Last week, The Australian reported that 49 artworks had been identified by the Art Gallery of South Australia (AGSA) with gaps in their ownership history that could signal they were stolen.
Asian antiquities account for 24 of the potentially problematic pieces. The other 25 have missing ownership information from the early 1930s to 1945, during Nazi-era Europe.
After a great deal of negotiation and protests from descendants of Jewish families whose art works, as well as countries such as Israel and European countries which had important items stolen by the Nazis, European museums have had to scour their records and publicise them where there appear to be gaps in the history of provenance.
This case is, alas, only the tip of the iceberg. The Australian reported last Thursday that the Art Gallery of NSW (AGNSW) paid A$300,000 in 2002 to acquire:
a stone carving of Shiva with Nandi … with a bogus ownership history documents from dealer Subhash Kapoor.
In September the Australian Prime Minister personally returned a 900-year-old bronze Dancing Shiva (Shiva Nataraja) to the Prime Minister of India which had been bought by the National Gallery of Australia (NGA) and was subsequently found to have been stolen from a temple in southern India.
In a country which has been a party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property - 1970 since 1989, how did the AGSA, the NGA and the AGNSW find themselves in such egregious situations?
Despite the passage of the Protection of Movable Cultural Heritage Act 1986 which implements for Australia the provisions of the 1970 Convention, the holding institutions have not undertaken the effort that they should have over the last 25 years.
The Dancing Shiva saga was the result of an international investigation of an idol-smuggling operation involving an Indian dealer selling cultural objects of very high quality in the international market.
New York-based art dealer Subhash Kapoor was arrested on an Interpol red notice and held in Germany while a wide investigation was undertaken also in the United States. Kapoor was then extradited to India for prosecution there.
The problem of stolen cultural objects from countries with rich and cherished heritage objects has been serious for many countries – Afghanistan, Cambodia, China, Greece, Guatemala, India, Indonesia, Mexico, Thailand, Turkey and many others – has been a point of contention for centuries.
Some objects were taken in “punitive raids” or colonial occupation and others in post-colonial transactions through bribery, theft and other forms of persuasion.
Despite complaints from these countries, such as Greece, whose citizens protested vehemently about the removal of many of the marbles from the Parthenon as early as 1802, it was not until 1970 that UNESCO, the UN special agency responsible for the protection of cultural heritage, was able to negotiate an international convention to oblige all States to supervise the import, export and transfer of ownership of movable cultural objects.
There are currently 127 States of the international community, roughly two-thirds of the 195 members of UNESCO, which have ratified this 1970 Convention and are bound by its requirements.
Strenuous efforts have been made by UNESCO to ensure that these requirements are implemented. Nevertheless it has taken 40 years to get that number of states to ratify the Convention by publicising it widely and to get the media to investigate suspicious cases.
Dealers in many countries resented UNESCO’s effort to prevent the widespread transfer of the world’s cultural heritage from the countries where they had been made or to which they had been transferred and been protected for centuries (ancient Greek statues, for example, were taken to Italy in ancient times).
To protect their trade spurious documentation, often based on an assertion of false origin or false date of transfer, vigorously developed. The UNESCO 1970 Convention requires control of the importation of cultural objects which should not be acquired if a good chain of provenance cannot be established.
The provenance trail
Directors and curators of museums and art galleries see their function as providing the best examples of cultural resources.
It is evident that the old colonial states such as France, Germany, the Netherlands, the United Kingdom, even smaller states such as Sweden (through war booty) and other European countries (Spain, with material from Latin America; Italy with booty from north Africa) were in a position to accumulate brilliant collections of cultural heritage from around the world.
It has been more difficult for “younger” countries, such as Australia, to put together an outstanding collection. It is also difficult for countries who feel that their own cultural achievements are held elsewhere and are unable to retrieve them to use them for their own purposes, including the education of their own artists and future generations.
This conundrum has led many museums directors not to pursue the trail of provenance too thoroughly. The result can be very unfortunate – the return of the Shiva to India exemplifies this only too well.
Efforts to see that the 1986 Act is being complied with have been much more active under some federal governments than others. The present government left the National Cultural Heritage Committee without a chairman and with some vacant seats for many months, so it was effectively inoperative.
In 2009 there was a public consultation about the working of the Act.
Recommendations were made but no further action has been taken on them. The United Kingdom has been working on guidance for museums and art galleries on many difficult issues such as the treatment and return of human remains, and the return of spoliated goods.
Recently Australia produced the Australian Best Practice Guide to Collecting Cultural Material. In June this year a draft was circulated for further comment. But the final version of the guide is less compelling than the original draft.
Current museum directors in Australia now have two challenges: to verify a good provenance of objects already acquired and to negotiate with culturally rich countries for loans (long-term and short) to broaden appreciation of exotic cultures in return for support for their museums and culture.