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Banning the sale of ivory

10 October 2017

DEFRAMichael Gove is secretary of state for Environment, Food and Rural Affairs. The departmental logo is as illiterate as that of DCMS: both presumably have a teenage graphic designer who believes you can’t have commas at the end of a line. It may be the end of the line for more than the comma however if the latest plans for banning the sale of ivory are implemented as currently envisaged. They would kill the portrait miniature in private collections.

The stated purpose of the rules is to …

send a global signal that trading ivory is not acceptable. We will send a strong signal that the UK does not condone continued demand for ivory

The repetition of the phrase tells you that this is about signalling, not thinking. No one is going to defend the obviously revolting trade which results in the slaughter of elephants, nor take issue with the accurate statement that–

Sales of ivory products, including larger items of solid ivory, present a risk in terms of opportunity to pass off illegally-sourced ivory as legitimate

But there is nothing here that leads to the conclusion that any of this would stop if we ban the sale of antique portrait miniatures. I won’t attempt to summarise the history of the various recent attempts to deal with this problem, but my view is that Gove has adopted a plainly populist measure which will find favour with animal rights campaigners, and has done so oblivious of the concerns of the small minority of private collectors.

You can see the consultation here, and reply to it either by email or by completing the online form. I’ve done so, and set out below my answers to some of the questions.

 Do you have any evidence on how our proposed ban would affect the arts and antiques sectors, or individuals who own ivory items?

As an art historian specialising in pre-1800 portraiture I regard it as imperative that the exemptions from the proposed rules are strengthened so as to exclude totally and unambiguously all works of art of more than 100 years of age. Including them in the ban serves no useful purpose and will save the lives of no elephants. Failing to do so is merely a cover for the incompetence of draftsmen framing the legislation. But such a sledgehammer will amount to the greatest act of peacetime vandalism since the dissolution of the monasteries.

Antique works of art caught by such a ban will become unsaleable, except to museums. It is however highly unlikely that museums placed in such a privileged position will pay anything like the market value established before the ban. Worse, some valuable works may struggle to find a museum interested in acquisition at all. The history of art is often subject to such fashions (I myself have particular expertise in pastels, which were highly fashionable in the 18th and again in the late 19th century, but are now of no interest to museums in the UK – although today some US museums have started to collect again). So it is not inconceivable that works once, and potentially in the future, regarded as of serious aesthetic importance might fail to find any museum home.

With no other market, collectors will lose interest. When they die, works will presumably be given to relatives who in most cases won’t know how to look after them. The proposals are far from clear as to the restrictions on works caught by the ban. If they can be given to non-museums, you will simply find that a barter market emerges which will undermine the point of any ban, and result simply in great inconvenience to owners. When this happens (demonstrating the absurdity of the measures) the rules will then be tightened, ultimately making it illegal to own such objects at all.

Antique ivory must be kept in conditions of carefully controlled humidity, failing which they will deteriorate (ivory is prone to splitting). Professional restoration and conservation are expensive interventions which few collectors (and fewer subsequent owners) will undertake for works which have effectively been rendered valueless.

Collectors will find that their works have been appropriated, potentially in breach of their rights under Article 1 of Protocol No. 1 to the European Convention on Human Rights. This gives every person the right to peaceful enjoyment of their possessions. A ban would only be lawful if it achieved a fair balance between the general public interest and the protection of collectors’ rights. You may expect legal cases to be fought on whether a pointless measure that cannot possibly save elephants’ lives does strike such a balance.

Do you agree that the Government should include a de minimis exemption to an ivory ban?

The black pigment most widely used by all artists (in oil paint, pastels, miniatures etc.) of all periods since Roman times is ivory black. Today it is made by charring bones of other animal species, but until recently the highest quality black was made (as the name suggests) from burnt elephant ivory. As the chemical formula is simply carbon, and the process kills DNA, there is no way of telling whether a particular painting has a tiny quantity of ivory incorporated in it. Were this ban not to include a de minimis exemption, the entire world of old master painting would be affected. It is the absurdity of that suggestion that should make legislators pause before imposing the ban on portrait miniatures just because the support has not (yet) been burnt.

Do you have any views on what the scope of the de minimis exemption should be? Should it be qualified, or refined, further than proposed in the consultation document?

The exemption should extend to any case where the value of the object derives primarily from the workmanship rather than from the materials incorporated.

What thresholds of ivory content should be set for a de minimis exemption, by either percentage, volume or weight?

