Discussing “Restitution as History and Future” is, also from a legal point of view, a good entry point to emphasize the fact that the debate about the restitution of artworks looted during the colonial period to this day remains an unfinished and unresolved process. If we understand artefacts as “objects in diaspora”2 which have an important role to play in the relationship between the past and the present, then this relationship would indeed be intense: According to Alain Godonou, former director of the EPA, most African countries have lost 95 % of their cultural heritage.3
From a perspective in which “Restitution as History and Future” is a salient topic of discussion we can therefore assume that we live in a kind of “transitional period” between these two timeframes. Whether this will ultimately lead us towards an era of restitution or, conversely, reinforce a culture of retention of illicitly acquired goods, or, even something in-between, is uncertain. The legal framework established by contemporary public international law with respect to looted artefacts is ambiguous: On one hand, unlike in other cases of crimes committed during the colonial era, several guiding pieces of legislation are in place and some legal scholars have accorded attention to the matter. Yet, the law of treaties deliberately omits to take position with respect to the restitution of artefacts looted in the colonial context and legal cases on this issue are still a rarity.
Following the invitation to contribute to legal arguments within the discussion about the restitution of looted artefacts, I will develop some ideas along the different levels of time: After characterizing the legal framework currently in force as undecided with respect to claims for the return of artefacts illicitly removed before 1970 (see below 2.), I would like to make some remarks regarding the strategies used in legitimatizing past colonial practices. The looting of artefacts from Benin can be taken as an example to illustrate that claims for restitution and return might be based on a violation of customary rules that were already in force during colonial times (see 3.). I will conclude with a look towards the future, and, in particular, ask whether ideas of “thinking beyond property” could help to soften the relatively sharp battle lines in the current debate (see 4.).
2. The Present – An Undecided Framework
Although a variety of global and regional conventions for the protection of cultural heritage are in place, only a small number of legal instruments explicitly deal with the restitution and repatriation of cultural property. Following de-colonization, we experienced the drafting of an international cultural property regime consisting of several global agreements. Despite all the efforts by the then newly-formed independent states, the outcome was such that these agreements avoid any comprehensive or formal obligation by former colonial powers to return cultural property that was looted or illegitimately acquired during their respective colonial times.
a) Customary rules against looting in wartime have been in place in African as well as in European societies for a long period.4 Codified international rules for the protection of art, libraries and other collections evolved during the 19th century in the context of the preparation and drafting of agreements on humanitarian laws.5 In this framework of the “customs of war”, artworks were to be protected against “avoidable injury” and destruction unless military necessity entailed causing irreparable damage. As a general rule, wartime neither justified pillage nor arbitrary destruction; the distribution of artworks between the victors and the vanquished was to be determined in peace treaties.
Notably, other instruments, such as the Genocide Convention of 1948 – which, in contrast to Raphael Lemkin’s proposals, does not cover forms of a “cultural genocide” – or the United Nations General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 (UNGA Res. 1514[XV]) do not make any explicit statement regarding the return of cultural property to its place of origin.
b) The Hague Convention of 1954 was the first international treaty which specifically dealt with cultural property. It governs the “Protection of Cultural Property in the Event of Armed Conflict” by reinforcing and extending the regime for the “safeguarding of and respect for such property” (Art. 2).
This Convention is important in the present context because of its underlying concept of “cultural property”. Instead of establishing the protection of cultural property rights from the sole perspective of a “proprietor”, it stresses the general interest in cultural goods and introduces the notion of “cultural internationalism”6 and a shift towards “cultural pluralism”.7 The second recital of the preamble to this Convention reads: Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes contribution to the culture of the world.
This preamble sets forth two important aspects: Firstly, a new category of a “common heritage of all mankind” was established. This common heritage concept was later also employed with respect to natural “commons” such as the moon or the international seabed in order to prevent unilateral appropriation.8 Secondly, in the following half-sentence of the preamble’s second recital, the Convention explicitly abandoned the colonial theories of a “scale of civilization”, which originated in a Darwinist world-view, by acknowledging that “each people makes contribution to the culture of the world”.
