INTRODUCTION
The 16th Session of the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation was held in Paris at the UNESCO headquarters, 21–23 September 2010.
The director general of UNESCO represented by Alain Godonou opened the 16th session with an address. This was followed by the election of the bureau for the committee's 16th session. Professor Constantin Economides of the Greek delegation was elected the chairperson. Thereafter, Libya, Mexico, Republic of Korea, and Romania were elected vice-chairpersons. Professor Folarin Shyllon of the Nigerian delegation was elected rapporteur.
Perhaps it is not out of place to trace briefly the genesis of the committee. In 1964 the General Conference of UNESCO, at its 13th session held in Paris, adopted the Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property. Another recommendation on the same theme was adopted at the 20th session of the General Conference in 1978: Recommendation for the Protection of Movable Cultural Property. These recommendations aim to protect the national cultural heritage of states by countering the illicit operations that threaten them. It was, however, reaction within UNESCO to United Nations General Assembly Resolution 3187 of 1973 that led to the Establishment of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation in 1978. United Nations General Assembly (UNGA) Resolution 3187 was captioned, “Restitution of works of art to countries victims of expropriation.” It was the first of its kind on cultural property, to be followed by many more.
The committee held its first session at the UNESCO headquarters in Paris in 1980. It has convened not only in Paris, but also in Istanbul, Turkey; Athens and Delphi, Greece; and Seoul Korea. The body, composed of 22 (originally 20) UNESCO member states, is primarily a negotiating forum aimed at facilitating bilateral negotiations and agreements for the return or restitution of cultural property, particularly that resulting from colonization and military occupation to its countries of origin either when all the legal means have failed or where bilateral negotiations have proved unsuccessful.
BILATERAL NEGOTIATIONS
The three cases pending before the Committee were discussed:
1. The Parthenon Marbles (Greece, United Kingdom, and the British Museum)
2. Boğazköy Sphinx (Turkey, Germany, and the Berlin Museum)
3. The Makonde Mask (Tanzania, Switzerland, and Barbier-Mueller Museum)
Statements by the delegations of the Greece and the United Kingdom restated old positions. In the adopted Recommendation 1, however, it appears there is hope for future fruitful negotiations. Besides, a consensus emerged: The objects are henceforth to be referred to as Parthenon Sculptures, thus abandoning the old terms of Parthenon Marbles and Elgin Marbles.
Both Turkey and Germany agreed to further negotiations on the return of the Boğazköy Sphinx.
The delegation of Tanzania reported the return of the Makonde Mask to Tanzania following successful negotiation with the Barbier-Mueller Museum, Switzerland, under the auspices of the International Council of Museums (ICOM). The agreement refers to the return as being a “donation”!
Perhaps we should not waste words with regard to the act being a donation, because the important thing is that the mask is in its rightful place. In the past requests for return have been met by way of donation even after litigation has started. Thus in the case of a garland sarcophagus lent to the Brooklyn Museum, the private lender of the sarcophagus, appeased Turkey, by donating the $11 million artifact to the American-Turkish Society. The American-Turkish Society subsequently sent the garland sarcophagus back to Turkey, the plaintiff country, where it remains on indefinite loan. Similarly, the Metropolitan Museum of Art, New York, returned the Lydian Hoard collection to Turkey after litigation had commenced in response to the alleged blackmail of a potentially successful lawsuit.
Replicas and Copies
In the course of the discussions of the three cases, the use of replicas to assuage the call for return or restitution of cultural property came up. This is a diversionary suggestion. Being given a copy of an “irreplaceable cultural heritage” is a very poor substitute. People feel a powerful connection to cultural objects that define their being, and a duplicate cannot satisfy what Anthony Appiah refers to as “the connection to art through identity.”Footnote 1 Besides, among nations the option has always been universally spurned. Thus the report of the 12th Intergovernmental Committee session (25–28 March 2003) reported that on 19 November 2002 a bilateral meeting was held between Turkish and German authorities in Berlin with little result over Turkey's request for the return of the Boğazköy Sphinx. “Germany proposed keeping the original Sphinx and having a replica made to give to Turkey. Turkey proposed the return of the Sphinx to Turkey and giving a replica to Germany. Neither proposal was accepted.” The truth is that even in this technologically advanced age when a copy is almost indiscernible from the original, only the original has the aura or magic attached to an original work of art.
