This is a shortened version of a contribution to the online symposium ‘Cultural Heritage in a Post-Colonial World’ of the Völkerrechtsblog
One of the most noble incarnations of a people’s genius is its cultural heritage. The vicissitudes of history have nevertheless robbed many peoples of this inheritance. They .. have not only been despoiled of .. masterpieces but (were) also robbed of a memory .. These men and women have the right to recover these cultural assets which are part of their being... [Secr.Gen. UNESCO M’Bow, 1978]
Forty years after this plea and some twenty declarations of the UN General Assembly on the subject later, the future of colonial collections in European museums has become a topic of heated debate. French President Macron set the tone for this with last year’s statement that it is unacceptable that Africans have to travel to Europe to learn about their own culture. He announced a policy of restitution of African artefacts.
The return of treasures taken during the era of European imperialism from indigenous communities is a controversial issue. A common response is ‘it was legal at the time’ and, therefore, not a legal issue. Is that indeed so? In this contribution, I argue that it is not a lack of legal norms that explains this belated discussion, but the asymmetrical application of norms. A human rights law approach, focussing on the heritage aspect of cultural objects and their importance for (groups of) people today, offers useful tools to address the intangible interests at stake in such disputes.
Existing legal norms
Cultural objects have a protected status in international law because of their intangible ‘heritage’ value to people: objects as symbols of a cultural identity. And it is precisely this identity that is often targeted in looting practices. The Arch of Titus in Rome, depicting the spoils taken after the sacking of the Temple in Jerusalem, visualises this clearly. Identity was at stake in Nazi looting practices, and similarly in the colonial context. European powers, for example, justified their presence in Africa by referring to their duty to bring to the ‘natives’ the ‘blessings of civilization’(see the 1885 Berlin Conference Act).
That being so, it is remarkable to note how old the notion is that harming other people’s cultural objects is ‘uncivilized’. Cicero in his famous Verrines argues for example that, while pillage was allowed, an honourable Roman should show respect for the culture of defeated people. Through writings of Grotius and De Vattel and a series of peace treaties, this notion gained legal importance. The 1815 Treaty of Paris, arranging for the restitution of looted artefacts after Napoleon’s defeat, is generally seen as a key moment in this development. This process continued in the 19th century to be codified in the Hague Regulations concerning the Laws and Customs of War on Land of 1899 prescribing that ‘All seizure of [..] works of art or science, is prohibited, and should be made the subject of proceedings’.
Eventually, after massive looting during the Second World War, (non-retroactive) multilateral treaties were concluded that firmly set the norm that misappropriated artefacts should be returned.
And although the ‘modern’ treaty norms cannot be invoked to support restitution claims based on losses that occurred further back in time, the seizure of artefacts in the course of (punitive) military actions may well be considered unlawful by contemporary European standards.
As not all colonial acquisitions can be seen in this light, the return of cultural objects after decolonization may better fit with concepts of state succession and self-determination. After the dissolution of the Austrian-Hungarian empire in Europe, for example, cultural objects were redistributed to successor states on the basis of territoriality. In fact, such state practice convinced scholars such as De Visscher and Kowalski after the Second World War that territorial provenance of dispersed cultural patrimony was an emerging (and even customary) rule of international law.
Colonial takings: a sui generis category?
And indeed, the 1973 UN General Assembly Resolution ‘on restitution of works of art to countries victim of expropriation’ seemed promising for former colonies. It linked the return of cultural objects to independence, being a necessary element of the cultural development of new states. The 1975 Dutch-Indonesian agreement to return objects ‘directly linked with persons of major historical and cultural importance or with crucial historical events’ may be seen in that context.
On the whole, however, former colonial powers did not return colonial collections. Hence, a separation between two scenarios of state succession became the legal reality. Colonial takings were to be discussed as a matter of ‘return’ on moral grounds in the setting of the UNESCO Committee on the Promotion of Return of Cultural Property, as opposed to ‘restitution’ on legal grounds in the European context. Vrdoljak gives insight in a process where former colonial states acted on the basis of the paradigm that it is in the best interest of civilization for them to be custodians of the material culture of their former colonies. The 2002 Declaration on the Value and Importance of Universal Museums may be seen in this light.
Evolving norms: soft law and UNDRIP
Claims on works of art that were misappropriated in the past – before the implementation of recent conventions - are, generally, not supported by positive law. This is being increasingly challenged by soft law instruments. They focus on the need for (i) provenance research by museums (telling the story); (i) good faith negotiations with source communities or former owners (dialogue) and (iii) equitable solutions for claims.
The 1998 Washington Conference Principles on Nazi-Confiscated Art follow, amongst others, this outline. They opened the door to claims by heirs of former owners of artefacts looted by the Nazis, in spite of a number of legal obstacles under positive law.
In the case of colonial losses, the 2007 UN Declaration on the Rights of Indigenous Peoples deserves attention. It contains a right of redress with respect to cultural objects taken without the ‘free, prior and informed consent’ of indigenous peoples and, potentially, would seem to cover involuntary loss by source communities in Africa just as in settler states. Depending on the cultural importance of the specific artefact (think of ceremonial objects) redress may vary from a right to ‘access and control’ to a right to repatriation.
A key element of this model is its reliance on rights implicated by a continuing human rights violation of remaining separated from certain cultural objects. This, as opposed to a focus on the unlawfulness of the acquisition at the time in a traditional (property focused) approach. Another noteworthy element is that communities – not states – are right-holders.
State practice in this field has an ad-hoc character. An example: the 2011 French transfer to South-Korea of scrolls, pillaged during a punitive raid in 1866, as opposed to the 2016 dismissal of a return request by Benin of the Abomey treasures, pillaged from the royal palace during a punitive raid in 1892 and kept in France. Indigenous groups in settler states and countries that gained power over time seem to take the lead. For example, the right of New Zealand’s indigenous groups to repatriation of Mokomokai (preserved tattooed human scalps collected as ‘exotic’ specimens) seens more and more accepted. And at this moment, in Canada a law is under review introducing a policy of repatriation of indigenous cultural objects from foreign museums where returning museums would receive exact replicas, to be produced by the concerned peoples: international cooperation as a positive side-effect of restitution. And recently, in May 2018, the Berlin state museums returned artefacts that were robbed in the 1880s from gravesites in Alaska (US).
While the problem of looted art may be complex, legal principles do exist. Lessons could also be drawn from experiences in the field of Nazi-looted art. One such lesson is that stolen goods ‘do not fare well’ - certain stories need to be told -, and another is that clear standards and neutral claims procedures are needed if justice is our objective. Otherwise, the field may remain a matter of power-politics.
Cite as: Evelien Campfens, “Artefact or heritage? Colonial collections in Western museums from the perspective of international (human rights) law”, Völkerrechtsblog, 24 September 2018, doi: 10.17176/20180924-095413-0.’