This month, auction house Christie's published its catalogue for a sale in London that includes a beautifully carved quartzite head bearing what appear to be the features of the Egyptian Pharaoh Tutankhamun. More than 3,000 years old, the bust was made during the short-lived Amarna period, one of extraordinary innovation where sculptors and artisans began making more lifelike resemblances of their subjects. The nose and parts of the ears are damaged slightly, but otherwise the 28.5-centimetre-tall head is in remarkable condition. Christie's listed the price at £4 million (Dh18.6m).
Only a week later, allegations about the work began to circulate. The narrative in the media changed from that of an exemplary and rare work coming to auction, to Egypt's cultural patrimony being put on sale to the highest bidder. Egypt's Minister of Antiquities, Khaled Al Anani, convened a National Committee for Returning Stolen Artefacts, to try to halt its sale. Zahi Hawass, an archeologist and former Egyptian Minister of Antiquities Affairs, expressed outrage at the idea that the bust would pass into private and/or non-Egyptian hands.
"Christie's has no ethics at all by selling this piece," Hawass tells The National. "They don't have any legal documents that prove they took it legally.
Egypt will never let this go. We have let other things go, but to have a piece of a unique golden king like Tutankhamun, this piece should be in Egypt, not on sale to the world."
The provenance supplied by Christie's shows this bust was already out of the country by then, either in the collection of Prinz Wilhelm von Thurn und Taxis in the 1960s, or an Austrian dealer from the early 1970s. If Christie's documents, which they published widely, are authentic, Egypt has no basis on which to sue.
Rather, as Hawass, a veteran of repatriation campaigns, well knows, the only claim Egypt has to the bust is moral, coming on the back of a long history of western appropriation of its cultural patrimony. A main tool they have is international pressure, whether by media coverage or by persuading museums not to bid for or accept the bust after the Christie's sale, as Al Anani's committee attempted to do via a letter circulated to major world museums.
"There are many pieces that have left Egypt illegally," Hawass says. "The Nile was raped in the past two centuries, and also there are many antiquities thieves who damaged the spiritual value of the pharaoh by cutting statues from temples and looting tombs. I claimed, during my time as head of antiquities, 6,000 artefacts back to Egypt."
How did he do this? He pauses. "I threatened museums. If any museums should buy a stolen artefact, I said they should return it."
Hawass was by and large successful during his tenure, persuading, for example, the Louvre in Paris to return four reliefs, carved stone artefacts originally from near the Luxor Temple, in 2009.
A familiar family fight
But the struggle over the bust of Tutankhamun comes during an escalating conflict between source countries – places such as Egypt, Italy and Peru, that are rich in archaeological treasures – and the antiquities trade, largely based in the West. Both sides are now lodging and contesting restitution claims more robustly.
Tatiana Flessas, who teaches cultural heritage law at the London School of Economics, explains that the problem with the antiquities market is that much of the material is in the "grey market". "The way that Egyptian antiquities are in the international art market at all is through partage, that would be considered the white market or the licit market, or through being looted, the black market," she says. "But in between there's a grey market which is based on individual actions – for example, picking up pieces during wartime or as part of colonialism – and on pieces with unclear provenance: 'this was in my great-grandfather's collection in Alexandria in the 1930s'. Well, if there isn't proof of that, it's part of the grey market. And over time, things in the black market become the grey market, and at some point everyone cuts their losses and everyone can trade freely."
But she says countries such as Egypt and China are now enforcing their national patrimony laws more strongly, questioning how objects such as the Tutankhamun bust, that have long been in European collections, have been exempt from new laws. "Now, when you have something like the aggressive use of the national patrimonial law, plus things that are in the potentially grey market, people are saying things like, 'how do you know this export license wasn't forged? What did you mean, Lebanon or Syria in the 1940s? Where did you really get this item?' At this point, you have a bifurcation of the argument," Flessas says.
"The case Egypt is making is the sort of argument the Greeks made with the Parthenon Marbles, where we have to draw a distinction between the legal and the moral. That's really a political argument. Every year one of my exam questions is whether cultural property is really a political issue, not a legal one? Egypt are saying, 'maybe it's legal, but it's not right'. That argument is infinitely fresh and able to be refreshed. But auction houses are fighting back."
Despite the increasing pressure on both sides, source countries and the antiquities trade find themselves trapped in a stalemate, a recurring family fight in which each party easily, unhappily resumes their role. The arguments against restitution are mostly absent from press coverage, though they circulate even among those who favour repatriation in principle and have spent their careers combating the illegal trade of antiquities.
Is repatriation a 'victimless' act?
James McAndrew, a former US Homeland Security agent who set up a major framework for investigating international art theft, says Egypt's policy of waiting to find things in auction catalogues fails to be part of a broader anti-looting strategy. "They seize things, but they don't have a registry and inventory system," he says. "I understand, we don't know what's under the sand today, but there are ways to surveil that, to minimise it. Egypt has done little to stop the flow of archaeological objects out of their borders." McAndrew, who is retired, now consults for a law firm that often represents members of the antiquities trade.
The potential of any item being subject to a repatriation claim when it comes on to the market is also strangling the trade, McAndrew says, as in the case of works that have been in family collections for a long time. When they come newly to market, they appear to have been looted because most often collectors cannot find original export permits or receipts, which, as Flessas says, often do not exist.
Once claims are made against dealers and auction houses, it deters future sales, and tangibly affects those whom the claim is made against, whether by mounting legal fees or reputational damage. "To repatriate something often looks like a victimless adjustment, and it is sometimes the right thing to do. Also, repatriation is a way of correcting historical wrongs," Flessas says. "But as a political tool, repatriation claims have to be carefully considered because artwork and antiquities have all sorts of other meanings and values. These pieces should not be used only as political capital. It's not good when the market gets hurt, the dealers, the collectors get hurt, possibly the museums get hurt also, one way or another, and to an extent the public's chance to see the work."
The problem is less whether cultural property should be returned, but that there is no clear logic or legal framework accepted by both sides that determines which works will be subject to a repatriation claim, and which works will be left alone in museums or private collections.
"Where does it stop?" asks McAndrew. "It's like shooting fish in a barrel. You and I could walk though the halls of the Metropolitan Museum of Art, and we could blindfold you, and spin you around 10 times. The first piece of art you point your finger at, we could say, we want the backup for that. That's exactly what museums don't want. Then flip it over. How could Egypt or Italy or Peru walk into a museum and they have hundreds of objects on display, let alone the thousands in their basement that they're afraid to bring up, but they only want two? Why the selectivity? This is the politics. There's no law here. It's law enforcement without law."
"Shooting fish in a barrel" might be a slight exaggeration. Hawass, for instance, acknowledges this selectivity, noting the bust's uniqueness among the 5,398 objects discovered in Tutankhamun's tomb. The head, he says, is the only one made of stone. Tutankhamun is the most the most famous Egyptian pharaoh, meaning the piece plays a clear role within ongoing Egyptian history.
Christie's, which declined to comment, quite possibly knew there would be a claim made against it, and it is significant to note that they are going ahead with the sale on July 4 anyway. As part of a general move within the antiquities trade towards greater transparency, they published the provenance widely and would have researched it extensively with their cultural heritage department.
The industry has as much financial incentive as anyone else to make sure they are not trafficking stolen goods. Flessas says, "The only reason they're changing is because there are now laws against looting. And the way the marketplace works is through the internet, so people can look things up, and publication isn't only to a small group of the elite any more. They have to be more accountable, and thus they are".