The Stolen Origin of Humanity

By: Matthew Thran

The oldest civilizations known to man include the Mesopotamian Civilization, the Indus Valley Civilization, the Ancient Egyptian Civilization, the Mayan Civilization, and the Ancient Chinese Civilization. All of these ancient civilizations share an important attribute, not one of these civilizations developed in Europe. The civilizations respectively developed in present day Iraq, China, India, Mexico, and Egypt. Despite being spread across three continents, the lands where these civilizations flourished have all been subject to colonization or conquest from European nations. The descendants of these founding civilizations have had their history stripped away from them by European nations, who gladly display the ancient relics as though they were the rightful heirs.

Whether through conquest, colonization, or theft many European nations and the United States have amassed a large collection of national treasures from many different nations and peoples of the world. These items are often housed in museums, the ten largest of which worldwide are located in the United States, Italy, France, Spain, the Netherlands, Greece, Russia, and England.[1] The top ten largest museums in the world are all located in either a European nation or in North America.[2] Europe has received the spotlight for its accomplishments and endeavors throughout the history of the world, and is also the home of countless physical items of importance that were taken from other countries.

While many western nations find it anathema to return their ill-gotten gains, there has been a general trend in favor of returning cultural artifacts to their origin nations. There are multiple international treaties which deal with repatriation, unfortunately most of the treaties only require the return of stolen cultural artifacts or artifacts acquired after the ratification of the treaty. In 1970 the United Nations Educational, Scientific, and Cultural Organization created the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property to deal with the export, import, protection, and return of cultural property between nations.[3] Article three of the 1970 UNESCO Convention states that "[t]he import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit."[4] The 1970 Convention has been signed by 132 nations from around the world, including nations with large caches of cultural property looted prior to the 1970 Convention, such as France and the United Nations.[5] Unfortunately, the 1970 Convention is not binding on nonmember states and does not require the return of objects taken prior to a state’s ratification of the treaty.[6]

While the 1972 UNESCO Convention was groundbreaking in its attempt to protect individual states, the protections were not comprehensive. In 1995, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was ratified.[7] Currently the 1995 UNIDROIT Convention has been signed by forty-one nations.[8] The UNIDROIT Convention introduced a system that allows private individuals to bring claims for stolen cultural artifacts, which were transported to another country.[9] UNIDROIT also clearly defined the responsibilities of states in regards to respecting the export laws of foreign states, and created a uniform system for bringing claims against another state.[10]

In addition to treaties, individual nations have been taking action to protect their cultural artifacts. The majority of states have some form of patrimony law, which naturalizes all archaeological sites and cultural heritage items within the borders of the state.[11] Over 141 countries have passed these laws and they have different levels of control over their cultural objects.[12] However, some nations like Mexico and Greece have extremely far reaching statutes. Mexico's law states that "[a]ll movable and immovable archaeological monuments are the inalienable and imprescriptible property of the Nation."[13] Through the patrimony system states legally have the right to demand repatriation of their national items which are illegally exported.[14] Even the European Parliament has called on its member states to return stolen cultural artifacts, particularly those taken as a crime against humanity, largely referring to items looted by the Axis Powers in World War II.[15]

Some museums have also begun work to return cultural artifacts to their country of origin. For instance, the Association of Art Museum Directors has recognized the 1970 UNESCO Convention and has directed its members to take actions to forward the aims of the 1970 Convention.[16] The Association of Art Museum Directors also suggests that its members only buy artifacts which they can prove were legally acquired after 1970.[17] The International Council of Museums has also directed all of its members to actively research all of their property to see if any objects were acquired through dubious means.[18] The International Council of Museums’ Code of Ethics even states “that museums should not acquire, evaluate, authenticate or exhibit cultural objects that do not have a satisfactory provenance."[19]

While the international community and museums are in favor of returning recent cultural artifacts illicitly taken from a country, they are averse to returning older objects, which museums have had for many years. Many national museums cite the fact that they hold the items in trust for the nation as a whole and ae unwilling to return any item in their care without a statutory mandate from the national legislature, which has not come.[20] Some nations, such as the United Kingdom, have attempted to create a legal right to cultural objects by claiming title. The United Kingdom has claimed title to the Elgin Marbles because they were gifted to the UK by the Ottoman Empire, however the Ottoan Empire was an occupier of Greece and did not have the right to gift an item that is of such inalienable character that it cannot be parted from its state of origin.[21]

There is clear evidence that nations care about cultural artifacts and believe they should remain with the descendants of those who created the objects but many colonizing nations are averse to returning items acquired during conquests and colonization. There is a need for an international treaty which calls for the return of all ill-gotten gains acquired at any time throughout history.

[1] Top Ten Museums and Galleries, National Geographic (Dec. 15, 2016), http://www.nationalgeographic.com/travel/top-10/museum-galleries/.

[2] Id.

[3] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 art. 1 Nov. 14, 1970.

[4] Id. art. 3.

[5] Illicit Trafficking of Cultural Property: State Parties, UNESCO (Aug. 31, 2017) http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/states-parties/.

[6] Supra art. 7.

[7] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects art. 1 June 24, 1995.

[8] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects-Status, UNIDROIT (Aug. 01, 2017) http://www.unidroit.org/status-cp.

[9] Supra note 7 art. 3.

[10] Id. art. 5.

[11] John Cohan, An Examination of Archaeological Ethics and the Repatriation Movement Respecting Cultural Property (Part Two), 28 UCLA J. Envtl. L. and Pol'y 1, 52 (2004).

[12] Id.

[13] Id.

[14] Id.

[15] Maarit Hakkarainen & Tiina Koivulahti, Research into Art Looted by the Nazis - an Important International Task, Nordisk Museologi 64 (2007).

[16] Carol A. Roehenbeck, Repatriation of Cultural Property - Who Owns the Past? An Introduction to Approaches and to Selected Statutory Instruments, 28 Int'l J. L. Info 198 (2010).

[17] Id.

[18] Hakkarainen, supra note 15 at 64.

[19] Id. at 180.

[20] Cohen, supra note 11 at 98.

[21]Cohen, supra note 11 at 98.