Restitution of cultural objects The Sarr-Savoy report from a legal perspective

Restitution: 29.08.2018, Berlin: Bones of two victims of the genocide 1904-1908 in German Southwest Africa lie in front of the altar during a ceremony in the French Friedrichstadtkirche. At the invitation of the Protestant Church and the Council of Churches in Namibia, the mortal remains are returned during a ceremony.
29.08.2018, Berlin: Bones of two victims of the genocide 1904-1908 in German Southwest Africa lie in front of the altar during a ceremony in the French Friedrichstadtkirche. At the invitation of the Protestant Church and the Council of Churches in Namibia, the mortal remains are returned during a ceremony. | Photo (detail): Gregor Fischer © dpa

Creating a reliable framework for dealing with looted art from colonial contexts requires focusing on legality and justice, according to international law expert Vincent Negri.

By Vincent Negri

One of the common principles of international law is that of non-retroactivity, which excludes from their scope acts committed prior to the entry into force of these international norms. The law of war, as stipulated in the Hague Conventions of 1899 and 1907, formally prohibits looting (and thus the practice of booty), as well as the seizure, destruction or degradation of monuments and works of art. These legal provisions embrace colonial wars, but they are not applicable to cases that occurred prior to their entry into force. The insistence on a threshold for international legality in this manner promotes outright domination by the former colonizers when the former colonies make claims for restitution. To design a sustainable legal framework for cultural colonial spoils, we must focus on legitimacy or equity to determine the right to restitution as advocated for in the Sarr-Savoy report.

Traditional legal norms challenged

The issue of restitution seems to arise mainly for objects of great symbolic value, crystallizing issues of identity and national sovereignty, reinforced by the notion of national heritage. However, the time when international social contracts – anchored on the notion of an international or global community – were based solely on the sovereignty of nation-states seems to be over. The civil society is challenging the legitimacy of states to represent it and designing an alternative path to cultural property rights for local communities. The acknowledgment of the right to be culturally different lends credence to claims for restitution of cultural property by sub-states or transnational communities.
 
