Introduction and Historical Background of the Benin Bronzes
In 1897 over 3000 plaques and sculptures known as the Benin Bronzes were looted by British troops in an armed “punitive expedition” against the Benin Kingdom after its ruler, the Oba, massacred a British delegation for not heeding his warning not to enter the kingdom during a sacred period. The Benin Bronzes were brought back to Britain, where they were transferred to the British Museum, which still houses the largest collection of Benin Bronzes in the world, as well as to other European and US institutions and private collectors.
On 27th April, Germany finalised an agreement to return the pillaged Benin Bronzes to Nigeria. Earlier that month, the National Museum of Ireland announced plans to repatriate its share of the Benin Bronzes and in March Scotland’s University of Aberdeen and the Church of England planned to return theirs. Last year, the Netherlands’ National Museum of World Culture museum issued a similar repatriation pledge while French MPs voted unanimously to return France’s share.
Allowing the looter to become the custodian? – A case against cultural internationalism
The contemporary debate on cultural restitution is divided into two camps: cultural nationalists and cultural internationalists. Cultural internationalism is advanced based on the idea that “mankind” has an interest in the enjoyment of cultural property regardless of either its current location or provenance. It is the cornerstone of arguments against cultural restitution. The central presumption is that cultural objects are better protected and preserved in Western “universal” museums, which serve as custodians of mankind’s shared cultural heritage. However, if applied to looted colonial property, this position would go against the fundamental principle of international law of ex inuria non ius oritur: A state may not derive rights from its own wrongdoing.
Cultural nationalism is premised on the link between the cultural property and its homeland, where it belongs among the descendants of the culture of its origin. Commentators observe that territorial provenance could be an emerging rule of international law, citing state practice after the dissolution of the Austro-Hungarian Empire, when cultural objects were redistributed amongst successor states on the basis of territoriality. While the ICJ has never ruled on the merits of a cultural restitution case (the ICJ denied jurisdiction in Liechtenstein v Germany over restitution claims for a confiscated painting), it made an incidental finding on the return of cultural property in the Temple of Preah Vihear case, in which Cambodia claimed that Thailand had unlawfully occupied its territory surrounding the ruins of the Temple. The ICJ held that “sculptures, stelae, fragments of monuments, sandstone model and ancient pottery […] removed from the Temple” while it was occupied by Thai authorities, had to be returned to Cambodia (p. 6, 34-35), thus indicating that the Court would consider territorial and cultural links to the place of origin as deciding factors for cultural restitution. Thus, the ICJ’s holding on restitution as a result of an internationally wrongful act could buttress territorial provenance as an emerging rule of customary international law, and become a counterweight to cultural internationalism.
Cultural restitution as a dimension of the right to self-determination
The Benin Bronzes were cast to honour the Oba, and to record significant events and activities of the Oba’s court. In the Benin Empire’s Edo language, the word for “to remember”, “sa-e-y-ama”, literally translates as “to cast a motif in bronze”, signifying the importance of the Bronzes as a form of memory-keeping for the Benin people. In this light, scholars have argued for group ownership of cultural property that is tied to the identity of a cultural community. This notion is reflected in the UN GA Resolution 3187 (1973) linking colonies’ independence with the return of cultural objects that are important to colonies’ identities and heritage.
The governments of African member states of UNESCO issued a joint declaration in 1975 underlining: “[C]ultural identity serves as a foundation for the independence and the construction of modern African nations; […] African culture remains a decisive weapon in struggles […] in the continuing fight against colonialism […]”. The right to the preservation of cultural identity and the pursuit of cultural development is regarded as inherent to the right to self-determination, which is itself the bedrock of the decolonisation process (UN GA Resolution 1514 (1960)). Soft-law instruments, such as the UN Declaration on the Rights of Indigenous Peoples (2007), contain the right of redress in case of colonial losses for cultural objects taken without the “free, prior and informed consent” of indigenous people, the right to “access and control” and repatriation for artefacts of ceremonial importance.
In terms of the status of the right to self-determination, the ICJ has not explicitly held the right to self-determination as jus cogens. The ILC’s most recent work on jus cogens (Report 71st Session (A/74/10)) concludes the ICJ has instead found that the right to self-determination has an erga omnes character (Chagos, para 180; Wall, paras 88, 149, 155; Namibia, para. 126) and thus “irreproachable” (East Timor, para 29). Nevertheless, the ILC concludes that the link to jus cogens can be established, because the ICJ has applied Art 41 ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on the legal consequences of jus cogens violations to violations of erga omnes obligations (Report 71st Session, Conclusion 17, para 2). In this light the right to self-determination is considered to have both erga omnes and jus cogens character.
