Artifacts repatriation: cultural property and international law

Archaeological artifacts repatriation: should the artifacts go back to their homeland?

The word repatriation came from a Latin transformation of patria which means fatherland. (William, 2008). Repatriation of cultural objects involves mainly returning historical artifacts to their original culture that obtained and owned by museums and institutions that collect culture materials. This term repatriation was originally created for the Native Americans who wished to restore their cultural object from modern museums. This term was later broadened to a wider range that fits the global repatriation actions. (William, 2008) It is generally known that great museums collect great treasures of foreign arts, and cultural objects. I have been to the largest four museums. The deepest impression on my first visit to the British Museum was that how a museum could keep so many artifacts that does not in fact found in their country. I still remember they have half of the entire 4th floor demonstrating ancient Chinese artifacts; this was especially clear in my memory since I came from China. The same impression arouse on my visits to other great museums. It has been a very controversial issue whether the object should belong to the country that holds the artifacts or the country that claim its homeland. The Greek asked British to return the Greece's Parthenon Marbles that Earl of the Elgin obtain in 1801 was a very representative repatriation action, though the artifact by so far remained in England. (William, 2008)Very similar to this case, the majority of the repatriation actions failed.

This essay will mainly focus on the reasons and drawbacks for repatriation actions, including, the legal issue of repatriation, the symbolic meaning of repatriation, and the scientific meaning of repatriation. Possible solutions will be discussed.

The symbolic meaning of repatriation

I remember & #8230; the big museum & #8230; Eight or nine years old I was, and my eyes gaped in disbelief, as I peered into that glass case, and saw grimacing at me, a mask of agony and anger, a chiseled face & #8230; I was horrified & #8230; by knowing it was, he was, a dead Maori. One of MY OWN. (Maori museum curator Ngahuia Te Awekotuku, 1985: 15)

This quotation says it all. The artifact is part of the history of the culture that it came from. Even though archeologists form another country may have discovered the artifact, nonetheless natives feel as though a part of their roots has been stolen and engrafted on foreign soil -- and this done without seeking their permission.

Activists worldwide have repeatedly called for repatriation of their artifacts to their homeland (for instance the Mataatua Declaration, UN-WGIP 1993). These claims have originated not only from indigenous people but from countries around the world, and a growing number of museums and institutions -- such as the International Council of Museums (ICOM 1986, 2001) -- are responding to the requests. Applicants call on symbolic and sentimental reasons for restoration of their possessions, and a growing number of conventions, declarations, policies and guidelines have recognized their needs and are being formulated to fulfill them. The case seems to be particularly strong in the case of indigenous people as in those of the Native Americans, Mexicans, or natives of other countries who insists on return and protection of their cultural heritage. In fact, accordance to these indigenous rights has been recently formalized in a UN declaration (Halle (2006)). The result has consequented in a scenario that was unprecedented with museums in the past. Whereas museums in the past would never have considered giving in to these claims, modern day museums actually go to great lengths to consider how they can satisfy the applicants and conduct the adjudication process in a way that is satisfactory to both parties. They recognize the symbolic meanings of the process.

For many countries, their historical artifacts are loaded with deep and symbolic meaning. The Missionary Samuel Marsden, for instance, noted that: Nothing is held so much in veneration by the natives as the head of their chief ([1765-1838], in Elder 1932:196). For this head of the chief to be displayed in a museum somewhere, let us say, in America or Britain, would be desecrator and humiliating to the natives.

To understand this sentimental connection, it may be well to take the example of the Maoris as enlightenment. The Maoris tended to preserve the finely tattooed heads of their chiefs and these heads were literally invaluable to them and would not be sold for any amount of money. The practice was a mark of distinction reserved for the chief and, in a symbolic way, it also represented the belief that the chief would always be there guiding his people. The natives went to great lengths to preserve the heads. In fact, the Europeans would comment at the devotion given the task. The head was considered the most tapu (i.e. sacred part) of the person; the head of the chief even more so. This was no common task or responsibly; death gave it a greater state of tapu (Oppenheim 1973: 15-16), and the relic became charged with social and cultural significance.