As argued above the test should rather focus on the source of value. Where a portrait miniature is worth say £1000 but the thin sheet of ivory on which it is painted is worth say £50 the position will be clear. It will be said that since there is no market in unpainted ivory sheets the second value cannot be provided, but it is obviously underpinned by the price of the lowest value miniature of the same size. However it would be helpful if the Government were to produce a fixed scale showing the material value of ivory sheets of various sizes and weights which would make it simple to see that specific items gained exemption on this basis.

As a further illustration of the definitional problem, consider the portrait miniature which consists of a thin layer of watercolour weighing less than 1 gm applied to a small oval sheet of ivory (of say 3×2 cm, weighing perhaps 5 gm) set in a gold box weighing perhaps 100 gm. Or the same miniature removed and set in a cheaper, smaller and lighter mount. All that will happen with any set of rules based on such parameters is the vandalism of removing mounts to pass specific tests.

Consider further the problem of some miniatures executed on card where the artist has inserted a small slip of ivory underneath the faces to achieve a certain luminosity. I describe this technique in my catalogue of the works of Jacques-Antoine-Marie Lemoine (Gazette des Beaux-Arts, February 1999). Should these miniatures fall on a different side of the line than the rest of his oeuvre in miniature?

How should the de minimis exemption operate in practice?

It would be helpful if there was a general exemption for things like portrait miniatures where it is obvious that the test I propose above would be fulfilled. Any system of expert certification (for fees) is likely to interfere with owners’ quiet enjoyment.

What do you think the scope of the items of artistic, cultural, or historic significance exemption should be? How should artistic, cultural, or historic significance be defined?

Any object valued primarily for its artistic, cultural or historic significance rather than for its intrinsic material content.

 Do you agree that the Government should include an exemption to allow continued sales of items containing ivory to museums or between museums?

Yes and no – i.e. only on the general approach set out in my other answers.

I am puzzled that there should seem to be specific encouragement for deaccessioning.

I am also sceptical that “museums” should enjoy special rights over private collections, which are sometimes owned by specialists who take at least equal care over their objects. Museums are not the only sources of cultural validation. Museums often store unfashionable objects out of sight and measures which simply result in expanding these storage facilities and deprive those really interested in these possessions cannot be in the broader public interest. Private collectors can serve a vital role in preserving heritage which happens not to be valued by current museology. When tastes change, loans from private collections often turn out to be significant items in exhibitions, and in most cases private collectors will make their work accessible to serious academic researchers.

Has thought been given as to the definition of museum? Would it for example permit me to sell (or even donate) my miniatures to the Louvre (who have a far greater interest than any UK museum would have)?

It should be observed too that the international dimension seems to have been ignored wholly in this consultation. Even for exhibition loans, the existence of different sets of rules for each jurisdiction (including those in transit) vastly complicates the paper work and administration. But if works can be given or bartered with parties unaffected by UK rules, they will be completely ineffective.

Do you have any views as to which public body should be responsible for enforcing the ban?

If as proposed in the paper the exemption extends only to “significant artistic, cultural or historical value”, it will as the paper suggests require some form of control. The paper suggests a “certification scheme administered by a panel of licensed specialists”. I very much doubt that will be workable in practice. Where (as in the case of portrait miniatures) much of the expertise is with the trade, how are conflicts of interest to be avoided?

Similar proposals in the field of copyright have led to expensive and bureaucratic collecting agencies being formed for the purposes of extracting profit from silly rules. This has nothing to do with protecting wildlife.

It will be tempting to suggest that such a panel operate on a similar basis to the Arts Council’s Reviewing Committee for the Export of Works of Art (a committee on which I myself have served). But even there, where the Waverley Criteria have been honed over many years, they can be difficult to apply. Setting the new criteria for ivory objects is likely to be exceedingly difficult. Further, the RCEWA works effectively because the committee is large enough to represent a wide range of views, and these members serve for no fee because the works they consider are of national importance and we regard it as our public duty to offer our advice.

Assembling similar committees for a vastly larger number of cases would be extremely difficult in practice. It would be harder to recruit specialists to serve since most of the items will be of far more specialized interest than those referred to the RCEWA. This will lead to bottlenecks, delays and expense that would be devastating to the antiques business and highly detrimental to London’s position as the centre of the world’s art trade.

Do you have any views as to the sanctions that should be applicable to those found to be in breach of this ban?

Significant sanctions should only be imposed on those who deliberately or dishonestly seek to avoid the rules. Dependent on the final form of the exemptions, inadvertent breaches seem highly likely (this is the usual result of absurd and draconian legislation) and should not incur criminal penalties.

Do you think that it should be for those involved in the sale to demonstrate that an item falls into an exempted category?

