Symposium on Confronting Colonial Objects: A Panopticon of Colonial Cultural Heritage Taking and Return

[Sebastian M. Spitra is postdoctoral researcher at the Department for Legal and Constitutional History of the University of Vienna. He is recipient of the Award of German Legal History Association 2022 for his book Die Verwaltung von Kultur im Völkerrecht. Eine postkoloniale Geschichte (Administering Culture in International Law. A Postcolonial Narrative)]

Confronting Colonial Objects by Carsten Stahn is the most comprehensive monograph addressing colonial looting and restitution of cultural heritage at the moment. Alone the list of legal instruments, on an international and national level, that he studied and integrated in the volume comprises eleven pages. Still, his approach is largely informed by the interdisciplinary debates on the issue and it is impressive how the book manages to tie all the diverse disciplines, such as international law, ethics, provenance studies, area studies, global history, art history, museum studies, cultural studies and legal history, together and bring it under a common roof. All praise for the book is well-deserved and since the publication of Ana F. Vrdoljak’s masterly synthesis on the topic almost 20 years ago, this volume is set to influence and shape the discourse for the years to come.

So, how will debates further evolve in future if we follow Stahn’s approach to the topic? There are three main patterns that can be extracted from the book and its way of dealing with this challenging and contentious topic. These are the i) interdisciplinary dialogue and its fragmented integration into a normative argument; ii) micro-historical and object-oriented approaches in studying questions of taking and return, and iii) the embrace of ethics in complementation to law. Each point might provide enough material for a whole article-length discussion, but this does not prevent some observations here.

1. An Interdisciplinary, Yet Fragmented Approach

In chapters 1 and 2, Stahn provides an excellent and at the same time easily accessible overview of the historical and interdisciplinary dimensions of cultural heritage taking and return. (This also makes the book an asset for teaching as well.) There is hardly a page with fewer than five footnotes that all cover specialized literature from various fields. It is impressive how these two chapters weave a web in which all parts seem naturally interrelated, but are they?

Two chronological tours de force in the beginning of the book study the developments of cultural imperialism and collection methods in a convincing manner, but with a central focus on European colonial contexts. Other forms of imperialism exercised by non-European empires (except for the U.S.) hardly become topical. This contributes to the neat appearance of the book, but also misses some opportunities for clarification that a reader would wish for. For example, it does not address how inner European takings of what came to be known as cultural heritage today influenced the perception of similar processes in the space outside Europe. This would be a particular interesting point for understanding the differences between such the colonial and non-colonial setting. The takings of the French Empire around 1800 seemingly operated with a similar ideological dynamic as other colonial forms of imperialism. Were there comparable repercussions from the non-colonial to the colonial taking concerning the legal framing or justification of such processes? Are the colonial and non-colonial sphere really so clearly separated as the approach of the book suggests? Unfortunately, those questions are hardly addressed in the book.

However, these are not the only historical explorations in the book. In addition, chapter 7 on Colonial and Post-colonial Continuities in Culture Heritage Protection follows mainly a chronological scheme in the discussion of the international normative framework on cultural heritage restitution. The fragmented way to address each aspect on its own is, on the one hand, appealing: not only does it serve the argument by stressing different perspectives on the same issue, but it also distinguishes clearly between the various layers. On the other hand, having a single integrated narrative could have provided a greater contextual sensitive overview also to show the connections and links between different aspects more clearly, that at first glance might seem unconnected in its legal, anthropological and historical interrelation.

2. Micro Histories on the Rise

Connecting the global with the local is one of the aims of global studies and history. It helps to trace larger developments on the example of specific cases on the ground. Stahn’s book strongly relies on local and micro historical studies to illustrate the different dynamics of colonial takings. There are also very many micro histories to mainly illustrate the various ways of taking, which Stahn categorizes as Forcible Expeditions (chapter 3) and Other Types of Acquisition (chapter 4).

However, the integration of these micro-historical studies into characterizations with legal implications is not entirely persuasive. This starts with using the term “expedition”, which was often used as historical self-description with a clear colonial bias. The adoption of this formulation does not seem to be entirely fitting given the problematic origins of the term. At the same time, legal consequences from these categorizations are also not spelled out explicitly, which puts the classification further into question.

Moreover, the concept of force or forcible expeditions do not preclude the use of force or exercise of violence in other “translocational” settings. This is also something that Stahn notes himself by emphasizing various ways in which collectors took benefit from the colonial power relations (p.183). This leads to a more general question about the use of integrating micro histories. Their integration in such a study might actually question the same legal concepts, which are presumed by the classification itself.

3. Normative Pluralism

The chapters 8 and 9 reflect on a wide range of legal and non-legal mechanisms, principles and frameworks to address the question of restitution regarding colonial looted cultural objects. Justice and ethics play a large part in this consideration for Stahn and he clearly states that he uses ethics, justice and human rights to re-think current approaches toward restitution. This normative pluralism is appealing and it also provides a leeway to find context sensitive solutions. Stahn also powerfully concludes that international law is not constructed in a way to promote restitution claims: “International codification concealed colonial continuities through active silencing, limited channels for claims, and framing debates on return in terms of diplomacy and ethics, rather than cultural justice, as advocated in GA Resolutions” (p.410). It is only consequent to turn to other normative orders than law in current efforts to address the issue.

Ethics play a key role and this not only with regard to the Shakespearean question of ‘to restitute or not to restitute’, but ethics also create duties for museums, curators or the art market in general. Provenance research obligations are a significant part of this. It opens a whole ‘spectrum of possibilities’ (p.492) that might otherwise be overlooked. This is also due to the fact that courts seem to be bound in their legal assessment to the doctrine of intertemporal law (p.457) that prescribes that the law of the time forms the standard to adjudicate cases. However, whose law is the basis of such legal evaluations?

4. A Possible Next Step?

So, where to go from here? Stahn draws our attention to the fact that the rule makers for the restitution of cultural objects are the very same states and museums that hold them. But what if we go beyond that?

The question of whose norms or standards to apply is a crucial one with not only ethical but also legal implications. The legal imagination and normativities of Indigenous peoples or communities of origin are hardly considered in Stahn’s book but also in the restitution discourses in general. Therefore, their integration in the debate seems imperative. However, this requires a rethinking of theoretical frameworks and concepts. In the future, it will perhaps be a kind of conflict of laws approach or a completely different legal regime to mediate between the different forms of normative claims in this context.

A workshop Forensics of Provenance in Münster this February intended to start a discussion on these topics. It was concerned with the question how to approach the unwritten legal traditions of communities of origin – either ‘living law’ or an unevenly systematized ‘customary law’ – in colonial archives, publications, and museum collections. It also looked at the extent to which such norms from the communities of origin could inform current legal debates on restitution. At the same time, this went hand in hand with the insight that the act of translocation in several cases also led to an erasure of normative knowledge and judicial infrastructure for communities of origin. This once again urges the need for a greater epistemic diversity and attention to the plurality of normative orders both in the past and in the present.

Eventually, this might be the most important lesson: there is a pluriversal dialogue that needs to be continued. Stahn’s book seems a right starting point for that.