"Sending It Back" – The Role of Law and The

Cultural Patrimony Debate

Collecting objects (and the new disciplines of anthropology and archaeology)

was popular in the 19th century European countries that controlled countries in
Africa and Asia. Evidence of newly-discovered cultures ended up in public and
private collections. Subsequently, in the post-colonial period, the trade in
cultural objects has flourished. Many objects have been removed forcibly and
exported illegally. Should they be returned? There are now strong views for
and against their repatriation.

"Repatriation" is usefully defined as:

“The return of art or cultural objects to their country of origin or, for
looted art, to its former owners or their heirs.” 1

In Africa, repatriationists believe that the continent has lost many of its
masterpieces and other objects of artistic importance. Anti-repatriationists
argue that unless the aggrieved countries get their own house in order, there
is a risk that valuable objects that are returned may be mistreated or stolen,
and re-sold to collectors.

Different aspects of the repatriation debate have surfaced in recent press

articles reporting variously on the return of Russian archive documents and a
German porcelain masterpiece, together with the seizure of two Polish
paintings, the voluntary repatriation of Costa Rican artefacts, and a thwarted
attempt to sell valuable African works at Sothebys. The common link is that for
different reasons some objects that were seized in different eras (and under
varying circumstances) are being returned to their former owners or countries.

Despite these developments, the prevailing anecdotal evidence is that there is

a busy export trade in art and cultural property in South Africa (and the rest of
the Continent). Despite the National Heritage Resources Act, ignorance and a
lack of resources means that the unscrupulous can carry on acquiring and
trading valuable objects.

Whereas African countries are expressing disappointment and frustration at

this state of affairs, other countries have become more assertive. Recent
recoveries suggest that other countries are more successful in protecting or
re-acquiring lost treasures. What is the reason for this? Does this mean that
attitudes to cultural property claims and the assertion of national patrimony
are changing? What are the governing legal principles? Is the law able to
evolve sufficiently quickly to enable claims to contested cultural property to be
adjudicated fairly and properly in foreign litigation or arbitration, or by other
bilateral and law enforcement means?
1 Clancco: Art and Law www.Clancco.com

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Import controls

Historical documents, dating as far back as the 18th century, were stolen from
national archives in Moscow and St. Petersburg between 1994 and 2002.
Highlighting the effectiveness of prompt national law enforcement, twenty-one
of these documents have been recovered after investigations by the United
States Immigration and Customs Enforcement agency ("ICE") and returned by
the United States to the Russian Ambassador during a special ceremony on 3
December 2010.

ICE has also been involved in two other recovery actions in the United States:

(i) After an investigation, ICE recently negotiated a settlement

agreement with the Toledo Museum of Art in Ohio for the return of the
valuable "Nereid Sweetmeat Stand" (part of the famous Swan Service
collection, parts of which were stolen from its hiding place during World
War II) to its former owners in Germany.

(ii) Two paintings by the Polish painter Falt were seized after the Polish
government alerted ICE to auctions featuring his works. After an
investigation into the paintings, the U.S. Attorney's Office for the
Southern District of New York filed a civil complaint seeking their
forfeiture as stolen property imported into the United States in violation
of law. It is not known if the paintings will be repatriated to Poland.

According to an ICE Press Release:

"ICE is committed to working closely with foreign governments, art

dealers, museums, and other organizations to recover stolen works of
fine art and antiquities," said James T. Hayes Jr., special agent in
charge of ICE HSI in New York. "These are precisely the types of
investigations that HSI's Cultural Property Art and Antiquities Unit in
New York City was established to identify and investigate."

Voluntary repatriation

In the late 19th century the Brooklyn Museum in New York had "an almost
insatiable appetite for material" 2. In a symbolic about-turn, motivated primarily
by cost and space factors, Brooklyn now wants to return a large collection of
pre-Columbian artefacts of cultural and historical significance. The National
Museum of Costa Rica has accepted the offer in principle, although it must
pay the transport costs. Although Brooklyn is keeping the most desirable (and
presumably valuable) pieces, the initiative is noteworthy because it is
voluntary. On the one hand, it is uncommon for museums to return objects
when there is no legal obligation to do so. On the other hand, no contentious
legal issues arise because the objects were removed peacefully prior to 1938,

2 "Museum Wants to Return Objects, but There's a Hitch", The New York Times, 31
December 2010

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the year when a Costa Rican law restricted the export of archaeological
artefacts.

In a similar move, but probably motivated by a desire to placate the Egyptian

authorities (who are accusing the Central Park/New York authorities of neglect
of one of the badly-weathered Cleopatra Needles), the Metropolitan Museum
recently decided to send back 19 artefacts (of minor significance) from
Tutankhamen's tomb. Of relevance in this context is the commitment made by
the head of the Egyptian antiquities council to the preservation and, possibly,
repatriation, of Egyptian antiquities (wherever they may be situated).

