance are returned to Te Papa, before final arrangements for their domestic repatriations are completed. For example, it will be best to return all the Moriori remains at one time to the Chatham [Island]s instead of doing this two, three or four times over the same number of years. (Herewini personal communication, 2015) As with any other project, successes and achievements also depend on the number of people involved and the amount of energy they dedicate to their tasks. While the dedication of the people involved need not be questioned, there is a limit to the amount of work such a small team (although being helped by others) can actually do and how fast, for example, provenance research can be conducted.

Guiding principles – assessment and interpretation When the New Zealand government passed its decision to establish a repatriation programme, it stated six principles to be followed: (1) The government role is only of facilitation, it does not claim ownership of any of the remains, (2) Repatriation is to be done by mutual agreement only, (3) The programme does not cover any war dead, (4) KT [human remains] must be identified as originating from New Zealand or the Chatham Islands, (5) Māori and Moriori are involved in the repatriation and are able to determine the final resting place, (6) No payment will be made for KT. (quoted in KARP n.d.:2)

192  Sarah Fründt The involvement of a number of government agencies and the official mandate by the state lend an element of credibility and authority to the programme which some other international efforts (such as requests by Native Americans to European museums) often lack. Museums with existing repatriation guidelines often demand that claims have national government support, which can be proven easily in this case. At the same time, the government officially steps back and stresses the voluntary character of repatriation, allowing for more discreet negotiations (as opposed to, for example, the active pressure that the Australian government exerts on a state-to-state level via its embassies). In contrast to, for example, the United States NAGPRA regulations, which also include sacred objects or burial items, the New Zealand policy clearly concentrates on human remains and does not seem to have any provisions to extend the programme to other types of objects.13 Additionally, the definition of kōiwi tangata excludes all remains that have been reworked or modified into what are considered to be objects. This certainly helps in discussions with international museums, as the scope is clearly defined and it can be stressed that KARP is not interested in any other part of the collection. Concerning the debates about restitution or repatriation in general, many of the world’s museums have come to agree over the last decades that certain types of objects or remains should be returned to their “true owners”, traditional guardians, or heirs and descendants. However, one of the most debated difficulties with these cases is usually whether rightful claimants can be determined to the satisfaction of all parties. There are often very strong and conflicting views regarding the legitimacy of requests.14 Additionally, difficulty often arises with tensions between various stakeholders claiming competing ownership (such as state representatives, traditional power holders, indigenous minorities within a national state, various political parties, etc.). KARP avoids these discussions, as the identification of the right recipient within New Zealand no longer involves international institutions. Especially in the case of toi moko, their origin in New Zealand cannot be disputed, therefore, KARP – with its government mandate – will always be the rightful claimant. With kōiwi tangata, this might sometimes be more difficult, but even in these cases, a New Zealand provenance can usually be established – and, if not, no repatriation is desired, thus, theoretically, there is a clear procedure for cases of uncertainty. Although there are debates on some aspects of the programme within New Zealand (and many questions still to be discussed), these discussions are hardly ever carried on outside the country. International partners are, thus, only confronted with one type of repatriation request: they do not have to choose the most adequate candidate (although they can obviously still consider the validity of the claim as such). The refusal of payment means that no modern artwork can be given in exchange for remains, either as donations or loans. There seem to have been deals of that type before the official programme was established: when the Vienna museum returned mummified remains in 1985, it specifically asked for modern Māori artwork in return and also received it. However, the majority of Māori involved in

Return logistics – repatriation business 193 the transaction had already protested against the practice and saw it as a desecration of the remains and a disrespectful treatment of the dead (Kolig 1996:114). Herewini explained in 2011 (personal communication) that for him, refusal of payment or exchange was an important means to stress officially that remains were no longer treated as objects for trade and, thus, reversed their commodification in the nineteenth century.

Criticism and public support KARP has sometimes been vaguely criticised both internationally and nationally as only following a certain “zeitgeist”, and its general support by all Māori has been questioned. However, there is not much material to support or reject these assumptions. This is not to say that every New Zealander agrees with everything the programme does, but there is no major public debate around it that could be analysed. To the best of my knowledge, no general survey or in-depth anthropological research has yet been conducted. A larger study analysing how much support the programme has from the general public as well as from the larger Māori community and what the major points of criticism are would be a welcome topic for further research. Lissant Bolton, a representative of the British Museum (BM), visited New Zealand for two weeks in 2007 to investigate Māori attitudes towards repatriation (as the BM has been approached with a repatriation request). She approached Māori representatives in Wellington, Christchurch, Hamilton, Wanganui and Auckland, which included formal meetings and informal discussions with both individuals and groups, as well as with representatives of Te Papa. Although two weeks do not seem to be enough for a proper study, her results, nevertheless, give some indications. She found that people generally welcomed the return of remains, both to the country and their communities, but that there was a wider range of opinion with respect to toi moko. Many of those interviewed were uncomfortable speaking about the subject and were not sure how returned heads should be received, as it is difficult to know whether a head was preserved to honour that person, mock an enemy, or for trade. Despite this, most Māori seemed to believe that not only human remains as such, but also the heads should at least be returned to New Zealand. Other sources indicated that some Māori also see particularly toi moko as an important source of knowledge and an example of Māori artistry and would prefer to have them accessible instead of being buried (i.e. Te Hau Tutua, cf. in Hole 2006:68). However, this was likewise not a full study and can only give some indications of the feelings and opinions involved. There are also individual comments in the media criticising the use of public funds for return projects instead of spending them on more significant programmes (Anonymous 2011), or the fact that Te Papa’s policy singles out Māori remains from others in their collection, such as the Egyptian mummy (Rudman 2011). Some scholars have criticised KARP for working directly with the iwi concerned and not via the local iwi of the Wellington area, which is considered to violate traditional protocols (Hole 2007; Tapsell 2002). It is, however, difficult to evaluate

194  Sarah Fründt how important this issue is and if these concerns might have been overcome since the time when they were published.

Conclusion During the last few decades, the so-called “settler states” have especially developed official programmes for the repatriation of remains from museums and other institutions. However, there are significant differences between them: whereas the US, for example, has concentrated its efforts on processes within the country and has passed national legislation accordingly, New Zealand has voted for a combined international and domestic, but more flexible, approach. Although the official repatriation programme is supported by the state, international and domestic repatriations rely on voluntary agreements. While the programme follows strictly the government policy, it is also understood as evolving and, thus, characterised by flexible and accommodating dialogue procedures and outcomes. It has developed a number of policies and processes in the course of its existence (and continues to do so), which are generally followed, but adjustments to changing circumstances have always been possible. This seems to be a sensible approach given that repatriation always requires a lot of negotiation and relationship-building with people and institutions in which neither the timing nor the exact result can be predicted. Nevertheless, KARP, after being in existence for more than a decade, has not proven to be a short-lived endeavour of the moment, but has grown into an institutionalised programme with regular supervision in form and content and set budgets. Flexibility is always in danger of leading to arbitrariness, but, so far, the Advisory Panel and other forms of supervision have apparently prevented a loss of consistency. Additionally, no scandals have been revealed: no returned items have re-entered the market or have been found in locations where they should not be and, to the best of my knowledge, no substantial criticism of the programme – either by the state, scholars, or the New Zealand public – has resurfaced. Continuous consultation and cooperation with international institutions as well as with iwi guarantees a constant exchange of information and feedback and, thus, ensures that all procedures developed by KARP are approved of by the people they represent, as well as providing institutions with solutions. These constant processes of collecting different perspectives, weighing opinions and negotiating wishes and ideas until an agreement is reached also mean that some of the processes and decisions take much longer than initially planned for. The question of unprovenanced remains (be it due to a lack of documentation or the difficulties presented by the provenance of toi moko) is an especially difficult one that does not offer easy answers. On the other hand, it is also a question that institutions holding remains in other parts of the world will have to confront sooner or later. It will be interesting to see how New Zealand will resolve this issue and whether it will be possible to uphold the existing dialogue procedures and still reach practicable and consistent solutions – or whether there will be more antagonistic debate in this case.

Return logistics – repatriation business 195

Notes   1 Kōiwi tangata is the Māori term, whereas koimi tangata is used by Moriori. Māori are the original inhabitants of mainland New Zealand, whereas Moriori form the population of the Chatham Islands, an island group about 680 kilometres south-east of New Zealand. For ease of reference, only kōiwi tangata will be used in this chapter. Toi moko are tattooed and preserved human heads of Māori or Moriori origin. Alternative terms include mokomokai, upoko tuhi and uru moko. The popular term mokomokai is considered inappropriate today as it translates to “slave’s head”, which is offensive to the memory of the deceased and does not take into account that heads of friends and relatives were also preserved (O’Hara 2012:10). It is interesting, however, that according to this definition, toi moko are not considered to be in an altered or modified state. The process of preservation is, thus, not understood to turn the head into a cultural item.   2 Iwi form the largest social units in Māori culture. A direct comparison of the figures for international and national returns is difficult as the number for international returns is from 2003 until now, whereas the number for domestic returns – 125 – also includes those returned before the official programme was established. All figures are from June 2015, provided by Herewini (personal communication, 2015).   3 I would like to thank all members of the team (as well as other staff members of the museum) for making this possible, introducing me to this work and also for the warm welcome I received.   4 The treaty, established by the British Governor William Hobson, recognised Māori ownership of their lands and other properties, and gave them the rights of British subjects. As the English- and Māori-language versions of the Treaty differed significantly, there is considerable debate as to what was agreed. Most of the claims today deal with land rights.   5 The First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples was also held in New Zealand (Whakatane) in 1993. One of its outcomes was the Mataatua Declaration stating “All human remains and burial objects of indigenous peoples held by museums and other institutions must be returned to their traditional areas in a culturally appropriate manner” (Article 2.12: http://www.wipo. int/export/sites/www/tk/en/databases/creative_heritage/docs/mataatua.pdf (accessed 17 May 2015)).   6 There seems to be a general agreement among most Māori that remains should not be housed in museums and institutions. This is not to say that no other voices exist, but they are in a clear minority. However, as the return often does not have a predecessor, there is continuous discussion on what is to happen with the remains after they have been returned to their place of origin and what is to happen if the place of origin cannot be established with enough certainty (more details below).   7 Whereas the trade in toi moko had flourished in the early nineteenth century and had disappeared within New Zealand by the time museums were founded, the trade in remains only started in the latter half of the nineteenth century when New Zealand museums used them for trade with foreign museums to extend their newly established collections (Hole 2006:33). Although the foreign demand had decreased by the 1920s, New Zealand museums continued collecting them through donation, loan and purchase until the 1970s. In terms of numbers, the trade of Māori and Moriori skeletal remains was more extensive than the trade of toi moko (O’Hara 2012:13).   8 Since 1974, being Māori is defined by cultural self-identification. In some legal situations (for example, when dealing with claims before the Waitangi Tribunal), authorities

196  Sarah Fründt will ask for some demonstration of ancestry or cultural connection, but there is no “blood” requirement (genetic evidence), as in many other countries around the world.   9 Anonymous (2009b) shows how remains are given back collectively to the three main iwi associated with the region. Anonymous (2009a) offers a different solution to the same problem: originally there were three iwi with a potential interest in the territory. However, two of them migrated to the area in question in the 1820s and 1830s, and only one had older ties to the land. Based on the age of the remains (the burial site had been dated during excavation), they were affiliated with the older iwi, Rangitāne o Wairau. Accepting the overlapping interests in the site, KARP negotiated repatriation with Rangitāne o Wairau, but notified the other two iwi. 10 Koha is a form of gift and/or contribution that is often given by visitors to a host marae (originally only the large place in which a community would meet, but today, usually the entire complex of the meeting house and the place in front of it). Traditionally, this has often taken the form of food or taonga (treasured possessions), but nowadays, it can also be money. 11 This is a highly significant area, as many Māori believe it marks the point from which Māori wairua (spirit/soul) return to their ancestral homeland or the place of the departed spirits after death. 12 There seem to be only a few exceptions in which remains were taken from burial grounds by collectors, such as Andreas Reischek from Austria at the end of the nineteenth century. However, some sources also prove that Māori – usually from other iwi – were involved in the collecting activities (Hole 2006:43ff.). 13 NAGPRA is short for Native American Graves Protection and Repatriation Act. It was passed as a federal law in the United States in 1990 and requires federal agencies and institutions that receive federal funding to return Native American “cultural items” (falling into four categories) to lineal descendants and culturally affiliated Indian tribes and Native Hawaiian organisations. 14 See Chapter 6 by Plankensteiner and Chapter 7 by Splettstößer in this volume.

