Symposium on Confronting Colonial Objects: International Law as Colonial Object – The Language/Materiality Dichotomy and the Coloniality of Cultural Takings

[Alonso Gurmendi Dunkelberg is Lecturer in International Relations at King’s College London]

Carsten Stahn’s Confronting Colonial Objects: Histories, Legalities, and Access to Culture is a fantastic volume that deserves wide readership. International law’s material turn has been the less discussed of all the recent turns – the historical turn, the linguistic turn, etc. The book is therefore an innovative and refreshing take on international law and, as Stahn puts it, on “the idea that humans and things constitute each other and that materiality matters for identity”.

In the specific case of this book, the materiality of law is explored through the problem of cultural takings – the practice, as the name suggests, of unlawfully taking culturally significant objects from colonised spaces to the metropolis for display, study, or simple revenge. In this post, I will engage with Stahn’s treatment of what he calls the law’s “complicity” in these takings (Chapter 6), by building on some of his core assumptions about the relationship between legal discourse and materiality.

Stahn argues that the “conditions of taking cannot be evaluated only based on codified rules and principles of international law, but must take into more fluid principles and the legal order of colonized entities”. He argues that “the international legal order was more pluralist than portrayed in normative codifications or colonial practices” and that the existence of the “principles of humanity” and “dictates of public conscience” embedded into European international law mean “that colonized entities were not lawless spaces”. In other words, he says:

“Cultural takings did not occur in a legal void, but involved legal wrongdoing or ‘unconscionable takings’ conflicting with ‘principles of equity’. They conflicted with expected standards of behaviour under minimum principles of humanity or dignity, principles of cultural protection and integrity asserted among ‘civilized’ nations, professional codes, or domestic customs and practices”.

This “dual role” of law, as both the enabler and supposed regulator of takings means that it “served as a handmaiden to the colonial enterprise or constituted the colonial condition, but also stimulated resistance or transformation”. In short, he says, international law “simultaneously tolerated cultural takings (e.g. through legal grey zones) and imposed constraints on the conduct of colonial powers or provided space for contestation or resistance”.

I however want to encourage us to take Stahn’s findings a bit further, beyond this dual role, and evaluate the law as an integral part of the materiality he has encountered. After all, the relationship between materiality and discourse is inseparable – and in the context of unlawful colonial takings, the relevant colonial discourse was that of international law. As Michael Shapiro has argued, “[t]o textualize a domain of analysis is to recognize, first of all, that any ‘reality’ is mediated by a mode of representation and, second, that representations are not descriptions of a word of facticity, but are ways of making facticity”.

Therefore, while it is not wrong to argue, as Stahn does, that “[c]olonial powers did not necessarily deny the applicability of the laws of war in colonial contexts, but claimed greater flexibility and discretion in their application”, this is still not to their credit. Stahn’s “dual-role” understanding of international legal discourse allows him to say that “positivist law and legal doctrines” were simultaneously (1) “used to organize the world along lines of social or racial inclusion and exclusion and to legitimize and domination and suppression” and (2) that they were “more pluralist at the time than admitted”, thus challenging the argument that “takings occurred in a legal vacuum”.

There is a solid methodological reason for this dual role understanding, as it allows Stahn to avoid the inter-temporal problem: the idea that legal phenomena should be studied under the law as it existed at the time of their occurrence, not the time of their evaluation. This means that Stahn is able to argue (correctly, in my opinion) that cultural takings were unlawful even at the time of their occurrence, because under certain readings of international law, cultural takings fell beneath even the colonial standard that colonial powers set up for themselves.

This is, in my opinion, the correct legal decision. Law is an indeterminate and contested discourse that allowed for various interpretations of its text, both then and now. I have already pointed out in previous occasions my disagreement with the idea that there is such a thing as the “one true law” of a particular time. I thus agree with Stahn that law is more complex. Different actors will have arrived at different conclusions at various points in time. From a legal methodology point of view, whether we side with the majority or the minority is a choice, not a requirement. As traditionally understood, inter-temporality, in this sense, is usually misused to defend some of the most condemnable practices of past status quo and Stahn is right to avoid this trap.

But this does not mean that the discourse was not what it was or used in the way that it was. At least not in how it shaped materiality. In other words, international law was more than simply complicit in the enabling of colonial cultural takings – it was constitutive of their coloniality. Take for example his evaluation of the Punitive Expedition of Benin.