Sothebys and the Ivoba Idia mask from Benin

In 1897 a British expeditionary force destroyed the royal palace of Benin, in

Nigeria, home to tens of thousands of works of art in wood, ivory and bronze.
It is claimed that these were the private property of the King of Benin. Many
were seized as spoils of war and ended up in private collections and
museums.

Many more works of art have been taken away in post-colonial times, before
and after Nigeria enacted laws prohibiting the exportation of antiquities. The
scale of the problem has worsened because, despite such laws, the trade in
valuable items from Nigeria and other African countries has increased.

Some of these works are now highly regarded and are extremely valuable.
Very recently, the descendants of the leader of the Benin expedition
consigned a famous 19 th century Iyoba Idia mask, depicting the first Queen
Mother of the Edo people (with an estimate of GBP 3.5 - 4.5 million), and five
other items to Sothebys in London. All of these items have been withdrawn in
response to protests emanating from Nigerian interest groups. The very short
statement announcing this development does not say whether Sothebys or
their clients took this decision.

Although the Nigerian government has bought some art works back at
auctions, there is a perception that African countries are neglecting the
preservation of cultural patrimony, both at home (because of lax law
enforcement and too few museums3) and abroad.

No effective legal redress?

The problem is made worse by the fact that, despite various international
conventions and EU legislation, the widely-held perception is that there is no
effective international law dealing with the trafficking of stolen art.

This has caused a Nigerian art historian to comment that:

3 According to Folarin Shyllon, The Nigerian and African Experience in Looting and
Trafficking in Cultural Objects", Art and Cultural Heritage, pp 142 and 143, Africa
ranks low in "cultural heritage well-being" due to inter alia low expenditure and
standards of care of cultural sites.

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 "The legal status of the Benin bronzes and the legality of trading in
these contested commodities have never been adjudicated in a court
of law…. For now, current laws protect Western collectors of these
artworks whose “ownership” rests on assumptions that they acquired
the artworks legally."4

It is true that, in practice, it is difficult to assert ownership over objects that

were seized by force in the past and prior to the beginning of the 20 th century
when looting was considered as legitimate spoils of war 5. According to an
opinion expressed by Clancco: Art and Law, success often depends on public
relations and “of convincing whoever possesses the object that giving it back
is the right thing to do”.6

It is also true that efforts to recover contested art in foreign courts have, not
surprisingly, been frustrated by technical legal difficulties – such as conflict of
laws and enforcement of foreign criminal laws. The high cost of litigation is
also an obstacle.

However, these challenges do not mean that it is impossible to recover looted

or illegally exported cultural property.

All the options

Repatriation is in essence a direct challenge to the rights of bona fide

purchasers and owners, which most legal systems try to preserve. "Naming
and shaming" strategies are an important aspect of any campaign because
whoever acquires the objects is knowingly the possessor of a work of art
whose title or provenance is contested.

Persistent activism and patient negotiation (sometimes involving legal action)

to reclaim lost works can be effective. Some countries, including Italy, Greece,
Turkey and Egypt, have pursued claims for valuable artefacts with success.
For instance, the Head of Amenhotep III was returned in 2008 after Egypt
engaged lawyers in Britain and the United States. China is taking an
increasingly activist approach.

There are several legal and procedural options, and they include litigation in
foreign courts, procedures and steps under the UNESCO Convention 7, the

4 Assoc. Professor Ogbechie, "Give Me What is Mine" 26 December 2010

http://aachronym.blogspot.com

5 The Hague Convention of 1899 was the first attempt to outlaw looting in wartime.
The Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict 1954 (and the First and Second Protocols) is now the relevant international
law on this subject.

6 Clancco: Art and Law www.clancco.com

7 Convention on the Means of Prohibiting and Preventing the Illicit Import,

Export and Transfer of Ownership of Cultural Property 1970.

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UNESCO Intergovernmental Committee and Bilateral Agreements. An
additional option is arbitration under the UNIDROIT Convention. Without
going into detail, all of these have their own challenges, ranging from
evidence, the reluctance of courts to enforce foreign laws, cost, the
requirement that objects be identified in a systematic inventory and
enforceability.

The effective implementation of national customs and import laws may be one
way to by-pass some of these difficulties. Illegally imported items continue to
be contraband when they have entered a country and can be subsequently
seized and repatriated. As the recent actions of ICE in the United States (see
above) illustrate, customs laws can be an effective tool to reduce the
trafficking in cultural objects,

It has also been suggested that museums and other public collections should
be encouraged to comply with inter alia Article 3.2 of the ICOM Code of Ethics
(to ensure the acquisition of acceptable material) and disclosing accession
records (to facilitate provenance research). 8

It may be that African countries are not yet using the remedies and
procedures that have been devised under these Conventions, Committees or
Agreements, or under national customs legislation, or specialised international
organisations, to achieve their objectives. Considering the persistence shown
by Italy, Greece and other countries, and the recent activities of ICE in the
United States, some observers are wondering if activists and professionals in
Africa have overlooked the available legal measures or whether, quite simply,
they lack sufficient influence, support and resources.

