Notes from class: 30th November 2010
Though delayed in her arrival since week 7, Fiona Macmillan won the raw teaching skillz award for the term by holding 90 minutes of rapt attention on the subject of 200 years of international law appertaining to cultural objects without so much as a single powerpoint slide. Law’s not a subject you’re used to hearing about in close conjunction with culture outside of the censorship or IPR; still rarer to hear elements of recognisable left-wing stance in a law lecture (but then barely two weeks later it was Birkbeck’s school of law that took the lead in a radical occupation at Birkbeck).
It’s not news that some cultural objects are disputed property; the removal of cultural treasures as spoils of war has been going on since the Peloponnesian wars of antiquity. But only since the end of the Napoleonic Wars has cultural heritage been subject to a regime of international law.
Fiona’s lecture revolved around four key international agreements:
The first of these, the treaty signed at the Congress of Vienna in 1815 first established the idea of cultural heritage that links a people, their territory and significant objects. Napoleon’s looting of Europe (some of the extent of which still furnishes the Louvre) and of Venetian art in particular occasioned the need to return cultural property such as the Horses of Saint Mark. That the Vienna treaty worked only in a proximate fashion to correct the immediate past is evident in the fact that there was no question of returning the horses to Corinth, from where Venice took them in the 13th century.
The Vienna treaty, however, also enshrined the notion of the inviolability of sales contracts and free trade, another important element of international law which is not always reconcilable with peace treaties between states. The 1816 sale of the Parthenon Friezes by Lord Elgin to the British government is popularly assumed to be on the basis of an illegal theft of Greek patrimony; in fact Elgin had obtained the necessary legal permission from the Turkish mandate.
Fast forwarding a century to issues of restoring cultural heritage raised by the two world wars, Fiona considered the removal of cultural objects as a deliberate tactic to erase social and cultural identity. Under the Nazis, ‘entartetekunst’ or degenerate art was destroyed in a purge of progressive modernism; likewise judaica was targeted as part of the genocidal assault on Europe’s Jews. (Interestingly, not arising in class: both degenerate art and judaica were thought worthy of display by the Nazis, the former in a travelling exhibition; the latter in a museum in Prague; as if the detachment from living culture through exhibition were a necessary precondition of absolute destruction). The destruction of cultural treasures as an assault on national identity has arisen since: the Taliban’s destruction of the Buddhas of Bamiyan in 2001 and the looting of museums in Baghdad in the wake of the US invasion in 2003.
Many works of art looted in the second world war, however, were not destroyed, but preserved for their financial value, and some ended up on the international art market. This again raises the problem of return when restitution is measured against the preservation of contract.
At the end of the war, two sets of conventions were enacted by the international community: those of Bretton Woods, governing international finance and free trade; and those of Dumbarton Oaks establishing the United Nations and its subsequent policies including the Universal Declaration of Human Rights. It was on this territory that post-war decolonisation began, as the question of a nation’s right to its people, territory and cultural objects was raised again in the context of formerly European-controlled territories in Africa and Asia. In this context, Bretton Woods established the dominance of free trade and contract law in the international movement of objects
As the formerly colonised looked to regain the objects that had been removed by colonisers to the metropolitan museums of the imperial capitals, those museums began to emphasise both the safety of their custodianship, and also the role of the objects in documenting the coloniser’s relationship with the colonised, establishing a competing national claim.
Enter the second treaty, The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (…phew). The UNESCO convention looks at rights to cultural objects through the paradigm of nation states. This makes the issue of objects belonging to indigenous peoples, whose existence is not co-terminous with national territories (such as Southern African sand people) problematic, because not being state actors, they are invisible to international law.
Aboriginal Australians, for example, who have only been allowed Australian citizenship since 1970, have only recently had their claims for the return of ritual objects and human remains supported by the Australian state. Their losses during the colonial period are compounded by their invisibility to international law. The third key treaty, the 1983 Vienna Convention on the Succession of States in respect of State Property, Archives, Debt also ignores indigenous peoples.
A distinction needs to be made between the return of objects and their restitution. Where return may be achieved by a number of means, restitution requires an acknowledgement of culpability for the removal of the object, something former colonisers are not keen on. The 1970 UNESCO Convention, for instance, is not retroactive, and therefore cannot address the issues of objects removed during the colonial period. Existing facts of possession by museums tend to dominate (in the realm of trade and contract law), where decolonised states’ demand that the failure to return objects constitutes a violation of their right to exist as a state has yet to be tested or proved in law.
Illicit removal continues, less as a product of war and conquest than of an international trade in looted artefacts. Most countries have laws that prohibit the export of historical and culturally significant objects, and it is these laws that the 1970 UNESCO convention privileges and enforces. In this context the Parthenon Friezes, legally acquired, are the property and ‘cultural heritage’ of the UK; and legally sold British paintings would become the property of the US if exported there. However, countries whose own laws did not until recently prohibit export, such as Cambodia, cannot look to UNESCO for return or restitution.
The fourth and final piece of the legislative jigsaw is the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. UNIDROIT is not part of the United Nations’ framework of international law, but a private international law organisation with less than a quarter the membership of UNESCO. Nevertheless, where enforced, the 1995 Convention gives legal teeth to the 1970 UNESCO Convention. Though the UNIDROIT convention similarly lacks restrospectivity, it does refer to the rights of tribal and indigenous peoples, and signatory states are obliged to pass into law the means for indigenous peoples to make claims. The effectiveness can vary: where New Zealand is a signatory and has passed laws regarding Māori cultural patrimony, Italy and Greece as signatories have made no effort to include Roma people in its implementation; UNIDROIT does not specify particular indigenous groups.
One aspect of UNIDROIT provides for restitution of objects, but where the possessor of an object has ‘good title’ (ie has complied with international trade and contract law), they must be financially compensated for its loss. In this framework it is much easier to obtain the return of stolen objects than of illegally exported objects.
However, it seems that all of these agreements remain inadequate in the post-colonial world, where powerful metropolitan museums still have the power to lobby their state governments against accession to international treaties that provide for the return of stolen objects.