References Anonymous (2009a) Wairau kōiwi tangata. —— (2009b) Tauranga Moana kōiwi tangata. —— (2009c) Rotorua kōiwi tangata. All available at: https://www.tepapa.govt.nz/AboutUs/Repatriation/Pages/Domestic Repatri­ations.aspx (accessed 30 May 2015). Anonymous (2011) The imperative to bring home the remains of the dead. Nelson Mail, 14 May 2011:19: http://www.stuff.co.nz/nelson-mail/opinion/editorial/5004840/EditorialThe-imperative-to-bring-home-the-remains-of-the-dead (accessed 21 September 2009). —— (2012b) Kōiwi tangata report. Kōiwi Tangata provenanced Te Rohe o Te Moana o Taupō nui a Tia. Both available at: https://www.tepapa.govt.nz/AboutUs/Repatriation/Pages/Domestic Repatri­ations.aspx (accessed 30 May 2015). Aranui, Amber (2012) Kōiwi tangata report. Kōiwi Tangata provenanced Te Rohe o Te Moana o Taupō nui a Tia. https://www.tepapa.govt.nz/AboutUs/Repatriation/Pages/ DomesticRepatriations.aspx (accessed 30 May 2015).

Return logistics – repatriation business 197 Bolton, Lissant (2007) Repatriation request from Karanga Aotearoa (repatriation unit), Te Papa Tongarewa (Museum of New Zealand). Report on discussions held in New Zealand. September 27, 2007: http://www.britishmuseum.org/pdf/00%2026%20Lissants%20 Report%20to%20Trustees.pdf (accessed 25 May 2015). Hole, Brian (2006) “Loose notions about heads”: the repatriation of human remains in New Zealand: http://www.museumsbund.de/fileadmin/geschaefts/dokumente/Leitfaeden_ und_anderes/Hole_Loose_Notions_about_Heads_2006.pdf (accessed 17 May 2015). —— (2007) Playthings for the foe: the repatriation of human remains in New Zealand. Public Archaeology 6(1):5–27. Karanga Aotearoa Repatriation Programme (KARP) (n. d.): Repatriation resources: http:// www.tepapa.govt.nz/SiteCollectionDocuments/AboutTePapa/Repatriation/Karanga%20 Aotearoa%20Resources.pdf (accessed 1 May 2015). —— (2010a) Karanga Aotearoa newsletter issue No. 2: https://www.tepapa.govt.nz/ AboutUs/Repatriation/Pages/Overview.aspx (accessed 30 May 2015). —— (2010b) Karanga Aotearoa newsletter issue No. 3: https://www.tepapa.govt.nz/ AboutUs/Repatriation/Pages/Overview.aspx (accessed 30 May 2015). —— (2011) Background document. Unprovenanced kōiwi tangata options re: final resting place: http://www.tepapa.govt.nz/SiteCollectionDocuments/AboutTePapa/Repatriation/ Background%20Document%20Hui%20a%20Rohe%20August%202011.pdf (accessed 19 May 2015). —— (2013) Karanga Aotearoa newsletter issue No. 5: https://www.tepapa.govt.nz/ AboutUs/Repatriation/Pages/Overview.aspx (accessed 30 May 2015). Kolig, Erich (1996) Umstrittene Würde. Andreas Reischek, der Neuseeland-Forscher aus dem oberösterreichischen Mühlviertel (1845–1902). Wiener Ethnohistorische Blätter, Monographie 41. Wien: Institut für Völkerkunde der Universität Wien. O’Hara, Coralie (2012) Repatriation in practice: a critical analysis of the repatriation of human remains in New Zealand museums: http://researcharchive.vuw.ac.nz/bitstream/ handle/10063/2415/thesis.pdf?sequence=1 (accessed 19 May 2015). Rudman, Brian (2011) Te Papa holds ghoulish relics too. New Zealand Herald, 18 May:11. Smith, Nicola Kiri (2010) Waiuku. Kōiwi tangata report: https://www.tepapa.govt.nz/ AboutUs/Repatriation/Pages/DomesticRepatriations.aspx (accessed 30 May 2015). Tahana, Yvonne (2011) How to get a head in NZ. New Zealand Herald, 12 May:4. Tapsell, Paul (2002) Partnerships in museums: a tribal Māori response to repatriation. In: Fforde, Cressida, Jane Hubert and Paul Turnbull (eds): The Dead and their possessions: repatriation in principle, policy and practice, pp. 284–92. London: Routledge. —— (2005) Out of sight, out of mind: Human remains at the Auckland Museum – Te Papa Whakahiku. In: Janes, Robert (ed.): Looking reality in the eye. Museums and social responsibility, pp. 153–73. Calgary: University of Calgary Press. Te Papa (Museum of New Zealand Te Papa Tongarewa) (2010) The Museum of New Zealand Te Papa Tongarewa Kōiwi Tangata Policy: http://www.tepapa.govt.nz/ SiteCollectionDocuments/AboutTePapa/Repatriation/DraftKoiwiTangataPolicy 1October2010.pdf (accessed 1 May 2015). Tomas, Nin (2008–09) Who decides where a deceased person will be buried – Takamore revisited. In: Breen, Claire (ed.): Yearbook of New Zealand Jurisprudence 11/12:81–99.

Epilogue Lyndel V. Prott

Introduction This volume contains the results of research in Cambodia into the destruction or plunder of cultural heritage (Miura), the difficulties of its protection (Tasdelen), the looting, trafficking and return (Hauser-Schäublin) as well as the invention of false documents of provenance, fraud and misrepresentation (Hauser-Schäublin and Kim). Tjoa-Bonatz then shows how inconsistent legislation in Indonesia on the safeguarding of shipwrecks, which should be fully protected, creates loopholes allowing interference with these historic underwater sites – a situation found in a number of other countries. Essential contextual information from underwater cultural heritage (shipwrecks, planes and submerged sites) has also been lost by diving enthusiasts not concerned with irreparable damage to the historical record. The increasingly significant practice of returns is currently discussed in former colonies such as Benin (Plankensteiner), Latin American states (Splettstößer) and, with far more success, New Zealand (Fründt), illustrating important changes in the ethics of returning cultural objects. Also under discussion is the collusion of some dealers, some collectors and some museum curators to create “conditions for guilt-free consumption in a transnational criminal market” (Mackenzie 2014:249) and their reluctance to fully research the history of an object, often involving deliberate omission of essential stages in the transfer from the source into the art trade. These are known steps in the transit of heritage items from developing states to wealthy collectors, including museums, in prosperous countries, revealed in many publications over the last 45 years (Coggins 1969; Meyer 1973). The meticulous research reported in this book follows all of these phases in respect of Cambodia, (rich in known archaeological sites and one of the most looted countries) from find (or creation ) through each of these phases. It also covers the efforts of Cambodians themselves to prevent, by administrative and legal means, or in some cases, to abet these destructive episodes. How these stages contribute to the loss of knowledge, extensive damage to monuments and dismemberment of sculptures can be followed step by step. Many other countries suffer the same loss of looted or degraded heritage. The history of certain famous cultural objects (the Parthenon marbles, for example, has been widely publicised), but looking at the international trade, whether lawful, illegal or illicit, enables us to compare similar patterns playing out in other contexts all over the world.

Epilogue 199 Trade and trafficking (illegal or immoral or otherwise exploitative), in cultural objects, whether of scientific, archaeological, artistic, anthropological, or religious nature are extremely complex. They involve poverty, commerce, politics, crime, ideology, law and its execution, providing motivation, or indeed, incentives. First, severe poverty is an incentive to citizens in poor countries to accept money from thieves, traders, or, indeed, any source, in order to alleviate their family’s basic needs such as sustenance and education. Problems of governance include colonial attitudes (fading but not yet fully overcome) in art-trading nations, corruption of administrators, lack of coordination of administrative units, inadequate regulation of non-governmental bodies, incoherent, badly drafted or contradictory provisions in the body of legislation, and administrators that are insufficiently numerous or inadequately trained to realise their aims. Corruption is another part of the problem, a discrete issue affecting all national activities, including the illicit traffic of heritage items, and very difficult to resolve. A third link to poverty is climate change: it contributes to lack of nutrition, loss of productive land and deterioration of the plant and animal world.

Politics The eighteenth and nineteenth centuries marked the high point of imperialism. Colonial regimes regarded their colonies as possessions and for the most part recognised only their own law in those areas. “Punitive raids” of the various

Figure 9.1 Meeting of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation in Paris in 2010. One of the issues that has repeatedly been discussed is Greece’s claim of the return of the Parthenon Marbles housed in the British Museum. Photo: Brigitta Hauser-Schäublin.

200  Lyndel V. Prott European troops (Benin, the old Summer Palace in Beijing 1860 and 1900, Magdala in Ethiopia in 1868, the royal archives on Kyujanggak Island in Korea in 1866) were regarded as an appropriate way of enforcing the western view of “international law”. At that time many other countries in the world (Asia in particular) had an international law also (Anand 1972:109–10; e.g. Syatauw 1961). While there have been, in recent years, numerous cases of negotiated returns, many of them are politically motivated. Perhaps the most recent and startling was the return by Australia of an eleventh-century Chola bronze statue of Shiva Nataraja to India (for which the National Gallery of Australia had paid US$5 million), and another significant piece of dubious origin, an Ardhanarishvara found in the Art Gallery of New South Wales (valued at US$300,000) and bought in 2004. The Shiva was approved for acquisition in 2008. Investigative journalism across several countries revealed that the Australian National Gallery had not exhausted all possible provenience checks, enabling the acquisition of a stolen sculpture. Australian Prime Minister Tony Abbott decided to personally return both sculptures during his visit to Delhi and to present them to Prime Minister Modi of India “as a gesture of good will” on 5 September 2014. The issue was seen as a potential problem in the relationship between the nations. The Australian government was then negotiating a contract for the sale of uranium to India (Boland 2014). Political action may also contravene even a carefully worded law for the protection of cultural objects. In 1997, ICOM (International Council of Museums) had drawn up a list of endangered African art works, specifically listing Nok and Sokoto works of art from Nigeria which are, and were then, prohibited exports by Nigerian law. Three such objects were bought from a Brussels dealer in 1998 for substantial payments (US$360,000 for each of two of the objects) (Shyllon 2003:142). President Chirac of France, a lover of African art, wanted to acquire them as key pieces for what is now the Musée du quai Branly in Paris and sought the agreement of the Nigerian president for their retention in France. The Nigerian president refused on the advice of the National Commission for Museums and Monuments because they were prohibited exports. A change of government in Nigeria in 1999 resulted in a second request from President Chirac who personally intervened to have the transaction authorised by the new President Obasanjo, who, on a state visit to France in 2000, consented. In return, “the French undertook to help with the exchange of publications, organising bilateral conferences and exchanges of researchers, conservators and teachers” (Bailey 2000). France came under sustained criticism internationally. At a meeting in Paris on 15 November 2000 to mark the thirtieth anniversary of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the archaeologist Lord Renfrew of Kaimsthorn made the following statement, eliciting a strong reaction from both governments which obviously were not accustomed to being referred to thus: Great men of state should have the perspicuity to realise that the protection of the shared human patrimony is a matter which goes beyond chauvinism. Here I am thinking of the action of President Chirac, widely reported and

Epilogue 201 commented upon in the press, in requesting that the ownership by France of some reputedly smuggled antiquities of the Nok culture allegedly looted from Nigeria and acquired from the illicit market for display in the Louvre and ultimately in the Musée du Quai Branly, should be legitimised. In my opinion, that is not an honourable request to make by a Head of State. I regret that the President of Nigeria acceded to the request, but I criticise above all the Head of State of France for making it. (Renfrew cf. in Shyllon 2003:144–5) In 2002, an agreement was made enabling a French museum to exhibit these pieces for 25 years in return for support to Nigerian museums. This apparent post hoc legitimation of illicit trade was welcomed by some commentators (ICOM 2002), but condemned by others (Opoku 2011). The Nigerian lawyer Folarin Shyllon denounced it as “an unrighteous conclusion” and a “smuggler’s charter” (Shyllon 2003:148). Politics also enters into efforts by indigenous peoples to have cultural and religious objects returned to their communities (as discussed in the Introduction), such as the acceptance in the United States of the pleas of the Zuni tribe resulting in the return of the wooden effigies of their gods (Merrill, Ladd and Ferguson 1993:523–67). The New Zealand government has entered with zeal into efforts to have Māori remains returned to New Zealand for safeguarding and, where identifiable with a particular iwi (tribe), as a way of dealing with the political difficulties between Māori and settler peoples in that state (see Chapter 8 by Fründt).

