Section of the Elgin Marbles frieze from Parthenon, in the British Museum

Section of the Elgin Marbles frieze from Parthenon, in the British Museum

Scientific articles The Heritage of the Missing Some remarks from an international law perspective

There is an emerging regime of international law for protecting cultural heritage that focuses on three things: (1) conflict resolution between disputing parties, (2) safe return of cultural objects to legitimate claimants, and (3) criminal justice meted out to individuals who have acted in bad faith, mala fide.

Published in the printed edition of Baltic Worlds BW 2019:3, pp 68-69
Published on balticworlds.com on december 30, 2019

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I will approach our subject from the perspective of international law, which is relevant because here we have to consider international claims. These claims cross borders and are being made for the return of cultural objects that have been transferred to other countries.

First a remark about terminology. It is obvious that words like “missing” and “belonging” will be used. As a consequence, terms like “restitution” and “ownership” come into the picture. Restitution is a rather clinical and objective term, while “repatriation” is more subjective and nationalistic, indicating that what is being missed belongs to “us” as part of the national patrimony or national cultural heritage. In the case of the Parthenon Marbles, the Greek government has used the less nationalistic formula of “reunification”, arguing that the monument itself needs to be reunited with parts of it that have been scattered abroad. This is an argument of cultural belonging.

The term “legal” is distinguished from the term “legitimate”. Formal legality is the same as lawfulness, while informal legitimacy indicates what is defensible from a moral or political point of view.

As we know, objects dating back to, for example, ancient Persia, Greek antiquity, and Roman times, are being missed. These objects are perceived as representing the cultural heritage of Mediterranean, Oriental, and African countries. We are thinking of cultural objects that have been taken away in the past and are now to be found in other countries, often in museums of the Western world, in cities like London, Paris, Berlin, New York, and Los Angeles, or in private collections throughout the world. Claims for restitution are being made, but the counter-argument is that what is being missed now belongs to the possessor. The museum, art dealer, or art collector in question will argue that the object has been acquired in good faith, bona fide, from someone else who was believed to be the rightful owner. Therefore the possessor claims ownership.

There is an emerging regime of international law for protecting cultural heritage that focuses on three things: (1) conflict resolution between disputing parties, (2) safe return of cultural objects to legitimate claimants, and (3) criminal justice meted out to individuals who have acted in bad faith, mala fide.

Some claims seek to rectify the wrongs of colonization, affecting particularly indigenous peoples who are now seeking to recover objects looted from them. For example, the British military expedition in Nigeria of 1897 looted scores of bronze sculptures from the city of Benin, artifacts that found their way into museums and private collections in Europe and the United States. Claims for restitution have been made since the 1960s. The Benin Bronzes are on display in the British Museum and have been exhibited inter alia at the Royal Academy of Arts in London. In Gothenburg, a PhD thesis in archaeology was presented in 2016 on the subject. It was written by Staffan Lundén and was titled Displaying Loot, The Benin Objects and the British Museum. Lundén shows how the British Museum’s public relation department argues that the display of the loot has been a good thing. They claim that the West have learned to appreciate African art, and that, in a sense, this cultural awareness makes up for the looting itself.

The plunder of Benin City was not an isolated event in colonial practice. In 1868, when the British captured Maqdala in Ethiopia, they seized an enormous war booty. Likewise, in 1874 and 1896, when Kumasi, the Asante capital (in present-day Ghana) was sacked, a large booty was taken. The looting in China of the Beijing Summer Palace in 1860 was carried out by French and British troops. In 1900, during the suppression of the Chinese Boxer Rebellion, a wave of looting followed the occupation of Beijing by British, French, German, Japanese, Russian, and US troops.

 

For a long time there was no legal prohibition against the taking of spoils in war. For example, during the 1600s Swedish troops seized artifacts and books in Denmark, Poland, Prussia, and Bohemia (for example, the Silver Bible in Prague) and incorporated these objects into the Swedish “national heritage”. Another PhD thesis, on the history of ideas, was published at Stockholm University in 2015. It was titled Krigsbytets biografi ([The Biography of War Booty] and was written by Emma Hagström Molin. The dissertation explores how war booty was understood during the 17th century and how ownership as a consequence of military victory was taken for granted.