From that juncture, the preamble to the Hague Convention has been interpreted from varying perspectives and with divergent emphasis: As former colonies, the newly-formed independent states argued in favor of the return of cultural goods to their places of origin.9 Their stance was in stark contrast to the attempts of the “market states”, and in particular representatives of western museums, to prevent a break-up of existing collections and to lobby for their interpretations of “universal museums”.10
c) An explicit legal provision for the return of illicitly removed property was established by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Export and Transfer of Ownership of Cultural Property. This Convention, which today includes 128 contracting states, is the most influential existing convention for the protection of cultural property – and also probably the most controversial.11
Article 3 of the 1970 UNESCO Convention declares “illicit” the import, export or transfer of ownership of cultural property (as defined in Article 1) “effected contrary to the provisions adopted under this convention by the States Parties thereto”. It is up to the contracting states to explicitly designate cultural property as consequential for its archaeology, prehistory, history, literature, art or science (Article 1 and 4), including privately owned property, and to adopt protection measures in accordance with Article 5 of the Convention.
Cultural property designated and protected pursuant to these requirements is subject to the obligations of all other parties to the 1970 UNESCO Convention under its Article 7. This provision, inter alia, requires member states, within their respective legislations, to prevent museums from acquiring illegally exported cultural goods and to prohibit the import of cultural property stolen from museums and other institutions. Most notably, Article 7 (b)(ii) obliges member states to facilitate the recovery and return of illegally exported cultural goods to their country of origin, by undertaking:
(A)t the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property. Requests for recovery and return shall be made through diplomatic offices. (…).
The scope of application of this provision is therefore limited by different restrictions.
aa) The Convention explicitly sets forth that claims for the return of cultural objects are subject to the so-called principle of non-retroactivity.12 This is to be understood against the background that the newly-established states made efforts to avoid any distinctions with respect to the point of time when an object was illegally exported in order to also cover cultural property removed before they gained independence. However, Article 7 explicitly states that the clause shall only apply “after entry into force of this Convention”. By refusing the request by former colonies, also euphemistically denominated as “source states”, for a general legal basis for repatriation, the Convention does, however, not decide against a return of art that was looted or illicitly acquired before the Convention came into effect. In other words: The 1970 UNSESCO Convention leaves undecided whether or not a claim for the return of stolen artefacts may be justified on ground of another legal basis. It neither legitimizes illicit pre-1970 acquisitions, nor does it decide against repatriation and restitution or declare such claims as merely a political issue.13
bb) An instrument for a political, negotiated settlement of disputes over cultural property was, however, separately established with Art. 15 of the 1970 UNESCO Convention. This provision states:
Nothing in this Convention shall prevent States Parties thereto from concluding special agreements among themselves, or from continuing to implement agreements already concluded regarding the restitution of cultural property removed, whatever the reason, from its territory of origin, before the entry into force of this Convention for the States concerned.
While this statement is also only declaratory, it became meaningful in the context of UNESCO’s role to co-ordinate the member states’ activities and to provide good offices (cf. Article 17 of the Convention). In executing this role, UNSECO established the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation in 1978. The committee’s task is to facilitate the amicable settlement of restitution claims concerning objects that were removed prior to the entry into force of the 1970 UNESCO Convention, on the basis of negotiations.14 Its work is based on a study of ICOM on the principles, conditions and means for restitution or return of cultural property. It was in this context that Amadou-Mahtar M’Bow, the former Director-General of UNESCO, called upon the international community in 1978 to aid the repatriation of cultural objects to their countries of origin:
The return of a work of art or record to the country which created it enables a people to recover part of its memory and identity, and proves that the long dialogue between civilisations which shapes the history of the world is still continuing in an atmosphere of mutual respect between nations.
