Abstract

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In recent years there have been efforts to decolonize museums by modifying the presentation of collections to acknowledge their oppressive history. There have also been pushes to share collections more prominently world-wide. Additionally, the advent of using 3D printings to help return original items to the cultures they derived from is another excellent approach to decolonizing. However, the repatriation of some high profile ancient artifacts is still the simplest course of action, so why is it they have not yet been returned?

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When we focus on the debate for provenance over ancient artifacts we may often wonder, if they are all from antiquity and mostly viewed as immorally taken from their respective countries, why do we have various outcomes with repatriating them?  Does the method of acquisition really matter in this current era of decolonization within the museum sector? There have been numerous controversies surrounding demands for repatriating certain artifacts, and within the debate of it all, we can find the social, moral, and practical arguments for returns. A primary factor stopping us from really tackling some cases of restitution morally are the UNESCO (United Nations Educational, Scientific and Cultural Organization) reforms that museums base their stewardship ethics on— it's almost like a circumvention clause. Our reliance on codes can sometimes be contradicting. In this article, we can identify the similarities in acquisition from different periods and contrast repatriating scenarios around the timeline of the UNESCO regulations.

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UNESCO mandated international guidelines at their convention in 1970 concerned with cultutal heritage. After World War 2 many nations were becoming increasingly independent  and there was a need to create an international treaty to combat illicit trafficking of cultural property as a black market had risen leading to the dismemberment of monuments and ancient sites around the globe. The UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was signed on 14 November 1970, and came into effect on 24 April 1972. As of October 2019, 140 states have ratified the treaty.

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The 1970 Convention

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The 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property urges States Parties to take measures to prohibit and prevent the illicit trafficking of cultural property. It provides a common framework for the States Parties on the measures to be taken to prohibit and prevent the import, export and transfer of cultural property.

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The return and restitution of cultural property is central to the Convention and its duty is not only to remember but to fundamentally safeguard the identity of peoples and promote peaceful societies whereby the spirit of solidarity will be strengthened.

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Thus, the 1970 Convention is fully in line with the Sustainable Development Goals defined in the United Nations 2030 Agenda. (https://en.unesco.org/fighttrafficking/1970)

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We can compare and contrast recent repatriation requests from the past five years using cases of objects obtained in the different periods. A critical review of these case studies illustrates the complexity of the ethical debate facing museums with ancient artifacts.

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The Ethics of Ancient Artifact Repatriation & Museums

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The concept of the museum may have been born during colonial times, but it has evolved well into an era concerned with cultural rights and decolonization as a focus. Museums have come to recognize that they have somewhat problematic histories that are amplified when exhibiting artifacts from the ancient world, a problem associated with provenance, and a history separated by imperial archaeological ages and cultural heritage conventions. Gradually, since conception, museums became public and encyclopedic institutions designed to educate us about other cultures through artifact collection. Thus, the ethics surrounding the ownership of ancient artifacts procured during colonialism have been passionately debated. Technically one side can argue that every artifact residing outside of the country of their origin is ‘stolen’ in a sense. Morally, stolen artifacts should be returned, but in the cases where artifacts were purchased legally, the artifact could stay where it is. However, what is legal, and what is moral? The points at which law ends and morality begins is something to concentrate on in this ongoing debate. Chairman of the Commission for Art Recovery, Ronald S. Lauder, says: "The problem of stolen art must be recognised as a moral issue that can be solved only with morality as its primary basis." (1) Today the museum has to make legal, moral, and ethical judgments about what it should do. Samuel Sidibé, the director of the National Museum of Mali writes in The New York Times a statement that helps us understand museum ethics today:

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“The return of cultural objects to their country of origin is a complex question, but there are some clear-cut cases for repatriation... The trafficking of stolen objects is already explicitly prohibited by national laws and international agreements like the 1970 Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. But artifacts and objects acquired in contemporary wars or violent situations do not usually fall under universal categories of "stolen" and should be better protected by international law. As for items obtained during colonial eras – outside of cases of confiscation by looting, violence or theft as mentioned above – the question is harder to answer. At times it’s difficult not to believe that colonization unfairly deprived subject peoples of the most important part of their cultural heritage. The demands for restitution seem justified when the exported object is considered an essential part of the former colony's cultural patrimony — when it is necessary for understanding a culture as a whole. It is necessary to consider the importance of each artifact for the people of its country of origin.” (2)

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Narrowing down Sidibé’s thoughts to ancient artifacts such as the Elgin Marbles, the Bust of Nefertiti, and Rosetta Stone, it can be vague when it comes to legal possession. Ultimately a return of these controversial and symbolic items may not be a question of ethics but rather a question of the law, timing, and obligation. So first, we need to ask ourselves if the method of acquisition matters? This brings us to the mitigating circumstances that usually determine ‘who owns the past’ or the artifact in question. This is done to stipulate the line between colonial procurement and modern-day antiquities trafficking. This line legally exists, but the artifact’s acquisitions stories bear similarities in both time periods.