In Stahn’s view, “[t]he discriminatory application of the laws of war and the broad justification of the use of force in colonial warfare were based on shaky normative foundations”. This means that “certain forcible property takings, undertaken in punitive expeditions, can be regarded as treaty violations, namely as violations of agreements with local leaders”. In the case of Benin, for instance: 

“Britain justified the punitive expedition in 1897 based on human sacrifice in Benin and an alleged violation of the obligation to open Benin to trade. However, the terms of the treaty cut both ways. From the perspective of the Oba, the brutal looting of the city and spoiliation of the Benin Bronzes may qualify as a violation of Britain’s general protective duty under the protectorate agreement”.  

In other words, Stahn notes:

“Cultural heritage was protected by ‘principles that are located somewhere between morality and law’. In particular, punitive expeditions, such as the raid of the Benin palace, conflicted with minimum standards of protection reflected in military manuals and ‘principles of justice which guide the public conscience’. The doctrine of colonial warfare was unable to explain why the colonized had to endure the consequences of forcible action”.

In other words, colonial practice contradicted international legal discourse. Colonial warfare was “unable to explain” its own coloniality, and therefore the Benin expedition was then, arguably, illegal, as, if the rules are read objectively, it fell beneath even their racist “civilized” standards.

But this is not how the rule of colonial difference worked at the time. It is therefore one thing to try to solve the inter-temporal problem to decide the legal question of “can cultural takings be seen as unlawful under the law in force at the time they occurred?” and the historical question of “was international law at the time constituted through a colonial lens that justified colonial takings?” The answer to both questions can be yes without any risk of internal contradiction, as we approach them through different methodologies at different times: takings where unlawful, but not because the law was more pluralist than we think. The hegemonic position remained colonial, even if there was room for social transformation within that law for those counted few who gave no legal value to racist ideas.

In fact, as Koskenniemi has shown, the formation of international law as a discipline is unavoidably tied to the standard of civilisation and colonialism. Anghie also notes that “it is clear that much of the international law of the nineteenth century was preoccupied with colonial problems” and “special doctrines and norms had to be devised for the purpose of defining, identifying and placing the uncivilized, and this was what the jurists of the period proceeded to do when listing among the modes of acquiring territory, ‘conquest’ and ‘cession by treaty’”.

This conclusion is essential for the understanding of the materiality of cultural takings. As Lundborg and Vaughan-Williams argue, matter and language are “mutually constituted”. And, as Milliken notes, “things do not mean (the material world does not convey meaning); rather, people construct the meaning of things, using sign systems (predominately, but not exclusively linguistic)”. The object, without the discourse that gives it meaning, will not have “agentic capacity”.

In other words, an exclusively material approach to cultural objects, that separates the discourse of international law from the materiality being studied, will only paint part of the picture. If international law and colonial rules are seen only from a legal inter-temporal perspective, as the body of laws that regulated takings – sometimes complicitly, sometimes plurally – their impact in the material conception of cultural takings will be more limited. Indeed, as Stahn argues, inter-temporal international law’s “complicity” with coloniality is only partial, it allows for “double standards” and “discursive silencing” but also “social transformation”.

I instead want to build upon Stahn’s argument, to argue that international law is the discourse of an inseparable “language/materiality dichotomy” where the law is more than complicit in colonial takings, but rather constitutive of their coloniality. In other words, when approaching the materiality of cultural takings, the Benin Punitive Expedition would not be evaluated from the perspective of its inter-temporal illegality. Instead, the international law that enabled it would be a constitutive part of the materiality of the Benin Bronzes, their significance and representation in literature. My argument is, therefore, that the colonial objects that Stahn has encountered are not simply those objects that were the subject of takings, but that they include the rules and treaties that enabled their taking in the first place. International law itself is a colonial object – or at least part of the materiality under study in those objects.

The contemporaneous illegality of the Benin expedition, for instance, will be of little solace for Nigeria today. The inter-temporal argument that the Expedition was illegal even under the international law of 1897 is important from the perspective of legal method. It is not so important from the perspective of the discourse that explains the coloniality embedded in the Bronzes’ materiality. In this discussion, the fact that the standard of civilisation was fundamentally, inseparably, tied to international legal discourse is part of the analysis of the coloniality to be confronted. It is not, really, a silver-lining.

In other words, conceiving international law as contested rather than monolithic is useful and valuable for our modern understanding of international law. However, when approaching cultural takings from the perspective of materiality, I would argue that the colonial objects that Stahn has encountered are not just the physical objects themselves, but also their understanding under the colonial and racist international law of the time, seen not as inter-temporal system of rules, but as discourse – a constitutive part of the language/materiality dichotomy that explains colonial takings.