Commerce, money laundering and weaponry Intense commercial activity in many countries has long had an extraordinary influence on the traffic of cultural objects. Politics is also often closely involved in the promotion of commerce, creating astonishing increases in evaluations in short periods of time. Collectors and dealers may make considerable profits by the escalation of prices. To give only two examples: a landless farmer by chance found a buried bronze Chola Siva Nataraja in a pit in Tamil Nadu and sold it to a dealer’s runner for £12. After many transactions, it was sold by a dealer in London for £250,000, a transaction followed by seven years of litigation in London (Court of Appeal, United Kingdom 1991). In 1972, a set of five intricately carved panels were bought by an English dealer in New Zealand for NZ$6,000, sold by him in the United States for US$65,000 to a collector residing in Switzerland. Three years later, the collector put the panels up for auction with a reserve price of £300,000 (they were later withdrawn) and were finally bought back from the collector’s family in 2014 for NZ$4.5 million (Harvey 2015). Such markups stimulate the drive of individuals to locate and sell as profitably as possible. Private museums and dealers, who make their living out of such transactions, as well as individual collectors, are prepared to spend very large sums of money to acquire them. Among the many motives are prestige (where such acquisitions add to the status of their possessor), wealth (accumulating valuable sources which

202  Lyndel V. Prott may produce significant monetary gains), research (into a particular branch of artistic endeavour, or historical evidence, or scientific interest) and for some others, connoisseurship. Art dealers and traders are, of course, spectacularly represented among those evaluating these items in monetary terms, for this is their income. Many dealers and traders have extensive knowledge of certain areas in other cultures and regard themselves, and are regarded by many others, as experts. There are several aspects of the commercial activity in cultural objects which give rise to concern. The first is the extreme disparity between the auction price in a high-class “western” establishment and the minimal amount given to the original finder or seller, or indeed the fact that that person received no emolument at all. The second is the consistent attitude of many in the trade to blur, conceal, or invent the origin of an object or the chain of ownership during its transit through another country or countries. The third concern is the resistance of commercial operators to keeping a systematic list of the details of the materials that pass through their hands. The fourth is the extraordinary use of “confidentiality” as to buyer and seller, which makes it impossible in many cases for an original owner of an object to find out who bought it, thus jeopardising the owner’s chance of recovery. Brodie regards the “withholding of provenance as ‘a disreputable practice’ that ‘would not be tolerated in other areas of the retail market’, such as the trade in used cars” (Parliament of the United Kingdom 2000: paragraph 39). It is argued by dealers and auction houses (Parliament of the United Kingdom 2000: paragraphs 40, 43) that it is necessary to protect the privacy of possessors and buyers (perhaps to avoid family disagreements and enquiries by national tax officers), a distinction not permitted in other international commercial transactions. It is not only individual dealers and collectors, however, who seek to take advantage of such transactions. The “art trade” is a significant sector for the economy of many states. Organisations are interested in continuing, developing and hosting trade in artworks, antiquities and other cultural objects: a number of states themselves regard this as a major sector of their economy. There is, therefore, much attention given to the amount of money being drawn in by the cultural sector and this has become a focus of economists working with very difficult issues of how to measure the value, profit and growth of this sector (see, for example, Ginsburgh and Throsby 2014). Alan Davey, Chief Executive of the Arts Council of England, which commissioned research with the National Museum Directors, stated that the report demonstrated “that culture plays a vital place in attracting tourism to the tune of £856 million a year” and the whole of the cultural sector has been assessed to be worth £5.9bn to the economy of the United Kingdom (Smith 2013). The 2015 Report of The European Fine Arts Foundation (TEFAF) stated that: . . . in 2014 the global art market reached its highest ever recorded level, a total of just over £51 billion worldwide, a 7% year-on-year increase taking it above the 2007 pre-recession level of £48 billion. The global art market was dominated by the three major art markets of the United States (39%), China (22%) and the United Kingdom (22%)

Epilogue 203 This is the “legitimate” market. Commercialisation of museum and art institutions has engendered frequent purchases of very high value to attract visitors whose entry fees substantially subsidise “the chase, the capture” (Hoving 1975). States which have already major public or private collections still constantly seek additions to those collections. National states appreciate the increased revenue generated by the art and antiquities trade because it augments national income by attracting tourists. Museums such as New York’s Metropolitan Museum of Art, the British Museum, the Louvre and many others attract substantial numbers of visitors whose sojourns in these countries increase the overall economic gains of the state. Because of this contribution to national finances, monitoring and evaluation of cultural policy has become an important area of research for economists (e.g. by Throsby 2010 and others).

Crimes, customs offences All countries treat theft as a serious crime, whether or not they are party to the heritage conventions. However, an individual will face formidable problems if he attempts directly to seek return of a stolen object in a foreign jurisdiction: it will be expensive, slow and uncertain. The robbed owner may be able to persuade his state to support or, indeed, to initiate such a suit. India claimed the return of a Siva Nataraja from Tamil Nadu and succeeded in its claim after seven years’ litigation in London (see above). Some states have legislated to make the import of works of art and antiquities a crime; others treat it as a customs offence. Both these acts make serious inroads into the cultural heritage, and states party to the 1970 UNESCO Convention are obliged to take action against these activities and to punish delinquents, but once again claims for breach of export prohibitions are difficult for many countries. Often the owner is not able to recover their item because it is found in a transit country which does not make such an act illegal. There are also other states party to the 1970 Convention, which have (perhaps intentionally) poor implementation of their obligations (Mackenzie 2005:265). There are also acquirers who hide their booty or know of its suspicious origin and deposit it in a bank vault – perhaps not to be exhibited for several decades. Valuable antiquities are also sold to acquire arms for use in conflicts, such as is the case with the so-called “Islamic State” terrorists in Syria and Iraq. A horrifying development in the twenty-first century is the efficiency and proliferation of explosives and other destructive weapons employed by iconoclasts. The concern with which the world watches the demolition of thousands of years of civilisation has not succeeded in meeting this challenge so far.

Ideologies While the influence of poverty, politics and commerce weigh hard on the protection of cultural heritage, the addition of ideology, whether religious or political, and often blended with the elements just discussed, is at present one of the major

204  Lyndel V. Prott concerns of UNESCO. More than politics, it signals biased approaches to art and antiquity. Some ideologues sell off significant art, as was the case of the sale of modernist (“degenerate”) art by the Nazis both before and during the Second World War. As has become only too well known in the last two or three decades, many dealers, collectors and museums were content to accept such works which have since been tracked down and in many cases returned to their true owners or successors. Many works remain lost. Even more disastrous are ideologies of fundamentalist religious or political movements dedicated to destruction. Much of humanity’s art and history has been deliberately demolished: examples of heritage destruction are the destruction of images (mosaics and paintings) decreed by the emperors in Byzantium in 717–87 ce (Kitzinger 1954); and by the Protestant Reformation in Europe in the sixteenth century, again attacking religious works. The total demolition of the World Trade Centre (Twin Towers) in New York by Al-Qaeda was an assault on American culture: it “stood not simply as a symbol of New York, but of America. An America that embodied the values and objectives of one form of cultural organisation in particular the culture of capitalism” (Stiglitz, quoted in Anderson 2010:272). For many this ambitious architecture and its sculptures, libraries and artworks represented American culture. The value of art lost was estimated at US$100 million from private collections and US$10 million in public art (Bridge and Stastna 2011; Urschel 2002). Elsewhere, current examples are the recent demolition of museums and monuments in Mali (2013), Iraq (2013–14) and Syria (2013–15). Such actions may be fuelled by anger, desire for revenge, or hatred of the “other”. Perpetrators may be planning for a complete “new start” or a “cultural revolution” destroying monuments, art, antiquities and history as an act of “cleansing”; others sell them for high prices on the art market, enabling them to buy large amounts of arms. Arms control, which is important to save lives, would also save much of our heritage. Differences of view within these extremist movements may become serious as is evidenced by the complete change of view between Mullah Omar’s first decree on the protection of the Bamiyan Buddhas in 1999 and his second in 2001 (Harding 2001) which reversed its contents. A meeting of the most respected mullahs in the Islamic community was held in Qatar in December 2001 under the auspices of UNESCO and resulted in thoughtful rules for this kind of situation (Doha Statement 2001:7–10) based on six principles, the most significant being “From the point of view of Islam, the cultural heritage of other nations has religious value.” However, incited in part by religious and in part by politically directed motives, destruction continues to take place, despite the rules in the Doha Statement.

The law The processes described can interfere with the development and implementation of law to prevent illicit trafficking. What the law can do is attempt to coordinate national legislations so that countries support one another in their efforts to provide protection for their cultures.

Epilogue 205 National law The drafting of national law inspired by the interest of antiquarians goes back to papal decrees in the fifteenth century. Although some European countries did have legislation, many did not until the twentieth century (O’Keefe and Prott 1984:34–71). However, there are still states today which have either outdated or no law to protect their heritage, and there are still 69 states which are not yet party to the 1970 Convention. To attain seamless cooperation between states it is essential to ban, limit and eventually diminish and overcome the scourge of illicit traffic. This requires access to and use of national legislation. There are some who say that this is not feasible. Until the mid-twentieth century, the laws of another country would generally not be applied by foreign courts. The rapid increase of cross-border migrations and transactions has led to more flexibility, where national states have set up cooperative arrangements to deal with conflicting national laws in many different spheres. One of several arguments is that it is too difficult to access, translate and understand foreign legislation (Prott 2009:216–24). Bilateral or regional agreements now exist, as well as the two groundbreaking international conventions on cultural heritage. UNESCO now has a database where over eighty countries’ laws on protection of cultural heritage are available, without charge, in the original language and very frequently translated into English or French (UNESCO Legislative Database ongoing). National states are now willing to consult this tool because they realise it assists foreign customs and police units to quickly see how the law applies to any cultural article they seize. However, some dealers, collectors and museums resist the application of such cooperative processes, arguing that they demand too much, take time, may require study of the foreign legal system in order to comprehend it and may lead to the slow process of litigation (Prott 2009:217–22). National legislation is an essential element to harmonise action between the states. Key provisions in the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT is the acronym for International Institute for the Unification of Private Law in Rome) put responsibilities on states parties to the conventions to control imports and exports of cultural heritage, to adopt appropriate national legislation, to establish and continue to update a national inventory of protected property, to promote museums, libraries, archives, laboratories and workshops, to ensure the preservation and presentation of cultural items, to organise and supervise archaeological excavations, to take educational measures to stimulate and develop respect for the cultural heritage and to see that appropriate publicity is given to the disappearance of any items of cultural heritage. Conscientious application of national laws is a first step in stopping illegal trafficking. Of course some states have fewer resources than others and some states have enormous riches to protect, but positive action is required by states to protect their own national heritage and to assist others to protect theirs. There are experts who can help in the drafting of legislation and the UNESCO legislative database is a very good source for researching how other states have managed these issues.

206  Lyndel V. Prott International law International law has developed a philosophy and template which is essential in controlling international transactions. The first international legal instrument dealing in detail with cultural heritage was the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, designed to prohibit destruction and damage of cultural property by an occupying power, setting out rules for protection and regulations for their implementation. It is a very important convention, but the regulations attached to it have been very little used. The original text of the convention included provisions on responsibility for preventing export and for returning looted material when the conflict is finished. However some states were very much against having these proposals in the convention and eventually this was solved by relegating them to a protocol, largely because the provisions of the main text were international, while issues of national law (property, export) would interfere with national laws. The First Protocol provisions have very rarely been used, even by the 103 of the 126 States party to the Convention which ratified the 1954 Protocol. The Hague Convention is applied by the ICRC (International Committee of the Red Cross) and by UNESCO. At this early date, 1954, no real mechanism was set up to bring home to the states’ responsibility to legislate, educate and support its provisions: many have no implementing legislation. Designed for major conflicts such as the Second World War, many of its provisions have never been applied, while smaller-scale intense conflicts such as the war in Vietnam and the

Figure 9.2 Participants in the Workshop on the Fight against the Illicit Trafficking of Cultural Property in Melanesia (Port Vila, Vanuatu, 5–7 August 2015). Photo: © UNESCO/VCC.

