In recent years, the concept of business ethics has received considerable attention. This notion requires companies become more cognizant of the impact of their business practices on society as a whole, and many businesses have made modifications to their operations in order to be more socially responsible and ethical. Business ethics turn matters previously handled by the legal department into issues designed for public relations campaigns to address. This allows businesses to preemptively manage risks before they become real problems. Business ethics have become more international in scope and function, and pervasive throughout diverse industries. The auction industry, however, has not yet truly embraced the notion of business ethics. Ethical issues involved in excavations and how they are related to the art market are better answered when looking at the role of ethics in the businesses that selling objects excavated from cultural sites, especially when objects since 1970 should not be leaving their source country legally. The auction house is one of two ways antiquities are sold in the Art World, the other being by dealer, who often purchases through auction houses anyway. Because of this, it is necessary to define what ethical role auction houses should assume concerning the illicit antiquity trade.
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Cultural preservation is ethically worthy because of the impact cultural loss has on individuals and communities. When a society loses its cultural resources to looting and illegal exportation, the cultural lives of its members suffer. Removal of archaeological remains from a source culture robs individuals of their right to cultural heritage  . The Stockholm Declaration published by the International Council of Monuments and Sites (ICOMOS) recognizes the right to cultural heritage as a fundamental human right  . The Council of Europe Framework Convention on the Value of Cultural Heritage for Society  similarly recognizes the right of people to cultural heritage. The United Nations Draft Declaration on the Rights of Indigenous Peoples  goes even further and suggests that native people should have autonomous control over cultural resources within their local territory. Discovery of cultural artifacts is not just about knowledge and objects, but also about a reassurance of ancestry.  In countries where people are commonly of mixed ethnographic descent, archaeology creates a common national pride. For every artifact a creator culture loses to smuggling or theft, people are denied the pride, virtue, and confidence, which would have resulted from caring for it.  Archaeologists have argued that taking away archaeological remains damages the collective psyche of a source culture, and steals a part of their identity.
In some cultures, removal of respected objects from their traditional setting is an act of desecration (for example, when temples are defaced to remove carvings or when looters searching for treasure tear tombs apart). Historically, oppressive dominant cultures have destroyed the cultural relics of minority cultures to disempower them. One example is the 2001 destruction of the Bamiyan Buddha figures by puritanical Muslims in Afghanistan  . When sacred objects are taken away by exportation or deliberate destruction, in varying degrees, the right of a people to their cultural heritage is denied. If people have a fundamental human right to cultural heritage, they should also fairly benefit from their cultural resources. Looters receive small amounts of money for nonrenewable cultural objects, which might ultimately sell for very high prices. The objects are commoditized on the Western market and circulate for many years generating money. None of this money makes its way back the source cultures. In this way, the trade in looted objects undermines a community's economic base, taking away from the source culture a nonrenewable resource and the opportunity for sustainable profit. Illegal removal of cultural remains, whether by looting or unauthorized exportation, also takes away the chance to significantly study an artifact. If an artifact is non-expertly excavated, the archaeological record of context is usually damaged or destroyed, often irreparably, therefore eliminating the potential for scholarly learning from its excavation. An object's original social value and purpose may be lost entirely, preventing anthropologists and archaeologists from adding to their historical knowledge base. Further, when an artifact is removed from its natural surroundings, there is an increased risk of decay and destruction because of changes in the environment. To preemptively excavate and export is to take away the chance for the people of a source culture to rediscover their history by way of the lost context and meaning.
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In a world where globalization is slowly and systematically diluting cultural and ethnic differences between populations, sources of knowledge about a people's past become precious in retaining a sense of identity. The removal of sacred objects from the care of a source culture damages morale because community members lose something expressively precious. When the European colonists of North America wanted to demoralize indigenous people, they stripped them of their native clothes and cut off their hair. Taking away physical, tangible manifestations of cultural connections undermines a community's very identity. To facilitate the trade in objects whose loss demoralizes a people, is to trade in demoralization itself.
There is an inherent tension between the law and ethics in arguments advocating heightened regulation of the auction industry as a way to stem the illicit trade in cultural property. This tension is borne of the persistent failure of legal solutions to adequately address the ethical problems of the illicit antiquities crisis. Arguably, legal regulation may frustrate the ethical goals of cultural preservation and protection of creator cultures. In foreign law, culturally insensitive patrimony laws can conflict with the ethical goals of minority creator cultures. Domestically, the prevailing property model has proven itself inadequate to protect the interests of those creator cultures, which lack a legally cognizable property interest.
Academic discussion on the illicit antiquity trade often reprimands parties to illegal transactions on moral grounds. However, the resulting correlation of legal initiatives with ethical concerns is ill conceived. Source nation's patrimony laws, for instance, do not always protect creator cultures. Patrimony laws are property laws, and sometimes those laws benefit the government more than they benefit nationals. Governments sometimes draw country borders without regard to the past and present territories of ethnic groups. Some administrations have no ties to the ethnic groups, which incidentally fall within the country's borders. The interests of a source culture can come in direct conflict with the government interests served by a national patrimony law. Viewed in the proper context, the illicit antiquity trade and the unethical antiquity trade becomes two distinct, partially overlapping categories. If a national government appropriates cultural property by way of a broad patrimony law, and the creator culture is not compensated for the taking, then a legal action may still be unethical.
Consider the Holocaust, where the Nazis expropriated cultural property from Jewish nationals in
what were, according to the reigning regime, legal actions  . Current efforts to curb the illicit trade do not fully consider the interests of cultural property laws, and the ethics of preservation do not necessarily coincide. By distinguishing between the legal and ethical concerns of illicit trade, auction houses can better tailor remedies for both. Until the houses recognize this distinction, efforts to stem the trade will fail to adequately protect creator cultures or address the damage caused by the illicit trade in cultural property.
