Beyond Between’ by @solavisions. Reproduced with the kind permission of the artist exclusively for the purpose of this symposium on Völkerrechtsblog.

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When Did Everyone Start Talking About Heritage Restitution? And What Does International Law Have to Do with This?


Not that long ago, few questions were asked around museums, the objects they own and the histories of how they landed on display. In popular culture, a scene in the 1981 movie Indiana Jones and the Raiders of the Lost Ark reflects this normalisation of looting. After a perilous excursion in Mesoamerica, Dr Jones returns to New York with the idol he captured in a crumbling temple, lost in tropical vines. But his friend and colleague from the Museum reassures him: ‘The museum will buy everything as usual, no questions asked’.

If George Lucas and Philip Kaufman were writing this scene today, they would in all certainty have scripted very different dialogues. Indeed, since then, much has changed in the public’s perception of cultural property. Law has also increased its presence in the museum. Curators and private buyers are no longer free from legal obligations when they acquire art. They need to exercise due diligence, or they might be exposed to a criminal inquiry.

Moreover, this past decade, activism and academic research have increased our awareness of injustices of the past. Centuries of colonisation and exploitation have substantially determined the fact that museums in the West own collections of art that originated from their former colonies. This short essay historicises the development of restitution from museums. It sheds light on the mutual influence of post-colonial studies, art crime, and international law.

Collecting Antiquities: Parochial World Views and Criminal Entanglements

Since the 1980s, the cultural property narrative within museums shifted from a universal narrative to a national narrative. Scholars in critical heritage studies raised suspicion around phrases such as ‘cultural heritage of humanity’ as it appeared that Western Museums made use of it to justify the fact that they owned objects looted from indigenous and colonised nations. In this past decade, the universal narrative has lost the public’s unconditional trust. While the consensus remains that cultural heritage should be preserved and looked after, the public opinion leans in favour of heritage being preserved in its place of origin.

Recent research has revealed that the previously reigning universal narrative has hinged on imperialist nostalgia. Institutions have claimed that they were preserving universal heritage for future generations to cover for the lack of ethics in their collecting activities. This served to ‘launder’ a past of looting. Indiana Jones-like personalities have existed. They were curators, archaeologists, or academics who travelled the world. They acquired outstanding treasures for themselves and museums. The romanticised reality of their profession suffered when criminal charges started being pressed against established names of the art and museum world. Emma Bunker and Douglas Latchford, for instance, were active in Southeast Asian archaeology mostly in the nineties and early two thousands. Bunker donated many pieces to the Denver Art Museum to which she remained connected throughout her career. Latchford also ‘gifted’ items back to the National Museum of Cambodia. The pair appeared in a criminal complaint, and it soon became clear that the antiquities they traded for most of their careers had been looted from temples in Cambodia and Thailand. Major museum curators, including those of the Getty and the Louvre, or private collectors and so-called philanthropists such as Michael Steinhardt or Shelby White, have gone under criminal investigation and taken a reputation hit. Many of these allegedly stolen cultural properties have rightfully returned to their countries of origin.

Implementing the 1970 UNESCO Convention: New Ethics for Cultural Property

The transition from trust to well-placed criticism of collectors and some museums’ practices has been powered by law. International law brought forward the principle of restitution of looted cultural properties. Articles 7 and 13 of the 1970 UNESCO Convention established this legal mechanism: looted and stolen cultural properties ought to return to their countries of origin.

The convention was adopted to fight the illicit trafficking of cultural properties. The legal framework has introduced strict border control and customs collaboration among countries of origin and countries of arrival. The strategy behind the Convention is also to de-incentivise the import and purchase of antiquities of dubious origin, which might have been looted from archaeological sites. In parallel, countries of origin must create rules and control the exportation of antiquities from their territory. Most importantly, the Convention requires that signatory states update their penal code to prohibit looting and illicit trafficking domestically (Article 10).

As innovative as the Convention was, there are many limits to its application. The 1970 UNESCO Convention – as is international law by principle – is non-retroactive. The convention thus only applies to cultural properties looted after the Convention has been ratified and enforced. Non-retroactivity constitutes a major obstacle to the restitution of cultural properties looted during colonial times in the present state of international law.