It is understandable that some countries are intimidated and disillusioned but

inactivity is not justifiable. It means that there is a need for a bold and well-
organised legal strategy based on existing procedures and remedies but more
effectively enforced by means of arbitration or mediation.

UNIDROIT: arbitration and mediation

The main problem with existing international law (namely, the conventions) is
the lack of enforcement provisions.

Arbitration by a specialised body utilising lawyers and procedural rules

devoted to cultural property issues has certain advantages over litigation in
court, including confidentiality, informality, neutrality and the principles of
reasonableness and fairness - and enforceability.

Since arbitration is a consensual process, a compulsory international

arbitration (or mediation) regime for resolving cultural property disputes is
needed. The existence of such a regime would impose obligations on the

8 Neil Brodie, An Archaeololgists's View of the Trade in Unprovenanced Antiquities,

Art and Cultural Heritage, p 62.

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parties to resolve disputes or to negotiate sensible solutions. Even if an
international treaty was in force throughout the world, there are a number of
issues that still have to be resolved, including the constitution of the arbitral
tribunal, the choice of arbitrators, identity of the parties, choice of law and the
seat of arbitration.

The prevalence of international commercial arbitrations tells us that

commercial interests are prepared to cross national boundaries and to
operate under different legal systems. Just as in shipping documents (for
example), standard agreements of buyers and sellers, including dealers,
museums and auctioneers, should contain a suitable dispute resolution clause
requiring the parties to refer disputes to arbitration or mediation/conciliation.

The necessary framework is already in place. An alternative dispute resolution

system (incorporating arbitration, mediation and conciliation) could be based
on the UNIDROIT Convention and existing international commercial
arbitration systems.

UNIDROIT allows parties to agree to submit claims arising after the

Convention enters into force to the courts or "any other competent authority"
in the country where the cultural object is located, or "any court" or "other
competent authority or arbitration". 9 In addition to this, UNIDROIT has several
advantages, most notably that the rights of good faith purchasers do not bar
the claim for recovery of a stolen cultural object, and the rights in UNIDROIT
are in addition to existing mechanisms for the return of cultural property, which
State Parties remain free to use.

Unfortunately, in Africa only Gabon has acceded to UNIDROIT. It has been

suggested that African countries should ratify it and channel their frustrations
into campaigning for arbitration, more specifically a Court of Arbitration for
Cultural Property administered by a respected international body. 10 Provided it
is compulsory, this idea might solve many of the practical problems mentioned
above, including the high cost (and perceived poor prospects) of conventional
litigation in the “West”.

Interim solutions and compromise arrangements

In all fairness, and as required by Article 5 of the UNESCO 1970 Convention,

African countries have to be seen to be putting their own house in order.
Establishing satisfactory conditions at home of conservation and security, and
proper law enforcement, would be a vital public relations tool to stimulate
alternative, compromise, solutions motivated by the "right thing to do".
Sensible proposals might include lease-back and permanent loan
arrangements, and the establishment of branches of the British Museum in
Africa. It has also been suggested that royalty and other museum income be

9 Article 8, UNIDROIT Convention on Stolen Property 1995.

10 Shyllon, ibid.

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re-diverted to support an agreed, just, cause. In Nigeria, re-developing the
bronze casting industry in Benin City is a good example.

To recap

• Art and cultural property is being repatriated in various ways.

Depending on what is at stake, repatriation is sometimes voluntary, or
the result of national import legislation and – more rarely - achieved by
hard-fought campaigns.

• The conclusion that "Western" laws automatically protect the owners of

contested objects is wrong. The status quo can be challenged by legal
and other solutions.

• The take-up in Africa is too slow. Careful notice should be taken of the
work that has been done (for example by Greece, Italy and Egypt),
consisting of careful research, clever planning, planned publicity and
patient negotiation by teams of lawyers and other specialists.

• In addition to utilising procedures under international conventions and

other agreements, including import control laws, well-researched and
properly documented claims should be taken to court (or arbitration)
using a combination of legal arguments and tactics. Interim or
compromise arrangements should also be considered.

• The most vulnerable countries ought to take the initiative and organise
themselves around international arbitration pursuant to the UNIDROIT
Convention. They should establish an international arbitration
organisation that specialises in the protection and recovery of art and
cultural property.

Toby Orford (2011)