Epilogue 207 two interventions in Iraq illustrated the need for more detail in the Convention and Protocol. Nonetheless, two Serbian officers in the Yugoslav forces – Strugar and Jokic – were tried and given prison sentences by the International Criminal Tribunal for the former Yugoslavia (ICTY 2003), for not preventing destruction and looting in Dubrovnik in 1991 (a World Heritage site), contrary to the laws of war. The Second Protocol to the Hague Convention 1999 has set forth criminal offences for deliberate destruction of cultural objects and sites as well as theft, pillage, misappropriation, or acts of vandalism (Article 15). UNESCO has developed five other conventions on the protection of cultural heritage, one of them on sites and monuments (Convention for the Protection of the World Cultural and Natural Heritage 1972), which includes movable heritage (Article 1). While armed conflicts come and go, illicit traffic is always at hand. The drafting of the 1970 Convention by states was very difficult. During the 1960s, many states had already gained their independence from colonisation or mandates. However, they did not succeed in their claims for the return of cultural heritage which had been taken from their countries during the period of their dependence. The former colonisers believed that their museums looked after these items from foreign lands carefully and had no intention of giving them back. This attitude made the claiming states angry and there were many lively debates both in the United Nations and in UNESCO. By 1968, the animosity was so high that Director-General of UNESCO René Maheu may have feared for the future of UNESCO if no compromise could be reached. In April 1970, delegates from 61 countries worked on a draft prepared by the Secretariat. The dominant legal systems (Common Law, basically developed in England and used by most English-language countries, and Civil Law, based on Roman law) have different approaches in their law-making and drafting. The draft convention, prepared by the UNESCO Secretariat was based on Civil Law precedents. The United Kingdom did not take part at all in this “special negotiating committee”. The United States arrived with its own draft convention. Certain provisions (Articles 7 and 9) of the United States’ draft replaced the proposals of the Secretariat draft. A number of compromises were made, but there was also insertion of phrases such as “as appropriate for each country” (Articles 5 and 10), leaving loopholes. The varying interpretations of this Convention have led to considerable diversity in the ways it has been implemented. It has taken five decades for the principles generated by the 1970 UNESCO Convention to become sufficiently known and the changes brought in by the Convention require still more effort, more ratifications of the Convention and more thorough implementation. Nevertheless, the place of international law in regulating differences over many sectors of activity is no longer discredited; indeed, states are now willing to concede wider powers to international and regional bodies and prefer to avoid idiosyncrasy in their national law, rather than take pride in its uniqueness. The amount of international law is now enormous, and continues to grow. These changes have also affected law-making in general and require far better funding and human resources sufficient to meet the demands of the states. Some national states still want to maintain their national rules, although the essence of constructing international conventions requires compromise.

208  Lyndel V. Prott Diverging interpretations of law occur more often in international law than in national law. When, in 2007, Japan ratified the First Protocol to the Hague Convention 1954, it stated that it would fulfil its obligations (Paragraph I(3)) on the return of cultural property “in a manner consistent with its domestic laws . . . to the extent that their fulfilment is compatible with the above-mentioned domestic laws” (UNESCO 2007). Paul Bator (1982:378), Deputy Head of the United States delegation at the negotiating committee which drafted the text of the 1970 Convention, supported an amendment to the original text that the four obligations in Article 13 are to be “‘consistent with the laws of each state’; this was put in to ensure that no action inconsistent with or going beyond existing domestic laws of the parties would be required” and also that some of the other provisions of the Convention could “be safely ignored because they will have no substantive effect”. The Vienna Convention on the Law of Treaties (1969) has four articles (26, 27, 31 and 46) disallowing such self-regarding interpretations by national states, but how is the international community to insist on these commitments? In principle, another state party would be able to complain of this non-action, and theoretically could even bring the issue to the International Court of Justice. That is very rarely done (especially on cultural heritage issues) for all sorts of reasons: to avoid making diplomatic relations difficult between nations, perhaps not to draw attention to its own very relaxed approach to its commitments in that or some other international instrument, or perhaps not to spend effort and resources on an issue which is not as serious as its own internal requirements of government. These considerations show the considerable difference between enforcing international legal instruments and national legislation. There is now another kind of international law than treaties and conventions. When there is sufficient consensus, the UN Security Council might pass a Resolution, binding on all UN member states, as it did in the case of looting and destruction in Kuwait and Syria. Such a resolution binding on all United Nations member states and national legislation is often necessary to comply with it. The 1970 UNESCO Convention has no specific provision for special financing. The European and North Atlantic states have supported the 1972 Convention with substantial money, while Japan and South Korea have contributed grandly to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. The great majority of developing states have not been in a position to contribute adequate funds for UNESCO to do more than offer training in small and irregular workshops around the world. This makes it difficult for UNESCO to provide the full support for adequate training of enough conservators and curators, education of the population through schools, as well as programmes for adult understanding of the history and importance of this heritage. Some of the legal issues that could not be dealt with in 1970 were the issue of protection of a “good faith” purchaser over the claims of the original purchaser, time limits for making claims, and compensation. The divergent rules which were strongly held prevented agreement to achieve a satisfactory deal to enforce these principles. Nevertheless, just 25 years after the 1970 Convention, UNIDROIT was able to reach compromises on all these complexities in its UNIDROIT

Epilogue 209 Convention on Stolen or Illegally Exported Cultural Objects 1995. States were reticent in the early days of these Conventions to ratify them – indeed it was only after forty years that some of the major trading States were prepared to accept and legislate the 1970 principles. The relationship between international conventions and national law is complex. Splettstößer noted that the representative from Colombia described the German legislation as “comprised of nearly unrealisable requirements and, therefore, contravenes the higher law in the form of the UNESCO Convention 1970”, since it proved impossible for Colombia, Costa Rica, Guatemala, or Peru to succeed in their claims (see Chapter 7 by Splettstößer). There is no hierarchy between international legal instruments and national laws. Some countries consider the provisions of a convention which they have ratified as having immediate legal force in their nation. They may ratify an international convention but not pass national legislation to implement their obligations, either not seeing it necessary or perhaps hoping that their law is already sufficiently supportive. The Netherlands, a staunch supporter of international law (much of which was developed by their jurist Hugo Grotius in the seventeenth century), found itself without a legal remedy for the return of certain mosaics bought by a Dutch couple whose rights of ownership were protected by the “good faith” provisions of the Civil Code and therefore unable to return stolen objects under Article 7 of the 1970 Convention (this gap has since been remedied) (Matyk 2000). France found itself in a similar situation: no domestic law had been passed to implement the 1970 Convention which it had ratified in 1997. Nigeria’s demand for restitution of some other Nok sculptures failed on the grounds that the 1970 UNESCO Convention was not directly enforceable (Court of Appeal, Paris 2004). Whether inadvertent or designed, the states concerned were not honouring their international commitments. Some other states will not ratify the convention before they have passed implementing legislation: the form of drafting in international legal instruments is often not compatible with the drafting language of the country concerned and needs to be converted into local terminology to ensure that it will be effective. The inability of any of the four Latin American states, through two levels of adjudication in the German courts, showed that the carefully crafted legislation did not achieve its aim: to fully implement the 1970 Convention. Germany’s 2007 Act Implementing the UNESCO Convention of November 14, 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and Implementing Council Directive 93/7/EEC of March 15, 1993 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State is, as a result, been completely redrafted. With these variable approaches to fulfilling international obligations, it can be seen why there is such a disparity between the international commitments made by states and their subsequent realisation. In a country that cannot ratify a cultural convention because it needs first to develop its implementing law, there is often a long wait for its coming into force. Unitary states find it a little easier than federal states (such as Australia, Canada and the United States), while others have different kinds of devolution which require them to at least consult their provinces or cantons. Even when they have consulted

210  Lyndel V. Prott and reached an agreed text, my experience has been that cultural legislation very often is at the bottom of a busy parliamentary schedule. In Australia, it took several sessions to get it passed. More urgent matters must be dealt with, and cultural legislation often gets pushed to the bottom of the list and might be rescheduled for the next parliamentary session, only to have the same result. I have found, however, that one determined person will eventually be able to have it voted. I know several individuals in different countries who have succeeded by taking on the job as a personal task, advertising its importance, gathering supporters, regularly briefing journalists and constantly addressing parliamentarians and ministers. Soft law and other techniques The trajectory of cultural heritage law, from scepticism about its success to the recognition of a new specialisation of international law, has been exciting but sobering. Nonetheless, there have been substantial gains. Many movable cultural items have been returned to their country of origin or original legal owner. There are, however, still important elements to be dealt with, specifically “the taboo of asking questions about provenance” (see Chapter 3 by Hauser-Schäublin) and collusion between dealers and, their suppliers, the policy of “confidentiality” and jealous protection of their buyers to insulate them from other dealers. Because the drafting of international conventions is a slow, difficult and timeconsuming process, other means have been used to gain leverage. UNESCO has 14 Recommendations on cultural heritage which have had an important influence on subsequent developments. While they are not mandatory, they do set out plans and ideas which can influence states immediately or long-term, and the ideas they include have often then been taken over by a convention with similar or enhanced provisions. There are also other steps taken by UNESCO, such as the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage 2003 (UNESCO 2003), recognising the principles of the 1954 Convention as now accepted as customary international law, thus binding all states, even if they are not parties to that Convention (although the detailed provisions in the Regulations are not seen as mandatory). Such documents are often described as “soft law”, i.e. guiding principles, perhaps later to be found in a convention or national law, or perhaps inspiring an even stronger text. Resolutions too can have significant persuasive provisions, though not embodied in the “hard law” of a convention or treaty: such is the case of the United Nations Declaration on the Rights of Indigenous Peoples 2007.

Ethics and negotiations Where conventions do not sufficiently cover the problems (not sufficiently clear, not adequately covering all the issues, or not substantially ratified), and where soft law is not sufficient, or is outdated, it is nonetheless possible to influence public opinion not least through the media and investigative journalism, but also through setting ethical standards. In the early days of the Convention, there was relatively

Epilogue 211 little attention from the media and the public but there are now many writings and documentaries which improve the understanding of art, of national history and their important place in national identity. Illicit traffic in art and antiquities has now become a popular subject. ICOM drafted its first Code of Ethics for museums in 1986. The current version is the ICOM Code of Ethics for Museums 2004 (ICOM 2004). The UNESCO International Code of Ethics for Dealers in Cultural Property was adopted in 1999. While many museums have adopted their own policies on acquisitions, due diligence, and staff responsibilities, dealers have been much more reticent about the dealers’ code, although much of it is based on dealers’ own codes – such as those of CINOA (Conféderation Internationale des Négociants en Oeuvres d’Art), NAADAA (National Antique and Art Dealers Association of America) and the AAD (Art Dealers’ Association) in the United Kingdom. Welding these into one code enabled UNESCO to avoid loopholes which each had but which, taking the best provisions of each, managed to eliminate such escape tools. It must be said that so far dealers have ignored it. Many reporters, informed by archaeologists, anthropologists and others, have made it more difficult to hide a suspect provenance or a looted item. The media have recently become very interested in this area and give publicity to many acquisitions which appear to be dubious. Auction houses have remained aloof for decades despite the fact that many objects being sold were clearly coming from suspicious sources. In the last decade, they have

Figure 9.3 Return of the Makonde mask to Tanzania. This officially celebrated event in Paris in 2010 concluded long negotiations; the conditions of return as set by the Musée Barbier-Mueller, however, were never publicised. Photo: Caroline Mchome.

212  Lyndel V. Prott become more sensitive to the publicity being given to auction lots and dubious provenience (see Chapter 3 by Hauser-Schäublin). While some museums denied themselves the acquisition of treasured, but unprovenanced items, others were not only willing to receive them but in some cases relied on suspicious provenance documents or other evidence that might have proved their illegal entry. The Pennsylvania Declaration 1970 (Penn Museum 1970), for example, stated that it would purchase no more art objects or antiquities for the museum unless they were accompanied by information about the different owners of the objects, their place of origin, the legality of export, and other data useful in each individual case. Eight years later, it updated its declaration with more detail (Penn Museum 1970). On the other hand, the New York Metropolitan Museum of Art, after reluctance in its research, has now handed back to Cambodia pilfered Khmer statues which could be directly shown to have been looted from known sites, often from the 1970s. Public outcry has begun to have a strong effect on museums. Unfortunately, private collectors are generally safe from this kind of publicity, though some in the last two decades are returning works looted from other countries. When there is contention about cultural objects between national states, diplomacy is the first step in negotiation and the least onerous. Claims may be settled relatively quickly when new evidence is discovered relating to a cultural object. However, where there are bilateral negotiations, one side may be in a weak negotiating position, as Tasdelen has pointed out (see Chapter 2). The Agreement between Thailand and Cambodia 2000, described in its title the aim to combat illicit trafficking and cross-border smuggling of movable cultural property and its restitution to the country of origin. It does not reflect the stronger language of the 1970 UNESCO Convention or that of the UNIDROIT Convention 1995. Thailand has resisted ratification of either of these international conventions for 45 years. Another example of unequal power is the negotiation for the return of the Makonde mask to Tanzania from a Swiss private museum (Shyllon 2011). The exact terms of that transaction have not been published (but see Hauser-Schäublin 2013). There are very often organisations which will offer to mediate. A good example was the activity of ICOM during the tensions raised about the Nok and Sokoto items currently housed at the Musée du quai Branly. In 1991, with the looming breakup of the Yugoslav Republic, UNESCO sent high-level representatives to remind the central Yugoslav government as well as Slovenia and Croatia, the two seceding republics, of their duties under the 1954 Hague Convention and received assurances by all three parties that these obligations would be met. Unfortunately, as the conflict deepened, these obligations were not all fulfilled. UNESCO also acted in trying to save the Bamiyan Buddhas in Afghanistan, and in other areas where conflict was damaging cultural heritage (Kuwait, Mali, Syria and Lebanon). Litigation on cultural heritage issues between states is very expensive and tends to be slow. It is therefore sensible to try alternative dispute resolution through diplomacy, negotiation, mediation or arbitration. Diplomacy and negotiation are both possible methods which can be used by museums or other institutions dealing with one another. There are established bodies such as the Permanent Court of Arbitration in The Hague or an independent body made up of experts from each country concerned.

