Finders v. Keepers

The noted archaeologist Professor Henry Jones Jr. famously adopted the mantra that historical artefacts “belong in a museum!” No one could quibble with Dr. Jones’s efforts to keep culturally significant items out of the hands of sinister private collectors or Nazis, but he also spent much of his career expropriating priceless objects from the ancient temples of Latin America and India, and bringing them back for display in first-world museums. Jones wasn’t the first to do so, but was rather continuing a long history of colonial nations unilaterally claiming the cultural property of others as their own. Today, countries around the world must deal with the legacy of this tragic past – a task made all the more difficult by the lack of any meaningful international regime for settling questions about disputed historical items.

As the old adage goes, don’t believe everything the director of the British Museum tells you. Contrary to his claim otherwise, the repatriation of historical artefacts is still a live issue today. Many major objects are being sought from European and 404 Not Found American museums by their “parent” countries, including Egypt’s Rosetta stone (currently in Britain), bust of Nefertiti (Germany), and statue of Ramses II (Italy); Greece’s Parthenon marbles (Britain again); Peru’s Machu Picchu relics (United States); and even Korea’s Jikji – pages from what is believed to be the oldest book printed with movable metal type in existence (France). Where can these victims of archaeolo-theft turn for support?

Why, UNESCO you say? Indeed, that king among ineffectual global bodies has ventured into (or at least near) the fray once or twice. However, since the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 Convention”) only applies to items which were illegally exported after its ratification (1972), it is distinctly unhelpful for items seized centuries ago.

Nevertheless, these kinds of international agreements are useful as indicators of a global consensus on the property status of historical and cultural artefacts. For example,

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UNESCO’s Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Convention”) describes these types of items as the “cultural heritage of all mankind” (preamble). If this remained the consensus view today, the argument that particular items must be returned to particular countries would be considerably weakened – since all mankind would have equal claim to them. The 1970 Convention, however, makes it clear that cultural property belongs to the nation in which it originated (Article 4). That this later Convention was accepted and

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ratified by Western states indicates an increasing degree of acceptance for the notion of nation-specific cultural property (except perhaps in the British museum).

If most countries agree that historical objects belong to the countries in which they originated, why hasn’t a treaty to this effect – and establishing a regime for the return of said objects – been agreed upon? Quite simply, because the countries holding these treasures will give them up when you pry them from their cold, dead hands (much like they pried them from the cold, dead hands of other nations’ ancestors). The best attempt at a comprehensive treaty occurred fifteen years ago,

Additionally, a 404 Not Found and was created by UNIDROIT (“the Esperanto of the legal world”).

UNIDROIT’s Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was drafted in 1995 as an elaborate exercise in drafting. This Convention, by its very nature, views cultural and historical artefacts as the property of error was encountered while trying to use an ErrorDocument to handle the request.

their country of origin. It mandates that possessors of stolen cultural objects return them (Article 3(1)), and that the courts of states in possession of illegally exported objects – upon the request of another state – order them to be returned (Article 5(3)). In the latter case,
the requesting state must have some particular interest in the object in question, but the criteria for satisfying this requirement are broad, and include the object being “of significant cultural importance”.

The UNIDROIT Convention, in contrast to UNESCO’s 1954 and 1970 Conventions, was comprehensive, and tackled the issue of the repatriation of historical artefacts in a simple and straightforward manner. Also in contrast to the UNESCO Conventions,

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it was never implemented. It’s easy to explain why: the UNIDROIT document actually required former colonial powers to return their historical loot, which they don’t want to do. Alas, getting governments to consent to treaties which would require them to do things they won’t consent to do is the Achilles heel of many international agreements.

Nevertheless, the UNIDROIT Convention is a useful guide to what a rational international agreement on cultural property repatriation might look like. It’s a shame to relegate it to the dustbin of history; at the very least, it belongs in a museum.

But the crystal skulls are the common heritage of all mankind!

A CULTURAL EXCHANGE PROGRAMME

Brett Hodgins Brett Hodgins a third-year law-MBA student from a small town in Ontario. The town has both a prison and a mental institution. Brett has three siblings, a niece and nephew, and two turtles who do not have names. Brett is interested in international politics and law.

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