Objects with a dubious or disputed provenance

Objects with a dubious provenance are objects that may have been acquired illegally. Both members of the public, as well as professionals, should avoid buying or acquiring such objects. The most detailed rules describing different instances of illicit trade in heritage objects are contained in the ICOM Code of Ethics for Museums from 2004. ICOM (International Council of Museums) has also developed a Red List of suspicious objects from certain countries and continents. These include Afghanistan, Africa, Cambodia, Central America and Mexico, China, Colombia, Dominican Republic, Egypt, Haiti, Iraq, Iraq 2015, Latin America, Libya, Peru and Syria.

Research on such objects also raises particular ethical challenges. Is it at all right or acceptable to carry out research on objects with a dubious provenance? Which considerations are important when deciding whether such research should be carried out? What is the responsibility of the institution, and what is the responsibility of the individual researcher, with regard to evaluating both legal and ethical factors?

The researcher's duty to avoid research on objects with an unclear or disputed provenance

Like everyone else, researchers and research institutions have a duty to avoid objects which they have every reason to consider as stolen or acquired in dubious ways. Conventions and regulations related to this area underline this duty. Point 24 of the Norwegian Guidelines for Research Ethics in the Social Sciences, Law and the Humanities, for instance, expresses this: "Researchers and research institutions should show due diligence and not acquire cultural monuments that have unclear or disputed origins and provenances." In exceptional cases, there may, however, be reasons to make an exception to this main rule. ICOM's Code of Ethics for Museums states that provided the scientific value of an object with a dubious provenance is exceptionally high, it ought to be included in the museum collection (3.4). They do, however, emphasize that an object without provenance should only become part of a museum collection provided it provides "an inherently outstanding contribution to knowledge". This exception points to the duty of researchers to provide knowledge. This duty is, of course, not absolute, it must be measured against other duties. If we accept that researchers have such a duty, and that there may be exceptions to the duty to avoid research on objects with a dubious provenance, it seems that there is an opening for evaluation of each individual case, where other considerations may also play a role.

Preservation of cultural objects

An absolute prohibition of research on objects with a dubious provenance may constitute a threat to the duty of the researcher to acquire and preserve cultural remains in order to analyse them and convey the results to the general public and future generations. In some cases, one might ask whether objects are really taken care of where they are, and whether it is possible to carry out important research there. This is especially true if the material originates from war zones or from societies characterised by corruption. There may be a strong resistance to research on objects due to ideological or religious reasons, and local powers may contribute towards a destruction of cultural remains. One example is Taliban's destruction of the Buddha statues from the Bamiyan Valley in Afghanistan in 2001. The head of the Taliban, mullah Muhammed Omar, demanded that all statues and pictures depicting people had to be obliterated. The Buddha statues were destroyed, as were a number of objects in Afghan museums.

Especially when it comes to the question of re-patriation or restitution, it is important to consider the degree of social order and will to preserve the material in the relevant country. The ICOM code's main principle, however, is that museums should be prepared to enter into dialogues about the return of cultural property to the country or people of origin (6.2 and 6.3).

One should also take into consideration that removing objects from their country of origin through looting, may prevent research within the context where they belong. This in turn may lead to the material becoming less interesting in research terms. Another problem is that the trade in objects with a dubious provenance often leads to the material becoming dispersed, which in turn means that knowledge acquired by the researcher is reduced. When objects are removed from their place of origin, and there is uncertainty about the history of the objects, the possibility of falsification also increases.

Contributions to illegal trade

If we assume that the object in question will provide increased and important knowledge, why should it be wrong to research it? An important consideration in such cases is that researchers should not contribute to increasing the number of illegal actions. The illegal trade in cultural objects is a big and expanding business, with connections to the trade in drugs and weapons. Research on objects with a dubious or disputed provenance and ownership history may contribute towards maintaining an illegal market. Such research may also influence the market price. When buying a looted object, one contributes to increasing the demand, and to more being looted.
When objects with an uncertain or disputed provenance have already been acquired (and the contribution of the researchers to the illegal market therefore is less direct), one can at least ask the question whether it is better to carry out research on them than leaving the objects alone and thus preventing the creation of important knowledge.

The responsibility and independence of the researcher

Research on objects with a dubious origin may also lead to ethical challenges with regard to the independence of the researcher. If the objects are owned by a private collector, the researcher may become dependent of the goodwill of the owner in order to gain access to the collection. This may in turn lead to the researcher avoiding asking questions about the provenance of the objects. (Cf. The values of research).
It may not always be obvious that an object has been acquired illegally. However, researchers and research institutions still have a responsibility to take into consideration the history of the objects they want to study. Laws and regulations emphasise the requirement of due diligence. This requirement means that whoever holds the objects has a duty of research, as well as a duty to take the advice of experts in the field (see for instance ICOM Code, 2.3.). Do researchers and institutions also have a responsibility to show due diligence, and, in that case, what does it mean?

When researching objects with an unclear origin, the researcher should make a serious attempt at searching for the legitimate owners. Ideally, such investigations should be carried out before research is instigated. In some cases, research may in itself contribute towards identifying the original owner or place of origin. A minimum requirement is that researchers and institutions demand that the owner of the objects that are released for research clarifies the history of ownership. A stricter demand would be that the researchers themselves have a duty to investigate the history of ownership, within reasonable limits.
If a researcher or an institution has a positive suspicion that objects are stolen, they also have a duty of making this known. One may, however, ask questions whether this is an absolute duty, for instance in a situation where this may lead to the material, with all probability, not being preserved.

Select national and international laws and regulations/guidelines

A number of national and international laws and conventions cover the problem areas of acquisition of and research on objects with a dubious or unknown origin. Foremost among the international ones are:

• The ICOM Code of Ethics for Museums, 2004;
• The Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention First Protocol 1954 (ratified by Norway 1954), and Second Protocol 1999);
• UNESCO's Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) (ratified by Norway 2007);
• UNESCO's Convention for the Safeguarding of the Intangible Cultural Heritage, Paris, 17 October 2003 (ratified by Norway 2007);
• Unidroit's Convention on Stolen or Illictly Exported Cultural Objects (Rome, 1995) (ratified by Norway 1995).

Important among Norwegian national laws are:

• The General Civil Penal Code Section 317 (1902)
• The Norwegian Cultural Heritage Act (1978).

See also the statement (in Norwegian) from the Norwegian National Committee for Research Ethics in the Social Sciences and the Humanities (NESH), regarding research on material with a dubious or unknown origin, June 30th, 2005 

In Norway, cases involving the import or export of cultural heritage are formally handled by the Norwegian Arts Council (http://www.kulturradet.no/english), which is the public body responsible for Norwegian museums. The council has developed a number of documents and guidelines regarding both the legal and illicit trade in arts and cultural objects (https://www.kulturradet.no/museum/import-og-eksport). It cooperates closely with similar bodies internationally.