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Who Should Own the World’s Antiquities?

Metropolitan Museum of Art/Art Resource
A third-millennium-BC foundation figure from northern Mesopotamia, purchased on the art market by the Metropolitan Museum in 1948 without a known provenance. According to Philippe de Montebello in Whose Culture?, edited by James Cuno, inscriptions on this lion and another purchased by the Louvre ‘provided the earliest evidence that the city of Urkesh known in later mythological texts as the home of the chief Hurrian deity, Nergal, god of the underworld, had in fact existed.’

These are large and provocative claims, and despite Cuno’s protestations to the contrary, seem designed less to forge common cause with archaeologists than to accuse them of “allying with the nationalistic programs of many of these nations” in order to gain access to sites. He also expends little effort confronting unscrupulous behavior by museums that has helped give the recent restitution claims such force. As a result, some critics have viewed Who Owns Antiquity? as so partisan that they have not bothered to scrutinize its arguments. This is a pity, because whatever one makes of Cuno’s thesis, it brings into focus some urgent questions—for museums and for archaeology—that have yet to be given much attention.


Cuno’s Manichaean view of cultural property—with national laws facing off against cosmopolitan museums—draws on several sources. From the Stanford legal scholar John Henry Merryman he appropriates the idea that archaeological countries tend to be “retentionist”—they aim to retain antiquities within their borders—whereas art-market countries like the United States are “internationalist”—supporting maximum dispersal. He also cites the work of the philosopher K. Anthony Appiah, whose recent book Cosmopolitanism: Ethics in a World of Strangers (2006) makes a forceful ethical argument for gathering together the art of different cultures in world museums, so that it can be more widely studied and enjoyed. A third influence comes from various studies of nationalism, including The Myth of Nations (2002), Patrick J. Geary’s eviscerating account of the pseudohistorical claims on which national identities in many European countries are based.

At the heart of Cuno’s analysis, however, are some broad assumptions about Western museums and their relation to the nations from whose territory their collections are formed. Taken together, they form an underlying story that goes something like this:

In the modern era, the discovery and circulation of antiquities have been guided by the rise of large collecting museums, on the one hand, and the emergence of nation-states, on the other. The idea of the museum as repository of world heritage can be traced to the eighteenth-century Enlightenment; the idea of modern nation-states as defined by self-identifying populations in particular territories derives largely from the spread of nationalism in the nineteenth century.

Through the early twentieth century, these two developments were able to coexist to mutual benefit: Western museums were given permits to engage in archaeology in the new nation-states of the Mediterranean and the Middle East; in return, governments in those countries often stipulated a division of finds, known as partage. As a result, the museums made pioneering discoveries and amassed stupendous holdings from around the world; while archaeological countries established important collections of antiquities found in their own territory.

But soon the uneasy alliance broke down. Driven by “the surge of nationalism in the middle decades of the twentieth century,” the archaeological countries began to enact draconian national ownership laws, restricting or even forbidding the export of antiquities. By 1970, these laws had become so pervasive that a UNESCO convention set out to make them the basis of an international system governing all cultural property.

The UNESCO regime was initially rejected by “art-market” countries such as Britain, France, Germany, and the United States, where the large encyclopedic museums were located; to maintain their international scope, these museums continued to buy from the art market what they could no longer obtain through partage. But archaeologists and foreign governments attacked the museums for collecting “unprovenanced” artifacts, and under pressure the art-market countries one by one capitulated to UNESCO. Emboldened, the archaeological countries also began using their laws and international agreements to repatriate their “own” antiquities from foreign collections. In this way, the “nationalist-retentionist” approach to cultural property gained dominance in the international system, leaving the cosmopolitan values of the museums increasingly under threat.

