QIL is an open-source peer-reviewed e-journal which aims to foster the debate on questions of public international law by providing a dynamic platform for scholars and practitioners.
Britain's African empire in the nineteenth century was both
extensive and ruthless. The empire was responsible not only for
the colonies' loss of minerals and land, but also for the subjugation
of the local people.
The majority of African countries that could benefit by becoming States Parties to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property are not States Parties. Since the Convention came into force on 24 April 1972, there have been only twenty African States Parties. Similarly, the majority of African States were absent from the full diplomatic Conference which, in Rome, adopted the text of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects in June 1995. Thirteen African countries sent representatives and one sent an observer. The Convention entered into force on 1 July 1998 between China, Ecuador, Lithuania, Paraguay and Romania. Seven other nations including Italy have joined the Convention. Not a single African country is a State Party, although Burkina Faso, Côte d'Ivoire, Guinea, Senegal and Zambia are signatories to the Convention.
This article offers a critical appraisal of the evolution of Italian cultural heritage law with respect to issues of colonial and war restitution and of control over the import of potentially trafficked cultural property. As Italy is usually considered a "source country" and a victim of historical depredations, a form of "selective blindness" to its colonial past and to its role at the receiving end of both past and current misappropriations of cultural objects is discussed.
Litigation of any kind is expensive and all the more so in respect of claims to recover cultural property which has been stolen or illegally trafficked. Almost invariably the claimant will be litigating in a foreign country and possibly a different legal system from her own to recover her property. The expenses of litigation are likely to be prohibitive. A country or an individual may therefore be prevented or reluctant to pursue the claim. This is because these cases involve complex questions of both private and public international law. A huge obstacle to success is the rule in many jurisdictions that foreign public law rules do not have extraterritorial application [..] Hence the rise of Alternative Dispute Resolution (ADR) procedures to settle restitution, return or repatriation of cultural property disputes in the last three decades or so.
The British Museum has been the target of criticism around the world for its failure to repatriate controversial cultural property to their respective countries of origin. In 1753, a private collector left his collection to Great Britain if it agreed to build a public museum and designate a Board of Trustees whose duty was to protect the collection for the public. Statutorily incorporating the collector’s intent, Parliament passed legislation binding the Board of Trustees to abide by certain principles, including preserving the collection and prohibiting disposal of objects, except in very few circumstances. As such, the Museum is administrated through trust and fiduciary duty law, legally binding the Trustees to preserve the Museum’s collection. This paper argues that, despite pressing demands for the Museum to repatriate cultural property, the Board of Trustees is prohibited from repatriation.
This article analyzes the role played by the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP) in promoting the settlement of disputes barred by the non-retroactivity of the 1970 UNESCO Convention through an assessment of its impact on the dispute between Greece and the United Kingdom over the Parthenon Sculptures.
Colonial discovery, plundering, and exploitation of native people’s cultural artifacts are some of the most notable injustices indigenous peoples have suffered from the current era. And the aftermath of these pervasive practices has resulted in legal challenges for native peoples to reclaim their rightful property. Although certain countries’ legislative and executive efforts, as well as international standards and guidelines, have attempted to address these issues over the last twenty years, wrongfully obtained native cultural artifacts remain in museums and public collections. Recent contentions between the Rapa Nui and the British Museum over possession of the moai Hoa Hakananai’a highlight many of these legal issues and provide an opportunity for international law to allow recourse for affected native groups.
Recent global interest in preserving cultural identity and heritage for the future of previously colonized Indigenous groups has prompted the resuscitation of local and Indigenous cultures from the brink of extinction. The pertinence of protecting and managing cultural heritage as an endowment that transcends generations of people and serves as a ligature between their past, present, and future cannot be overstated. In this respect, the repatriation or restitution of sacred ceremonial objects (SCOs) and cultural artifacts constitutes an integral aspect of reviving Indigenous people’s cultural and living heritage, which has been eroded by colonialism and other forms of occupation.
The market for indigenous works tends to favor older items that were taken from indigenous owners in the distant past and then preserved by collectors. Indigenous peoples attempting to reclaim culturally significant works in overseas art collections may therefore face a variety of challenges when navigating foreign legal systems, including various levels of compliance with international repatriation mechanisms, differing ownership laws and statutes of limitations, and even the recognition of indigenous legal personality. This article proposes that the United Nations General Assembly promulgate a resolution that allows indigenous peoples to bring a claim in foreign courts independently of their home State by explicitly affirming that indigenous peoples (1) collectively own their moveable cultural property; (2) have universal jus standi for the purpose of reclaiming their cultural property; and (3) may bring a claim when the current owner transfers the property, regardless of national statutes of limitations.
This article is written in recognition of the repatriation movement, which is going through a renaissance in relation to the cultural heritage of African peoples. The collecting of African cultural heritage without free, prior and informed consent was a feature of colonialism. This article highlights the vulnerability of past and present African heritage in the light of the ‘imperialist narrative’. The imperialistic narrative accompanied the act of colonialism in Africa and enabled the taking of African heritage to public and private collections in Europe and America where many remain.
