Restitution of Cultural Property and Human Rights

[Oscar Genaro Macias Betancourt is the Former Director of Restitutions at the Mexican Ministry of Foreign Affairs and a Specialist in International Law on Cultural Property.]

Introduction 

There are multiple angles to approach the complex debate around the restitution of cultural property to their countries of origin. From the legal perspective, the branches of civil, criminal, and international law offer a diversity of routes for restitution. In a previous post, I highlighted the limitations of international law, specifically of specialized treaties, namely UNESCO 1970 and UNIDROIT 1995. The main cruxes of those conventions are nonretroactivity, the lack of ratifications, and the application of domestic law.

My previous post reached the conclusion that the art market and the debate around restitution illustrate imbalances of power between States. Dichotomies articulate the dynamics and rules governing museums and the market. Colonizers and colonized, Global North and South, civilized and savage. Such imbalances and differences are present in international conventions and explain their reduced effectiveness. 

While specialized treaties have remained static and present several limitations, other bodies of law have developed and provide novel elements for restitution. International human rights law is an example. In this context, the Human Rights Council has recognized that organized looting, smuggling, and theft of and illicit trafficking in cultural property undermines the full enjoyment of cultural rights. 

In the present post, I will lay down some general remarks concerning the relationship between cultural heritage and human rights law. I will present some alternatives to rely on this body of law in order to enable the restitution of culturally relevant pieces. Another aim of these lines is to suggest new angles to address the debate on restitution and to offer new approaches to old challenges. 

Cultural Heritage from a Human Rights Perspective

International human rights law offers elements to the debate on cultural property.  As noted by the Special Rapporteur in the field of cultural rights,  cultural heritage involves multiple dimensions of human rights. Cultural property is not important in itself, it rather represents elements of individual and collective identity; a means to express worldviews; a thread to link the past, the present, and the future of human communities. The term cultural property can designate a multiplicity of objects, including human remains, paintings, ceremonial objects, sculptures, objects of daily use, funerary items, etc. Many of them are susceptible to being observed and interpreted from a human rights perspective.  

Cultural expressions are protected by different instruments. The International Covenant on Economic, Social, and Cultural Rights (ICESC) enshrines the right to take part in cultural life (article 15), and like other human rights, this right is universal, indivisible, and interconnected with others, including the right to education, the protection against all forms of discrimination, and the right to the protection of interests resulting from any scientific, literary, or artistic production.  In such a context, the general obligation to respect, protect and fulfill cultural rights mandates States to put in place cultural policies sensitive to human rights standards.

In addition, the United Nations Declaration on the Rights of Indigenous Peoples recognizes a right to maintain and protect the past, present and future manifestations of their cultures, including artifacts (article 11). The same declaration provides that States shall enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent, and effective mechanisms (article 12).  

What is the role of museums and other cultural institutions? Two remarks. Firstly, it is important to recognize an underlying political component. For the independent expert in the field of cultural rights, museums are meant to reproduce narratives and transmit ideas about the past. Fuelled by multiple biases, sometimes symbols of dominant cultures are glorified, whereas elements from other peoples are taken out of context. Such narratives tend to entrench situations of vulnerability and discrimination. For the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) and for the Special Rapporteur, museums contribute to the misappropriation of cultural heritage whenever they display or retain objects from indigenous communities without their consent or in a manner not respecting the significance and interpretation they give to such heritage. Unfortunately, such is the case for many pieces around the globe.  

Secondly, museums and cultural institutions are obliged by standards of due diligence. When acquiring new pieces or putting on an exhibition, it is essential to confirm whether the principle of free and prior consent was respected and whether the display of the pieces respects the cultural rights of the community. If it is not the case, there might be a violation to the applicable treaties and a case for international human rights bodies. 