Unfortunately, European conquest and European greed resulted in these heads circling amongst museums and institutions in foreign lands and great money was paid for purchase of these heads. Grave robberies and theft exacerbated and increased purchase and the scandal reached such heights that eventually in 1831 the governor of the British colony in New South Wales forbade import of heads from New Zealand (Elder 1932: 500-501) (*).:

His Excellency further trusts, that all persons who have in their possession human heads, recently bought from New Zealand & #8230; will immediately deliver them up for the purpose of being restored to the relations of the deceased parties; this being the only possible reparation that can now be rendered (quoted in Elder 1932: 500).

Acquisition of heads was also encouraged by the social Darwinist presumptions of the time that saw the Maori as a primitive, disappearing culture; it was therefore crucial to preserve their heritage and this, the Europeans felt, they could do best. However, to natives, these artifacts are viewed as living objects that transcend anthropological objectivity and need to be either buried (if human limbs) or recorded their due respect by being restored to their native countries and place of origin.

In conclusion, Weiner (2001) observes that there are two kinds of artifacts that contain symbolic impressions.

1. There are those that simply cannot be exchanged. Their social and cultural value is too immense for them to become so. Legal justice therefore would be to return them to their homeland.

2. There are others though whose symbolic connotations, whilst still immense, can be transmitted in trust to the protecting country thereby creating an emotional lien in the receiver (1985: 212).

To make this distinction and to insist on repatriation when necessary as indicated in the first case requires certain laws, obligations, and conventions. This is what the next section addresses.

The Legal meaning of repatriation

Legal issues were the most discussed but least resolved issue in actions repatriation. The right of taken, the right of possession was fiercely debated. The most common voice from the repatriation initiators was that the country holds the artifacts acquired the artifacts illegally at the first point. (Daniel, 1998). They claimed the artifacts that processed by those countries were either stolen or traded in black-markets. The other party stated that the artifacts should not entitle being stolen if the property was not even known exist prior to excavation. They almost never reached an agreement on this legal issue for the title of the artifacts.

International laws and norms recognize and codify repatriation. In 1970, United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was ratified forbidding international trade in looted property. Countries of origin have pressured acquiring museums and other institutions to surrender these artifacts, and a significant number of museums have done so over the past two decades.

The International Council of Museums (ICOM) published its first code of ethics in the year 1986 (Halle, 2006) . Meanwhile, NMDK still has not defined a formal repatriation convention of its own but has resolved to abide by the resolutions passed by the ICOM code of ethics (Gabriel 2002: 29) which stated that "[t]he primary duty of the museum is to preserve its collections for the future and use them for the development and dissemination of knowledge, through research (...) [and] displays" (ICOM 2001: 2.9). However, since the museums are not the only ones interested in preserving the artifacts, particularly 'collections of human remains and material of sacred significance', the ICOM conclude that the handling and use of such material:

Must be accomplished in a manner consistent with [both] professional standards and the interests and beliefs of members of the community, ethnic or religious groups from which the objects originated" (ICOM 2001: 6.6).

The ICOM further insisted that requests for repatriation should be treated "expeditiously with respect and sensitivity" (ibid).

In 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) obligated federal museums and collections to restore to Native American tribes skeletal remains, grave goods and sacred objects - including those excavated or collected as early as the mid-nineteenth century. The problem with NAGPRA is that it does not extend to claims made outside the country, but nonetheless may serve as example to other foreign institutions. (IIP Digital, 2010)

Nonetheless, it seems to me that the laws are too few and cover too limited a terrain as well as not being strong or internationally binding. There are western countries that still need to repatriate their museum artifacts, and conventions such as the NAGPRA do not apply to privately held materials or to collections outside the United States

Britain, for instance, under its colonialism seized an extraordinary collection of Benin bronzes from, what is today, Nigeria. This collection has been sold to museums and private collections all over the world. Others make money from it, but the poor country, Nigeria, has had great works of African art that are integral to its culture stolen from it. (ibid.)

