Colonial powers and the problems of cultural heritage

HERITAGE

Who Owns History? Elgin’s Loot and the Case for Returning Plundered Treasure by Geoffrey Robertson, Knopf, $39.99

Geoffrey Robertson is a prominent Australian barrister based in London. In his latest book, Who Owns History?, he describes living across the street from the British Museum, which is the key target of this work.

The British Museum is, for me and many others in the cultural heritage field, the museum we love to hate. Robertson spares no ammunition in making the case that great heritage held by this museum and taken illicitly by colonial forces or others needs to be returned to the countries with the closest historical connection to the artefacts.

Greece argues that the so-called Elgin Marbles should be returned by the British Museum. Credit: EPA/ Facundo Arrizabalaga

In this book, Robertson argues against the ‘‘universal museum’’ (institutions such as the British Museum, the Louvre, and the Metropolitan Museum in New York) and its defenders for their retentionist, condescending, and (neo)colonial practices. Rightly and lucidly, he makes a case for context in museums such as the Acropolis Museum, over the combination of hoarding and quick selfie opportunities that major museums provide.

Who Owns History? by Geoffrey Robertson.Credit:

For the first half of this book, as its subtitle suggests, Robertson focuses on the Parthenon Marbles, which have been held in the British Museum for the past 200 years. They are also known as the ‘‘Elgin Marbles’’, in honour of the man who organised their looting and later sold them to the British Museum.

Robertson and his team (including Amal Clooney) were hired by the Greek government to prepare a legal case for the return of the Marbles. After a change in government in Greece, their advice was shelved, and this book seems to be aimed at bringing those arguments into the daylight.

Robertson surveys the history of the Parthenon, the extraction of its marbles by Lord Elgin and their subsequent sale to the British government, and the battles for the marbles' restitution. He recasts old and recent debates, summoning the power of the law, and international bodies, to intervene and promote restitution.

The second part of the book is where Robertson broadens his argument beyond the Parthenon Marbles. He engages with the fact that existing international law does not apply, because states would not get on board with the relevant treaty unless it was made non-retroactive. In other words, international law has nothing to say about any cross-border movement of heritage that happened before 1970, which covers all colonial takings of heritage.

The Shiva Nataraja statue was returned to India by the National Gallery of Australia.Credit:

Nevertheless, Robertson suggests there are ways to work around this legal loophole. First, he invokes customary international law, looking at a wide range of state practice to suggest that there is an emerging norm that requires the restitution of heritage taken by colonial powers during their domination of other countries. But there is a problem with his argument here.

While surveying a range of examples of countries in fact returning cultural objects to their countries of origin, he glosses over the fact that, for the most part, these countries go out of their way to state that they do give heritage back not because of a sense of legal obligation (an essential element of custom). Rather, these countries insist their return is done in the name of friendly relations (comity), which prevents that international law be actually formed.

That ‘‘friendliness’’ is what Australia itself did to India when returning the Shiva Nataraja statue from the National Gallery of Australia, a case not mentioned by Robertson, who focuses on Australia as the victim of looting, rather than its perpetrator. An ABC Four Corners investigation had proven beyond all doubt the statue to be looted. Despite the application of international law, including the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Australia still refused to acknowledge any legal wrongdoing. Other instances when the Convention did not apply also relied on comity, so it is unclear why things should be different moving forward.

This argument may seem technical, but it lies at the core of the issue from a legal standpoint: no law can be formed if countries such as Australia and Italy, when returning cultural heritage, say they do it in the name of comity, even if they say there is law when they want heritage returned to them.

Hypocrisy and duplicity get in the way, and Robertson’s plan does not clearly account for it.
Robertson uses famous examples such as the Koh-i-Noor diamond, the Benin Bronzes, the Bust of Nefertiti and Australia’s Gweagal Shield to show how the criteria he develops in the book can be applied to promote restitution. Most of these arguments are fairly straightforward, but some of his more innovative suggestions are problematic.

For instance, he suggests that the countries to which objects are returned should be deemed safe countries with good human rights records. While uncontroversial on the surface, these arguments have in the past been manipulated to precisely deny claims for restitution. Their open-ended character is dangerous, and Robertson fails to grapple with that possibility.

Robertson also taps into the proposition of restitution via the use of replicas. Unlike major museums who support this idea, though, he suggests that replicas should stay with the universal museums, and originals be sent to the countries of origin. I emphatically concur, since those subtle nuances that replicas cannot capture speak really to identity and historical ties, and not to the appreciation by an outsider to that culture, who would be unlikely to be able to tell the difference (I certainly would not).

If the purpose of the universal museum is to make those objects available to a greater slice of humanity so they can be appreciated in relation to other objects, as well as education, replicas can more than do the job. That is one of the reasons the Victoria and Albert Museum’s famous Cast Collection was created in 1873, after all.

As a work by a public intellectual, the book largely succeeds. While most of its contents are not new to scholars in the field, they are elegantly presented, and to the great benefit of its intended audience of well-educated citizens, politicians and diplomats.

The book’s original features lie largely in the final chapter, in which Robertson proposes and adds commentary to a possible draft international treaty. Here, while the ideas are certainly novel and useful, they are also very technical, but not always the kind of technical that legal scholars in the field might recognise as belonging in an international treaty. Examples are rules on procedure and burden of proof that are seldom, if ever, codified in international treaties.

In sum, Robertson’s new book is an important breath of fresh air to reignite the embers of the cultural heritage restitution debate. It tackles the possibilities of what a true postcolonial engagement with cultural heritage might look like. I hope people far and wide heed his call, and that this book offers elements for creating new and better rules in the area, even if there is more work to be done on his suggestions.

Lucas Lixinski is Associate Professor at Faculty of Law, UNSW Sydney. He is an expert in international cultural heritage law and his latest book, International Heritage Law for Communities: Exclusion and Re-Imagination, was published last year by Oxford University Press. @IntHeritageLaw