Restitution of Colonial Cultural Objects: A Glimpse from an International Law Approach

The colonial era and its legacies are often said that belong to the distant past. They are perceived as “relics” of history that need to be studied, to be comprehended, and to be understood. While with a cursory reading, such an observation appears as a truism, a closer inspection illustrates that such an approach is a rather superficial one. Despite the lapse of time since the end of the Colonial era, never before since the process of decolonization, there have been growing discussions about its ongoing legacies. From reparations claims regarding transatlantic slavery to the fate of statues depicting slave-owners to institutional racism and claims for the return and restitution of colonial cultural objects, those claims provide an alternative reading: that colonial past remains very much alive today.

This article emphasizes the legal, historical and ethical dimension of the restitution of colonial cultural objects and contends, by using an allegory, that the international community is now standing at a transitional level of how to deal with colonial cultural objects. It is located between (Colonial) Lethe and (Colonial) Mnemosyne; between forgetting and remembering injustices of the colonial past.

Lethe and Mnemosyne – aside from being respective divine incarnations of oblivion and remembrance – they were also two of the rivers of Hades, the Greek Underworld. Lethe, the river for forgetfulness flowed in tandem with Mnemosyne, the river for remembering. The supplicant before the Oracle, according to the Greek ritual, had firstly to drink from the waters of Lethe and subsequently from those of Mnemosyne. A sip from the waters of the former was enough for the supplicant to forget all the worries she had before arriving there. Another one from the waters of the latter led to the recalling of fading memories (Frazer 2012).

From Colonial Lethe

For decades, the issue of the return of cultural objects which have been acquired during the Colonial era has been a contentious one. A usual response to such claims by former colonial powers was until recently (and perhaps still is to some extent) a reluctance to deal with their colonial past and its legacies. Rather, they considered the treatment of their colonial collections and their possible return as a matter based on ethical terms rather than legal ones (Campfens 2019). Such an amnesiac perception of the colonial past and its legacies is reinforced by legal, ethical, and theoretical concepts. For the purposes, of this contribution, I shall limit the discussion to one example for each category.

Beginning with the first group, international legal instruments in the field of international cultural heritage law have failed to address the issue. The main exegesis for such an approach lies in the general rule of non-retroactivity of treaties. According to Article 28 of the Vienna Convention on the Law of Treaties, a treaty can have a retroactive effect only with the express consent of the parties. In the absence of the latter, a treaty is not applicable to past events. This is exactly the case with the two relevant treaties – the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 UNESCO Convention”) and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“1995 UNIDROIT Convention”) – which do not have such a retroactive effect. As a result, they both render the contestation of the (colonial) past impossible.

Both of them, however, do include “mitigating” provisos which either urge for special agreements as far as cases that fall outside the Convention (Article 15 of the 1970 UNESCO Convention) or do not legitimize any illegal transactions which have taken place in the past (Article 10 (3) of the 1995 UNIDROIT Convention). In a similar fashion, the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation was created in 1978. Initially, the task of the Committee was limited to facilitate negotiations between state parties, but from 2005 onwards it also includes a mediation and conciliation procedure.

Apart from stricto sensu international legal instruments, (Colonial) Lethe is also being informed by two rather complementing concepts; one in the realm of theory and one in the realm of ethics. The first one refers to the dichotomy introduced by John Henry Merryman between “cultural property internationalism” and “cultural property nationalism”. “Cultural property internationalism” contends that cultural property belongs to the whole world irrespective of nationality or geography. Differently, such an approach acknowledges the international interest over cultural heritage, contrary to “cultural property nationalism” which supports that cultural heritage forms part of national cultural patrimony. By espousing the theoretical framework of “cultural property internationalism” as Merryman does, those claims are rejected on the ground that the latter concept serves better the interests of cultural objects: preservation, truth, and access (Merryman 1986).