No. It is this which is the most chilling feature of the proposals. Almost all other criminal law requires the state to prove its case. The proposal seem to envisage that collectors should be required to go to considerable expense to justify what in most cases (assuming a sensible exemption system is introduced) is blindingly obvious. If you own a miniature by Smart or Hall why should you have to pay someone (who probably knows less than you about it) to confirm the fact?

 Do you have any views as to the sanctions that should be applicable to those found to be in breach of this ban?

Significant sanctions should only be imposed on those who deliberately or dishonestly seek to avoid the rules. Dependent on the final form of the exemptions, inadvertent breaches seem highly likely (this is the usual result of absurd and draconian legislation) and should not incur criminal penalties.

Do you have any other comments about this proposed ivory ban?

No measure in relation to antique works of art will save any elephant. The proposals have been revived purely because the minister hopes to secure the animal welfare vote, not because they will assist London to maintain its antiques trade. If implemented as envisaged, they run the risk of inflicting hardship on that trade, and misery on the collectors whose enthusiasm, knowledge and dedication to their interest would under all normal circumstances be regarded as wholly laudable.

It is time for ministers to abandon populist measures and revert to intelligent government. The proposals should be dropped.

Postscript, 14 October

An eminent Continental miniatures expert has drawn my attention to a similar issue in France. Last year a blanket ban on ivory trading was proposed, but after vigorous lobbying the proposals were amended to restore sanity to the antiques business. All works made before 1947 (as self-certified by vendors) are exempt. Here is the account which appeared in La Tribune de l’art on 15 May this year:

Patrimoine – Ivoire et isolation par l’extérieur – Un arrêté paru le 17 août 2016 au Journal Officiel traduisait dans un texte ce que la ministre de l’Environnement avait annoncé : rendre illégal tout commerce de l’ivoire. Certes, cet arrêté prévoyait des dérogations pour les œuvres fabriquées avant 1975. Mais la dérogation devait être demandée systématiquement, pour chaque objet, selon une procédure très lourde. Le préfet avait quatre mois pour répondre faute de quoi la décision était réputée négative. Il était presque impossible pour les antiquaires et sociétés de vente aux enchères d’entamer une démarche aussi chronophage pour des objets qui souvent ne valent que quelques milliers d’euros, et l’administration n’aurait de toute façon pas pu traiter toutes ces demandes si elles lui étaient parvenues, faute d’effectifs. Du coup, le commerce d’œuvres en ivoire était devenu pratiquement impossible ces derniers mois en France. L’arrêté interdisait également « l’utilisation commerciale » de l’ivoire ce qui en toute logique empêchait par exemple les expositions d’œuvres d’art en ivoire dans un musée sans que celui-ci demande une autorisation (en trois exemplaires, avec un délai de quatre mois pour la réponse).

Les différents syndicats du marché de l’art – aidés par le ministère de la Culture, nous a dit Jean-Pierre Osénat, président du Symev – ont donc entamé de longues discussions avec le ministère de l’Environnement et les associations de protection de l’environnement afin de leur expliquer pourquoi il fallait faire évoluer ce texte. Et ce travail a été efficace puisqu’un nouvel arrêté a été publié, qui corrige en grande partie les défauts du premier. Seul le commerce de l’ivoire brut ou des objets modernes exécutés en ivoire (et en corne de rhinocéros) est interdit, l’achat et la vente d’œuvres d’art anciennes étant autorisé dans les conditions suivantes :

  •  les objets fabriqués avant le 2 mars 1947,
  •  les objets fabriqués entre le 2 mars 1947 et le 1er juillet 1975 composés en tout ou partie d’ivoire ou de corne, lorsque la masse d’ivoire ou de corne présente dans l’objet est inférieure à 200 grammes.
  •  les touches et tirettes de jeux en ivoire des instruments de musique à clavier ;
  •  les archers des instruments à cordes frottées.

Par ailleurs, l’utilisation commerciale est autorisée « lorsqu’elle a pour seul but leur présentation au public à des fins scientifiques ou culturelles par des musées ou d’autres institutions de recherche ou d’information scientifiques ou culturelles ».

Remarquons néanmoins que toute vente et utilisation commerciale d’un objet en ivoire ou en corne devra faire l’objet d’une déclaration qui sera entrée dans une base de données nationale. Le vendeur devra également garantir l’ancienneté de l’œuvre. Ces deux dispositions ont pour objectif de suivre le commerce et de s’assurer que les objets vendus sont bien anciens. Des dérogations sont également prévues pour les restaurateurs qui peuvent travailler à partir d’ivoire importé avant 1975.

From → Art history, Justice

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