Epilogue 213

Retroactivity A major international discussion is raised by the question of retroactivity. In most western legal systems, there is a rule that a transaction will not be annulled, even where one party feels grievously harmed, if the harm occurred before the rule existed. It is considered unjust to penalise someone for an act when it was not illegal. Another rule uses a time limit to prevent a claim being made after a certain lapse of time (this varies from country to country and may be between one year and twenty years or more). The general rule in international conventions is that none of the provisions will apply retroactively (Vienna Convention on the Law of treaties 1969, Article 28). Many states resent losses, by armed conflict, colonisation, uncontrolled looting, or deprivation. During the negotiations for the 1970 UNESCO Convention, China argued that the rules should be retroactive, and had support from other delegations. Sweden and some other states wanted a clear limit to claims and suggested that any claim made after twenty years should be dismissed. On these issues, the states were so divided that it proved impossible to have any provision on retroactivity or general time limits for claims. Yet, after strong resistance from some states, special arrangements, often requiring a change of basic principle of limitation, a number of states agreed to accept claims and lawsuits for the return of cultural assets which were stolen or appropriated by the Nazis in 1933–45. Developing states have noted that the claims were restricted. They have also noted that this is a precedent for some of their losses. A right to “private property” in Europe, especially in the United Kingdom and United States, (where it has long been bolstered by revered philosophers) is a dogma rarely challenged. In the twenty-first century, however, there are many other forms of property – personal, communal, guardianship, custody, public property, state ownership and so on – to whom the imposition of foreign rules is resented. It is not quite accurate to say that “Ownership . . . is still perfectly legal according to the governing international conventions” (see Chapter 6 by Plankensteiner). The 1970 Convention states “that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property” and the “States Parties to this Convention recognise and that international co-operation constitutes one of the most efficient means of protecting each country’s cultural property against all the dangers resulting there from”. In other words, “ownership” and “property” are two of the most difficult concepts to agree on (Article 2) and the 1970 Convention does not make rules on ownership (UNESCO 1970).

Looking beyond ownership There is an enormous variety of connections between humanity and the artworks it has created. Questions of access and use raise legal, ethical and other relationships: property, ownership, guardianship, custody, protection, possession, responsibility, secrecy, religion and so on. People also relate to their cultural heritage in different ways: respect, disrespect, exploitation, commercial gain, worship, detestation, identity, history, tradition and education. Many of these

214  Lyndel V. Prott relationships bypass legal requirements: for example, Australian Aboriginals from central and northern Australia have deposited some of their sacred objects in the Museum of South Australia for several different reasons. While superficially (and legally) there is a kind of “ownership” by the museum, by its arrangements with the group concerned it holds these objects entrusted to it in conditions that reflect the groups’ traditions, such as keeping the items safe but denying women access to men’s items, or allowing men to see women’s items. They may, at the request of the group, take or send items to the group for the performance of certain rituals. The degree of trust on both sides is significant. It allows security of these objects while at the same time ensuring access to appropriate individuals and groups. A good deal of legal writing assumes that private property or state ownership are the only applicable legal categories for managing cultural heritage and frequently the emotional component on one side, or both, is ignored. It is important to understand that in managing cultural heritage peoples across the world have their own views, appreciation, dislike, or simple curiosity, about antiquities and artworks from foreign sources. While national states are proud of owning their own heritage, they often wish to promulgate it as well – the exchange of blockbuster exhibitions across continents is evidence of this. Museum curators Munitz, Vikan and Heilmeyer (Vikan 2011) have been looking beyond ownership and possession, regard museums as custodians for cultural treasures for which they are responsible and are keen to “move beyond ownership” by sharing collections. Museums which have taken this view have found advantages: the discovery of more historical background, particular techniques and closer ties to the heirs of the objects they curate. There is a view of culture that takes account of “its dynamisms, appropriations, hybridizations, and contaminations”, as opposed to sanitised and anaemic presentations of cultures and this approach allows a corrective to the paradoxes of cultural property, relying rather on a counter-narrative of cultural fusion and hybridity (Mezey 2007: 2004). The debates of lawyers over “cultural property” (in most writings assuming its meaning in the Common Law) do not do justice to the richness of the heritage work of cultural professionals. Today it is possible to respect “shared heritage” by exchanges of exhibitions and selected items without determining issues of ownership and to proceed with countries and partner museums concerned for moderate, considerate and civilised dealings in sensitive materials. Respect for other cultures should replace illicit trafficking as a mode of acquisition.

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Index

1970 Convention (see UNESCO) 5, 16, 156, 170, 173, 176, 203, 205, 207–209, 213 1972 Convention (see UNESCO) 173, 208 2001 Convention (see UNESCO), 101, 172 Abbott, T. 200 Abuja Proclamation 142 acquisition 1, 8, 49, 50, 75, 79, 94, 110, 123, 141, 144, 171, 200, 201, 211, 212, 214; history 8 administration xii, 21, 52, 57, 110, 134–136, 138, 140 administrator 21, 24, 88, 199 Adoration and Glory 28, 36, 71 Afghanistan 9, 212 Africa xii, 85, 136, 139, 146, 149, 200; African Union 145 African Reparations Movement 142, 147 agency/agencies 2, 6, 11, 38, 39, 92–93, 161, 164, 173, 180, 189, 192, 196 agreement 4, 5, 23, 46–51, 53, 56, 60, 64, 69, 73, 78, 146–147, 159, 160, 166, 183, 186, 188, 190–191, 194–195, 200–201, 205, 208, 212; bilateral 5, 15, 21–22, 48–50, 52, 57, 60–61, 64, 78; international 47, 60, 73; voluntary 194 Akenzua, Edun 142–143, 147–148, 153 Al Qaeda 204 Albert Sarraut Museum 24 Alonge, S.O. 140, 150, 152, 153 amendment 156, 162, 170–174, 208 American Museum of Natural History 178 ancestor ix, 11, 183, 187–190 Angkor xi, xii, xiv, 23–27, 32–33, 40, 45, 53, 58, 61, 65, 71, 76, 78, 109, 114, 123,

125; Angkor Conservation Office 24, 30, 32, 40; Angkor Park 57, 58; Angkor period 115; Angkor Thom 25; Angkor Wat 24–25; pre-Angkorian 58, 115, 125 anthropology i, ix, xi, xii, xiii, 1, 2 antiquarian 24, 205 antique shop 24, 35 antiquity/antiquities i, ix,1, 4–5, 8–10, 14–15, 17, 21, 23–28, 31, 34, 35, 38–40, 48, 54, 57, 61, 64, 65, 69, 71–73, 75, 77–79, 83, 86, 96, 98, 108–113, 115–116, 118, 120–124, 126–127, 140–142, 151, 159, 161–162, 165, 201–204, 211–212, 214; collector 8, 9 Aotearoa 15, 178 appropriation 5–6, 131, 178, 199, 214 Arab 89, 123 Aranyaprathet 35 archaeologist i, xi, 37, 39, 40, 66, 68, 78, 85, 87–88, 93–94, 97, 110, 142, 156–157, 159, 160, 162, 164–165, 171, 200, 211 archaeology xiii, xiv, 1, 47–48, 57, 83, 85, 94, 102, 124, 158, 160, 164, 170; archaeological finds 86, 96, 101; archaeological site xii, 8–9, 15, 17, 25, 58–59, 64, 86–87, 93, 168, 198; maritime archaeology 85 archive 5, 97, 141, 147, 150–152, 200, 205 armed conflict xiii, 2, 4, 10, 12, 15–16, 46, 131, 152, 156, 206–207, 213 arms trade 8 art: black market 8; market 4, 8–9, 21, 27, 45, 66, 69, 75, 83, 87, 98, 108–111, 114–115, 125–126, 138, 141,143, 151, 159, 202, 204; style 116, 125; trade 8,

Index 219 14, 58, 156–157, 159–161, 168–173, 198, 202; artwork 12, 109–110, 112, 127, 138, 145, 162, 192, 202, 204, 213–214 Art Dealers’ Association (AAD) 211 Art Gallery of New South Wales 200 Art Institute of Chicago 144 Art Loss Register (ALR) 113, 125, 127, 159, 173 artefact xii, xiii, 1–18, 24, 26, 30–31, 33–40, 45–46, 51, 56–58, 6–61, 64–69, 71, 74–79, 83, 86–90, 92, 94, 96–98, 100–101, 109–116, 120–127, 132, 141–142, 153, 162, 164–165, 167–168, 170–171 Arts Council (UK) 202 Asia xiii, 40, 78, 85, 86–89, 111, 200 Asian Civilisations Museum of Singapore 100, 102 Asian countries 87, 91 Auckland 193; Auckland Museum 181, auction 4, 46, 67–71, 78, 93–94, 96–98, 100, 102, 114, 126, 138–139, 172, 201–202, 211–212; auction house i, 8, 15, 64, 67–69, 71–72, 74–75, 77, 86, 93–94, 98, 100, 112, 114, 127, 157, 159, 186, 202, 211 Australia i, xii, 6, 16, 97, 102, 162, 191, 200, 209, 210, 214 Australian Aboriginals 214 Australian Federal Police 97 Austria 196; Austrian Embassy 141; Austrian Minister of Science and Research 141; Austrian Ministry of Culture 146 authentic 83, 110, 115, 122, 153, 166 authenticity 76, 83, 112–113, 164, 169, 173 authority 7, 53–56, 91–92, 112, 134, 142, 158, 167, 169, 184, 192 Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA) 31, 40, 53, 57–58 awareness 1, 2, 4, 10, 86, 100, 146, 150, 158, 178, 180; public 49, 59–60, 78, 88 Ayutthaya 36, 39 Badung 92 Bakan 32

Balarama 65–68 Bali xii, 88, 91, 126 Bamiyan 204, 212 Bangkok 36, 59, 61, 71–72, 109, 111–112, 114–115, 123–125, 127 Banteay Chhmar 27, 34–40 Banteay Meanchey 34, 117 Barbier-Muelller Museum 126, 173, 211 Bavarian Higher Administrative Court (Bayerischer Verwaltungsgerichtshof) 167 Battambang xii, 115, 127 Bavarian State Criminal Police Office Bavaria 165, 168 Bavarian State Parliament 165 Belgium 45, 69 Belitung 87–89, 94, 100–101 benefit 13, 59, 75, 86, 90, 100–101, 137, 147, 153, 180; commercial 147; economic 23 Beng Mealea 27, 31, 32, 40 Benin xii, 133–153, 198, 200; City 135–136, 138, 142, 146–153; kingdom 133–136, 144; massacre 135; Moats 150; Treasures 15, 133, 137, 142, 144–145 Berlin Museum of Ethnology 146 Bhima 65, 67–68, 70, 73 Biafra War 141 Bintan 93, biography 3, 9, 109–110, 115, 120, 122, 125, 161 black market i, 1, 8–9, 14, 69, 83, 97 booty 3, 10, 23, 114, 137–138, 203 border control 125 Boston Fine Arts Museum 149, 153 Bourdonneau, E. 66–69 break-in 83, 108 bribery 30, 97 Britain: annexations 133; British administration 134–135; British Benin expedition 133; British Crown 179; British Empire 135; British High Commissioner 137 British Museum (BM) 100, 138–139, 141, 144, 146, 149, 151, 190, 193, 199, 203 brokers 36