  • Restitution of an object with high symbolic value: Austria is setting an example in the direction of restitution of collections of cultural assets to indigenous societies. On Monday, 9 March 2020, the collection of the ethnologist and missionary Anton Lukesch, who died in 2003, was handed over to Brazil. This is the first international donation for the National Museum in Rio de Janeiro, which was destroyed by fire in 2018. Andreas Stangl © picture alliance/APA/picturedesk.com
    Restitution of an object with high symbolic value: Austria is setting an example in the direction of restitution of collections of cultural assets to indigenous societies. On Monday, 9 March 2020, the collection of the ethnologist and missionary Anton Lukesch, who died in 2003, was handed over to Brazil. This is the first international donation for the National Museum in Rio de Janeiro, which was destroyed by fire in 2018.
  • Restitution: 18th century stolen Buddhist painting returned from U.S. A monk and attendees appreciate a portrait of a great Seon (Zen) monk during an event at the Central Buddhist Museum in Seoul on July 21, 2015, to unveil the Buddhist painting. The work used to be kept inside Seonam Temple in Suncheon, south of Seoul, but made its way to the United States. The Cultural Heritage Administration said the work, presumed to be from about 1738, was donated by an American who had initially offered it at an auction in March. The agency reclaimed it in June asking the collector to cancel its sale. Yonhap © picture alliance
    18th century stolen Buddhist painting returned from U.S. A monk and attendees appreciate a portrait of a great Seon (Zen) monk during an event at the Central Buddhist Museum in Seoul on July 21, 2015, to unveil the Buddhist painting. The work used to be kept inside Seonam Temple in Suncheon, south of Seoul, but made its way to the United States. The Cultural Heritage Administration said the work, presumed to be from about 1738, was donated by an American who had initially offered it at an auction in March. The agency reclaimed it in June asking the collector to cancel its sale.
  • Restitution: A pre-Columbian object repatriated from Spain is on display at the foreign ministry in Bogota, Colombia, Monday, Sept. 1, 2014. Hundreds of objects that had been held by Madrid¿s Museum of the Americas since being seized by Spanish authorities more than a decade ago during an anti-narcotics bust were recently returned to Colombia. Cristian Alvarez © picture alliance/AP Photo
    A pre-Columbian object repatriated from Spain is on display at the foreign ministry in Bogota, Colombia, Monday, Sept. 1, 2014. Hundreds of objects that had been held by Madrid¿s Museum of the Americas since being seized by Spanish authorities more than a decade ago during an anti-narcotics bust were recently returned to Colombia.
  • Restitution: February 13, 2020, London, United Kingdom: Detail of the contentious Benin plaques exhibit (more commonly known as the Benin bronzes) at the British Museum in London..The museum, one of London's top tourist attractions, is rarely far from controversy, from its long-running refusal to comply with Greek wishes for repatriation of the Parthenon Sculptures (otherwise known as the Parthenon or Elgin Marbles), to other debates on restitution over artefacts including the Rosetta Stone (taken from Egypt) and Benin bronzes (taken from what is now Nigeria), to more recent pressure from climate activists over the institution's sponsorship ties to oil gigant BP. David Cliff © picture alliance/ZUMA Press
    February 13, 2020, London, United Kingdom: Detail of the contentious Benin plaques exhibit (more commonly known as the Benin bronzes) at the British Museum in London..The museum, one of London's top tourist attractions, is rarely far from controversy, from its long-running refusal to comply with Greek wishes for repatriation of the Parthenon Sculptures (otherwise known as the Parthenon or Elgin Marbles), to other debates on restitution over artefacts including the Rosetta Stone (taken from Egypt) and Benin bronzes (taken from what is now Nigeria), to more recent pressure from climate activists over the institution's sponsorship ties to oil gigant BP.
  • Restitution: February 13, 2020, London, United Kingdom: A young child looks at the Rosetta Stone in the ancient Egypt section of the British Museum in London. David Cliff © picture alliance/ZUMA Press
    February 13, 2020, London, United Kingdom: A young child looks at the Rosetta Stone in the ancient Egypt section of the British Museum in London.
In response to these claims, European museums have offered solutions such as long-term deposits or loans, but these solutions are a parody of restitution: the art of implementing legal requirements of the lender in the cultural universe of the claimant who should benefit from the return of the object under these terms. In other words, it amounts to implementing one's legal system – hence one's values – on others. In this way, restitutions of cultural property are made of loss and profit, and the law supports it. It is reasonable to consider the making of another legal relationship, where both parties are driven by the desire to achieve cultural benefits. But this implies that public and community access, shared knowledge and scientific cooperation prevail over issues of ownership and exclusivity. Legal models could be centred on cultural and shared advantages and benefits; the Sarr-Savoy report encourages this way of thinking on African cultural heritage.

Legality plus legitimacy

More than a break from previous official discourses, Emmanuel Macron's speech in Ouagadougou in November 2017 shifts to another level the issue of restitution of cultural property translocated during the colonial period. It is no longer the argument of legality – argument based on the dual power of appropriation and of the public ownership of these collections – that solves the claim issue; the President of the France framed the debate with the argument of legitimacy.

This political frame was established forty years ago by the General Director of UNESCO, Amadou Mahtar M'Bow, who published in 1978 “A Plea for the Return of an Irreplaceable Cultural Heritage to those who Created It”. Four years earlier, in 1974, the General Conference of UNESCO had adopted a resolution mentioning “the loss of cultural property due to colonization and foreign occupation” and deploring “the massive transfer of works of art from one country to another as a result of colonial or foreign occupation”.

Emmanuel Macron reactivates a haunting matter to which the classic – Western – argument based on the legality of appropriation and on the public ownership can no longer provide a lasting answer; he  lays the groundwork towards another legality, one reinforced by equity. In 1978, Amadou Mahtar M'Bow laid down the perimeter of the right to return: “These men and women who have been deprived of their cultural heritage therefore ask for the return of at least the art treasures which best represent their culture, which they feel are the most vital and whose absence causes them the greatest anguish. This is a legitimate claim”. On this issue, the Sarr-Savoy report shapes the frame to define the right to restitution and to institute another way of thinking the universality of heritage.