Introduction

Loot, the Hindi word for plunder, was among the first Indian words to make their way into English. It wasn’t commonly used beyond the plains of North India until the late 18^th century when it gained popularity in Britain. To better understand this bizarre phenomenon, one must visit the Powis Castle. The Castle, standing in the Welsh Marches, is chock full of treasures from India. The sheer volume of Indian artefacts within this private residence in the Welsh countryside surpasses the collections on display in a single location in India, including even the National Museum in Delhi. It is a shocking reminder of the loot made in India by the East India Company during their rule. 

The restitution of cultural property has increasingly grown in importance in recent years. The question of rightful ownership and control over cultural artefacts, especially those displaced during colonialism and imperialism, has ignited passionate debates and global activism. Take, for instance, the famous Koh-i-Noor diamond, which is a subject of ongoing dispute. The British crown asserts it was a gift, while Indians claim it was taken as spoils of war.

So, what should be done with such contentious pieces of property? Some argue that such artefacts should be repatriated to their countries of origin, while others argue that they serve a more important purpose by remaining in Western museums, where they can be more widely accessed and studied. The author believes that the first right of ownership of such property lies with the community from which it originated because of its significance to the community. 

Cultural property, in its various forms, represents the collective heritage and identity of a people.. At the World Conference on Cultural Policies, in Mexico City in 1982, States decided to define the cultural heritage of a people to include the works of its artists, architects, musicians, writers and scientists and also the work of anonymous artists, expressions of the people’s spirituality, and the body of values which give meaning to life. It includes both tangible and intangible works through which the creativity of that people finds expression: languages, rites, beliefs, historic places and monuments, literature, works of art, archives and libraries (see para 23 of the Mexico City Declaration on Cultural Policies). Among other things, it includes a few of the most significant pieces of art created by mankind. Unsurprisingly, the ‘new owners’ of such pieces of cultural heritage are unwilling to part with them. These competing interests have given rise to numerous conflicts and debates surrounding the restitution of cultural property, with both parties resorting to legal and ethical arguments to win ownership over such property. The groups most negatively impacted by a legal battle are the small indigenous and marginalised communities, which have neither the legal rights nor the resources to fight them. 

This two-part series attempts to look at the issue of repatriation of cultural property from the lens of such communities and advocates for their rights. In Part I, the author will analyse the two dominant philosophies of ownership of cultural property, namely, “cultural nationalism” and “cultural internationalism,” and highlight their differences and common arguments on the subject. Part II will focus on the significant gap in these approaches and introduce a new community-first approach. The author will peruse international law to analyse the growing amicability to the idea of communities as claimants of cultural property. Thereafter, the author would propose a legal framework to recognise rights of communities to their cultural property by raising cultural heritage to the stature of a human right. 

Cultural Internationalism vs Cultural Nationalism

The question of ownership of looted or stolen cultural property is the primary consideration when considering whether the property must be repatriated or not. This question has been a subject of extensive debate. There are two major theories of ownership in this context, “cultural internationalism” and “cultural nationalism,” both of which were propounded in the 1980s by John H. Merryman, a professor of art law at Stanford University.

According to Merryman, cultural nationalism is the belief that cultural property rightfully belongs to the nation that produced it. It is built on the notion that such property is an intrinsic part of a people’s cultural identity and expression and that individuals require access to such property to comprehensively understand themselves and their community. This approach prioritises national interests above all other considerations and underscores the significance of cultural artefacts in preserving and perpetuating a community’s heritage and history.

Nonetheless, the assertion of cultural nationalism’s validity in the context of Western museums raises questions. Merryman critiques cultural nationalism for its tendency to encourage exclusivity and retention of cultural assets within one’s own borders. To challenge this, Merryman champions the concept of cultural internationalism. This approach views cultural artefacts as belonging to the global community, arguing that their stewardship should transcend nationalistic, geographical, or individual claims. Merryman underscores the significance of prioritising preservation, integrity, and fair distribution in the management of cultural properties, which he believed were reasons enough to refuse repatriation of such property. However, the debate over the restitution of cultural property extends beyond a binary choice between the two paradigms presented by Merryman. 

Where do communities fit in these frameworks?

Merryman’s dichotomous theories on cultural property ownership do not take into account some other viewpoints concerning the issue. Most importantly, both theories are based on the assumption that nations are the only owners of cultural property. This implies that cultural property is owned by the group in the majority, thereby neglecting the interests of minority cultural groups. Merryman fails to acknowledge that not all claims for the repatriation of cultural property are rooted in nationalism and therefore, does not consider the claims on property of indigenous communities or other marginalised groups. Furthermore, Merryman’s rhetoric is loaded with value-laden expressions, characterising “protection” to represent internationalism and “retention” to signify nationalism. This framework is too narrow-minded and Western-centric, as it tends to reduce museum collections to mere “art” without acknowledging them as living cultural entities that hold significance for their originating cultures. 

The International Labor Organization defines indigenous peoples as “tribal communities within independent countries whose social, cultural, and economic circumstances set them apart from other segments of the national population.” Historically, indigenous peoples have been denied the right to control their cultural heritage. This has perpetuated the ongoing marginalisation of these groups, often referred to as the “Fourth World.” The grabbing of land by colonisers and their perception of indigenous people as an inferior race has played a crucial role in furthering this marginalisation. As a result, these indigenous groups are assimilated into the broader national identity that surrounds them, resulting in the erasure of their unique cultural identities. Therefore, cultural property disputes hold great significance for these groups as a way of preventing the erasure of their identity.

Joe Watkins calls such groups, “cultural intranationalists” and describes them as people seen throughout the world, who live within the nation, but are also separate from it. Cultural intranationalism stands as an important movement that champions the cause of safeguarding and restitution of the cultural heritage of marginalised groups. It aims to correct the disparities and injustices seen in disputes over cultural properties. This movement offers marginalised groups a chance to reaffirm their cultural identity and legacy, enabling them to strive for the preservation and recovery of their cultural assets within a wider national framework.

In recent years, indigenous populations have been actively seeking to regain authority over their economic, political, territorial, and cultural heritage through negotiations or legal channels. A notable instance is that of the Aboriginal communities in Australia, which have faced centuries of colonisation and exclusion. However, significant strides have been made in reclaiming their cultural heritage, largely thanks to the Aboriginal and Torres Strait Islander Cultural Heritage Act of 1984 (Aboriginal Act). This legislation empowers Aboriginal Australians to protect and manage their cultural heritage. An example of this in action involves the Pintupi people of Western Australia, who successfully negotiated the return of a sacred painting by one of their elders from a German museum, where it had been illicitly sold in the 1980s.

While national laws like the Aboriginal Act attempt to bridge the gaps left by international law, their effectiveness is limited to indigenous groups within a single nation. Moreover, countries possessing contested cultural properties are not obliged by international law to comply with repatriation requests from indigenous communities. Thus, there’s an ongoing need for robust international legal frameworks that can guarantee the rights of communities to repatriate their cultural heritage. Part II of the article attempts to provide such a framework. 

Read Part II of the piece here.

Kushagra Tiwari and Neeraj Kumar are fourth-year law students at NUJS, Kolkata.

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Picture Credit: Sèvres, Napoléonic Procession of Vatican Treasures to the Musée Napoléon (now the Louvre) (detail), c. 1810-3.