However, despite these efforts, which made it possible to settle individual cases15, this system is fundamentally based on “moral” obligations and not on legally enforceable duties on the host states of looted artefacts to respond to demands for co-operation in enabling the return of allegedly stolen cultural objects to their places of origin. In stark contrast to the objectives of the Intergovernmental Committee, representatives of western institutions housing looted art make use of this fact to politicize requests for the return, or even to deny that the looted art is, in fact, under dispute. It is common practice among western institutions to argue that they have not received any formal notification for repatriation claims from governmental entities,16 while it appears obvious from the perspective of the “source societies” that claims for restitution were communicated.17 Hence, the formal requirements of the committee’s statute and rules of procedure according to which only states are entitled to bring restitution claims to the attention of the committee18 may be misused as an excuse for refusing to listen to the entreaties of other stakeholders.
cc) This state-centric nature of the 1970 UNESCO Convention, which is also mirrored in the committee’s rules of procedures, is another controversial characteristic of the Convention.19 “States”, as state parties to the Convention, are the key actors responsible for the implementation of the Convention. They in particular define which cultural objects are to be protected and decide about measures for their protection. This “state-centricity” was only altered in certain respects when the Convention was complemented by the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. The latter introduced the rule that private individuals, too, are entitled to sue parties and demand a return of their property. However, as with the 1970 UNSESCO Convention, the 1995 UNIDROIT Convention has also no retroactive force and specifically provides for a short-time limitation of three years from the point in time the claimant became aware of the location of the cultural object in question and the identity of its possessor (Art. 3 (3)).
Against this background, a number of commentators, in particular from Western host states holding artefacts, strongly criticize the 1970 UNESCO Convention to facilitate “nationalist retentionist cultural property laws (…) based on the nineteenth-century idea of nationalism”.20 Moreover, more differentiated contributors see a paradox in the concept of cultural property by placing “special value and legal protection on cultural products and artefacts” but doing so “based on a sanitized and domesticated view of cultural production and identity”.21 Even were this correct, a missing “downstream focus” of the Convention with regard to the protection of the cultural heritage of minorities and indigenous people is,22 however, not a prominent feature of the 1970 UNSECO Convention. Above all, it appears inappropriate to derive arguments against the restitution and return of looted artefacts from an alleged malfunction of a Convention that does not even regulate claims regarding pre-1970 acquisitions.
3. The Past – Legal Strategies for Occupation and Looting of Cultural Property
Against this background, what can the past contribute to the legal debate on restitution and repatriation? Provenance research by museums and other institutions housing artworks, which were removed to the detriment of the “source societies” during the colonial era, is not merely a matter of due professional care by these institutions. In this context, the debate about repatriation and restitution often fails to address the legal framework that was already in place when looting actually took place. While host institutions, for the time being at any rate, often successfully question the legitimacy of requests for repatriation, the claiming stakeholders – be they public institutions or otherwise – all too often do not insist on legal arguments. As I will subsequently point out with respect to the case of the Benin artefacts, such arguments could present one helpful element in reaching a solution. They underpin the view that looting already constituted a war crime in colonial confrontations.
a) According to the customary rules for the application of public international law, a dispute is to be assessed by applying the law that was effective at the time the facts of the case were established. This doctrine of “intertemporal law”23, in a first instance, leads us to the pattern of self-description of the discriminatory colonial order of the fin de siècle. The positivist foundation of the “law” following the Berlin Africa Conference of 1884-85 culminated with the concept of the “occupation of terra nullius”. This meant that colonial competition within the “scramble for Africa” pretended to acquire inhabited land on the basis of a Roman law title for the acquisition of “ownerless objects”.24
Fortunately, in 1974 the International Court of Justice had already unfettered public international law from this unilateral interpretation of the European-African encounter. When, upon request of the UN General Assembly, the Court was asked to deliver an advisory opinion on the status of the Western Sahara on the eve of the Berlin Africa Conference of 1884-85, the Court established that sovereignty over populated regions of Africa could not be occupied one-sidedly as terra nullius in the 19th century. In view of the actual contractual practice, the Court established:25
Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicated that territories inhabited by tribes of peoples having a social and political organization were not regarded as terrae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’ of terra nullius by original title but through agreements with local rulers.
