Addressing ethical provenance when designating UK national treasures
" the failure to take into account provenance, but instead to appropriate as a national treasure an object to which another person, community or nation has a moral claim, has the potential to impact the way in which the public may perceive, not only the individual object, but also the entire category of national treasures"
Background
This project was undertaken by Charlotte Woodhead and the primary research was published as C. Woodhead, 'Tarnished Treasures: Provenance and the UK's Waverley Criteria' (2019) 2 Santander Art and Culture Law Review 109 - available here.
The research is concerned with the export control system in the UK for objects of cultural interest and where objects meet one of the 3 "Waverley Criteria" for assessing whether an object is a national treasure and that a licence for is export should be deferred to allow time for a UK purchaser to offer to buy it, thus keeping it within the UK and 'saving it for the nation'. The central argument was that where objects have question marks about their provenance (ownership history) even where the current owner has legal title to the object, treating such objects as national treasures has the potential to impact the way in which the public may perceive, not only the individual object, but also the entire category of national treasures. This is because, as part of the process of designating something as a national treasure, the granting of an export licence is deferred to allow time for a UK purchaser, such as a museum to acquire it, when those museums' acquisition policies would warn against acquiring something with such gaps in the provenance history.
The policy brief
The policy brief entitled Addressing Ethical Provenance when designating UK national treasures, based on the article, was designed in consultation with ResearchRetold.
It is available here: Ethical Provenance policy brief
The key issues
- How could the Export Reviewing Committee take into consideration gaps in provenance or the fact that something was obtained during punitive expeditions rather than simply the Waverley Criteria? Earlier cases considered by the committee took account of factors other than the Waverley Criteria - although they predated the current statutory criteria.
"If the Committee and the Secretary of State apply the Waverley Criteria in isolation without taking into account an object’s morally questionable provenance the risk is that the decision provides tacit, if not overt, support for illicit trade or undermines the efforts made in respect of objects with Nazi Era provenance by making a public statement that a particular object is worthy of saving for the nation and entreating a public collection to purchase it."
- After 2020 some objects considered by the Export Reviewing Committee will have been imported into the UK after 1970 (because they would have by then been in the country for 50 years) which acts as an "ethical marker". Musuems would need to follow the DCMS's own Guidelines on Due Diligence. The article explored some of the ways in which the guidelines might be taken into consideration within the export reviewing process.
- A further problem was identified in the context of repatriation of objects from UK museums:
The potential problem
Where objects from UK museum collections are repatriated abroad an export licence may be needed and there might be a chance of them being treated as ‘national treasures’. If so, then the grant of an export licence would be deferred to allow time for a UK purchaser to ‘save them for the nation’, thus hampering the repatriation process.
The Export Reviewing Committee now only applies the Waverley Criteria without taking other factors into consideration. Whilst the Secretary of State may depart from the Committee’s recommendation and instead use their discretion to grant the export licences to facilitate repatriation it is unclear whether the Secretary of State would exercise it in such a situation.
A possible solution
This problem could be remedied by adding an additional category of object to the Open General Export licence (OGEL):
***objects which are being repatriated from UK museums to their countries of origin***
A similar approach has already been taken for objects that were looted during the Nazi Era and which have been restituted to claimants following a recommendation of the Spoliation Advisory Panel.
If this new category were added to the OGEL then the exporter of a cultural object would not need to apply for a specific export licence. The object would not be at risk of being designated as a national treasure and instead, the export and the repatriation of the object could occur without further delay.
Where to read more
The full article is available here:
Click here to download the full Ethical Provenance policy brief