The Debate Around The Restitution Of Cultural Property: The Limits Of International Law

[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.]

1. Introduction

There is a problem with museums, the art market and international law. A chapter in the colonial history of many peoples include instances were relics filled with cultural meaning were taken by old empires as retaliation or as a power display (Gruber) Some iconic cases include the claim of Mexico over the Ancient Aztec Headress in the Weltmuseum in Austria, the claim of Greece over the Parthenon Marbles in the British Museum, the claim of Egypt over the bust of Queen Nefertiti in Berlin, and a long list goes on. In recent years, such historical claims for the restitution of national relics have resurfaced, whereas old empires start to being more receptive to the idea of restitution. In 2017, President Emmanuelle Macron declared his intention to set the conditions to allow for the temporary or definitive restitution of African cultural heritage to Africa” (Felwine Sarr & Bénédicte Savoy). However, to the date the general rule is that the State of origin approaches another government or museum seeking the restitution of an important work. The requested party listens politely and explains why the restitution is impossible. Most of the arguments encapsulate colonial undertones.

In addition, there has always been a market for looted artefacts supplied from countries submerged in armed conflict or from illicit excavations elsewhere. Over the last decades, there has been multiple instances illustrating the involvement of museums and auction houses with this market and the financial crimes behind it. These cases are usual and illustrate the engines of a demand-driven market.

Concerning international law, some authors have pointed out correctly that the rules and structures of the international legal system are historically anchored to uneven relations between States and peoples (Eslava et al.). It begs questioning to what extent the international conventions in this matter reproduce uneven relations among sovereign States.

The present post aims to present a bird’s eye view over the legal debate around the restitution of cultural objects and the market of art and antiquities. My objective is to highlight the limitations of the applicable treaties and to kick-off a conversation around the legal and ethical considerations around claims for restitution and the trade of cultural heritage.

2. The Art Market and the Preservation of Cultural Heritage

The global trade of art, antiquities and cultural objects is a multi-billion-dollar business on the rise. In 2021, global sales on this market were valued at an estimated USD 65.1 billion with an increasing tendency compared to pre-pandemic conditions. In parallel, there is a black market which traffics these artefacts from their countries of origin to jurisdictions where they can be traded. According to INTERPOL and other international sources (Amineddoleh), the black market for art, antiquities and cultural objects represents the third largest clandestine market, only after arms and drugs. The lack of oversight facilitates interactions between both spheres.

Over the years, the purchase and sale of cultural property has been the means for the commission of a multiplicity of financial crimes, including money laundering and tax fraud. More recently, a series of resolutions of the United Nations Security Council identified the trade in cultural property as a source of finance for terrorist operations.

The market of art and antiquities represents a potential antagonist of appropriate cultural preservation. In the process of looting, monumental pieces are sawed off into fragments for their transportation and many of them are destroyed in the process. Authorities do not have knowledge of most pieces until they are auctioned or displayed. Looting destroys archaeological sites and the information therein. Besides, the lack of information around the provenance or the context of the pieces difficult law-enforcement efforts, both nationally and internationally.

The market offers multiple advantages for investing. Pieces are sometimes over-valued and forgeries can be easily introduced in the market without noticing. Cultural objects also represent an investment that will either hold or increase their value. In addition to that, these transactions enjoy lack of oversight and can be done in secrecy. The case of free ports provides a good example.

Instead of a commodity, some countries regard their archeological and historical heritage as elements of nationhood. This group of countries understand heritage as the thread between their past, present and future as human communities. The works prove the skill level and genius of ancient artisans, whereas they provide important references to understand the traditions and customs of preceding communities. Hence, the preservation of this heritage results in a priority for governments and States affected by looting have enacted patrimony laws in this regard. Three common features can be observed in such legislation: 1) a declaration of property over certain objects, both inventoried and undiscovered, 2) the introduction of export certificates and 3) criminal sanctions. It follows that the raw material can only be acquired unlawfully.

3. Applicable Law

There are two main treaties devoted to restitution and repatriation: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995. Each of these conventions demand States to implement different measures to avoid illicit transfer of cultural property. In the following section I will describe some of the limitations.

It is worth mentioning that in April 2022, the Council of Europe Convention on Offences relating to Cultural Property of 2017 entered into force. This Convention will not me analyzed since its object and purpose is to impose criminal sanctions, rather than allowing routes for restitution.

A. The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (UNESCO 1970).

During the 60’s, some countries experienced sprees of pillaging and illicit excavations. In the same decade, several newly born countries raised the issue of restitution and repatriation of national relics as means to redress past improprieties.

States affected by looting, most notably Peru and Mexico, resorted to UNESCO seeking to create an international treaty to curb the problem. The initiative hoped for an instrument allowing to recover artefacts lost in colonial contexts, as well as those which could be illicitly transferred in the future (Tasdelen, p.14). The novel claim immediately became a natural antagonist of the already billionaire business of trading art and antiquities.

A group of experts kicked off the discussions by adopting the “Recommendation on International Principles Applicable to Archaeological Excavations” issued in December 1956. The recommendation included the adoption of market regulations to prevent the financing or encouragement of looting. In addition, the document considered that museums should facilitate the recovery of objects derived from clandestine excavations and objects exported in infringement of domestic laws. The recommendation was framed in clear terms that tackled the concerns of affected States.