In relation to this, the Minister of Tourism, Culture and National Orientation, Chief Edem Duke, has recently urged museum experts to make laws that will influence the repatriation of Nigerian's stolen as well as to protect cultural institutions against looters.

Making his appeal to the Review of Laws of the National Commission for Museums and Monuments (NCMM), he urged the members:

"to make such laws that will influence the repatriation of these great works so that we can start enjoying the reward of our heroes past, and no offender against our cultural objects, be he a Nigerian or foreigner, will walk away free. Such laws will discourage looting and clandestine excavation of the objects" (Leadership. (7/10/2011))

Repatriation, too, of the objects, to their rightful land would ensure that the modern nation of Nigeria can depend on its culture for economic and educational profit, such as other nations do. The original law of repatriation of 1979, later re-enacted as Cap 242 of the laws of the Federation, had become obsolete and needed to be rewritten and extended. Not only, Edem complained, were Nigerian artifacts, particularly the Benin bronzes stolen from it, but hundreds of Europeans have copied these bronzes and sold them as their own. Nigeria, Edem insisted, needs to have copyright over the rights of copying these statues.

Edem's complaint summarizes a few of the holes in the repatriation laws. Some of these laws are archaic and need to be updated; others are too limited and narrow pertaining only to certain groups and certain countries. These laws need to be made more specific, need to be updated, and need to be extended to wider regions.

Other problems that exist were pointed out by Halle (2006) in his thesis on Maori relics. Negotiations with countries can sometimes become tricky for merits of the claims can become unclear as, for instance when a particular human limb is in reality someone's ancestor or whether a claimant does have genuine claim to the article.

This controversy is further brought to light by Turkey's ongoing struggle to regain some of its artifacts from the Metropolitan Museum of Art's Norbert Schimmel collection. Turkey says that 18 of their objects were illegally excavated from their country and housed in the MET.: "We know 100% that these objects at the Met are from Anatolia…We only want back what is rightfully ours." (Bilefsky (September 30, 2012))

The problem is that discussions on the topic are aggravated by historical confusion since Turkey's borders have shifted property various times during its history. If other countries follow suit, Museums like the Met, the Getty, the Louvre and the Pergamon in Berlin will all have to surrender many of their exhibitions leaving them with few displays.

The UNESCO convention lets museums acquire objects that were outside their countries of origin before 1970. Turkey ratified the convention in 1981, but it is now citing a 1906 Ottoman-era law -- one that banned the export of artifacts -- in order to claim any object removed after that date as its own. According to Turkey, theft and looting are wrong regardless of when they occurred and artifacts that were removed form a particular country even before the UNESCO convention was passed should be returned":

"Artifacts, just like people, animals or plants, have souls and historical memories," said Turkey's culture minister, Ertugrul Gunay. "When they are repatriated to their countries, the balance of nature will be restored."

The problem with this, as noted before, is that other countries -- such as Egypt, Greece, and Italy (with its demand from the Met of the Euphronios krater in 2006) - are making similar claims. The repatriation laws are too few, too indefinite, too vague, and insufficiently binding for them to have effect.

International Museums may end up with few, if any, objects housed on their premises.

Solutions.

This essay spoke about the symbolic representation of the artifact and the obligation, therefore, to repatriate it, but actually various other arguments exist for repatriation too, one of these being the right to consolidation when a work exists in fragments.

Many of the artifacts exist in fragments divided between the various museums and collections. These artifacts deserve to be aggregated and viewed as a whole, and they can best be done so, too, when viewed against the backdrop of their native country. Imagine viewing a Grecian state on British soil, and seeing that same statue, put together, with the Acropolis as background. The ancient Greeks believed that statues brought their subjects back to virtual life and so completeness was a perquisite for the statue.