220 Index bronze 24, 27–29, 35, 38, 74, 75, 116, 137, 142, 145, 147–148, 152, 200–201 Brunei 93 Buddha 26, 33–36, 38, 74, 108, 114, 126; statue 35, 109; Buddha’s ashes 108, 126; Buddhist monasteries 109, 117 Bunker, E. C. 27, 28–29, 36, 40, 66, 69, 70–71, 75–77 burial 184, 186–190, 192, 195–196 buyer 26, 31, 34–35, 37–39, 71, 100, 102, 161, 202, 210 Byzantium 204 Cambodia ix, xi, xii, 5, 15–16, 21–26, 33–36, 38–40, 45–46, 48, 49–52, 55–61, 64–65, 67–87, 108–110, 114–115, 123–127, 198, 212 Cambodian-Thai Agreement 48, Canada 6, 7, 209 capital 23, 27, 65, 70, 123, 125, 136, 161; royal capital 108, 114 capital (econ.) 15; social capital 77 cargo 86, 88–95, 98, 100–102 ceramic 27, 85, 88–89, 94, 96, 100, 162, 165 certificate 8–9, 47, 49, 57, 60, 112–113, 123, 125, 165, 173; certification 83, 113 China 24, 85, 87, 89, 93–96, 98–102, 202, 213; Chinese 32, 85, 89, 92–94, 96, 98 Chirac, J. 200 Chok Gargyar 65, 79 Chola 200–201 Christchurch 193 Christie’s 64–65, 67–69, 71, 78, 93, 98, 102, 112, 127 Cirebon 87, 88, 92, 94 Civil Code 51, 209 claim i, ix, xi, xiii, 1, 3, 6–7, 12, 14–16, 50–51, 56, 59, 64, 66, 76, 78, 93, 96, 98, 100, 133, 136–137, 139, 141, 144, 156, 158, 160–161, 165–166, 170, 171–172, 180, 191–192, 195, 199, 203, 207–209, 212–213 claimant 17, 72, 78, 91, 132, 142, 144, 151, 171, 192 Cleveland Museum of Art 65, 67–68, 78 climate change 199 Cochin China 24

Code of Ethics for Museums (ICOM) 17, 78, 158, 211 collaboration 21, 73, 78, 144–146, 148, 151, 164, 180 collection i, ix, xi–xiii, 3–8, 11, 17, 30, 55–56, 61, 65–67, 75, 83, 88,93, 101, 112, 119, 126, 133, 137–138, 141–142, 144–151, 153, 161–167, 171–174, 182–184, 186–187, 192–193, 195, 203; collection history 4, 8, 83, 110; private collection 5, 9, 16, 45, 65–66, 71, 99, 114, 139, 141, 145, 151–152, 203–204; sharing collections 214 collector i, 1, 8–9, 21, 24, 28, 35, 36, 64, 67, 69, 71–72, 75–77, 100, 109–110, 112, 114, 120–121, 125, 138, 143, 153, 157, 161–162, 164–165, 170–171, 186, 191, 196, 198, 201–202, 204, 205, 212 Cologne Cathedral 3, 15–17 Colombia 167, 169, 171–172, 209 colonial 2, 4, 15, 40, 45, 66, 73, 93, 111, 133, 135–136, 138–140, 145, 151, 157, 178, 199 colonialism i, 1, 5–6, 133 colony 17, 111, 136, 198–199 commerce 199, 201, 203 commercial 45, 87, 88, 90–92, 94, 98, 101, 112, 114, 147, 186, 201–203, 213 commodification 86, 193 commodity 1, 8, 96, 110, 122, 125–126 community of fate 75, 77 company 86–88, 92–94, 96–98, 100–101, 127, 135, 183, 186; salvage company 87, 90, 94, 97, 100–101 compensation 47, 50, 73, 91–92, 112, 115, 144, 208 complaint 72 compliance 13, 72, 148 Conféderation Internationale des Négociants en Oeuvres d’Art (CINOA) 159, 211 confidentiality 101, 202, 210 confiscated 9, 15, 30, 36, 61, 97 confiscation 115, 160, 167, 173 conflict 3–4, 8, 14, 16, 25–26, 46, 79, 86, 92–93, 101, 126, 134, 136, 148, 156, 171, 192, 203, 205–206, 212

Index 221 connoisseurship 8–9, 98, 112, 151, 202 conquest 5 conservation 6, 11, 24, 30, 32, 40, 57–58, 66, 78, 86, 93, 96, 139, 141, 151, 153, 182, 185 consignor 64, 72–73, 161 convention (see also UNESCO Convention) 1, 2, 4–5, 10–15, 17, 27, 47–51, 57, 59–60, 83, 131, 139, 156–158, 160–161, 169–172, 203, 205–210, 212–213 cooperation xii, 4, 47, 50, 56, 58–59, 72–73, 75, 77, 88, 92, 97, 114, 127, 131, 141, 144, 147, 165, 172, 183, 194, 205 corruption 9, 39, 58, 60, 61, 78, 108–110, 126, 148, 199 Costa Rica 161, 164, 167, 168, 171–172, 209 countries in the North 7, 64, 111 country of origin (see also source country) 5, 8, 22, 48, 56, 79, 93, 210, 212 Covenant (see also International Covenant) 13–14 crime 9, 72, 199, 203 criticism 100, 159, 168, 171, 193–194, 200 Croatia 212 cultural: cultural diversity 2, 5, 10, 181; cultural property conflict 3, 4; internationalism 6, 157; nationalism 144, 151; tangible and intangible cultural property 2 culture ix, xi–xii, 1, 2, 6, 10–14, 21, 38–39, 45, 70, 90, 91, 93–94, 98, 141–142, 144–147, 150, 158–160, 163, 165, 169, 172–173, 180, 182, 195, 201–202, 204, 214; culture of memory 136 curator xi, xii, 17, 24, 75, 85, 100, 112, 126, 140, 146–147, 153, 165, 198, 208, 214 custodian 77, 214 custody 6, 171, 180, 187–188, 213 customer 83, 117, 119, 120, 122–123 customs 50, 55–57, 72, 94, 124, 143, 162, 170, 181–183, 187, 190, 203, 205 damage 21, 23, 26–27, 29, 34, 36, 46, 77, 97, 116, 126, 164, 185, 198, 206 database 49–50, 61, 184, 205

dealer i, 1, 4, 8, 14–15, 17, 24, 35–36, 54, 58, 60, 66–67, 69, 72, 75, 100, 110, 112–115, 117, 120, 123–127, 153, 156–157, 159, 161–162, 165, 172, 198, 200–202, 204–205, 210–211 death 24, 39–40, 108, 135, 151, 171, 178, 187, 189, 196 Declaration on the Importance and Value of Universal Museums 6, 148 decree 24, 57, 73, 89, 90, 94, 98, 102, 106, 204–205 Delaporte, L. 23, 33, 66 Delhi 200 demand 6, 8–9, 14, 17, 25, 27, 45, 49, 60, 66, 83, 91–92, 96, 110–112, 119–121, 142, 144, 165, 170, 173, 192, 195, 205, 207, 209 Denver Museum 67, 68 desecration 189, 193 designated list 69 destination country 7, 111; destination nations 9 destruction ix, 12, 16, 21, 23, 25–26, 29, 30–32, 35–36, 38–40, 52, 60, 86, 198, 204, 206–208, 210 development 2, 12, 14, 31, 39–40, 59, 85, 131, 133, 147, 150, 171–172, 179–180, 186–187, 203–204, 210 dialogue 133, 144–149, 152, 180, 182, 190, 194 diaspora 139, 152 dignity 6, 182–183, 186, 190 diplomacy 137, 143, 145, 148, 212 dispute i, 8, 64, 73, 79, 93, 137, 139, 212 Doha Statement 204 donation 64, 75–77, 93, 100, 102, 140, 149, 192, 195 donor 75–77, 186 Duryodhana statue 65, 73 Dutch 91, 93, 102, 209 Dutch Vereenigde Oostindische Compagnie (VOC) 85, 89, 93 earthenware 96 École Française d’Extrême Orient (EFEO) 24, 28, 40, 58, 66, 68, 78 Edo 133, 135, 136, 144–145, 147, 150, 153 EEC European Union Council Directive 14, 209

222 Index Egharevba, J. U. 140 Ekpo Eyo 137, 140, 141 Emerald Buddha 114 Ende 88 enemy 23, 30, 45, 189, 193 ethical 2, 7, 70, 72, 112, 132, 141, 158, 160, 210, 213 ethics 17, 27, 78, 83, 85, 198, 210 Ethnological Museum, Dresden 100 The European Fine Arts Foundation (TEFAF) 202 European Union 14 EU Directive 170, 173 excavation xiii, 17, 38, 48–49, 52, 54–55, 58–59, 78, 87–88, 91, 94, 96, 100, 142, 158, 160, 186, 196, 205; illicit 38, 48, 59, 78 Exclusive Economic Zone 92, 101 exhibition xi, xii, 11, 15, 55, 74, 78, 86, 100, 120, 133, 137, 142, 144–145, 147–148, 150, 152–153, 162–165, 167, 169, 180, 214; exchange of exhibitions 147 expedition 97, 133, 136, 138–139, 142, 151, 153, 161 expert ix, 6, 35–36, 53, 56, 66, 70–71, 78, 114, 121, 124, 126, 146, 157, 159, 160, 162–165, 167, 169, 171–172, 181, 186, 202, 205, 212 expertise 8, 52, 55, 87, 97, 112, 114, 147, 181 exploitation 11, 87, 90, 94, 98, 101, 213 explosives 86, 203 export 5, 9, 15–16, 21, 45–49, 51–52, 55–57, 59–60, 64–65, 67, 69, 72, 79, 97, 109–110, 115, 123–127, 143, 153, 156–158, 167, 168–171, 183, 200, 203, 205–206, 212–213; licence 55–56, 123–124; permit 123, 124, 127 167, 170 expropriation 53, 171 Fagg, B. 140 Fagg, W. 137, 152 fake 8–9, 36, 83, 108, 111–113, 116, 120, 122–123, 125, 162–164 FBI 161–162 Federal Government 156,159, 162, 169–171, 172–173 federal states 161, 209 fees 94, 124, 147, 164, 203

find spot 1, 16, 83, 110 The Fine Arts and Ceramic Museum (Jakarta) 88 First Nations peoples 6 First Pan-African Conference on Reparations 142 Ford Foundation 153 forgery 162 France xii, 12, 23–24, 45, 66, 178, 200–201, 209 fraud 56, 96–97, 162, 198 freedom of the seas 91 French Indochina 24, 40 Funcinpec 30 funds 24, 87, 193, 208 gallery owner 109 Gallwey, H. 133, 139 Gantzer, P. P. 162 Geldermalsen 87, 93, 96 German Bundestag (see Federal Government) Germany i, ix, xi–xii, 15, 40–75, 76–77, 79, 114, 139, 144, 149, 151, 196, archaeology 156,159,170; legislations; art trade 156–157, 170 Glasgow Museums 142–143 glass 27, 88, 89 Global Heritage Fund 36, 38 gold 34, 35, 38, 76–77, 85, 93, 162 good faith 14, 50–51, 65, 73, 79, 208–209 goods I, 1–2, 4–5, 7–8, 14–15, 17, 36, 57, 83, 85, 96, 115, 158, 171, 182 Goppel, T. 165 governance 27, 151, 199; governing structures 146 government 29–31, 36, 39, 46, 51, 56–57, 59, 61, 69, 72, 75–76, 79, 86–88, 92–94, 97, 100–102, 109, 124, 143, 147, 156, 159, 162, 164–165, 169, 170, 172–173, 180–182, 189, 191–92, 194, 200–201, 208, 212; advisers 86; agencies 173, 180, 192; governmental staff 94; national government 92, 192 granite 117–118, 120, 123 Grant, B. 142 grave 7, 37, 61, 96, 165, 184, 196 Grotius, H. 209 guardianship 213 Guatemala 116, 167, 171–172, 209

