Return and Restitution: The Question of Returning Cultural Property to the Countries of Origin

DPI NGO Briefing                            November 3, 2011
The Department of Public Information held a briefing on the question of returning cultural properties to their countries of origin, regardless of whether they were removed legally or illegally, or whether the properties are publicly displayed in museums or kept in private collections.

Much of the discussion hinged on the 1970 Convention adopted by the UN Educational, Scientific and Cultural Organization (UNESCO), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html). The Convention considers “that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding is origin, history and traditional setting,” and “that the protection of cultural heritage can be effective only if organized both nationally and internationally among States working in close co-operation.”

Article 1 of the 1970 Convention defines “cultural property,” while further articles describe actions that constitute illicit transfer of this property. The document also recommends that States develop the capacity of and supervise a variety of institutions and events, including museum collections and archaeological digs, in order to preserve and protect its cultural heritage. According to Article 10, States Parties to the Convention agree “to restrict by education, information and vigilance, movement of cultural property illegally removed from any State Party to this Convention.” The regulations of the Convention therefore only applies to cultural property transferred from one State Party to another State Party after the entry into force of the Convention, and cannot be implemented in cases of cultural property transferred before its official entry into force, a stipulation which stymies the efforts of some countries to see their cultural property returned to its rightful place. However, agreements between states, whether parties to the Convention or not, regarding these cultural properties can still be enacted.

Mr. Dimitris Caramitsos-Tziras, Deputy Permanent Representative of the Greek Mission to the United Nations, delivered the first remarks of the briefing. He recognized that any opportunity to discuss the illicit trafficking of cultural property is timely, and offered some statistical background for the discussion. Owing largely, in all probability, to the civil and political upheavals in the area, about 8,000 Roman, Greek and Islamic coins have recently been looted from Libya. The illicit trade in antiquities garners between $2 and $6 billion every year. Mr. Caramitsos-Tziras’s home country of Greece has 17 sites on the World Heritage list (found here http://whc.unesco.org/en/list; see also the World Heritage Convention at http://whc.unesco.org/en/conventiontext).

In 2009, Greece proposed a General Assembly resolution on the restitution of cultural property; the mission will present a new draft at the 67th session of the Assembly, which will meet in 2012-2013. The draft notes that illicit trafficking of cultural property has evolved since 1970 due to changing technology, demand, etc. The draft also advocates imposing sanctions on States Parties that do not implement the Convention.

Mr. Caramitsos-Tziras observed that at a 2008 UNESCO inter-governmental meeting, participants agreed that unique monuments only have significance in their original settings. He insisted that the Acropolis Museum is the proper and fitting place for its own antiquities now, regardless of where they have been displayed or taken in the past. The ambassador also recalled one writer’s comment that mosques cannot be appreciated or interpreted apart from their true settings; like myths, they have to be situated properly to transform us.

Ms. Rochelle Roca-Hachem, Officer for Culture in the UNESCO office at the UN in New York, was unable to be personally present at the briefing, but sent a PowerPoint presentation to be shown in her stead. Her presentation highlighted the 1995 UNIDROIT (International Institute for the Unification of Private Law) Convention on Stolen or Illegally Exported Objects, which has similar restrictions and provisions to the UNESCO Convention of 1970 (http://www.unidroit.org/english/conventions/1995culturalproperty/main.htm). Ms. Roca-Hachem also described the UNESCO Database of National Cultural Heritage Laws. Launched in 2005, the database includes 23,000 documents from 130 countries. It “makes it possible for everyone (governments, customs officials, art dealers, organizations, lawyers, buyers, etc.) to gain easy access to the laws in force. In case of doubt about the legal position, it is vital to be able to swiftly consult the relevant national laws.” The database’s existence also makes it harder for cultural property traffickers to claim ignorance of the laws they break.

Ms. Sharon Cohen Levin is Chief of the Asset Forfeiture Unit in the Criminal Division of the United States Attorney’s Office for the Southern District of New York. Ms. Levin discussed items of cultural property that are bought by private collectors. These items are often impacted by Asset Forfeiture Laws, a method utilized to return cultural property to its rightful place.

The U.S. Cultural Property Implementation Act of 1983 defines stolen property as taken from the inventory of a museum, public monument, or church; looted items, on the other hand, come from a designated area of protected property. According to Ms. Levin, the act does not allow an “innocent owner” defense: no matter what the current owner claims to know or not know about their origin, objects are subject to seizure, forfeiture, and return. Furthermore, even if the property was stolen or looted before the date of any convention or law, if it is smuggled in or otherwise illegally enters the country, it can still be seized.