DRAFT RULES OF PROCEDURE ON MEDIATION AND CONCILIATION
The consideration of the Draft Rules of Procedure on Mediation and Conciliation, particularly draft articles 4 and 7, occupied almost a day. This is rightly so in view of the increasing important role mediation plays in the return or restitution of stolen or illegally exported cultural property to its countries of origin.
The issue of the use of alternative dispute resolution methods for the resolution of cultural property disputes under the aegis of the committee first came up for discussion at the third session of the committee held in Istanbul Turkey 9–12 May 1983. Salah Stetie, the chairperson of the first three sessions of the committee had commented that “[i]f at the end of … one year [of negotiation] the Committee felt that the position of the holding country was unjustified, it could extend its good offices or perhaps arbitrate in order to find an acceptable solution.” Several members then took the floor to stress that the method of bilateral negotiations must be respected absolutely. One member stated that it was impossible for his country to accept the idea of “arbitration” on the part of the committee, for the role of the latter was one of mediation only. “To arbitrate would be to support the position of a particular country.” It was not for the committee to pass judgment in such a manner, but rather to analyze the reasons for the failure of an attempt to obtain a return or restitution through bilateral channels. The chairperson was quick to respond that he had referred to arbitration “in a general way.” The committee could only bring together people of good will eager to find workable solution: “its path was that of mediation and moral pressure.”
PREPARATION OF MODEL PROVISIONS DEFINING STATE OWNERSHIP OF CULTURAL PROPERTY
Based on signals given at the 15th session, the Secretariats of UNESCO and UNIDROIT formed a committee of experts to produce draft model provisions defining state ownership of cultural property. Many members of the committee, however, were unhappy that the experts committee was empaneled without express directive from it. In the end through Recommendation 3, the committee approved the setting up of the experts committee to prepare draft model provisions with explanatory guidelines to be made available to states to assist them in the drafting or strengthening of national laws.
THE UNESCO CULTURAL HERITAGE LAWS DATABASE
The UNESCO Cultural Heritage Laws Database is an innovative tool that continues to be developed. It is now an informative tool for states in improving their national laws. It is also a boon to researchers.
THE UNESCO RETURNED CULTURAL PROPERTY DATABASE
The Secretariat made the revelation of a new database intended to catalog the return or restitution of cultural property. This should eventually become a moral instrument that would encourage holding states to follow the part of honor and restitute.
INVENTORIES
Recommendation 6 in part reminds and encourages states to reinforce their national policies regarding inventories of movable cultural heritage, notably concerning museums, cultural institutions, cultural sites (in particular of an archaeological nature), and places of worship. The absolute importance of this advice cannot be overemphasized. African countries that tend to be slack on installing the state of the art inventories should take note and act accordingly with utmost speed.
UNIDROIT CONVENTION UNDER ATTACK
After 15 years only 30 countries so far have joined the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Two speakers on behalf of the art market and some delegations spoke in unfavorable terms concerning the UNIDROIT Convention. Certain provisions of the convention certainly do not endear themselves to the art market and market countries. I am however comforted by the remarks of the director general of UNESCO in 1995 who, soon after its adoption, described the UNIDROIT Convention as a “breakthrough international framework to combat private-sector transactions in stolen art and cultural property” and “a watershed in our common struggle to defend cultural property.”Footnote 2 In spite of the attacks against it, the convention has forced many market countries to endorse UNESCO 1970 Convention. Faced with the choice of ignoring the two conventions, market countries have, in my opinion, been persuaded to adopt the lesser evil. For example, the 1999 Report of the Swiss Working Group that considered whether Switzerland should ratify the UNESCO and UNIDROIT Conventions concluded that should Switzerland fail to ratify, the country would become more attractive as a hub for illicit trade of stolen and illegally exported cultural objects, and “we can reasonably expect that a growing number of shady transactions will not promote a positive image of Switzerland abroad.” In 2003 Switzerland adopted the 1970 UNESCO Convention. Other European market countries that have joined the 1970 Convention since 1995 are France (1997), the United Kingdom (2002), Denmark (2003), Sweden (2003), Germany (2007), Norway (2007), Belgium (2009), and the Netherlands (2009). Of these only Norway (which is not a particularly huge art market country) is a member of the UNIDROIT Convention having joined in 2002. Italy (2000), Spain (2002), Portugal (2003), and Greece (2008), all both source and market countries, are members of the UNIDROIT Conventions. Meanwhile, in 1983 the United States joined the 1970 UNESCO Convention, and immediately followed membership with its hugely beneficial 1983 Cultural Property Implementation Act.