Index 223 guidelines 12, 78, 158, 170, 181, 192 Guinness World Records book 100 Hague Convention 1899 60, 145 Hague Convention 1907 60, 145 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 xiii, 10, 12, 16, 46, 48, 59–60, 131, 152, 156–157, 173, 206, 208, 212; First Protocol 46 Hanuman 65, 67, 68, 78 Hatcher, M. 93, 96–98, 100, 102 heir ix, 4, 7, 11, 90, 138–139, 192, 214 heirloom 1, 11, 16, 90, 126 heritage: artistic 21, 51; colonial 149; cultural heritage of humanity 90; conservation 86; education 39; national 88, 205; site xii, 16, 24–27, 31, 36–39, 57–58, 61, 150, 207; underwater cultural heritage xiii, 83, 85–88, 93, 100–101, 131, 172, 198 Heritage Watch 38, 40 Hindu 26, 40, 126 historic site 51, 150 historical monuments 24 Holocaust 16, 213 honour 77, 193 hostility 39 House of Commons 145 Hun Sen, P. M. 108 identification 7, 10, 14, 167, 181, 184, 186, 192, 195 identity 2, 4–7, 27–29, 40, 90, 110, 112, 114–115, 120, 122–123, 125, 173, 181, 211, 213; faked 120, 123, 125 ideology 6, 199, 203–204 illegal 4–5, 8–10, 14–16, 24, 26, 39, 45–47, 50, 52–53, 56–57, 59, 64–65, 67, 71–72, 79, 87, 97, 101, 124–125, 131, 136, 143, 153, 160, 162, 168–69, 173, 180, 198–199, 203, 205, 209, 212–213 illegality 8, 27, 57, 97 Immigration and Customs Enforcement 72 impact i, 5, 86, 101, 112, 147 imperialism 142, 199 implementation i, ix, 5, 13, 16, 21, 46, 52–53, 57–59, 91, 131, 156, 160–161, 168–174, 179, 203–204, 206–207

INAH (Instituto Nacional de Antropología e Historia, Mexico) 164, 167 India 85, 126, 200, 203 Indian Ocean 85 indigenous 7, 192; indigenous peoples 6, 10, 195, 201, 210 Indochina 198, 200 Indonesia xi, xii, xiii, xiv, 11, 83, 85–90, 92–97, 100, 198 Indonesian Institute of Sciences (LIPI) 92 inheritance 11 injustice 3, 147 Institute of Maritime Safety and Security 94 institution 2, 4,6–10, 17, 23, 27, 47, 55, 65, 69, 70, 75, 77–78, 83, 87, 92, 94, 98, 100, 112, 131–132, 137, 140–143, 145, 147, 150–152, 157, 178–183, 186–188, 190, 192, 194–196, 203, 212 insurance requirements 139 Intan 87, 88, 101 international assistance 21 International Committee of the Red Cross (ICRC) 206 international community 4, 9, 47, 59, 142, 145, 151, 208 International Council of Museums (ICOM) 17, 40, 78–79, 127, 141, 157–158, 160, 169, 173, 200–201, 211–212 International Covenant on Civil and Political Rights 1966 13 International Covenant on Economic, Social and Cultural Rights 1966 13 International Criminal Tribunal for the former Yugoslavia (ICTY) 207 internationalism 6, 157 Interpol 9, 22, 64, 125, 127, 161, 164, 167, 171 Interpol’s Databank of Stolen Works of Art 125 invasion 23, 45, 136, 137, 145 inventory 7, 47, 53, 58, 65, 69, 71, 137, 165, 182, 205 investigation i, 1, 15–17, 35, 66, 78, 83, 85, 88, 109, 115, 124, 126, 166, 168 investor 94, Iraq 9, 203, 204, 207 Islamic State 203 ivory 137–139, 142, 144, 152 iwi 178, 180–182, 184–196, 201

224 Index Jakarta 88, 94, 96, 97, 101 Japan xii, 45, 126, 208 Jayavarman IV 27, 65, 70 Jayavarman VII 33, 34, 36, 76 judgement 114, 117, 137 jurisdiction 14, 47, 52, 92–93, 168–169, 171, 203 Kampong Svai 32, 40 Karanga Aotearoa Repatriation Programme (KARP) 178–179, 181–183, 185–194, 196 Khmer Rouge 21, 26, 28–31, 45–46, 58, 117 killings 135 King Norodom 23, 108, 126 kingdom ix, 26, 71, 114, 133–135, 137, 142 Kneeling Attendants 61, 65, 67–68, 73 knowledge 5, 48, 58, 69, 77, 90, 98, 112, 114, 120–121, 124, 143, 160–161, 167, 170, 181–182, 187, 193–194, 198, 202 Koh Ker 21, 27–31, 36, 40, 64–71, 74–79, 112 Kōiwi Tangata Policy 181 kōiwi/koimi tangata 178, 182–186, 189, 191–192, 195 Korea 200, 208 Kulen Mountain 28, 125 Kulturrückgabegesetz (KultGüRückG; German law on returning cultural property) 156, 159–160, 166–171 Kuwait 208, 212 Lagos 141, 144, 150–153 landmines 38 Latchford, D. 27–29, 36, 40, 66, 71, 74–77 law: admiralty law 91; English Common Law 12, 136, 207, 214; cultural property 73, 157; civil law 167, 171, 207; international law i, ix, xiii, 12–15, 158–159, 190, 200, 206–210; national law 4, 12–14, 50, 158, 131, 205–210; private international law 14; public international law 14; Roman Law 12, 207; soft law xiii, 210 lawsuit 4, 93, 213 lawyer i, ix, 86, 157, 162, 166, 173, 201, 214

League of Nations 12, 60 Lebanon 212 legacy 90, 96, 133, 164 legal framework 4, 145, 148, 151 legal system 13, 14, 131, 205, 207, 213 legal terms 89, 91, 131 legislation 16, 24, 46, 49, 51, 56–57, 59–60, 87, 91, 97, 101, 151, 158, 171, 178, 194, 198–199, 204–206, 208–210 legislator 12 legitimate 3, 6–7, 14, 136, 203 Lehman Benin collection 151 Lehman, R. O. 149 letters rogatory 166–167 licence 55–57, 87, 94, 97, 115, 123–124, 127, 183 life history 110–111 limestone 117–118, 120, 123 litigation 16, 73, 79, 201, 203, 205, 212 loan 4, 5, 74, 79, 112, 139, 141, 147–148, 150, 157, 164, 170, 173, 192, 195 logistics 5, 15, 125, 132, 178, 181–183 Lon Nol 28, 31, 40 London xii, 69,74, 77, 125, 159, 201, 203 looters 17, 27, 28, 31, 34, 35, 37–39, 45, 58, 66, 69, 77, 110 looting i, ix, 1, 4, 8, 21, 25–32, 34–38, 58, 61, 66, 69, 71, 77, 86–87, 100, 125–126, 136–137, 143, 198, 207–208, 213; network 71 loss 26, 27, 31–32, 38, 64, 73, 77, 88, 93, 98, 100–101, 135, 137, 157, 170, 194, 198–199, 213 Louvre 201, 203 Madrid 164, 171 Magi 3, 15, 16, 17 Mahabharata 68 Makonde mask 211, 212 Malacca 91, 93 Malai Mountains 117 Malaysia 87, 93 Mali 204, 212 Malraux, A. 24, 40 manuscripts 3, 4, 27 Māori 132, 178, 179, 180, 181, 185, 186, 187, 189, 190, 191, 192, 193, 195, 196, 201

Index 225 maritime 15, 83, 85, 86, 87, 88, 89, 91, 92, 93, 94, 96, 97, 98, 100; economy 85; museum 88; trade 85 Masefield, T. 137 Mataatua Declaration 195 media 71, 75, 89, 90, 94, 144, 148–149, 159, 169, 184, 190–191, 193, 210–211 mediation 4, 212 Mekong Exploration Commission 23, 33 metal 27, 35, 88, 89, 96, 116; detectors 34, 35, 37, 38 Metropolitan Museum of Art (Met) 61, 64–65, 67, 68, 73–74, 76, 78, 151, 203, 212 Mexico 47, 164, 166–168, 171–172 middleman 30, 38, 59–60, 69, 109, 122, 124, 161 military 21, 25–27, 30, 34, 36–39, 46, 66, 92, 125; convoy 125 Miller, G.M. 139 Ming dynasty 89 monastery 26, 38, 39, 109, 117, money 30, 34–35, 38–39, 108–109, 112, 124–125, 127, 167, 190, 196, 199, 201–202, 208 monks 27, 40, 65, 108, 109, 114, 115, 126 Monuments Preservation Department 92, 102 moral 7, 8, 108, 109, 139, 142, 145, 158, 199; codes 38; debt 142; decision 145; principles 139 moratorium 91 Moriori 178, 183, 189, 191, 195 Munich xiii, 161, 165–173 Murray, K. C. 140–141, 151–152 Musée du quai Branly 144, 200–201, 212 Musée Guimet 24, 33, 66, 119 museum: national museum 16, 33, 36, 45, 56, 58, 61, 66, 68, 70, 74–76, 94, 96, 120, 140–141, 146, 148, 150–153, 160, 165, 172, 180–181, 202; practitioner 133; professionals 133, 145, 150 Museum of South Australia 214 Myanmar xiii, 26 Nagel auction house 97, 102 narcotics 27

nation: building 90; developing 87; market 9; source nation 1, 9, 166–169; transit nation 9 National Antique and Art Dealers Association of America (NAADAA) 211 National Committee for Salvage and Utilization of the Valuable Cargo of Sunken Ships 93–94 National Gallery of Australia 200 Native American Grave Protection and Repatriation Act (NAGPRA) 7, 192, 196 navy 86, 92, 94 negotiation ix, xi, xiii, 2–5, 14–16, 26, 48, 64, 72–73,78, 94, 102, 123, 131–132, 158, 181–183, 187, 189–192, 194, 210–211, 213; bilateral 5, 131, 212 The Netherlands 93, 102, 209 network 2, 25, 34, 36, 39, 60, 69, 71, 73, 75, 77, 98, 109–110, 124, 146, 181, 186 Neumann, B. 159 New York xiii, 28, 61, 64, 69, 73, 151, 161, 166, 204 New Zealand 6, 15, 88, 178, 179–183, 186, 188–189, 191–195, 198, 201 Niger Coast 133, 137, 139 Nigeria xii, 133, 137–148, 150–153, 200–201, 209; Nigerian Festival for Black Arts and Culture (FESTAC) 139, 141; Nigerian Ministry of External Affairs 141; Nigerian Parliament 144 Nok 200–201, 209, 212 non-governmental organisations (NGO) 36, 38, 40, 117 Norton Simon Museum (Pasadena) 64–65, 67–68, 70–71, 73 O.P. Place Shopping Centre (Bangkok) 109, 115 Oba Erediauwa 136, 140, 142–143, 148, 150 Oba of Benin 139, 142, 144 Oba Ovonramwen 133–134, 140,151 object: historical 90, 98, 101; prestigious 75 obligation 8, 14, 47, 49, 50–51, 54–55, 61, 86, 92, 158, 203, 208, 209, 212 occupation 23, 133, 137

226 Index Ocean Salvage Corporation 96 oral history 187 Oudong (Udong) 108, 115, 126 Operational Guidelines 170 opium 96 origin 5, 6, 8, 15, 16, 21, 22, 47, 56–57, 65, 73, 79, 89, 92–94, 112, 118, 131, 141, 157–158, 178, 182–184, 186, 188, 191–192, 195, 199–200, 202–203, 210, 212–213 ownership I, ix, 1–4, 6–13, 15–16, 21, 47, 50–51, 53, 55, 68–69, 83, 86–87, 90–93, 100, 102, 110, 112, 125, 127, 131, 139, 148, 150–151, 156–158, 165, 191–192, 195, 200–202, 209, 213, 214; legitimate 6; rights 86, 92, 93; private 90, 150 Pacific Ocean 85 Pandava brothers 66–68, 73–74 parliamentary enquiry 144 patina 115, 120–121 patrimony 71, 79, 147, 200 Patterson, L. 156, 161–167, 170–173 peace 3–4, 39, 45–47 Pennsylvania Declaration 212 Permanent Court of Arbitration (PCA, The Hague) 212 permit 24, 30, 54–55, 92, 94, 97, 123–125, 168 Peru 47, 162, 164–165, 171, 209 Philippines 87, 93 Phillips, J. 135–137, 151 Phnom Penh xi, 24, 26, 33, 36, 58, 65–66, 68, 70–71, 73–79, 108–109, 115, 120, 123–124, 126–127 pillage 3, 25–27, 34, 37–38, 40, 86, 207 pirates 97 plunder 2–3, 21, 23, 25–27, 30, 35, 38–39, 198; colonial 139 Poi Pet 35 Pol Pot 26, 29, 31, 35 police 21, 30, 35–39, 54, 57–59, 61, 86, 94, 97, 115, 124, 126, 165, 168, 205 policy xi, 4, 10, 78, 86, 92, 98, 101, 147, 156, 164, 166, 180–181, 188, 190, 192–194, 203, 210–211; legal policies 98 political rhetoric 148 politicians 88, 147, 150

politics xi, 147, 150, 180, 199, 201, 203–204 porcelain 85, 93, 95–99 pottery 27, 98 poverty 38, 58–59, 199, 203 power relations 111 pōwhiri 183 Prachin Buri 35–36 Prasat Bak 28, 36 Prasat Chen 29, 66–68, 70–71, 78–79 Prasat Damrei 28–29 Prasat Khnar 31 Prasat Krâhom 29, 31 Prasat Neang Khmau 28, 31 Prasat Thom 28–31, 65 Preah Khan 27, 32, 33, 40 Preah Vihear xi, 16, 27, 32, 40, 64, 117 pre-colonial regulations 73 pre-Columbian collection 15, 156, 161–166, 168, 171–172 prehistoric sites 26, 39 preservation xii, 8, 11, 47, 51, 92–93, 98, 101–102, 185, 195, 205; in situ 87, 98; interests 85 prestige 65, 77, 112, 201 prison 97, 115, 207 professional xi, 36, 52, 86–89, 98, 100, 124, 150, 181, 214 profit-sharing 94 propertisation of culture 10 property: common 11; international 12; law 2, 10, 12, 47, 73, 157, 166, 213; private 11, 213–214; relation 11; rights 4, 11, 14, 88, 91, 93, 96, 100, 158, 195; state 12, 55, 88, 93–94, 98, 169 prosecutor 71–72, 136 protectorate 26, 40, 138, 139 Protestant Reformation 204 protocol xiii, 46, 60, 131, 181, 183, 185, 190, 193, 206–208 provenance: unprovenanced 71, 77, 112, 114, 181, 187, 189, 194, 212 provenience 16, 83, 110–112, 114, 125, 200, 212 punitive 136, 199 purchase 27, 35, 50, 54, 71, 75, 79, 109, 110, 112, 165, 195, 203, 212 purchaser 47, 49–51, 79, 114–115, 121, 123, 208 Pursat Province 117