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To identify the periods, we can look at the proverbial line that dictates how museums treat a repatriation case and how they vary. When museums return artifacts, it is usually under a context and framework where they have an ethical obligation and legal procedure to guide them. Museums look to the ICOM (International Council of Museums) checklist on the Ethics of Cultural Ownership derived from the UNESCO international reforms. 

 

Does the method of acquisition matter?

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We are aware that most high profile ancient artifacts were removed under somewhat deplorable conditions, and we are working to decolonize the past. Yet it seems that museums avoid or rather, do not always comply with some returns simply because there is no legal precedence to. Repatriation is simply the process of returning artifacts to their country origin when asked. So why is it we return some objects and not others? For museums it falls under two different contexts, and thus, the method of acquisition matters greatly as we can see in the following article excerpt which concerns ethics in museums today. Alex Tam writes for the Harvard Political Review in January 2020:

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“Museums have typically drawn a distinction between what kinds of artifacts they are willing to return. They have been relatively receptive to requests to return recently acquired artifacts – although this receptivity is often mediated by court orders. These artifacts, acquired in the post-colonial age, were often removed from their places of origin by other actors and bought by museums, who claim no knowledge of their illegal removal. In recent years, the Getty Museum and the Metropolitan Museum of Art have returned such stolen artifacts. But when it comes to artifacts that have been in their possession for a century or more – ancient objects and often the most valuable ones, procured for museum collections during the colonial era – museums have dug in their feet. One way of looking at this is to conclude that museums simply do not want to give up priceless treasures. But there are far more complex undercurrents that lie below the surface – the decisions of museums, as institutions of social and cultural power, to collect or curate objects are colored by far more than considerations of current value.” (3)

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This statement helps us to understand museum ethics today by showing us that there are various factors to consider with repatriation cases. It primarily comes down to two different contexts that we can now categorize and separate here for clarification. There is Context A - After UNESCO, in which regulations only require the return of artifacts removed from their country of origin after the year 1970. Then there is Context B - Before UNESCO, where the appropriation of artifacts before the date of the regulations can be considered legal and permissible. It now becomes clear that in a sense, museums have a statute of limitations they can use to bypass returns, and when they do not the results are completely different even though the acquisition stories are similar.

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Should ancient artifacts in museums be repatriated?

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Context A - After UNESCO

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This distinction in international law seems to have influenced how museums behave towards different types of cultural heritage crime artifacts. With Context A, we find many artifacts were most likely looted, devoid of any archaeological application, and classified as stolen by current laws. Which is not unlike Context B except for the separation of the UNESCO time periods in which we operate. As such, with cases evidenced after Context A, museums have been more compliant, cooperative, and proactive with calls for repatriation. We can note there have been many cases of cultural artifacts being returned to individuals, groups, governments, and nations which address and acknowledge illicit smuggling. Museums do their best due diligence when acquiring artifacts, however, sometimes they are fooled by criminal’s surreptitious strategies and traffickers who forge documents to legitimize ownership. When an issue over provenance is raised, museums have been quick to react following an ethics codes such as the MA (Museum Association) and AAM (American Alliance of Museums).

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One example can be seen from The Cleveland Museum of Art, which returned a Cambodian statue of a Hindu deity in 2015 after it was declared stolen from a jungle temple more than 40 years ago during a military conflict. The museum had it on display since 1982. However, in 2013, museum officials learned the statue was likely stolen, and even though they acquired it properly, they sent experts to Cambodia that discovered evidence the 10th-century sculpture was at the temple’s gate and removed illegally after Context A. The museum’s director Christoph Heinrich said in a joint statement with the Cambodian government: “We were recently provided with verifiable evidence that was not available to us at the time of acquisition, and immediately began taking all appropriate steps for its return home.” (4) The Cleveland Museum of Art was subsequently involved in another case in 2017. This time with an ancient Roman bust that had no official records before 1970, a sign that it may have been looted. The museum aptly worked with the Italian government for repatriation. “When we became aware of facts that were inconsistent with our understanding of the provenance of the sculpture, contacting the Ministry directly was an easy decision in light of our many years of working with our Italian colleagues,” (5)

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These two cases are excellent examples of a museum undertaking research into the provenance of a cultural artifact and acting to repatriate it. In correspondence with the UNSECO reforms, they acted accordingly and cooperatively. But if the artifacts here were subject to Context B would they have reacted the same way?