Risk management protects a company's brand name, and sometimes motivates businesses to develop ethical models for business operations. The leading auction houses have been working for over 200 years to build reputations, which remain far too fragile in view of how important they are to business. One corruption scandal can severely mar a company's good reputation and brand image
Auction houses currently focus, almost exclusively, on legal compliance. By stressing their devotion to legal compliance when asked about ethical matters, auction houses are legitimizing the notion that they believe legal solutions effectively address the social ills of the illicit trade. Even if an auction house obeys the cultural property laws of every source nation, including those, which are, overbroad, published in obscure foreign languages, or unenforceable in the United States, they may nonetheless facilitate the illicit trade in cultural property and the resulting social harms. A strategy based on legal compliance further fails to mitigate the public perception that the business practices of auction houses are self-serving and unethical. The auction houses are, inarguably, facilitators of the illicit antiquity market. But if the houses considered cultural preservation and the protection of creator cultures as important ethical goals, the public could perceive them as protectors of the public good instead of enablers of a
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self-serving, patrician market satisfied with legal compliance. Therefore, if the auction houses adopt a supplementary ethical framework, they may also experience the business benefits of a further reduced risk of liability and an improved brand image in the eyes of the public.
The major auction houses have responded to public criticism and growing risk of liability by revising their internal policies to go beyond local and national regulatory requirements  . They have recognized that they are the primary facilitators of this quasi-black market. Despite the desire of auction houses to go beyond mere compliance, the demands made of them by foreign governments are murky, fragmented, and sometimes impossible to effectuate because of over breadth. This leaves the auction houses in a constant struggle to comply with regulations, despite not always knowing how to comply, and it leaves them at constant risk that any apparently innocuous transaction could result in unavoidable and damaging headlines, or even civil liability. There has been substantial debate as to what ethical duty the auction houses have in investigating beyond what their clients tell them. However, it is difficult for them to do so because information on stolen and illegally exported artifacts is widely dispersed and not always easily accessible  . It is difficult for an auction house to discover the origin of a specific item even if they conduct a thorough investigation  . Further, the houses explain that they do not have the resources to run their own Interpol  . Despite high revenues, auction houses have thin profit margins. Given limited resources, the auction houses argue that the best they can do is to make thorough inquiries of sellers, require provenance paperwork for potentially protected items, and publish their catalogs to provide a way for private and governmental parties to search for specific objects. Although there is no legal requirement to do so, the houses publish catalogs which picture what items are coming up for auction. Christie's
even sends hard copy catalogs to source nations before an auction begins. This gives the source nations the opportunity to examine photos and search for missing objects. Christie's also puts upcoming auctions on their website in a searchable database called LotFinder  . Similarly, Sotheby's and Bonham's have freely accessible web pages where they publish photos of objects to be sold in upcoming auctions  . Advance publication of catalogues is one of the many internal policies auction houses have implemented which go beyond strict legal compliance, and help manage risk. The houses also demand more documentation of sellers than is required under law. While much of this voluntary regulation is intended to avoid legal and public relations problems, a spirit of ethics has consequently started to emerge. The Sotheby's Code of Business Conduct and Ethics (Sotheby's Code) is part of their Corporate Governance paperwork, and available to the public through the investor relations section of the Sotheby's website  .101 The Sotheby's Code purports to establish a culture of ethics for employee actions both internally and externally. With a business-oriented mindset, Sotheby's directs employees to do what is ethical by obeying all laws. It encourages "ethical conduct," upholding of "ethical standards," reporting of "unethical behavior," and the making of "ethical decisions," although it never defines the term "ethical." Nonetheless, the Sotheby's Code does include: compliance with the laws, fair dealing, confidentiality, conflicts of interest, insider trading, and reporting of illegal behaviors. The Sotheby's Code speaks of ethical behavior and legal obligations coextensively, but indicates, as of this point; Sotheby's interest in the former is largely borne of its responsibility under the latter. The Sotheby's Code is a curative effort to address previous auction industry practices. For instance, in a 1997 scandal, news reports accused Sotheby's of London of knowingly facilitating the illegal looting and exporting of protected artifacts out of India, Italy, and Egypt. The Times of London alleged Sotheby's was "actively engaged in flouting the laws of several countries." As a result, Sotheby's has modified its antiquity collection, and only auctions off items of unquestionable provenance in London. If an object does not have established provenance, Sotheby's will only auction the item out of their New York location.
Despite increased legal regulation and cooperation on the part of the auction houses, the black market trade in antiquities continues unabated. Every year, looters open up new sites, and every lost artifact further erodes the heritage of creator cultures. A looted Djenne-jeno terracotta figure slipping past Malian customs officials is not tragic because the state just lost an item of "national importance," but because in the wake of globalization and encroaching development, the Bozo people lose more of their cultural selves every year. The terracotta figure goes to auction and ends up in an executive's curio cabinet, while the creator culture struggles, and starves, and forgets from where they came. Viewed in this light, the ethical concerns are bigger than a simple violation of foreign patrimony laws. Legal solutions to the thriving black market in antiquities do little to address the social consequences of the trade, and sometimes work against other ethical concerns. For as long as the auction houses define their ethical behavior by way of their legal obligations, they will fail to comprehensively manage risk, and will forgo opportunities to improve their brand image. When auction houses implement ethical strategies supplementing those focused on regulatory compliance, there will be two results. First, cultural preservation interests will be furthered and creator cultures better protected, because ethical initiatives address social concerns while those focused on regulatory compliance do not. Second, auction houses will be better equipped to combat bad press, restore their brand images, and manage the risks associated with auctioning antiquities. In both ways, a supplementary ethical framework is a tailored response to the crises of cultural preservation, borne of the illicit trade in cultural property.