The negotiation process around UNESCO 1970 was difficult. The final result failed to prevent plundering and looting around the world or to punish individuals involved in illicit trading. The main reason behind this outcome is the lack of enthusiasm from market States which instead advocated on behalf of free trade of art and antiquities. One argument advanced by art dealers and other members of the trade community highlighted that signing the UNESCO Convention would merely deflect a multibillionaire business to non-signatory countries (Lenzner p.479). That was an undesirable outcome considering the scale of revenues. Other countries argued incompatibilities with the Florence Agreement concerning the international movement of educational, scientific and cultural objects.

Market States succeeding in many fronts. The reference to the retroactive effect of the convention was erased which triggers the application of the general rule on non-retroactivity from article 28 of the Vienna Convention of 1969. By not including such article, UNESCO 1970 was limited to pieces illicitly exported before the entry into force of the Convention for the States concerned. Pieces taken from colonial contexts and other uneven relations from the past are beyond the scope of this treaty. Today UNESCO 1970 enjoys of 114 ratifications, yet major important market States did not ratify it after decades: United States (1983), France (1997), United Kingdom (2002), Switzerland (2003), Germany (2007) and Belgium (2009).

Lastly, the core provision on restitution of UNESCO 1970 (article 7) is materially limited to inventoried pieces stolen from museums or similar institutions. Illicitly excavated pieces are not covered. At the same time, article 7 protects good faith purchaser by providing for just compensation.

Another deficiency is that the treaty does not tackle problems concerning private ownership and civil law. In some jurisdictions, the treaty can be avoided by making reference to the notions of good faith, innocent purchaser or the statutes of limitations (Prott).

The result did not meet the original expectations due to the agency of other stakeholders, including museums, gallerists, private collectors and auction houses. The original initiative was too disruptive both for the market and the State whose institutional and legal framework were designed to facilitate, instead of deter, the trade of art and antiquities. Yet, to be fair and honest, this convention is a good testimony of its time. Probably, its biggest success was bringing into the international conversation the issue of restitution. For a more detailed account of the process click here.

B. The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995

The trade of art and antiquities is regulated by the rules concerning ownership. These rules are not universal and vary from country to country. Good faith possessors are usually more protected in countries with economic activities related to this market. Contrarily, in other countries, the general rule is that no one can give what he has not got (nemo dat quod non habet). Probably the biggest deficiency of UNESCO 1970 is its silence around these issues.

After consultations and expert’s opinions, it was decided that UNESCO 1970 needed supplementation by another treaty devoted to the issue of private law. The International Institute for the Unification of Private Law (UNIDROIT) undertook the task of drafting a convention to tackle the deficiencies (Tasdelen, p.78)

UNIDROIT 1995 applies for a wider range of pieces extracted from different contexts. It also fills a gap in terms of private law by introducing the notion of due diligence in relation to innocent purchaser as “the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported.” Instead of the claimant, it is the possessor who needs to prove their compliance with the standards of due diligence.

The same side of the room threaten to denounce UNESCO 1970 if both treaties were connected. The diplomatic alternative was not to link the document to UNESCO. To the date only 57 countries (compared to 114 from UNESCO). However, for 1995 when UNIDROIT was adopted, only 80 were parties to UNESCO 1970. It is probable that UNESCO as an organization agreed on this separation in order not to hamper ratifications to the existing treaty.

4. Conclusions

The international law applicable to the restitution of cultural property is very limited and it reflects the synthesis of colliding interests: cultural preservation vis-à-vis a market. The main cruxes of these treaties are the lack of retroactive effects, the limited number of ratifications and the narrow categories of pieces to which they apply. In many respects, both UNIDROIT 1995 and UNESCO 1970 are surpassed by more ambitious national legislations and bilateral or regional agreements.

The art market and the debate around restitution also illustrate imbalances of power between States, many of them with a colonial background. As a matter of fact, the objects only flow in one direction: from developing States to former empires, from the Global South to the North. This fact is particularly striking when dealing with a demand driven market.

To summarize, the debate around restitution of cultural property can be divided in two main angles. The first is organized crime. For INTERPOL, in 2020 looting increased 32% in Africa, 187% in the Americas, and a horrifically 3,812% in the Asia and South Pacific. Another good illustration of the problem is the recent accusation against former Louvre Director for being part of “an international antiquities trafficking ring”.

The second angle corresponds to pieces outside the scope of applicable treaties. The backbone of the claims for restitution is that objects should be safeguarded by the people to whom it means the most. Certain pieces represent components of the cultural identity of peoples and individuals. Some others represent deities and many others are sacred elements for rituals. As it was stated by a former UNESCO General Director “one of the most notable incarnations of a people’s genius is its cultural heritage, build up over the centuries by the work of its architects, sculptors, painters, engraves, goldsmiths and all the creators of form, who have contrived to give a tangible expression to the many-sided beauty and uniqueness of that genius.”

In a next post I will explore some alternatives provided in international law to enable restitution and to insist in the importance of fighting against the illicit trade of cultural objects. By resorting to instruments and legal arguments from other branches of international law, the objective is to give legal substance to the claims of restitution. Even though this alternative is based on non-binding alternatives, it can provide important results when coupled with constructive dialogue around the treasures at stake.