Index 227 Qatar 96, 204 Quanzhou Museum 100 quarries 125 Queen Idia 139 ratification 9, 13, 15, 51, 131, 158–159, 166, 172–173, 207, 212 recognition 6–7, 10, 14, 75, 77, 179, 210 recommendation xii, 12, 72, 144, 170, 180, 186, 210 reconciliation 2, 26, 133, 149 regime of value 111, 114 register 54–55, 160–161, 166–171, 173 regulation 1, 7, 14, 16, 45, 49–50, 52–57, 60, 73, 78–79, 87, 91–94, 96, 112, 199, 110, 112, 115, 124, 126, 157, 169–171, 206, 210 relics 3, 15–17, 88–90, 101, 108–109, 114, 126 relief plaque 134, 137–138 reliquary 3, 114–115, 126 remains: ancestral 5, 7, 15, 132, 178–179, 185; archaeological remains 86, 88; human remains xi, 6–7, 16, 96, 132, 178, 180–181, 190–193, 195; skeletal remains 189, 195 remake 108, 115 Renfrew, Lord C. 200–201 reparation 46, 142, 147, 182, 186, 188 repatriation: business 178; domestic 185, 187–188, 191, 194; manager 181–182; programme 178, 180–181, 191, 194; voluntary 147 replica 4–5, 24, 36, 110, 115–117, 120, 122–123, 125 reputation 64, 75, 77, 112, 190 resolution 13, 73, 141, 208, 210, 212 resources 6, 13, 55, 71, 150, 190–191, 205, 207–208; marine 98; natural 93 respect 13, 58, 73, 77, 83, 97, 137, 158, 165, 183–184, 186, 190, 193, 198, 205, 213–214 responsibility xi, 6, 57, 92, 100, 143–144, 149–150, 189–190, 206, 213 resting place 178, 180, 189, 191 restitution xi–xiii, 2–5, 7, 10, 12, 15–16, 36, 50, 59, 64–66, 76, 78, 131, 136–137, 139, 141–143, 146, 150–151, 153, 166,

178, 181, 192, 199, 209, 212; claims xiii, 133; debates 133 retroactive 15, 145, 158, 213 retroactivity 2, 49, 51, 158, 213 Riau Archipelago 96, 102 right 4, 6, 10–14, 17, 47, 50, 53–55, 61, 69, 86, 88, 90–93, 96, 99–101, 136–137, 139, 158, 160, 168–170, 179, 189, 192, 195, 209–210, 213; of shipwreck 91 River City (Bangkok) 35, 115 robbers 27, 30, 35 Roeckl, A. 165–166, 171 royal palace 23, 114, 135, 137–138 royal regalia 76 ruins 28, 31, 64 Russian Market 123 sacralia 126 sacrifices 137 safeguarding 11, 17, 58, 86, 90, 92, 94, 98, 141, 150, 158, 198, 201 Saint Gall 3 salvage 86–94, 96–98, 100–101 salvor 87, 91, 93 sanction 49–50, 54–56, 61 Santiago de Compostela 162–164 scandal 64, 194 sculptors 36, 115, 117–118, 120–122, 124, 127 sculpture 21–23, 27–28, 30, 34–35, 64–65, 67–72, 75, 78, 96, 110, 115–117, 119–120, 122, 124–125, 198, 200, 204, 209 Seabed Explorations 88, 101 security 27, 86, 94, 97, 141–143, 150, 167–169, 214; personnel 86 self-determination 5, 7 Sentosa Leisure Group 88 settler state 6–7, 178, 194 shame 77 shards 93, 95–96 ship 85, 88–94, 96–97, 100 shipwreck 11, 83, 85–94, 96–98, 102, 198 shipping 73, 85, 91, 96–97, 109, 183, 186 Shiva 65, 74, 200 Siam 23–24, 126 Siamese 23, 26 Siem Reap 25, 30–31, 34, 37, 40, 53, 65, 78, 115–116, 123–124, 127

228 Index Sihanouk, Norodom 29, 40, 108 Simmel 114 Singapore xiii, 89, 97, 100–102 Sisophon 37, 115 slave, slavery 137, 145, 189, 195 Slovenia 212 Smithsonian Museum for African Art 100, 140, 150, 153 smugglers 34, 61, 77, 140, 201 smuggling 36, 48, 212 socio-economic instability 25 Sokoto 200, 212 soldiers 25, 28–31, 34–35, 37, 135–138 Sotheby’s 64–65, 67–75, 78–79, 112, 127, 139, 152, 172 source: country 6, 15, 111–112, 165, 168; nation 1, 9, 166–169 source community 2, 6–7, 15–16 South Sumatra 88, 101 souvenir 24, 100, 162 Spain 15, 162, 164, 167, 171 Spink’s 69, 71–72, 74–75, 77 sponsor 71, 75–77 Srayong 28 Sri Kumala 92 Srivijaya empire 88 Staatliche Ethnographische Sammlungen Sachsen 146 stakeholder 89, 90, 100, 192 standard xii, 12–13, 47, 56, 71, 87, 91, 94, 96, 98, 148, 166, 172, 210 state: member states 5, 13–15, 47, 87, 131, 156, 208–209; state party 10, 13, 46–51, 60, 65, 160–161, 170, 173, 208; state regulation 73 Stockholm Museum 146–148 stupa 108–109, 126 subsistence digging 9 Sugriva 68, 71 Sulawesi 91, 101 sultanate 92 Sumatra xiv, 88, 93, 101, 102 survey 58, 85, 92, 94, 193 Suryavarman I 33 Suryavarman II 33 suspicion 27, 149, 190 Switzerland 3, 45, 166, 173, 201 Syria xiii, 9, 17, 203–204, 208, 212

Ta Prohm Meas 32 Tamil Nadu 201, 203 Tanzania 211–212 taonga 196 tax reduction 151 Te Papa Tongarewa (Te Papa Museum, Wellington) (Te Papa) 178–186, 188, 190–191, 193 Technical Museum Berlin 100 Tek Sing wreck 86, 88, 95–96, 99, 101 temple 15, 21, 23–24, 26–35, 37–40, 65–67, 71, 73, 114, 126; ruins 64 Tentative List 65 territorial demarcations 93 territory 14, 46, 49, 85, 88, 92–93, 158, 160, 166, 187, 196, 209 Thai 29–30, 34–36, 38, 45–46, 48–51, 56–58, 60–61, 72, 114, 117, 122–125; collection 112, 125 Thailand ix, 5, 15–16, 21, 26–27, 30–31, 34–36, 39, 45–46, 48–51, 56–57, 60–61, 66, 109–110, 117, 123–126, 212 theft 3, 8–9, 24, 72, 83, 108–110, 114–115, 126, 142–143, 158, 171, 186, 203, 207 time limit 208, 213 Toi Moko 178, 181, 183–186, 190, 192–195 torso 28, 67, 74–75, 112–113, 121 tourism 24, 31, 33, 38, 40, 57, 87, 90, 101, 150, 202; industry 38; revenues 87 tourists 24, 31, 58–59, 101, 123–124, 150, 203 trade: Atlantic trade 133; free trade 133–134, 151, 157; slave trade 144; trade in antiquities 39, 54, 86, 123 trader 14, 21, 35, 77, 91, 120–121, 123–125, 127, 161, 199, 202 tradition 2–3, 7, 55, 150, 189–190, 213–214; cultural 150 traditional cultural expressions 7 traffic/trafficking 4, 8, 14, 15, 21, 26–27, 56, 59, 71, 78, 131, 198–199, 201, 205; illicit ix, xi–xiii, 4–5, 8, 10, 13–15, 17, 21, 25, 27, 37, 39, 48, 50, 57–59, 66, 77, 78, 83, 115, 124, 126–127, 156–159, 171, 199, 204–207, 211–212, 214

Index 229 transit country 9, 26, 203 trawl nets 86 treasure 23, 25, 39, 70, 89, 92, 94, 96–97, 101, 108, 137–139, 141, 150–151, 161, 214; national 108, 114, 126; royal 135–137 treasure hunters 83, 88, 161 treasure-ships 89 treaty 12, 29, 45, 46–49, 51, 57, 60, 91, 133, 135, 139, 180, 187, 195, 208, 210, 213 trial 16, 135–136, 156 tribunal 180, 195, 207 Tropenmuseum 75 truthfulness 123 Tulamben 88 UK Parliament 142, 144, 152 UN Declaration of the Rights of Indigenous Peoples 10, 17, 210 UN Security Council 208 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage 2003 10 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 131 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression 2005 7 UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 85, 131 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage 2001 210 UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property of its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP) 5, 131, 178, 199 UNESCO International Code of Ethics for Dealers in Cultural Property 1999 17, 211 UNESCO Recommendations on Cultural Heritage 210

UNESCO World Heritage Committee 65 UNESCO World Heritage Convention 1972 (Convention concerning the Protection of World Cultural and Natural Heritage) 10, 65, 207 UNESCO World Heritage Site 16, 57–58, 61, 150, 207 UNIDROIT 14, 47, 131, 205 UNIDROIT Convention (UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995) xiii, 4, 14, 16, 47–48, 50, 52, 59–61, 131, 173, 205, 212 United Kingdom (UK) 12, 138, 142, 201–202, 207, 211, 213 United Nations (UN) 4, 12, 92, 117, 162, 168, 207–208 United Nations Convention on the Law of the Sea (UNCLOS) 92, 93 United States of America 6–7, 9, 64, 66, 68–69, 71–72, 77–78, 109, 138, 146, 152, 164, 180, 191–192, 196, 201–202, 204, 207–209, 213 United States Attorney/Attorney’s Office, 64, 70–72, 166 urn 108, 114–115, 126 US–Cambodia Cultural Property Agreement 69, 78 Usman, Yusuf Abdallah 146, 148 Valin 68, 71 value 4, 10–11, 16, 21, 36, 53, 59, 83, 88–91, 96, 98, 110–112, 114–115, 141, 144, 151, 158, 164, 171, 202, 203–204; economic 65, 89; symbolic 139 vandalism 23–24, 34, 46, 207 Vatican 162 vessel 85, 91, 93–94, 96–97, 100, 102, 117 Vienna xii, 144, 146–148, 152 Vienna Convention 208, 213 Vienna Museum of Ethnology 144, 146, 152, 192 Vietnam 24, 26, 45, 87, 93, 206 violence 2–3, 93 Vishnu 66, 120 wāhi tapu 180, 183–185, 191 Waitangi 195 Wanganui 193

230 Index war 2, 4, 10, 12–13, 23, 29, 45–46, 48, 59–60, 88–89, 101, 136–137, 141, 157, 187, 191, 204, 206–207; civil 25, 28–29, 45–46, 65–66, 73; colonial 136, 137 warisan/warisan cagar budaya 11, 90 warrantors 112 weapons 8, 17, 27, 203 Wellington 179–181, 189, 193 Weltmuseum Wien xii, 133–135, 145, 152

West African Museums Programme 142 West Asia 85 World Heritage xi, 3, 16, 57–58, 61, 150, 207 wreck 85, 87–94, 97, 100–101 Yugoslavia 207 Zuni 201