Some regretted that objects looted during colonial times would not be included in the framework. Countries with leading museums had expressed that if the Convention was retroactive, they would not ratify it, although they wished to collaborate to fight art crime and illicit trafficking of cultural properties in the future.

Even if the heritage looted during colonial times does not fall in the scope of the convention, the legal framework and its philosophy strongly contributed to the development of post-colonial restitution and the idea that cultural properties maintain a strong bond with their countries of origin. International law thus acted as a catalyst for conversations about post-colonial restitution. It took a couple of decades for the 1970 UNESCO Convention to show its effects and for international restitution to begin materialising. In the two thousands, case laws started to explicitly refer to the Convention and some cultural properties returned to their countries of origin. Interest in the Convention motivated the public to go further and inquire: should there not be more? The global community has encouraged having these long due conversations about ownership and appropriation in a context of colonial violence, in museums, parliaments, the press, and even in British comedy culture.

Nationalism, Restitution, and the Politics of International Law in the Post-Colonial World

The emergence of restitution of looted heritage to its country of origin as a legal principle has brought new questions. With talks about restitution came the idea that cultural heritage was, by essence, the property of its State of origin. The framework of the 1970 UNESCO Convention certainly reinforced the legal bond between the national territory and cultural properties found within the national borders. This approach has indirectly but certainly ideologically favoured cultural nationalism.

Cultural nationalism is the routine affirmation that the state is the custodian of cultural heritage. Subjecting cultural properties to state patronage is not problematic. However, this is only true as the State protects the rights of minorities without discrimination. The welcome conversations about restitution to the country of origin have indeed taken a nationalist turn. Cultural property generally focuses on the regime of the majority.

For post-colonial restitution to be effective, the conversations must also take place within the country of origin and include minority groups. For instance, if the UK returned Aboriginal cultural heritage, it would be insufficient to return objects to the settler’s government of Australia, but they must be apprehended by Aboriginal communities. This concern generally applies to cases which involve indigenous peoples and cultural minorities.

The emergence of nationalist dynamics in the decolonisation process is not unique to heritage issues but recurrent in many areas of society. InNationalist Thought and the Colonial World: A Derivative Discourse’ (1993), Partha Chatterjee pointed out that nationalism is paradoxically a discourse imported from the West. Nationalism, in the Indian experience, suppresses the diversity of cultures.

Reflecting on bridging epistemic divides in the theory and practice of heritage policy (see Introducing the Symposium on Cultural Heritage Protection), the future of restitution must be mindful of conversations not only about decolonising spaces in the West . but also about contributing to the decolonial process within the State where objects return. This means that caution must govern in cases of restitution to a State where intra-national minorities are vulnerable. Otherwise, restitutions reproduce the same structures of inequality, and merely geographically displace the problem from north to south (see Refusal and Loss in Cultural Heritage Law).

This issue arose when the Humboldt Forum, in Berlin, returned the Benin Bronzes in its possession to Nigeria. The government of Nigeria decided that the Bronze would become the property of the descendant of the Oba of Benin, Eware II. The passing of the Bronzes in private hands raised concerns in the world of museums and politics. The process has unfortunately distanced the people of Nigeria and descendants of slaves even further from their histories and culture.

If everyone is now talking about restitution, the conversations however engaged disproportionately more with Western experiences. They often eluded inequality and vulnerability in the periphery, where artefacts contemplate their return. Moreover, international law, for now, only offers one remedy: restitution to the State of origin. Optimistically, this means that for extra-legal restitution, such as restitution of colonial objects looted during colonial times, we can discuss modalities, engage with other disciplines and, even resort to resources other than restitution, to ensure effective decolonisation of collections. The future of heritage studies will certainly include more research on the cultural property of intra-state minorities.

Anaïs Mattez

Anaïs Mattez is a PhD candidate and researcher at the University of Hong Kong (HKU) and a visiting researcher at Harvard Law School. Her research interests are international law, heritage, criminal justice, and legal history.

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