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The Metropolitan Museum of Art (MET) in New York has had several repatriation cases over the years. In 2019 the Met was met with another, this time related to an object that was stolen. The artifact in question was the ancient Egyptian coffin of Nedjemankh, a high-ranking priest from the 1st century BC that they had purchased for 4 million dollars. Museum officials stated they had purchased the artifact in 2017 from an art dealer in Paris and were unfortunately fooled by ingenuine provenance documents that made it seem as if the coffin had been legitimately exported decades ago. Local Manhattan attorneys provided the MET with evidence that it had actually been looted from Egypt in 2011. The MET responded with repatriating the artifact and making it clear that they understood their responsibilities as a leading encyclopedic museum with considerable collections of ancient artifacts. “Our museum must be a leader among our peers in the respect for cultural property and in the rigor and transparency of the policy and practices that we follow,” Max Hollein, the museum’s director, said in a written statement. “We will learn from this event — specifically I will be leading a review of our acquisitions program — to understand what more can be done to prevent such events in the future.” (6)

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As we can see, when museums are presented with calls for repatriation with artifacts in Context A, they are more efficient in acknowledging provenance matters and act more empathically to cultural heritage crimes. They are compelled to help, have a clear course of action and they exercise a free will to make a moral decision for a return. Context A does usually involve smugglers, traffickers, and Janis figures who elude museums, and the crime is devoid of sound archaeological practice. But is that not unlike the acquisitions from colonial times? 

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Should cultural heritage reside in the place from which it came?

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Context B - Before UNESCO

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Context B is where we find a grey area and see that the statute of limitations has run out. This is where we need to evaluate and reevaluate ethics constantly. Perhaps the most impassioned argument for the return of artifacts taken before international reforms and balanced ethics codes within museums are the cultural property disputes over the Parthenon sculptures aka The Elgin Marbles. Although the marbles are still housed in the British Museum, Greece has been calling to have them returned for centuries. "Britain and Greece have been arguing over the Elgin Marbles for years—Greece claims they were taken without permission while under occupation and should be repatriated, while Britain has claimed this could open the door to returning an untenable amount of cultural assets to other countries."(7) The marbles are viewed as being taken unethically by today's standards, yet we treat them differently. The details surrounding removal are as morally questionable as those from Context A, but here in Context B museums are not receptive to return because they are not required to be, and it can threaten other collections at encyclopedic institutions.

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The UNESCO rule has created a stalemate in the case of the Elgin Marbles. Still, significant and convincing arguments have been made by both sides, yet to this date, there has never been a compromise. In July 2019, the British Museum’s Director, Hartwig Fischer defended the removal of the marbles from Athen's Parthenon in the early 1800s, calling it a "creative act." He said: “When you move cultural heritage into a museum, you move it out of context. Yet that displacement is also a creative act, and each encounter with it is potentially a creative act.” (8) This statement incited international backlash and solidified the British Museum’s stance on repatriating the marbles to Athens. It is an entirely different reaction to Context A. Interestingly with Britain’s recent exit from the European Union we may finally see a resolution that is associated with modern-day political law as we live in an era defined by the rise of identity politics and increasing fractionalization. It may prove that cultural heritage can be used as a tactical tool in global politics with a spotlight on stolen cultural identity and history.

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Another high profile Context B case pertains to a series of 5 important Egyptian artifacts that include pieces just as infamous as the Elgin Marbles. In January 2020, a private group led by former Egyptian Antiquities Minister Zahi Hawass called for the return of artifacts currently located in the British Museum in London, the Louvre in Paris, two museums in Germany, and one in Boston. The majority of museums initially refused his loan requests. “The only museum that agreed to send the artifact on loan was the Hildesheim [museum],” Hawass revealed. “The other four museums refused and gave very strange reasons as justification.” (9)

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As of May 2020, Hawass’s group is calling for the permanent return of these objects. Among them are the Bust of Nefertiti and The Rosetta Stone. All these artifacts fall into Context B, and this ongoing controversy relates to a general growing public awareness about the provenance and politics of antiquities held in western encyclopedic museums. Hawass says: “They are unique objects and aren’t supposed to be outside as they left the country illegally. The Europeans who used to take these say that African countries aren’t capable enough to preserve their heritage. But now, we are finishing the best and largest archeological museum in the world … the Grand Egyptian Museum (GEM), which is unparalleled. These artifacts will be shown in a beautiful way for the first time.” It is clear that Egypt is the country of origin, has the ability to preserve the objects in question and fully accommodate their archaeological legacy.