Various objections can be raised about this story. To associate encyclopedic museums with the Enlightenment rather than with the rise of the nation- state ignores, for example, the extent to which such museums —in France, Germany, and Britain—were themselves essential (and sometimes rapacious) instruments of late-eighteenth- or nineteenth-century nationalism; they often served to project imperial ambitions and create aesthetic links between their nations and the great civilizations of antiquity. Also, the influence of partage was never as great as Cuno would like us to believe. While there were some exceptional archaeology expeditions by the large collecting museums, they relied heavily on the art market throughout the early twentieth century. Nor is it clear that the UNESCO convention has been much of a factor in recent repatriation efforts.4

But even with such caveats, Cuno’s account is telling about the far-reaching implications of some cultural property laws. Take the case of Turkey. Like its Western European counterparts, it is a post-imperial state, the successor to a regime that once conquered and traded with other lands and brought home their treasures. (As Philippe de Montebello observes in Whose Culture?, the first encyclopedic museum was arguably the art collections of the Topkapi Palace founded by Mehmed II in fifteenth-century Constantinople.) Yet it is also, like other Mediterranean countries, a modern nation-state whose rich archaeology was, in a later period, subject to exploitation by the West. And in contrast to the multiethnic Ottoman Empire, modern Turkey, apart from its Kurdish population, which is continually discriminated against, is overwhelmingly homogeneous: “Turkey and Istanbul,” Cuno observes, “have become almost only Turkish and Muslim, when once both included large populations of Arabs, Christians, and Jews.”

As a result, Turkey has developed a narrowly “nationalistic” approach to cultural property—denying, for example, the Kurdish minority control over its rich Kurdish heritage—even as it claims a diverse Ottoman past: it maintains an absolute prohibition on the circulation of antiquities found within its own present-day borders, because of their perceived importance to Turkish identity. Yet Turkish museums are filled with pieces like the Alexander Sarcophagus that were recovered from other former territories of the vast Ottoman Empire—objects, Cuno writes, that “could rightly be considered important to the cultural heritage and national identities of the modern states occupying those lands today.”

In China, meanwhile, Cuno finds a country whose “nationalist-retentionist” approach to artifacts seems to be divorced from the archaeological concerns such a regime is supposed to uphold. As he observes, it is normally impossible to export a Shang bronze out of China legally, and China has sought to restrict the foreign trade in Chinese antiquities. Yet Chinese citizens and corporations are encouraged to buy such antiquities and bring them back to China or, as in the bizarre case of two eighteenth-century bronzes put on auction in Paris in February, to use other means to obstruct their sale (see The Affair of the Chinese Bronze Heads). As Cuno writes:

The Chinese justification is that these are rightfully Chinese property, wherever they may now be. Buying them back for China is a patriotic act regardless of any alleged incentivizing effect such acquisitions may have on the looting of archaeological sites. And the constraints they want the rest of the world to accept—that Chinese antiquities and cultural property proposed for acquisition be accompanied by documentation proving that they were legally removed from China and not excavated or looted—do not apply.

Still, an overtly nationalist approach to cultural property may not be the worst fate for a country’s ancient sites. In a discussion of twentieth-century Iraq, for example, Cuno recounts how the successful system of partage established by Gertrude Bell under the British Mandate broke down in the 1930s when Iraqi leaders—in particular the Iraqi nationalist Sat’i al-Husri, who became director of antiquities in 1934—began to see control and ownership of the Mesopotamian heritage as a crucial dimension of nation-building. By the time of Saddam Hussein, archaeological finds had become subject to what Cuno describes as “political manipulation” aimed at serving “the ends of the Ba’thist Party.” Yet he does not mention that such state interest—however questionable its aims—also meant that, until the economic crisis of the 1990s, Iraq had almost no looting, and foreign archaeologists considered its antiquities administration one of the best-funded and most professional in the Middle East.5

Cuno is more persuasive in raising questions about recent international bans on Mesopotamian artifacts that, in addition to forbidding their sale, also mandate their repatriation to Iraq. For they may be more at risk in Baghdad than in the safe haven of a museum or repository abroad. Indeed, the recent emphasis on repatriation as a solution to antiquities disputes is unfortunate: tracking down unprovenanced artifacts that may have left a country years earlier does little to address contemporary looting problems, and it rarely makes the objects in question more meaningful to archaeologists or accessible to the public than they were in a foreign museum. But are concerns such as these grounds for doing away with cultural property laws entirely?


