Understandably distressed by the inability of the international cultural community to prevent the continued decimation of world heritage by ISIS, members of Association of Art Museum Directors could be putting their own institutions at risk by implementing their newly issued Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis.
Intended to protect “irreplaceable works of art and archaeological materials that are currently in danger of destruction” (in the words of AAMD’s announcement), these protocols, if followed, could have the unintended effect of endangering American museums’ own security and subjecting them to protracted litigation.
According to AAMD’s summary of its plan:
Under the Protocols, owners/depositors whose works are at risk of damage or destruction can request safe haven at an AAMD member museum where the works will be held until they can be safely returned. All works deposited with AAMD member museums as safe havens will be treated as loans.
To ensure transparency, AAMD member museums accepting such works will register them on a new section of AAMD’s online Object Registry, where information on the objects will be publicly available.
As of this writing (six days after the protocols were announced), there are as yet no objects listed in AAMD’s Safe Haven Objects Registry. On Monday, the Metropolitan Museum’s director, Tom Campbell, told me that his museum had not received any safe-haven requests. He stated that he supports the new protocols “in principle.”
The initiative is laudable in principle, but could prove highly problematic in practice.
Almost unthinkable (but not inconceivable) is the possibility that by publicly taking custody of endangered objects, with the full transparency provided by the online registry, museums could be putting themselves in harm’s way. Because safe havens could become terrorists’ targets, security at participating museums should be heightened. (The protocols do acknowledge that “in rare instances, security concerns may require a delay in…publication.”)
More likely are the legal disputes that could arise in connection with the ultimate objective of this safe-haven initiative—the return of objects to their rightful owners, if and when the danger has passed.
As in any case involving the return of cultural property, determining the “rightful owner” can be dauntingly complicated. And in this case, the complexities are intensified by the instability, if not chaos, in regions being overrun by terrorists.
If a foreign government official or museum administrator deposits an object with an American museum for safekeeping, what happens if there is a request for its return after a regime change in the government or museum? Does the American museum have to pass judgment on whether the new custodians will give the object proper protection?
Things become even more complicated if (as also envisioned in the protocols) the object is deposited by a private individual, company or organization that owns “or comes into possession [even if by looting?] of the work, whether in the affected area or after removal from the area.”
Anticipating these difficulties, the protocols give this guidance:
Member museums should exercise caution to assure that accepting the request for safe haven will not violate the rights of lawful owners, subject the museum to a claim for return, reflect negatively on the reputation of the museum or cause the museum to be involved in any illegal or unethical activity.
Requests for safe haven and agreements to accept such requests should be documented where possible prior to movement of works to be transferred….
Because the actions of member museums in providing a safe haven may have legal consequences, member museums should consult with legal counsel before accepting or returning a work.
It’s very difficult for an American attorney to fully comprehend (let alone advise on) the legal ramifications of a museum’s decision to accept custodianship of objects from a war-torn region, from which conflicting claims could likely emerge. And if an American museum decides to retain, not return, the object, because of continued misgivings about safety, it opens itself up to charges of wrongful expropriation.
I hope AAMD’s initiative has beneficial results. The long string of pronouncements on this subject by UNESCO Director-General Irina Bokova (here, here, here and here) has been eloquent but impotent. Congress’ Protect and Preserve International Property Act passed the House but has been stuck since June in the Senate Committee on Foreign Relations.
While Congress and the U.N. fiddle, Palmyra crumbles.