The application of human rights rules to restitution is illustrated by the case of the sacred deer head (Maaso Kova) from the Yaqui, a people in Sonora and Arizona across both sides of the Mexican-US border. In June 2021, the Museum of World Cultures in Stockholm restituted ceremonial objects to the Yaqui, including Maaso Kova. According to the Swedish Museum, the ceremonial objects were collected in 1934 in Tlaxcala (central Mexico), when some Yaquis were forcibly deported, obliged to become combatants, and subjected to forced labor. Maaso Kova represents a deity for the Yaqui, and its retention and exhibition by a foreign museum were perceived as offenses. Even if the pieces were collected and exported according to applicable laws, the collection witnessed a moment of extreme vulnerability suffered by the Yaqui. 

Restitution was achieved after the intervention of the EMRIP. For them, the withholding of the sacred item represented a violation of the cultural rights of the Yaqui. The EMRIP facilitated the dialogue between the parties involved and an agreement was reached for returning the collection. Besides the human rights angle of cultural property, this case illustrates the role that international organizations can play in the context of restitution. 

Almost all pieces within ethnographic museums and cosmopolitan collections can be reinterpreted to unveil their true, yet ignored meaning. The restitution of human remains, the Benin Bronzes, the Khmer statues, codexes of different natures, maps, and so on. All of them constitute a reminder of the importance of observing collections from multicultural angles and respecting human rights standards. 

The case of the Techialoyan codexes from central Mexico provides another example.  Techialoyan Codexes are a species of documents containing a cadastral registry of traditional lands. Two of them are currently in a university museum in Boston and a private collection in Geneva. These codexes were crafted by Native Americans to defend and document their ancestral lands before the authorities of the Spanish crown. Yet, in today’s scenario, the region is not free of colliding claims for territory between different peoples in central Mexico. Such disputes can be traced back to those codexes and the Spanish rule. Thus, the codexes encapsulate a continuing struggle for territory. In human rights law, the territory is a basic element of the existence and identity of indigenous communities. Thus, restitution may be a prerequisite to guarantee the full enjoyment of lands, by facilitating amity between the parties and the full enjoyment of their lands. 

Conclusion

Human rights and cultural property are interdependent notions. Cultural property plays a fundamental role in the expression of cultural identity and the enjoyment of cultural rights. Hence, Human rights organs can play a more active role in restitution discussions. 

By bringing expertise and interlocution about the complex connections between heritage and human rights, all stakeholders can be involved in a more transparent process of understanding certain pieces and pave the way to mutually beneficial agreements. Multiple human rights bodies have mandates and expertise on cultural rights and heritage (i.e. Human Rights Council, treaty organs, and UNESCO). Through cooperative and inclusive dialogues, all parties involved can reach mutually beneficial agreements. In these cases, museums and governments may restitute an object as a gesture of cooperation and sensitivity. 

Moreover, museums have the responsibility of interpreting collections from a human rights perspective. The retention and exhibition of cultural property without the consent of the communities of origin may constitute a violation of their cultural rights. Although museums may contribute to the spread of unfair narratives, they can also offer a polyphony of voices to disseminate culture without biases and rectify injustices instead of perpetuating them.

Introducing human rights notions into the legal debates offers many opportunities. The strongest of them is that the cruxes of retroactivity of treaties and rules on civil property are delegated.  In contrast, human rights law allows us to see the phenomenon as a problem of today and a continuing concern. Whether the principle of free and prior consent was followed and whether the display of the pieces respects cultural rights, are questions that must be present in the analysis before a decision on restitution is taken. 

Human rights law is also a tool to reinterpret pieces, collections, and curation. Colonial biases can be dismantled by introducing analytic categories to identify the background and true significance of pieces. A more comprehensive analysis can help decision-makers to unveil possible cases of systemic instances of violence against vulnerable groups. In such cases, restitution can function as a form of reparation, as understood in the field of international responsibility.

As a corollary of the general obligation to respect, protect and fulfill human rights, States must work jointly with cultural institutions and develop policies with a human rights perspective. The opening of channels for restitution requests, clear methodologies to address cases, and constant review of collections are some examples of good practices. 

Cultural rights are not abstract notions. This body of law constitutes a compass to asses whether a museum, a collection, or curation is properly undertaken and whether concrete actions are taken to address historical abuses.  Within the debate of restitution, the sphere of cultural rights offers a new avenue for dialogue and reconciliation among governments, cultural institutions and peoples.