As Cuno sees it, the nationalistic overtones of antiquities laws in countries such as Iraq, Turkey, and China reflect deeper claims by states about the origins of their citizens and culture. In its request for a bilateral antiquities agreement with the US, for example, the Italian government wrote that Greek and Roman antiquities found in its territory were “a source of identity and esteem for the modern Italian nation,” because they “constitute the very essence of a society and convey important information concerning a people’s origin, history, and traditional setting.” But all this, according to Cuno, is nonsense:

Antiquities are ancient artifacts of times and cultures long preceding the history of the modern nation-state. And in all but a very few cases, they have no obvious relation to that state other than the accident of geography: they happen to be found within its modern borders.

For Cuno, the disjuncture between modern states and the civilizations of the distant past exposes a central flaw in the concept of cultural property. For if the correlation is arbitrary, he maintains, so must also be the laws in archaeological countries that give the state control of ancient art found within their borders. “I question the premise…that it is the right of sovereign nations to legislate the protection of and access to whatever they consider to be their cultural property,” he writes. Or as he puts it bluntly in the case of Turkey, “Why should state sovereignty determine ownership?”

Of course the extent to which modern peoples are connected to their ancient territorial forebears can be debated—as Ingrid Rowland has argued, the link in the Italian case is much stronger than Cuno allows.6 But the larger problem with Cuno’s argument is the assumption that the legitimacy of a country’s laws depends on the veracity of the claims it makes about its origins, rather than on a more basic principle of sovereign power.

Cuno thinks that countries with national cultural property laws can be pressed to do away with them, because they do not have a legitimate association with the antiquities found in their soil. Instead, he suggests, they should cede control of all cultural goods to some kind of “international trusteeship under the auspices of a nongovernmental agency.” Just what he means by this isn’t clear—he also mentions a “return of partage ” that would give museums in the United States and elsewhere a share of new archaeological finds abroad. But he seems to have in mind a system in which encyclopedic museums could go on collecting—while all ancient artifacts, including those now in museums and those yet to be excavated, would be nominally held in trust for “all humankind” by an “international authority” that is independent from the influence of any national government.

Now, philosophically, Cuno’s proposal holds considerable appeal: by removing nation-states from the equation, it would shift the debate over antiquities from disputes about ownership to the more urgent matter of “stewardship”—the term Cuno, following John Henry Merryman, uses for the paramount goals of care and preservation. But even if such a supranational entity could somehow be brought into existence to supervise the circulation of ancient artifacts, it would still require the endorsement of sovereign nations. (Puzzlingly, Cuno laments the “nation-state bias” of UNESCO, as if it might be able to function without such endorsement.)

Professor Appiah, in his formulation of a cosmopolitan ethics, makes it clear that the authority of sovereign states to govern rights and property must continue to be upheld: “the primary mechanism for ensuring these entitlements,” he writes, “remains the nation-state.” Cuno seems to lose sight of this fact. Indeed, now that American museums—including even the very few that strive to be encyclopedic—have signaled their acquiescence to the principles of the 1970 UNESCO convention, there is not really any doubt that the present system is here to stay. The pressing question is how this admittedly imperfect regime can be used to provide a sustainable future—for beleaguered archaeological sites and for embattled museums.


The stark reality facing art museums today is that the era of large-scale collecting of antiquities has come to a close. In the United States, the situation is further complicated by the dependency of large museums on wealthy private donors and patrons, whose contributions have often related to their own interests as collectors. Now that museums have adopted rules that prevent the acquisition of many ancient objects still in private hands, they must find other ways of retaining that support.

Equally important, archaeological countries must recognize that national ownership laws have often been a disastrous failure. Such policies—which were often accompanied by strict limits on antiquities loans to foreign institutions—succeeded only in driving the trade further underground; and museums ultimately had to face the prospect of criminal prosecution for collecting ancient art. Even as these countries fight to reclaim works, some of them, including Italy, have begun to acknowledge the flaws of prohibition.