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In line with the decolonization movement, we can see a dilemma with these ancient artifacts. Unfortunately, they are also in line with Context B and there were not any clear regulations regarding the export of Egyptian antiquities taken to Europe 200 years ago. Nevertheless, still, we live in a complex world, and no one legal system, like UNESCO, could fully accommodate the world's diverse cultural perspectives. On the one side, it can be argued that wealthier foreign countries have better resources to protect, preserve and restore historical artifacts as our moral obligation is to ensure that for future posterity. On the other side, it can be argued that might have worked in the past or during colonial times when a country took them to preserve them, but today the majority of nations have the resources and technology and institutions to house them like Hawass says. Having preserved them while the originating nations caught up to the nations that took them seems to be the point we are at now. Still, with this context we have a dispute over ownership.

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In the end, as much as we can draw parallels in acquisition, it is difficult to determine the rightful owners of artifacts that fall into Context B. These artifacts may be the foundation of tourism and the lifeblood of the museums they currently reside in, but yet we also understand the historical wrongs associated with them. We continue to escape repatriation through a loophole.

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In many cases Context B artifacts are also an intimate part an area's history, they were illegally procured, and they are reminders of past oppression. Today we are more globalized, have more equality, and know foreign museums are up to the task of caring for such pieces, so maybe it is time we let them.

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Conclusion

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Should ancient artifacts in museums be repatriated? Yes, they should, from an ethical standpoint, a return is the right thing to do as most artifacts have a unique connection with the place where they were originally produced and are a significant part of that place's cultural history.

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Conversely, we can also say that true provenance is up for debate as per the law, and that those same artifacts and works of art do not adhere to modern political borders or cultures. Nevertheless, many ancient artifacts did leave their places of origin under murky circumstances. In an effort to focus relationships over property, or decolonize, museums should look harder at their moral judgments with the high profile ancient artifacts.

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Art Historian and Curator Alice Procter is an advocate for decolonization and repatriation. In a May 2020 article from ABC News she says:

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"Whether you're deliberately collecting with a political agenda or not, you're collecting in a political world. And so it's always going to reflect that kind of status and worldview that you're part of. When you return an object to its community of origin or the descendants of its community of origin what you're doing is acknowledging that they have a kind of expertise that you can never imitate," (10)

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Procter’s statement shows us in combination with everything else, that for quite some time, cultural heritage artifacts, ethics, and provenance within museums has been high on the international agenda. The convergence over the past 20 years has played an increasingly important role in the fundamental human rights agendas by both academics and policymakers, yet we remain a long way from achieving universal adherence to agreeing where some cultural objects belong. However, to decolonize themselves, museums have been and should continue to be discursive. They must keep an open discussion to unpack and consider ethical implications so they can morally decide repatriation on a case by case basis, especially with controversial high profile ancient artifacts. Tristram Hunt, the Director of London’s Victoria & Albert Museum, in a 2019 article for The Guardian says, “Our aim should be to detach the universal, encyclopedic museum from its colonial preconditions and reimagine it as a new medium for multicultural understanding.” (11)

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Repatriation cases will continue as long as there is a market for such artifacts and museums avoid those items rooted in colonialism. If there is continued avoidance, then museums will distance themselves from other countries and groups. Colonial-era or not, ancient artifacts are connected to a history of theft, conquest and oppression. In the end, ancient artifacts should be where they can best be persevered and appreciated, they should arrive there through our moral compasses, regardless of politics and the law. Otherwise going forward, western encyclopedic or universal museums may not be able to display artifacts without reproducing colonialist narratives.

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1. Erin L. Thompson, “Cultural Losses and Cultural Gains: Ethical Dilemmas in WWII-Looted Art Repatriation Claims Against Public Institutions”, Hastings Communications and Entertainment Law Journal, p 407, 2011

2. Samuel Sidibé ,“When Repatriation Is Clear-Cut”, The New York Times, January 21, 2015

3. Alex Tam, “Priceless Treasures and Their Shaky Pedestals”, Harvard Political Review, January 1, 2020

4. “US museum returns 10th century Rama statue to Cambodia”, The Hindu, March 28, 2016

5. Alyssa Buffenstein, “Cleveland Museum of Art Returns Ancient Bust to Italy After Discovering It Was Looted”, Art Net News, April 19, 2017

6. Colin Moynihan, “Met Museum to Return Prize Artifact Because It Was Stolen”, The New York Times, February 15, 2019

7. Shane Reiner-Roth, “E.U. requests Elgin Marbles return to Greece from British Museum post-Brexit”, The Architect’s Newspaper, February 21, 2020

8. Jonathan Jones, “Let's not lose our marbles over the British Museum boss's remarks”, The Gaurdian, January 29, 2019

9. Maya Margit, “Archaeologist Launches Repatriation Campaign for Egyptian Treasures”, The Media Line, January 29, 2020

10. Hannah Reich, “Art historian Alice Procter is on a mission to decolonise museums and galleries in her 'Uncomfortable Art Tours'”, ABC News, May 13, 2020

11. Tristram Hunt, “Should museums return their colonial artefacts?”, The Gaurdian, June 29, 2019