Commercial exploitation (Rule 2)
Rule 2 embodies respect for the public interest in the proper management of cultural heritage for everyone. Our heritage should not be seen as an economic resource available to be used in trade or speculation. Upon recovery, it should be treated so as to preserve those characteristics - scientific and/or cultural - that give it its unique value for humanity. Heritage should remain in the public domain, though the Convention does not address issues of ownership rights.
Rule 2 also implies that heritage derives its value from its context and association. The whole assemblage as included and concealed in an archaeological site is far more significant than the separate individual items would be. It is essential to keep together artefacts, samples, and information relating to a site. Dispersal should clearly be avoided.
Commercial exploitation for trade or speculation is not acceptable, because:
- heritage shall not be traded, sold, bought or bartered as commercial goods;
- heritage should not be object of art theft or illicit traffic;
- heritage should not be commercially exploited for trade or speculation;
- heritage should not be irretrievably dispersed; and
- heritage should be kept as close to the site where it is found as possible.
The ban on commercial exploitation does not preclude the organisation of professional services, or of access to heritage on the basis of commercial principles.
The ban addresses:
- buying, and
The Antiquities market
Trade in heritage items is a major threat to the integrity of collections and to the principle that archaeological heritage is a public interest and not a private one. Trade in antiquities has a long and animated history that went hand in hand with the early development of antiquarianism and archaeology. There was a time when it was the accepted norm, rather than the exception, that heritage was exploited for the benefit of private collections. Public institutions, such as archaeological museums, operated accordingly, acquiring single objects of dubious provenance. As a result, collections originating from one and the same site became dispersed between many different countries and many pieces lost their provenance record.
The major flows of artefacts originated in colonised, occupied and underdeveloped regions and were directed towards the rich in prosperous areas, towards occupying and colonising powers.
Even today, it is sometimes argued that this helped to raise the understanding of the cultural variety of the world and that it thus helped to enhance mutual respect and diminish self-centred chauvinism. The debate over whether or not there is truth in that , does not change the fact that enormous fortunes were made in the process of depriving archaeologically rich areas from everything that stands for their identity. Moreover, in building or rebuilding societies after war, and the many other calamities of the 20th century, the hardest hit areas found themselves with their most iconic cultural heritage held in private collections on the other side of the world, unable to inspire new efforts.
On a national level, many countries had started to protect their heritage with archaeological legislation long before the end of colonial times. Internationally, however, it was not unless decolonisation was well underway that action and measures were finally taken to terminate the looting of archaeological sites, to curtail trade in antiquities acquired through looting and to organize hesitant restitution efforts to countries of origin of some of the most flagrantly stolen and smuggled items.
UNESCO has been an important platform in fighting the commercialisation and unequal trade in heritage. The organization facilitated the development of Recommendations and Conventions and promoted other forms of international cooperation. The laws and Conventions that were developed for this purpose (see sidebar on UNESCO Conventions and illicit antiquities) ensured that looting of sites on land was made illegal. Since then, there is a distinction between the legal antiquities market and the trade in illicit antiquities.
A consequence has been that, in the absence of the 2001 Convention, looting and commercial exploitation of underwater sites was stimulated rather than discouraged. In taking advantage of the freedom of the high seas and the deficiency of legal protection of submerged heritage, commercial operators and their auction houses have claimed that looting underwater sites was perfectly legal and ethical.
Rule 2 is therefore very clear that underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods. It addresses both the seller and the buyer, and, for good reason, it explicitly mentions barter. Operators using archaeological sites to collect objects have a tendency to approach museums, officials and politicians with gifts and other bribes in order to ease their operation. Any such barter is definitely prohibited by Rule 2.
Professional services, and authorised deposition
Rule 2 is clear on the fundamental principle that commercial exploitation for trade or speculation is incompatible with protection and proper management of heritage. This is not to say that heritage management and activities that are deployed in the context of protection and proper management cannot be subject to business principles. Nor does it mean that all transfer of ownership would be unacceptable. Paragraph a) affirms that interventions can be paid for, without being considered commercial exploitation under the Convention or its ANNEX, and Paragraph b) bears out that artefacts can be transferred without being bartered.
Paragraph a) addresses professional archaeological services and other services that are incidental to archaeological interventions and by doing so, it specifies which services are exempt from the ban on commercial exploitation. Although it is possible in a money-driven economy to express all benefits, activities and services in commercial terms, and to manage them accordingly, paragraph a) clarifies that the provision of professional archaeological services is not what is banned. All archaeological activity can be governed by commercial principles, as long as the activities are authorized in conformity with the Convention, and as long as the finds that belong to the site are not part of the commercial equation.