Based on an in-depth analysis of a colonial treaty being turned into practice, a scholar had already concluded in advance of the ICJ’s conclusion:
The scramble for African territory was in the first instance not a race for the occupation of land by original title but a race for obtaining derivative title deeds which the European powers had to acquire according to the rules of international law relating to negotiation and conclusion of treaties.26
Not surprisingly, a “protection treaty” between the British and the Oba of Benin, allegedly concluded on 26 March 1892, also played an important role in the course of the colonization of the Kingdom of Benin. For the colonialists, this treaty was a title to subjugate the people of Benin to imperialist rule and to legitimize the use of force. For example, the former commandant of “The Niger Coast Protectorate Force” justified the “punitive expedition” of 1897 that also resulted in the looting of Benin cultural treasures as follows:
The King of Benin, in the treaty he signed with Captain Gallwey, had agreed to place himself and his country under H.M. Protectorate, and it was becoming a perfect disgrace that in the Protectorate, particularly in a part so close to one of our vice-consular districts, so terrible a state of affairs as that in, what was not very improperly called, The City of Blood should continue.27
b) As a matter of law, though, the “protection treaty” might be taken as proof of the fact that the colonial aspirants either disregarded the terms of this agreement or the rules of war, and possibly both, when the Kingdom of Benin came under British control by conquest as a result of the “Benin expedition”.
The “protection treaty” between the “Deputy Commissioner and Vice-Consul” of the “Oil River Protectorate” and the Oba of Benin, if at all effectively concluded,28 followed a common sample29. In exchange for extending to the Oba, “and to the territory under his authority and jurisdiction, her (Majesty’s) gracious favor and protection”, the Oba, in particular, was supposed to commit himself to refrain from exercising sovereign rights in relation to third parties and to submit disputes to representatives of the colonial power “to exercise jurisdiction in the Benin territories for arbitration and decision, or for arrangement”.30
While, in retrospect, these kind of legal ties are often played down as a mere inflationary practice of “sham treaties” or a “deliberate misunderstanding”, they are, at least in certain respects, important evidence. Scrutiny of colonial treaties reveal that the colonial encounter did not take place in a “legal vacuum”. Despite all the political maneuvering or military pressure that unquestionably steered the practice of treaty-making from both sides, this practice shows, at least initially, that each party acknowledged the legal capacities and “sovereignty” of the other. Though “legal terminology was obviously not a significant weapon in the colonial officer’s professional armory”31, the treaties – whether extensively negotiated in individual cases or not – very clearly made use of public international law categories. Thus, there was no scope for “lawlessness”.
c) If this is accepted as a basis for an assessment of requests for the return of looted Benin artefacts, there are strong arguments supporting the view that these claims are well founded.
It appears more than likely that the “protection treaty” of 1892 was not based on a shared understanding and was at least not effectively implemented until the Kingdom of Benin was conquered within the “punitive expedition” in 1897.32 The legal categories applied at the forefront of this confrontation suggest that the rules for the conduct of war, as applicable to members of both societies involved, provide a common ground and an appropriate legal yardstick.33
According to these rules, looting had already been prohibited at the close of the 19th century and artworks were, unless a peace treaty provided for an exemption, to be returned at the end of a war. Under the Charter of the International Military Tribunal of Nuremberg, the plunder of public and private property is deemed a war crime.34 The “Declaration of Brussels” of 1874 had previously set forth a certain protection of artworks against seizure and destruction; Articles 28, 47 of the Regulations of the Hague Convention of 1907 contained explicit provisions with respect to a prohibition of plundering during armed conflict and belligerent occupation.35 Customary rules for the conduct of war and the behavior of warriors were also in place with regard to internal-African wars. Scholars described a detailed set of rules that, inter alia, also provided for a prohibition of unnecessary use of force and rules for the treatment of non-combatants and their belongings. Though often limited to fighting between members of the same ethnic group, evidence does exist, for some groups at least, that looting for personal gains and absconding with stolen objects from the enemy was forbidden.36 “Many principles expressed in the Geneva Conventions are to be found in the law of war in pre-colonial Africa”, concludes a researcher.37
As a consequence, present claims for restitution and return may still be based on a violation of this customary law. In particular, such claims are not subject to strict time limitations and may only be precluded, e.g. in cases of contradictory conduct.38
It also has to be noted that property illicitly “acquired” during the Benin war was not subject to bona fide purchase by third parties on the European art market, if, for instance, the acquirer had been aware of the objects‘ origins, or, due to gross negligence, had failed to realize their true provenance.39