At the same time, in 2002 a group of 18 leading European and North American museums – such as the Louvre Museum and the State Hermitage Museum – under the growing discussions for the restitution of cultural objects have issued the Declaration on the Importance and Value of the Universal Museums. The latter calls for the consideration of acquisitions that have taken place in the past – including the Colonial era – under different sensitivities from today’s ones. In other words, such acquisitions should be examined in the light of those special circumstances as well as taking into account the role of Universal Museums as places where knowledge emerges by comparing and observing cultural objects from across the globe.

Towards Colonial Mnemosyne

Contrary to the above concepts which reinforce (Colonial) Lethe as far as the treatment of colonial cultural objects, recent developments have put under increasing scrutiny the above amnesiac responses to such claims.

A renewed interest in the issue has taken place after the landmark speech in 2017 of French President Emmanuel Macron at Burkina Faso. President Macron in his speech acknowledged colonialism as a crime against humanity and added that he wanted to see African cultural heritage in the next five years to Africa – either temporarily or permanently. Following this statement, the French President assigned Felwine Sarr and Bénédicte Savoy to investigate the issue of colonial cultural objects which are located in the French public collections. A year later, the landmark report estimated that 90% of all African cultural objects reside now outside Africa – mostly in European and North American museums. More importantly, it urged the French Government for an unconditional return of cultural objects which have been acquired from the African continent during the Colonial era on a basis of five years plan.

Shortly after the publication of the Sarr & Savoy Report, international emphasis on colonial collections has multiplied across the globe. For instance, Germany revised several times its Museums Guidelines (see the latest edition) in order to handle its colonial collections, while the United Kingdom announced its intention to draft a similar guiding policy. In October 2020, a Dutch Report on colonial cultural objects pointed out the need for recognizing the historical injustices of the past: colonialism and its legacies. In doing so, it encouraged the Dutch Government to unconditionally return those objects when those are requested.

Those developments were to some extent accelerated by the “Black Lives Matter” Movement; an initiative that acquired international recognition after the death of George Floyd. Rapidly, the movement’s voice against racism and discrimination extended also to the legacies of slavery and colonialism. In fact, the above relationship has been explicitly acknowledged by Michelle Bachelet, the UN High Commissioner for Human Rights, who observed that “behind today’s racial violence, systemic racism, and discriminatory policing lies the failure to acknowledge and confront the legacy of the slave trade and colonialism”.

Conclusion

Probably if you have asked someone – even perhaps the most optimistic one – some years ago about the future return of colonial cultural objects its possible answer might be a pessimistic one. Only fifteen years ago, the former Director of the British Museum, Neil MacGregor stated with reference to cultural objects of African origin that their return is a question of yesterday. Such an approach comes as no surprise. The international legal framework has regulated the issue merely on a voluntary basis (e.g. negotiations, special agreements, mediation, conciliation) or on a declaratory basis (e.g. non-recognition of past injustices). Yet binding legal solutions are missing. But such an amnesiac approach remains the same?

Having sketched the parameters of the debate between forgetting and remembering the colonial past and its legacies – with particular reference to the return of colonial cultural objects – it appears that the international community has to make a decision whether it will ultimately drink from the waters of Mnemosyne; whether it will remember and address its colonial past.

Recent developments, while non-exhaustive but quite representative, appear to indicate a shift from (Colonial) Lethe to (Colonial) Mnemosyne. Much work, however, needs to be done in addressing fully the colonial past and its legacies. But on this long road ahead, I guess we are heading in the right direction.

 

 

Andreas Giorgallis is a Ph.D. Law Candidate at the University of Glasgow. He holds a Master of Laws in International Law from the University of Edinburgh and a Bachelor of Law with a Minor in History from the University of Cyprus. He is currently undertaking his Ph.D. at the University of Glasgow, examining the claims of return and restitution of colonial cultural objects. His project is entitled “Restitution of Colonial Cultural Objects: Questioning Colonial Amnesia?”.

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