Yet as other museum directors have demonstrated—including not least some of the contributors to Whose Culture? —the divide between collecting museums and foreign governments is already a good deal less wide than Cuno suggests. One of the last exhibitions organized by Philippe de Montebello at the Met before his retirement, for example, was “Beyond Babylon: Art, Trade, and Diplomacy in the Second Millennium BC.” Dazzlingly international, it conveyed a powerful historical argument for the cosmopolitan museum; its highlight was the contents of a Levantine ship that was transporting goods from a dozen different cultures when it sank off the south coast of Turkey in the late fourteenth century BC. For these Bronze Age civilizations, De Montebello writes in the exhibition catalog,

neither political nor physical barriers appear to have stemmed the flow of cross-cultural exchange, which took the form of booty and tribute, as well as trade and diplomatic gift giving, thus providing the means for the circulation of precious goods while stimulating the exchange of ideas and fostering artistic creativity.

Equally important, the exhibition was a loan show based on extensive contributions from supposedly “nationalist” archaeological countries—including Turkey, Greece, and Egypt, as well as Georgia, Armenia, and Lebanon. (Remarkably, Syria also agreed to send over fifty works, but was discouraged from doing so by recent US legislation concerning countries designated as state sponsors of terrorism.7 ) While, as Cuno stresses, the range of antiquities museums can acquire has been severely limited by national cultural property laws, “Beyond Babylon” suggests that there are many ways besides collecting for cosmopolitanism to flourish. It is notable that “Beyond Babylon” was also underwritten in substantial part by private patrons in New York, demonstrating that a loan show can have as much appeal to philanthropists as can permanent acquisitions. (Among the patrons was Dorothy Cullman, a widely admired supporter of the arts, who died this April.)

Indeed, the easing of restrictions on international loans—encouraged, in part, by innovative restitution agreements such as that between the Met and Italy—is already doing much to reconcile collecting museums and archaeological nations. (The Met acknowledges that a number of important antiquities it had acquired belong to Italy, but will continue to show some of them on long-term loan, together with rotating loans from Italy of other works of “equivalent beauty and importance” to the objects that have been restituted.) Past experience has shown that permanent acquisitions may do little to encourage cosmopolitanism in the countries from which the objects derive while increasing the threat to archaeological sites.

In contrast, lending can work both ways: the rich diversity of American, British, French, and German museums can be seen in countries that do not have international art of their own, even as loans from archaeological countries, like those in the Babylon show, provide Western museums with what can no longer be acquired outright. Rather than a threat to the cosmopolitan ideal, then, the new détente between foreign governments and American museums should be seen as an essential step in confronting the urgent problem of the destruction of archaeological sites. For the most crucial challenge is not the aggressive nationalism of some countries or the voracious appetites of some museums: it is the disappearance of the ancient past so coveted by both.


Who Should Own Antiquities? June 11, 2009

  1. 4

    Although Italy has a special bilateral agreement with the United States through UNESCO, the agreement has not had a part in the criminal case against Marion True or in the repatriation deals it has signed with US museums. Similarly, Turkey got back an important group of objects from the Metropolitan Museum in the early 1990s not by appealing to the convention, but by suing directly in US court.

  2. 5

    For a more detailed discussion of Iraq and the looting that has occurred since the US invasion, see Rothfield, The Rape of Mesopotamia, and my article in these pages, “The Devastation of Iraq’s Past,” August 14, 2008.

  3. 6

    See Ingrid D. Rowland, “Found and Lost,” The New Republic, September 24, 2008.

  4. 7

    Amendments to the Foreign Service Immunities Act in 1996 and in 2008 have made it easier for US victims of terrorist attacks to sue countries listed by the State Department as sponsors of terrorism for damages in US court. In the event of a successful lawsuit, plaintiffs may attempt to claim assets of the foreign country that are in the United States, including works of art or artifacts on loan. Because of the risk of seizure under this provision, the Metropolitan Museum was unable to include the Syrian objects in the exhibition. See “On the Attachment of Cultural Objects to Compensate Victims of Terrorism,” Archaeological Institute of America, February 9, 2009 (www.archaeological.org).

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