My African background compels me to mention that sadly, only two African countries (Gabon and Nigeria) have joined the UNIDROIT Convention. With regard to the earlier 1970 convention, just 27 out of 53 African countries members of the United Nations are states parties. By all accounts, African countries appear to be the most vulnerable of any group of countries with regard to stealing and illicit trade in cultural property.
AWARENESS CAMPAIGN AND LINKS WITH THE ART MARKET
The speakers representing the art trade spoke in discordant notes. While the two speakers from Sotheby's and Christie's were conciliatory and showed empathy for the work of the committee, other speakers were less understanding. In fact two vigorously attacked the UNIDROIT Convention as if it were a rogue elephant, rather than an instrument that complements the 1970 Convention. “Together the two Conventions,” as Lyndel Prott very well put it, “close many of the loopholes that had prevented courts from combating more forcefully the illegal trafficking of cultural objects.”Footnote 3 One wonders what the International Code of Ethics for Dealers in Cultural Property 1999 is all about! Are these codes of ethics merely meant to present a positive image of the associations? I cannot help but recall the observation of Clemency Coggins, that the significance of these self-denying ordinances by museums and art dealers associations is probably that they should have been made at all.Footnote 4
CELEBRATION OF THE 40th ANNIVERSARY OF THE 1970 CONVENTION
It was agreed that the 40th anniversary of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property should be marked at the end of the year. It may be recalled that 10 years ago, the 30th anniversary was marked at the UNESCO headquarters.
PERIODICITY OF THE COMMITTEE'S MEETINGS
There was a protracted debate whether the committee should meet again next year or wait till 2012. In the end there was consensus that the committee could meet in 2011, if the director general of UNESCO provides the wherewithal to hold the meeting. This is reflected in Recommendation 5.
CONCLUSION
Since its inception in 1978 the Committee has handled eight cases. Three have been solved through mediation. In 1986 the Cincinnati Museum in the United States returned the Panel of Tyche to the Department of Antiquities, Amman, Jordan. In 1988 the Phra Narai lintel was returned to Thailand from the United States of America. And in 2010 the Makonde Mask was returned to Tanzania by the Barbier-Mueller Museum, Switzerland. One case was solved by the direct return of 7000 Boğazköy cuneiform tablets from the German Democratic Republic to Turkey in 1986. In 1983 Italy returned more than 12,000 pre-Columbian objects to Ecuador. The case was resolved after seven-year litigation. The moral support expressed by the committee was recognized by the Ecuadorian authorities as a significant factor in the success of their cause.
Another case for the return of archaeological objects between Iran and Belgium from the Necropolis of Kurvin in Iran appears to be suspended. Two live cases are those for the return of the Parthenon Sculptures (between Greece and the United Kingdom), and return of the Sphinx of Boğazköy (between Turkey and Germany).
Although merely eight cases have come before the committee since its inception, the success of the committee cannot be determined with this yardstick. On the contrary, the committee has been one of the most successful committees of UNESCO. The tens of thousands of returns that had taken place these 32 years attest to this assertion. Countries and individuals have been persuaded to make returns and restitutions through the influence of the committee, or what the committee's first chairperson called “moral pressure.” None of the databases, codes of ethics, import controls (as under the United States Convention on Cultural Property Implementation Act), improvements in national legislations, or mediations could have been achieved without the moral authority of the committee. It is therefore quite proper to celebrate the 40th anniversary of the 1970 convention. I am also inclined to agree that the time has come for the committee to meet annually to accelerate further development of measures and ideas in combating stealing and illicit traffic in cultural objects. It would also help advance the committee's mission.
