Illicit Trade of Cultural Property: Who Owns African Art?
Ever since the end of World War II, and increasingly since the decline of colonialism, African countries like Mali, Nigeria, and Benin have begun requesting that Western states return artworks and other cultural properties that were illegally taken. Illicit trading of cultural property is not a problem limited to African nations; Turkey sued the Metropolitan Museum of Art, the Greek Orthodox Church of Cyprus sued a Dutch art dealer, and the United States enacted the Native American Graves Protection and Repatriation Act to return Indigenous artifacts to their respective nations . However, in cases related to Africa, discussions of restitution tend to carry a Eurocentric and colonialist undertone, which is why it is important to examine the legal basis of illicit trade and see whether laws still carry colonialist patterns.
The fundamental legal issues surrounding illicit trade of cultural property are threefold: firstly, even though most countries have laws that are against the illegal exportation of their cultural property, countries do not enforce other countries’ export laws. Secondly, going to court against well-funded museums or wealthy nations such as the United States is not a practical option for many African countries, especially those which rank amongst the poorest in the world. Thirdly, many articles or laws against illicit trade are not retroactive, while most instances of illicit trade took place in the immediate post-colonization era, long before any of these conventions were established. Therefore, even though a trade or theft would be considered illegal today, states cannot take legal action to restitute their cultural property.
Since the problem of illicit trade of cultural property is a global one, the steps taken to prevent and restitute it must also be at the same scale. The two initial steps to solving this problem came from the United Nations in the form of the 1956 Hague Convention and the 1970 UNESCO Convention. The Hague Convention outlined that cultural property must be preserved during times of war and its transportation should be protected; it served to protect loss of cultural property in the future . The 1970 UNESCO Convention expanded on the meaning of the term “cultural property” and stated that if an item of cultural property “is exported illegally, than the state of importation must regard the importation as illegal” . However, the Convention also allowed states to restrict the definition of cultural property within the Convention’s own broad definitions. For example, the United States determined that “objects do not become cultural property until they have been removed from or are threatened with removal from their cultural context” . Many museums use this restricted definition to argue that since their African artifacts are presented as part of African exhibitions, they, therefore, remain in their cultural context and, additionally, they have become part of the museums and nations that house them.
In order to implement the 1970 UNESCO Convention, the United States passed the Cultural Property Implementation Act (CPIA), which allows the US to enter into bilateral agreements with UNESCO signatory states . Under this act, in 1993, the US entered an agreement with Mali, under which it imposed import restrictions on illicitly exported cultural property from Mali, with the intention of reducing incentive for trafficking. The agreement was extended multiple times and is still in effect today . Additionally, to prohibit the transportation of stolen property, the US passed the National Stolen Property Act (NSPA) . In United States v. McClain, the Court of Appeals for the Fifth Circuit applied the NSPA to pre-Columbian artifacts smuggled from Mexico. The court held that “the NSPA applied where a foreign nation had by law clearly declared objects to be government property and where export regulations also forbade their removal from the country” . This is where the problem of retroactivity emerges once again. In order for a state to declare objects as government property, it must have ownership of it either by privately acquiring a property or using its sovereign powers to declare itself as the owner. However, since states cannot retroactively, after property is illicitly traded, declare ownership over it, any property stolen from African states in the past, when they were under occupation and did not have sovereign powers, cannot be proven to belong to those state.
A Supreme Court of New Jersey decision in 1980 addressed the problem of retroactivity by changing the statute of limitations on stolen property, but did not entirely solve it. In O’Keeffe v. Snyder, the court held that “a plaintiff cannot be said to have ‘discovered’ his cause of action until he learns enough facts to form its basis, which must include the fact that the works are being held by another and who, or at least where, that ‘other’ is” . The statute of limitations, therefore, begins not from the date of the illegal removal, but the date the plaintiff becomes aware of the illegal removal. However, filing lawsuits on the basis of the statute of limitations is a lengthy and expensive process that requires more resources than what certain African states can afford.
It is important to note that the question of restituting African art is not only a legal one. Mobutu Sese Seko, the former dictator of the Democratic Republic of the Congo, addressed the United Nations in 1973: “During the colonial period we suffered not only from colonialism, slavery, and economic exploitation but also, and above all, from the barbarous systematic pillaging of all our works of art.” He asked for the return of stolen artwork “so that [they] can teach [their] children and [their] grandchildren the history of their countries” . It is no question that Western museums that house African art, such as New York’s Metropolitan Museum of Art, London’s Victoria & Albert Museum, and Paris’s Louvre , take good care of the artworks physically. However, if Africa states request the return of these artworks, then a refusal to return undermines their status as independent states and continues the colonial narrative of subordination. The past shows that large international conventions are rarely advantageous to African countries, so perhaps the best way forward today would be to address African states’ claims on a case-by-case basis, recognizing the sensitive political nature of the situation and being willing to make exceptions to general trade law.
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 "1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict." UNESCO. Accessed April 30, 2019. http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/convention-and-protocols/1954-hague-convention/.
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 O'Keeffe v. Snyder, 416 A.2d 862 (N.J.1980).
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