The ways of organizing heritage management and of authorizing activities directed at underwater cultural heritage may vary in detail from country to country, although in each case a competent authority is involved to oversee the public aspects. In many cases, professional archaeological services, or the provision of necessary equipment, are outsourced or contracted. Everywhere, both private and public management is subject to business principles: budgets, planning, salaries, and balance sheets of costs and benefits. Using the terminology and logic of the market in defining professional relationships has its advantages, as is further discussed in particular in Chapter V on funding.
This should not be confounded with undue commercial exploitation. Also, Paragraph a) of Rule 2 further reiterates that nothing prevents the commercial renting and exploitation of equipment, expertise and services in the context of heritage management.
The second disclaimer under Rule 2 b) addresses the transfer of a collection to an appropriate repository. Such transfer should not be interpreted as an undesirable transaction. Obviously, it should be subject to authorization by the competent authority and it should meet several conditions. The transfer should not ‘prejudice the scientific or cultural interest’; on the contrary, the transfer should be in the best of those interests. Also, the integrity of the collection should be guaranteed. Artefacts, samples and information relating to a site should be kept together.
However, in practice, there can be multiple reasons relating to storage, preservation and display that plead against physically keeping everything together in the same place or building. Sharing responsibilities between different institutions, such as museums, repositories and archives can therefore sometimes be the preferable solution. There is no reason to fundamentally oppose this, as long as it does not result in irretrievable dispersal and as long as the competent authority agrees. Transfer between public institutions is not included in what the Rule tries to avoid; neither is deaccessioning, as long as it does not imply feeding the antiquities market with finds.
All such transfers should be in accordance with the provisions of Rules 33 and 34, which address the sustainable curation of archives and collections. It should be added that in view of authenticity and context, it is preferable that the institution where the archive of finds and information is to be kept should be as close to the archaeological site of origin as practicable. As a matter of course, it should be under the same political control as the site itself.
In being very clear in banning the commercial exploitation of underwater cultural heritage for trade or speculation, Rule 2 actually defines what is meant by the term commercial exploitation in the context of the Convention. It fully accepts that management can be organized in commercial terms. This applies to ‘the provision of professional archaeological services or necessary services incidental thereto’ and by extension it also applies to visitor centres, museums and museum shops.
Neither the Convention nor the Annex aim to prevent economic benefits of the heritage accruing from visitors and sustainable tourism from being realized and shared in an area or among a community. Certainly these arrangements need to be in their nature and purpose in full conformity with the Convention and the authorization of the competent authorities must be obtained. Examples of compatible exploitation of underwater cultural heritage are commercial arrangements that organize access to and supervision of heritage sites, either by dive operators or visitor centres, or entrance fees to museums exhibiting underwater cultural heritage.
While Rule 2 does not explicitly mention such arrangements for access that are compatible with a site’s protection and management, this interpretation is fully supported by other rulings of the Convention. As will be discussed below in relationship to Rule 7 and Rule 8, sharing of knowledge, appreciation and access are important ethical principles.
Fighting illicit trafficking
UNESCO has been an important platform for fighting illicit trafficking. The first of the UNESCO Conventions, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, the so-called Hague Convention of 1954 addresses the prevention of looting and destruction in times of war. It does so in recognition of the fact that protection of heritage is not just a national interest, but that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind since each people makes its contribution to the culture of the world (Preamble). Unfortunately, there have been many armed conflicts since, during which the Convention needed to be applied, with less or greater success. But it is evident that sites and collections are particularly vulnerable to looting or destruction during or after conflict, when government is weakened or non-existent. War booty continues to surface on the antiquities market. And eager collectors that stimulate this market keep justifying their investment as safeguarding the heritage of humankind.
The next major development was the conclusion of the UNESCO Convention on Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property in 1970. Although the ratification process had a slow start, it gathered speed in the 1990s. The 1970 Convention has now been ratified by 120 countries, including both source-countries and the traditionally more liberal facilitators of the transfer and acquisition of ‘illegal antiquities’. The 1970 Convention goes hand in hand with the 1995 UNIDROIT Convention that complements it in dealing with private law aspects related to the undesirable trade.
As a consequence of the implementation of these Conventions and the public reflection and debate that accompanied it, buyers, collectors and sellers in the antiquities markets have become more and more conscious of having acceptable pedigrees for each object of trade. Objects that are clearly of an archaeological nature and whose history is unclear or displays major gaps, are suspected to be stolen or looted. The trade in such ‘tainted objects’ has become less attractive for operators in the market who covet a reliable and responsible image, do not want to be looked upon as smuggling and stealing crooks, and are obliged to keep records of each transaction. People do not want to be blamed for keeping stolen, looted or blood-tainted objects in their houses.
The 2001 Convention is complemented by these Conventions fighting illicit trafficking, and foresees regulations concerning the control of trafficked heritage entering the territory of a State, its dealing and possession, the non-use of areas under the jurisdiction of States Parties for activities not in conformity with the Convention, and sanctions.