Campfens, Evelien

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Artefact or heritage?Colonial collections in Western museums from theperspective of international (human rights) lawajv2016 2018-09-24T09:00:18“One of the most noble incarnations of a people’s genius is its cultural heritage. Thevicissitudes of history have nevertheless robbed many peoples of this inheritance.They .. have not only been despoiled of .. masterpieces but (were) also robbed ofa memory .. These men and women have the right to recover these cultural assetswhich are part of their being…“ [Secr.Gen. UNESCO M’Bow, 1978]Forty years after this plea and some twenty declarations of the UN GeneralAssembly on the subject later, the future of colonial collections in Europeanmuseums has become a topic of heated debate. French President Macron set thetone for this with last year’s statement that it is unacceptable that Africans have totravel to Europe to learn about their own culture. He announced a policy of restitutionof African artefacts.The return of treasures taken during the era of European imperialism fromindigenous communities is a controversial issue. A common response is ‘it was legalat the time’ and, therefore, not a legal issue. Is that indeed so? In this contribution, Iargue that it is not a lack of legal norms that explains this belated discussion, but theasymmetrical application of norms. A human rights law approach, focussing on theheritage 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.   Legal normsCultural objects have a protected status in international law because of theirintangible ‘heritage’ value to people: objects as symbols of a cultural identity. And itis precisely that identity that is often targeted in looting practices. The Arch of Titusin Rome, depicting the spoils taken after the sacking of the Temple in Jerusalemvisualises this. Identity was at stake in Nazi looting practices, and similarly in thecolonial context. European powers, for example, justified their presence in Africa byreferring to their duty to bring to the ‘natives’ the ‘blessings of civilization’(see theBerlin Conference Act).That being so, it is remarkable how old the notion is that harming other people’scultural objects is ‘uncivilized’. Cicero in his famous Verrines argues for examplethat, while pillage was allowed, an honourable Roman should show respect for theculture of defeated people. Through writings of Grotius and De Vattel and a series- 1 -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 generallyseen as a key moment in this development. This process continued in the 19thcentury to be codified in the Hague Regulations concerning the Laws and Customsof 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, aftermassive looting during the Second World War, multilateral treaties were concludedthat firmly set the norm that misappropriated artefacts should be returned.This means that seizure of artefacts in the course of (punitive) military actions atthe close of the 19th century may well be considered unlawful by contemporaryEuropean standards. However, not all acquisitions can be seen in that light.As Vrdoljak and Jakubowski propose, return of cultural objects after decolonizationbetter fits in with concepts of state succession and self-determination. Afterdissolution of the Austrian-Hungarian empire in Europe, for example, cultural objectswere redistributed to successor states on the basis of territoriality. In fact, suchstate practice convinced scholars such as De Visscher and Kowalski after theSecond World War that territorial provenance of dispersed cultural patrimony was anemerging (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 artto countries victim of expropriation’ seemed promising for former colonies. It linkedthe return of cultural objects to independence, being a necessary element of thecultural development of new states. The 1975 Dutch-Indonesian agreement to returnobjects ‘directly linked with persons of major historical and cultural importance orwith 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 legalreality. Colonial takings were to be discussed as matter of ‘return’ on moral groundsin the setting of the UNESCO Committee on the Promotion of Return of CulturalProperty, 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 ofthe paradigm that it is in the best interest of civilization for them to be custodians ofthe material culture of their former colonies. The 2002 Declaration on the Value andImportance of Universal Museums may be seen in this light.A noteworthy exception is a 2008 Italian verdict on the return to Libya of the Venusof Cyrene in which the Italian supreme administrative court held that the right of self-determination of former colonies implicates that cultural objects should be returned.Evolving norms: soft law and UNDRIP- 2 -In the meantime, moral norms regarding possession of contested artefacts changed.Generally, restitution claims are governed by property laws of the state where theobject is found that mostly do not support claims based on a loss longer ago. Thisis increasingly being challenged by instruments that follow a ‘softer’ (human rights)approach. These soft-law instruments tend to follow a similar pattern and focus onthe need for (i) provenance research by museums (telling the story); (i) good faithnegotiations with source communities or former owners (dialogue) and (iii) equitablesolutions for claims (‘fair and just’).For example, the 1998 Washington Conference Principles on Nazi-Confiscated Artfollow this outline. These opened the door to claims by heirs of former owners ofartefacts looted by the Nazis, in spite of a number of legal obstacles under positivelaw. In several European jurisdictions advisory committees were set up that assessindividual cases on the basis of the ‘fair and just’ norm, and a recent trend is thatcourts find ways to honour claims by referral to human rights.In the case of colonial losses, the 2007 UN Declaration on the Rights of IndigenousPeoples deserves attention. It contains a right of redress with respect to culturalobjects taken without the ‘free, prior and informed consent’ of indigenous peoplesand, potentially, would seem to cover involuntary loss by source communities inAfrica just as in settler states. Depending on the cultural importance of the specificartefact (think of ceremonial objects) redress may vary from a right to ‘access andcontrol’ to a right to repatriation.States are expected to provide assistance – ‘effective mechanisms in conjunctionwith indigenous peoples’ – in addressing claims. States might want to consider, inthis light, setting up claims procedures, similar to that developed for Nazi-looted artclaims.A key element of this model is its reliance on rights implicated by a continuinghuman rights violation of remaining separated from certain cultural objects. This, asopposed to a focus on the unlawfulness of the acquisition at the time in a traditional(property focused) approach. Another noteworthy element is that communities – notstates – are right-holders. State practiceState practice in this field has an ad-hoc character. An example: the 2011 Frenchtransfer to South-Korea of scrolls, pillaged during a punitive raid in 1866, as opposedto the 2016 dismissal of a return request by Benin of the Abomey treasures, pillagedfrom the royal palace during a punitive raid in 1892 and kept in France. Indigenousgroups in settler states and countries that gained power over time take the lead.For example, New Zealand supports the return of Mokomokai (preserved tattooedhuman scalps collected as ‘exotic’ specimens) and these are widely returned. Atthis moment, in Canada a law is under review introducing a policy of repatriationof indigenous cultural objects from foreign museums where returning museums- 3 -would receive exact replicas, to be produced by the concerned indigenous groups:international cooperation as a positive side-effect of restitution. And recently, in May2018, the Berlin state museums returned artefacts that were robbed in the 1880sfrom gravesites in Alaska (US).So..While the problem of looted art may be complex, legal principles do exist. Lessonscould also be drawn from experiences in the field of Nazi-looted art. One suchlesson is that stolen goods ‘do not fare well’ – certain stories need to be told –, andanother is that clear standards and neutral claims procedures are needed if justiceis our objective. Otherwise, the field may remain a matter of ad hoc decisions andpower-politics.Evelien Campfens is is a PhD candicate at Leiden University and, between 2002and 2016, was general secretary to the Dutch Restitutions Committee for Nazi lootedart. She is a member of the International Law Association Committee ‘Participationin Global Cultural Heritage Governance’ and sits on the Board of Trustees of theGerman Lost Art Foundation. Cite as: Evelien Campfens, “Artefact or heritage? Colonial collections inWestern museums from the perspective of international (human rights)law”, Völkerrechtsblog, 24 September 2018, doi: 12345678.- 4 -

Artefact or heritage?: Colonial collections in Western museums from the perspective of international (human rights) law

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Artefact or heritage?: Colonial collections in Western museums from the perspective of international (human rights) law

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