The debate over the restitution of cultural property is usually framed as the dispute between what John Henry Merryman defined as 'cultural nationalism' and 'cultural internationalism': the opposite viewpoints that argue whether cultural heritage objects should be returned to their countries of origin or spread around the world as determined by other principles. [The author] argues that the concepts are problematic both in their definition and their perception as two dialectically opposed sides of a dispute.
The status of colonial objects in European museums touches upon a matrix of legal and historical issues. This article engages with some of them, while referring to the case of a Sri Lankan object in the possession of the Rijksmuseum Amsterdam (RMA) in the Netherlands: a ceremonial cannon looted by the Dutch from the King of Kandy in 1765. The article [...] analyses Sri Lanka's legal title to the cannon, and the discrepancy between the international and mostly Euro-centric legal regime and Sri Lanka's own legal framework.
Using 3D scanning and printing technology for cultural heritage creates a new group of opportunities for preservation and access, while also causing a shift in how we view the ownership of this heritage. This article examines this issue from four angles: how 3D technology plays a role for heritage in danger; how it allows having multiple copies at once in such a way that affects repatriation dynamics; how it creates further copyright questions; and finally how it causes a new layer of ownership over the scans.
The article offers information on the use of morality in determining a claimant's entitlement to restitution of cultural property looted during 1933-45. Topics include the application of moral standards for restitution claims under the Washington Conference Principles on Nazi-Confiscated Art, which call for fair and just solutions.
International consultations for the repatriation of the looted ancient Benin bronzes to Nigeria recently gained momentum with the Joint Declaration executed by the Governments of Germany and Nigeria in July 2022. Before this, in October 2021, Jesus College of the University of Cambridge, UK, returned one of the bronzes to representatives of the Nigerian government. The University of Aberdeen in the UK also concluded an agreement in late 2021 with representatives of the Nigerian government and those of the Benin Royal Palace for the repatriation of a bronze head depicting an Oba of Benin. Copyright issues fuelled by the digitization of the ancient Benin bronzes by the museums in Germany and universities in the UK are being considered as an important part of the international consultation, even though the stakeholders from Nigeria did not initially avert their minds to it despite the protection of the Benin bronzes as expressions of folklore under the Copyright Act in Nigeria.
Recent developments in French and international laws concerning the return of cultural property from formerly colonized territories are particularly rich. Most States with large collections of non-European objects are now faced with claims from the countries from which these objects were transferred. France, after having long maintained a legal stance based on strict respect of the principle of inalienability of public collections, has recently changed its position statement. In 2017, in Ouagadougou, the President Emmanuel Macron said he was in favour of returning African heritage to Africa. Three years later, on 24 December 2020, the Parliament adopted a law that partially fulfilled the President’s wish, by identifying 27 objects for return to Benin and Senegal.
This article argues that the debacle to the restitution process lies in the simultaneous operation of two diametrically opposed conceptions of cultural property- the nationalist and internationalist schools of thought. The 1954 Hague Convention sees cultural property as the cultural heritage of all mankind whilst the 1970 Convention takes the view that it is the cultural heritage designated by each country. These two approaches have been used to characterise nations theoretically in the international arena into source nations with nationalistic interests and market nations with international concerns.
This paper deals with the problem of digital restitution of art to post-colonial and postdependency countries. A new model of digital restitution composed of two elements: creation of a digital copy with a NFT attached and creation of new property right in a physical and digital object has been proposed. A system of balances between the rights and duties based on the prior user concept has been developed.
Claims for repatriation of cultural property are emerging across the international community, with increasing attention to the inequities of acquisitions made during colonial periods. Yet the State-centric nature of legal instruments, such as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, remains a stumbling block to advancing meaningful remedies for past harms, especially in the Indigenous Peoples’ context. States often pursue repatriation to advance national identity or replenish museum collections, but for Indigenous Peoples, repatriation often has to do with restoring dignity to ancestors through reburial, returning ceremonial objects to religious use, and healing the community from cultural assimilation and oppression.
For decades, the British Museum has been displaying an object in its collection as the shield which was used by Gweagal men defending against Cook's landing at Kamay in 1770. Following a loan of the shield to the National Museum of Australia in 2015/2016, Gweagal man Rodney Kelly lodged a claim with the British Museum asking for the shield to be repatriated. Soon after, the British Museum facilitated and partly funded research which aimed 'to test the argument – or widely held belief – that the shield was collected at Botany Bay in 1770' (Nugent and Sculthorpe 2018, 37). The research all but concluded that the shield was not collected at Cook's landing, and that that shield, if it exists, is now lost (Thomas 2018, 25). Despite this questioning of the shield's identity, it remains on prominent display in the British Museum's Enlightenment room
As the colonial era witnessed a substantial plundering of cultural artifacts from Africa and their retention in Western Museums over the last century, there has been an increasing global recognition of the importance of repatriating these artworks to their countries of origin. This study examines the diverse repatriation strategies being employed to address the complex challenges surrounding the return of African artworks.
