To deal or not to deal: provenance and morality in recent sale at Christie’s

Posted on: July 26, 2019 by

Earlier this month, controversy surrounded one particular lot in the ‘The Exceptional Sale’ at Christie’s in London. The object of the controversy was ‘An Egyptian Brown Quartzite Head of the God Amen with the features of the Pharaoh Tutankhamen’, dated to the Reign of Tutankhamen, c. 1333-1323 BC, New Kingdom, 18th Dynasty. The lot (no. 110) was offered from a private collection in Germany and was soon scooped up for the price of £4,746,250 (including Buyer’s Premium) by another private collector. The reason for the controversy stems from the fact that the provenance of the object is unclear prior to the 1960s and the Egyptian government, together with a community organisation in the UK called ‘Egyptian House’, strongly contested the sale, claiming the object should be returned to Egypt. There is also disagreement with regards to the provenance, as it seems that Egypt believes the object in question would have been stolen from a temple in Egypt and unlawfully removed from the country sometime in the 1970s.

IAL Assistant Director Alexander Herman being interviewed by host Beverley O’Connor on the Australian Broadcast Corporation’s World News programme on the recent sale at Christie’s.

Egypt’s Minister of Antiquities was quoted in The Art Newspaper as stating that Egypt intended to stop the sale if it could prove the object had been stolen and that, in any case, it should be returned on moral grounds. On the other hand, a Christie’s spokeswoman stated that ‘Christie’s would not and do not sell any work where there isn’t clear title of ownership and a thorough understanding of modern provenance’. The Chairman of the International Association of Dealers in Ancient Art (IADAA) was also quoted in The Art Newspaper as saying that Egypt’s practice is to try to ‘reclaim anything put up for sale, saying that it is up to dealers and auctions to prove that items were not stolen, not for the Egyptians to prove that they were.’ The Chairman further stated that ‘they [licensed dealers in Egypt] shipped out antiquities under licence by the crate-load. This trade was legal under Egyptian law right up until 1983.’

The situation above is a classic example of those international repatriation disputes involving cultural objects removed from source countries in the 19th and 20th centuries and resurfacing in the art market today. The source country will bring forth a claim combining legal and moral grounds and the market agents involved will argue some or all of the following: (i) the export or acquisition of the object was legal at the time; (ii) provenance research can trace the object to a legitimate private collection abroad by a certain cut-off date, which will usually refer either to the country’s domestic export control rules or to a point in time before 1970, in reference to the UNESCO Convention of that year, or a mix of the two; (iii) that the claim has been brought forth too late according to relevant limitation or prescription rules. If anything, the present controversy illustrates how repatriation claims are still likely to be brought by countries of origin in situations such as this.

Looking at the situation from a purely legal standpoint, and temporarily putting moral considerations aside, from as early as 1835 Egyptian domestic laws have required a form of export licence for objects to be lawfully removed from the country, as set out in a decree dated August 15th of that year ‘Banning the unauthorised removal of antiquities from the country’. The provenance listed by Christie’s in ‘The Exceptional Sale’ catalogue, states that Tutankhamen’s head is ‘Understood to have been in the collection of Prinz Wilhelm von Thurn und Taxis (1919-2004) by the 1960s.’ Purely from this statement, it is impossible to ascertain the circumstances through which the head came to be in that collection or whether it had been lawfully removed from Egypt.

That said, none of the would-be applicable laws, be they domestic UK legislation or international conventions, would be retroactive so as to actually apply to the situation at hand. The terms of the UK’s Dealing in Cultural Objects (Offences) Act of 2003 do not take into account cultural objects removed from their country of origin prior to commencement, i.e. 2003. Additionally, even though the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, as its very name alludes to, is concerned with the illicit import and export of cultural objects, this only applies to ‘stolen’ material, and besides is not retroactive. Another convention that would have been relevant to the situation at hand is the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, but alas neither Egypt nor the United Kingdom have adopted it and again, as with the others, this instrument is not retroactive.

From a moral perspective, there are further elements to be considered. If we are to be cautious, especially in light of what we know about historic practices when it came to archaeology and removal of objects in countries such as Egypt in the last two centuries, we cannot be sure as to the compliance of this object’s export with the necessary licence, if we are to interpret the aforementioned 1835 Decree as imposing some form of export control. Provenance can be one of the thorniest aspects of researching an object. As ever, the present situation highlights how it remains a crucial element of due diligence. That said, regardless of how well-intentioned one can be, records can sometimes simply be lost or non-existent, further information can only later come to light, so that it is almost inevitable to have gaps in provenance and that the information filling these gaps might be subject to change. Nonetheless, it would seem advisable from a risk-based approach not to deal in an object if one is not and cannot be sure it was lawfully exported from its country of origin, even if one can establish its likely provenance at a much-later period in time.

Whilst the sale at Christie’s was concluded earlier this month, it seems unlikely that this is the end of the dispute. In an interview given to the national news on ABC Australia, IAL Assistant Director, Alexander Herman, discussed the matter as well as the steps that have been taken by Egypt such as turning to INTERPOL for help and instructing solicitors in London, which may suggest that a lawsuit is forthcoming. Watch this space for further updates.