After the Napoleonic wars, during the Vienna conference of 1815, a new attitude of international morality took over. Cultural property taken during the wars was returned to its earlier locations, for example, the sculpture of bronze horses in front of St. Marcus Church in Venice. Later, the protection of cultural objects was dealt with by legal instruments on the laws of war. Military destruction and plunder was prohibited. This was made clear in the Hague Conventions of 1899 and 1907. The protection of cultural property in times of war has in modern times been updated in the Hague/UNESCO Convention of 1954 and in later Additional Protocols.

More recently, the legal focus has been directed at the booming art market and at trafficking of cultural objects. Emphasis has been placed on rules for the restitution of stolen property or the return of illegally exported property. This is the object and purpose of the 1970 UNESCO Convention on Cultural Property, signed in Paris, and also of a convention signed in Rome in 1995. The former convention focuses on administrative procedures, while the latter has a more legal approach. The Rome Convention was drafted by the International Institute for the Unification of Private Law (UNIDROIT) and prescribes restitution in cases where objects have been illegally exported but in which the possessor can be compensated if they were acting in good faith and showed “due diligence” at the time of acquisition. Just to argue “It was in good faith” is not enough and it must also be shown that concrete measures were taken to ascertain the provenance of the object — one must show “due diligence”.

Unfortunately, the stakes are often too high in the commercial art world to rely on mediation and other friendly dispute resolution techniques. Litigation and criminal justice are often needed. The Rome Convention relies on court proceedings although the convention has not been widely ratified and is therefore not binding for many states. In contrast, the older UNESCO Convention is widely ratified, but also more general and less effective.

 

It is difficult to create an effective legal regime of cooperation and dispute settlement. One problem is the adversarial terminology. We have common heritage versus national heritage, cultural internationalism versus cultural nationalism, and globalism versus parochialism. Western museums often argue for globalism, that they legitimately display the common heritage of us all. Nevertheless, they have come to realize that if objects have been acquired under unlawful or immoral circumstances in the past, the correct way to handle the issue is through negotiation. There is in fact an ongoing trend of agreements between state organs and museums.

This trend has emerged as a natural response to a repeated practice of claims for restitution. This practice of international claims has developed into a modern phenomenon, Parthenon syndrome as I have called it in my book on the topic. Greece has since 1835 sought the return of the Parthenon Marbles to Athens and to the Akropolis. The marbles were transferred to England by the British Ambassador Lord Elgin at a time when the Ottoman Empire ruled over Greece. The Greek claim for restitution has served as an example for others, and since the 1950s other countries around the Mediterranean have followed suit, including Libya, Italy, Turkey, and Egypt. Similar claims for restitution have been made by Ethiopia, Nigeria, Peru, and other countries. These claims are perfectly legitimate. Although cultural objects in a global perspective belong to our common cultural heritage, they also belong to the geographical regions of their origin.

 

I have used the word “region” for a purpose. Cultural property might not be linked to a current state, but it will always be linked to its region of origin. A great deal of what states wish to label as belonging to their “cultural patrimony” or “national heritage” was produced before the modern system of nations came into being and by members of societies that no longer exist. Cultures die, but their remnants live on. The modern inhabitants of a region, even if their DNA does not confirm a link to an ancient past, feel the cultural connection. The perception of “belonging” is legitimate, and the modern territorial state can undertake a responsibility for the protection of its “national heritage”. At the same time, as I have already emphasized, the protection and display of cultural property is an issue for all mankind. If the property is legally acquired, or acquired under morally acceptable circumstances, it could legitimately be displayed anywhere in the world. Cultural heritage belongs to us all. ≈

 

 

  • by Ove Bring

    Professor emeritus in International Law at the Swedish Defense College. Previously worked as an expert and international law adviser at the Ministry of Foreign Affairs. Professor of International Law at Uppsala University and Stockholm University. Member of the Permanent Arbitration Court in The Hague since 1999.

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