4. Looking Ahead – Thinking Beyond Property?
As we have seen, the present – with the 1970 UNESCO Convention as its core instrument for the protection of cultural property – refers to requests for the return of cultural property not falling within the scope of the Convention to negotiations and an amicable solution within the Intergovernmental Committee. This Convention, however, does not preclude titles for a return or repatriation of cultural property that are based on other treaties, conventions, or customary international law. The example of the Benin artefacts shows that, depending on circumstances of the individual case, claims for a repatriation of cultural property looted during colonial wars of conquest could be established on the basis of international law in effect at that time. Against this background, I would like to raise some concluding remarks with respect to the future development of the debate about restitution of art looted during the colonial era and the possible role of legal arguments that are drawn from an analysis of the past.
a) One aspect that would clearly improve the successful outcome of claims for restitution and return of looted artefacts is an enhanced implementation of the existing cultural property regime, including effective national legislation and administration. Despite the fact that, the 1970 UNESCO Convention with its current 128 contracting states comprises a comparably high number of participants, some important players, among them a number of African states, have as yet to ratify the Convention. Between 2000 and 2012, seven additional African states signed-up to the Convention that now comprises half of the overall number of African states, i.e. twenty-seven.40
Although accession to the existing agreements will, in itself, not suffice to bring about significant changes to pre-1970 disputes, it will provide a state access to existing networks and, moreover open doors for better co-operation for those institutions affected. In this regard, researchers have presented proposals for various active steps, in particular to the benefit of African stakeholders, namely, to reconsider the co-operation arrangements between African and Western museums and to strengthen the national protection of cultural property.41
Strengthened “co-operation in the area of cultural goods and other areas of cultural co-operation” was a noteworthy priority within the Joint Africa EU Strategy Action Plan for the period between 2011 and 2013. This goal was reinforced within the “Roadmap 2014-2017” of the 4th EU-Africa Summit of 2014. In this context it could also, for example, be a strategy by African states to gain access to some still “exclusively European” cultural property instruments such as the Framework Convention on the Value of Cultural Heritage for Society (Faro-Convention) of 2005, to which to date 22 European states are signatories. Accession of non-members of the Council of Europe requires a majority decision in accordance with the Statute of the Council of Europe as well as a unanimous vote by the Committee of Ministers. The Convention makes reference to the Declaration of Human Rights (1948) and the International Covenant on Economic, Social and Cultural Rights (1966) and declares: “rights relating to cultural heritage are inherent in the right to participate in cultural life” (Art. 1 lit. a). Its particular focus is the promotion of “the common heritage of Europe” (Art. 3) and hence, as can be rightly argued by African states, also the heritage of the European-African encounters in the 19th century.
b) As shown, the discussion about a return of looted artefacts can be characterized by relatively clear-cut positions. Hence, it appears unlikely that, at least in a medium-term, there will be any substantial and extensive compromises for settlements that could be cast into future multi-lateral conventions. Rather, we can expect the attitude of states, holding institutions and not least public opinion to be influenced by a number of recurrent small cases and precedents.