The Smithsonian Institution has 19 museums and research centers worldwide. Its Office of the Under-Secretary for History, Art and Culture houses the Smithsonian Provenance Research Initiative, directed by Ms. Jane Milosch. Ms. Milosch, the last speaker of the day, said that the Smithsonian Institution developed more rigorous acquisition policies after 1970, 13 years before the U.S. enacted its own law regarding cultural property. The institution works through the U.S. State Department on cases of restitution, and is careful to do so without media drama to show sensitivity to the culture(s) involved. As director of the Provenance Research Initiative, Ms. Milosch oversees the World War II-Era Provenance Research Project. Since the late 1990s, she has been researching objects in collections that have provenance gaps; in other words, gaps in where and when they have been owned or displayed. The institution also provides training for curators, museum professionals, and art historians to conduct this type of research. Ms. Milosch noted that the Freer and Sackler Galleries, of the Smithsonian Institution, also have a provenance project underway focusing on Asian and decorative art (as per the galleries’ main collections).

The question and answer period of the briefing proved fruitful, as audience members asked practical questions about the process of return, restitution, and cultural ownership of artifacts. The first question dealt with the people who sell items of cultural property. Ms. Levin and Mr. Caramitsos-Tziras recalled two cases in which traffickers of cultural property were tracked down and stopped. Ms. Levin, who said her office often works with INTERPOL on these cases, noted that it can be problematic when property is looted outside the U.S., because other countries want the property returned but will not prosecute the culprits. Mr. Caramitsos-Tziras described a case about cultural property between Italy and Greece, which had stalled until European authorities arrested a trafficking ring and were able to use evidence from that case to solve the dispute between Italy and Greece.

The second questioner wanted to know how the process of return of cultural property starts. Ms. Levin said that INTERPOL, museums, galleries, and families contact her office, and sometimes even third parties, saying, “There’s something suspicious here.” She indicated the process has changed with the accessibility of the information on the Internet; many museums conduct their own searches to determine if an item was stolen or looted. Ms. Milosch said the Smithsonian Institution has a practice of going through the records of pieces in its own collections to see if anything is questionable; they have not found anything in their collections from the World War II era, however. She observed that it is not enough when people call and describe pieces vaguely; her office needs more detail in order to act.

Mr. Caramitsos-Tziras affirmed the level of goodwill in art dealerships around the world, although small galleries might not have the resources to trace artifacts’ origins. A lot of out-of-law settlements have been reached, he said, pointing out that although the UNESCO Convention has a time limit, it creates an atmosphere of goodwill in which dealers and curators operate.

In response to a question about the safety of artifacts which are returned to their countries of origin, the Greek representative said that no one is asking for everything to be returned, or for everything to remain where it is now. There is a line, determined by justice and reality. He argued that the reasoning that a museum would be “poor” without certain artifacts to display is no argument at all. The Convention and related laws are not a call for governments to demand everything they think is theirs. These works, he declared, are the world’s; they belong to humanity. If a museum gives something back to its original country, it is to the museum’s credit.

Another interesting question, also answered by Mr. Caramitsos-Tziras, had to do with the accessibility of artifacts, for the public’s education and enjoyment. He asserted that the question of ownership and the question of accessibility are different but can be combined. If an artifact is on loan, for example, it can travel the world for people to see and to learn about its history and its culture. He also related the question to the specific dispute about the missing pieces of the Parthenon, claiming it is a question of unification. The current stalemate in negotiations is about display versus ownership: The United Kingdom, which currently has the missing pieces in a museum, takes the stand that if Greece acknowledges the marbles belong to the UK, Greece will be permitted to borrow them. Greece, on the other hand, insists that the UK should recognize that the marbles belong to the Parthenon; the UK will then be allowed to display them for a time.

Cultural property is a valuable part of every culture’s history and identity. The issue of the safe return and restitution of such significant items is important not only to collectors and historians, but to everyone. These pieces should be displayed in a manner and location making them accessible and appreciable to students, educators, visitors, and all citizens. In addition, it is important that cultural property be connected to its history and background in some way, once again made part of its own culture, for its richness, depth, and beauty to be fully understood and enjoyed.

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