Freda Matassa, Director, Matassa Toffolo
Ltd., Art Collections Management, UK
For anyone
not yet familiar with the oft-heard term due diligence, Freda Matassa provided
the reassurance that as part and parcel of being a registrar, this was
something you would be doing every day, following professional practices and
rules. It is a term widely used in the
banking and commercial world, but is equally applicable to the role of the
registrar. The whole point of due
diligence is that if something goes wrong you have documented evidence that you
can go back to that demonstrates that your museum acted appropriately.
Freda set
out what due diligence means for a registrar in the context of loans and
objects.
The
ICOMdefinition of due diligence is that all the required
endeavors have been undertaken “to establish the facts of a case before deciding
a course of action, particularly in identifying the source and history of an
item offered for acquisition or use before acquiring it.” This therefore applies not only to acquisitions
but to exhibitions, loans out, old loans and to deaccessions. Obtaining provenance information is required
when a museum is borrowing items from abroad and it is intended to use GIS and
Immunity from Seizure, and equally when lending items to other institutions
provenance details will be supplied. For
old loans, a museum should have a policy to research these to obtain more
provenance information. For the deaccessioning
processes a museum must carry out due diligence to ensure that it is clear on
what the conditions were for the acquisition of the item. In the museum context, if something goes
wrong, we can fall back on the fact that the proper processes were
followed. The key requirements are that
we seek to know the history of an object and are seen to be acting in an
ethical and transparent way. This is not
always easy but a museum has a duty to try and find out, and if unable to
obtain full information, that the museum acts honestly and transparently and
publishes details of items with doubtful provenance on its website.
Freda ran through the key
laws and conventions that registrars need to be aware of, one of the most
critical being UNESCO 1970 whereby after 1970 archaeology and ethnography items
must have a valid record of export. It
is good practice for your museum to indicate compliance with these key laws and
conventions on your website. They
include:
- UNESCO 1970 Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Cultural Property;
·
UNESCO 2001 Convention
on the Protection of the Underwater Cultural Heritage
·
UNIDROIT 1995 Convention on Stolen or Illegally
Exported Cultural Objects (Rome, 1995)
·
CITES Convention on International Trade in Endangered Species of Wild Fauna
and Flora
·
UK Dealing in Cultural Objects (Offences) Act 2003
·
UK Treasure Act 1996
- ICOM Code of Ethics
- ICOM red list
- MA Codes of Ethics for Museums
- Washington Principles 1998
- Terezin Declaration 2009
- Combating Illicit Trade: Due
Diligence Guidelines for Museums, Libraries and Archives on collecting and
borrowing Cultural Material (DCMS, October 2005)
- Statement of Principles issued by the
National Museum Directors Conference on “spoliation of works of art during
the Holocaust and World War II period” in 1998
For international loan
agreements a museum needs to provide a statement that it is an ethical
organisation, provide assurances that the loan will be returned, that proof of
provenance will be required from the lender, and indicate that it has a
procedure to deal with any third party claims.
Freda went on to consider
Immunity from Seizure, defining it as a legal guarantee that an item borrowed
from another state will be returned.
There were a number of reasons why an object might be seized:
·
non-payment of debt (as happened in the Noga case where Noga had a claim
against the Russian government)
·
A descendant of a family whose private property had been Nationalised
·
Families/countries wishing to recover property looted during the war
·
Illegal excavation or export
·
Restitution of national cultural heritage – eg ethnography items
Countries with IFS include
the US, France, Austria, Belgium, Czech Republic, Finland, Germany,
Lichtenstein, Switzerland, the UK and most recently Russia. However it was important to be aware that
these do not necessarily provide the same coverage. Some cover state property only, some have
automatic cover, some an application process and some a mixture of the
two.
Freda considered the roles
and responsibilities of a museum with approved status to offer IFS. Responsibility starts at the top and needs to
be embedded throughout the institution.
It has to be owned at Director-level, with curators responsible for
researching works and registrars responsible for understanding the law and what
IFS covers , being aware that some conventions/laws could override IFS, knowing
when IFS is appropriate, controlling deadlines for carrying out due diligence and
keeping records of investigations. Training
throughout the organisation is important and any contracts with freelance
curators should clearly state who is responsible for due diligence. The museum must have an ethical loans policy,
making it clear that there is a process for undertaking due diligence for
acquisitions and loans and that it will publish responses to claims.
Many lenders will
automatically request IFS but it is sometimes not necessary and it is important
for the registrar to consider whether the item is high risk or not. Freda gave a useful analysis of what
represented high and low risk categories.
High risk would include gaps in provenance during the 1933-45 period,
archaeological objects found or exported after 1970, ICOM red list, items of
ethnography and state-nationalized property.
Low risk would include objects that have always been in the same
country, objects acquired directly from an archaeological site, newly-created
objects and commissions, non-unique/low value objects. Freda gave a brief overview of the type of
information you needed for research, the research process and the materials
that you need. Sources of information
included the museum acquisition record, an export license from the country of
origin, publication in a reputable source prior to 1970, will/inventory,
photographic evidence, family correspondence, auction catalogue entry and
receipt of purchase. She made it clear
that there is a point at which it is not reasonable to go any further. It is what is reasonable for the
situation. Freda also gave advice on how
to deal with claims. Have a policy, keep
records, be open, report it and publish it.
Tell lender their identity may need to be revealed.
Freda finished with a quick
round up of some legal cases concerning due diligence and Immunity from
seizure:
Bloch Bauer Heirs v. the
State of Austria (2004)
Government of Iran v.
Barakat Galleries (2013
Moravian Gallery v. National
Gallery of Czech Republic and Diag Human (2014)
Kurtha v. Marks (2008)
Rosalyn Clancey
Project Work Stream Leader: Art Collections Management