In this context, the restitution of human remains is a good example to reflect present day tendencies for the development of customary rules of law evolving from “international custom, as evidence of a general practice accepted as law”.42 At first, titles for a repatriation of human remains were an exception. For example, Article 246 of the Treaty of Versailles required Germany to “hand over to His Britannic Majesty’s Governmental the skull of Sultan Mkwawa which had been removed from the Protectorate of German East Africa and taken to Germany.”43 Subsequent cases, for example, the repatriation of the remains of Saartjie Bartman, the figure of the “Hottentot Venus”, to South Africa in 2002 were based on a special legislative act adopted by the French National Assembly.44 The return of Maori heads that were on display in a public collection in French national museums provoked controversy before repatriation took place in 2012. Restitution to New Zealand required a special parliamentary decision notably because “their value as objects trumped their condition of being human remains”.45 Repatriation of skulls from Germany to Namibia from 2011 onwards took place without any legislation being implemented.46 Though still subject to controversy, the return of human remains apparently takes place in increasingly shorter intervals. Only recently, as Zimbabwe increased pressure on the United Kingdom to repatriate the remains of supposed veterans of the First Chimurenga, the British Natural History Museum felt obliged to instantly respond.47
Arguably, a repatriation of skulls and other human remains to their places of origin is by now not only a matter of political consideration or “moral obligations” but in the act of becoming “legally required”. It will be up to the courts to provide clarification with respect to the potential conflicts of an emerging field of customary law with the host states’ national laws against restitution, allegedly protecting “acquired property rights” of their institutions and collections. For example, by a law of 4 January 2002, France prohibited the transfer of ownership of a collection with regard to the principle of “public domain”. Likewise, German authorities, when confronted with claims for a repatriation of the Namibian skulls, argued that there were no rules whatsoever in place as to how to deal with human remains.48 In the absence of political surveillance by the German government, officials at German institutions asserted that they had not the competence to give away property housed in their institutions without a legal basis to do so.
c) Against this background, another important reference field to anticipate future developments are recent debates about a more co-operative handling of conflicting claims to cultural property. Terms like “joint ownership” or “shared heritage” invite us to rethink the established protection mechanisms and to think beyond property rights.
Arguments in favor of a more collaborative notion of cultural property can be derived from a tendency towards a more human rights charged system for the protection of cultural practices.49 For example, the UNESCO Universal Declarations on Cultural Diversity of 2001 and the Declaration on the Rights of Indigenous Peoples of 2007 reflect a more identity-based interpretation of cultural heritage. A right “to take part in cultural life” is guaranteed by Article 15 of the International Covenant on Economic, Social and Cultural Rights which currently boasts 164 contracting states. This includes positive action such as “access to and preservation of cultural goods” on the basis of equality.50
Facilitating access to cultural property, encouraging research and allowing objects to be loaned on a non-discriminatory basis could, for example, constitute some elements of a more human rights oriented perspective on the “use” of cultural property for the benefit of a larger group of stakeholders. But, would this suffice to make a clear statement against the de-contextualization of looted art and against a “controlled representation of societies”,51 which – at the same time – are kept at distance?
A theoretical debate about concepts of a “shared heritage” should in any case avoid to be (mis)used as a source for catchphrases that also attract free riders. When making public the fact that German host institutions of looted artefacts are aiming at an “intense and sustainable communication with source communities of collections, with cultural scholars, artists and representatives of indigenous groups”,52 this will – in linguistic terms – also meet the approval by artists committed to reconstruct “the universal language that cuts across boundaries – real and imagined” after the theft of approximately 4000 Benin artefacts.53 In fact, however, both are likely to approach the issue of deconstruction of property rights from different directions. Protagonists of Western museums lobbying against “national retentionist cultural policies”54 of the UNESCO framework apparently do not take into account communities whose art was already subject to “free trade” and is now stored in boxes or in depots and which has often not been put on display for decades. Mali’s former Minister of Culture, Aminata Traoré, summarized this contradiction: “Thus our works of art have the right to citizenship in place where we, by and large, have no right to residency.”55
Concepts for a „shared heritage“ of cultural commons, not much different from natural commons, can only protect themselves against the misuse of political power with an adequate framework for interaction ensuring equality.56 As long as good arguments and strong cases for restitution and repatriation exist, there will be no need to give up rights in exchange for mere expectations.