Furthermore, a restitution claim could also rely on the notion that the retention of cultural property by former colonial powers would otherwise constitute a continuing breach (Art 14 ARSIWA) (Campfens, 2018) of the obligation to respect the human rights of the people of a former colony and also their right to self-determination (Klabbers, 2019). Consequently, arguments for the passage of time which cancel claims for restitution (Zhang, 2018, p. 985) through the application of statutes of limitations would conflict with a state’s international obligations. So long as the cultural property remains separated from the peoples of former colonies, Western states withholding restitution would be in continuing breach of their obligation to respect the right to self‑determination of peoples, a jus cogens norm and an erga omnes obligation binding upon all states.
Deriving restitution obligations from state responsibility entailed by jus cogens violations
Art 41 (1) ARSIWA obligates states to bring an end to situations that constitute serious violations of peremptory norms [i.e. gross or systematic failure by the responsible state to fulfil its international obligation (Art 40 (2) ARSIWA)]. Art 42 (2) obligates states not to recognise such situations as lawful (i.e., a duty of non-recognition). With regard to Art 41 ARISWA, commentators have observed state practice in relation to NS looted art that the Allies saw restitution as the appropriate form of reparation to victims which form part of the overall effort to disavow the NS genocide and international crimes (Chechi, 2008, p. 166).
Given that over 3000 Benin Bronzes were looted during an armed “punitive” colonial expedition, a case of systematic constituting a serious breach of jus cogens norms could be established. The Nuremberg Tribunal held in its judgement on Rosenberg that the systematic plunder of cultural property by NS officials would not only amount to a violation of the laws and customs of war, i.e. customary international humanitarian law, but also constitute a war crime and crime against humanity. In a similar vein, the ICTY convicted the defendants in Jokic (paras 46 et seq)and Strugar (para 452) for war crimes against cultural property set out in Art 3 (d) of the ICTY Statute. Thus the systematic plunder of the Benin Bronzes would amount a jus cogens violation crossing the “serious breach” threshold in Art 40 (2) ARSIWA.
Furthermore, the ICJ has determined the duty of non-recognition to be part of customary international law (Talmon, 2006) not just in cases of jus cogens violations, but also in situations created by the illegal use of force (Wall, para 87). This two-pronged approach seems to have been mirrored by the Italian Consiglio di Stato ruling on the lawfulness of the Italian government’s repatriation of the “Venus of Cyrene” to Libya. It held that, with respect to situations of colonial military expedition and occupation, there is an interplay between the prohibition of the use of force (Art 2 (4) UN Charter) and the right to self-determination, with restitution obligations linked to the territory of a former colony or to peoples subjected to colonial domination.
The Consiglio di Stato did not single out the violation of the prohibition of plunder, but rather considered the plunder within the context of a colonial military campaign in violation of the prohibition of the use of force. The ILC Commentaries on Art 40 ARSIWA deemed such a violation an act of aggression, “by [its] very nature require an intentional violation on a large scale”, citing its own preparatory works on international crimes, which included “a serious breach of an international obligation […] for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination.”
As a result, the claim for restitution of the Benin Bronzes can first be derived from a state’s obligation not to recognise the situation in which these artefacts came into their possession as lawful, as the systematic plunder by colonial domination constitute a violation of jus cogens and an illegal use of force. Second, the claim for restitution can be derived from states’ obligation to bring an end to a continuing jus cogens violation of the right to self-determination by holding on to their share of the Benin Bronzes.
European institutions’ recent efforts to repatriate the Benin Bronzes to Nigeria signal the presence of the political will to right the wrongs of Europe’s colonial legacy. It is a fundamental shift in understanding that holding on to cultural property acquired as a result of colonial plunder can no longer be justified by a whitewashed mission statement of a Western institution’s commitment to being a “universal” or “encyclopedic” museum. It is a positive development that institutions are progressively beginning to realize that such a position is untenable. However, restitution is not merely a moral and political imperative, but also a legal obligation. As this post shows, restitution claims can be anchored in the established jurisprudence of international courts and tribunals, as well as in the emerging scholarship on decolonisation and self-determination of peoples.
Anh Nguyen is a law graduate of the University of Vienna, where she focused on public international law. She is an associate in international dispute resolution at a Vienna-based law firm.