This article is taken from Paul Howcroft’s blog Art Law London
Ivory is a complicated subject, legally and morally.
The killing of elephants for their tusks is abhorrent and doing so, and trading in ivory, are internationally outlawed. Where it gets problematical is with art and antiques. Since prehistoric times, ivory has been used to create objects of art, or components such as piano keys, or to ornament items such as jewellery or furniture, sometimes to only a very limited extent. Opinions vary as to how such objects should be dealt with, from compulsory destruction, to make a point, to leaving alone, as any wrong involved cannot be undone, and issues of cultural heritage and scholarship can arise.
Fortunately, I do not have to decide laws, just work with them. For cross-border ivory movement, the starting point is an international treaty known as CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora), on top of which individual states have their own related laws and regulations. If those can be satisfied, licences are required for exporting and importing.
I recently had a case where a highly respectable London dealer, specialising in Indian and South East Asian Art, had bought some 17th century Indian carved ivory Yali brackets at Bonhams in New York. These small items, the largest only 15cm high, would have formed part of a processional mandapa (temple hall), an elaborate structure that carried sculptures through the streets during special festivals. The brackets are very rare, and examples can be found in the Victoria and Albert Museum and the Los Angeles County Museum of Art.
Unfortunately, due to an error on the part of the dealer’s carriers, the items arrived at Stansted Airport with inadequate evidence of the US export licence that had been obtained. As a result the UK Border Force seized the brackets and prepared to destroy them. Although there could have been a claim against the carriers, the dealer’s main concern was the preservation of these important items. He demonstrated what had happened, and he even offered to donate them to a museum, but UKBF would not be moved. They said the dealer should have made a new retrospective application to the US, and that he was at fault for not doing so, although such an application appeared to be impossible.
Enter the lawyers. The dealer’s legal team consisted of no fewer than three art lawyers: the English barrister Jessica Franses, me as solicitor conducting the case, and US attorney Nicholas O’Donnell, the last being able to attest to the impossibility of a retrospective licence. A tribunal appeal was launched in November 2013. Statements were obtained, including expert evidence on the historic and cultural importance of the items, but the UK Government’s lawyers remained unmoved. Finally, after almost two years, and just two days before the trial, the UKBF caved in and announced that the decision had been reviewed and that the brackets could be collected from the airport, where they had remained.
There are a number of points to be made. First, dealers and their agents and contractors must take the greatest care to get the paperwork right. Secondly, customs organisations can be very strict and inflexible. Thirdly, they will happily destroy valuable art and cultural heritage. Finally, it can take a lot of time, effort and determination to get them to see reason and act fairly, but it can be done.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)