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Human Rights and Cultural Heritage: new avenues to resolve restitution claims?

Human Rights and Cultural Heritage: new avenues to resolve restitution claims?

The increasing intersection between art restitution and human rights includes potential new avenues that may be used to commence restitution claims — Eleni Polycarpou (partner), Camilla Gambarini (special counsel), and Grace Finnigan (trainee) at leading law firm Withersworldwide on why a broadening of the definition of “culture” lends itself towards a human rights framework of restitution

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In international law, the definition of “culture” has shifted in recent years towards a broader concept of “cultural heritage”. The rationale is to move beyond tangible assets, such as objects, buildings and sites, towards intangible ones, recognising how traditions, beliefs and practices form a crucial part of individuals and communities’ cultural identities. The broadening of this definition lends itself towards a human rights framework of restitution of a wide variety of art that can be deemed part of a State or community’s cultural heritage.

It is in this context that States and local communities have started to consider restitution claims of objects that are part of their cultural heritage. For example, indigenous peoples in Canada have called for the Vatican Museum to return their ceremonial masks, headdresses and wampum belts, integral to their ancestral cultural practices.[1] Nigeria has called for the return of artefacts looted by British troops from Benin City as being part of Nigeria’s history, religion and values.[2] Moreover, in the aftermath of Russia’s invasion of Ukraine, Russia has looted Ukraine’s Scythian gold, which holds immense historical and symbolic significance.[3]

These cases exemplify the increasing intersection between art restitution and human rights, including potential new avenues that may be used to commence restitution claims of objects part of the cultural heritage of a country or population.[4]

The right to cultural heritage in international human rights instruments and jurisprudence

The right to culture and cultural heritage is explicitly protected in several human rights instruments, including Article 27 of the 1948 Universal Declaration of Human Rights, Article 15.1.a of the 1966 International Covenant on Economic, Social and Cultural Rights, elaborated on in General Comment No. 21, and Article 27 of the 1966 International Covenant on Civil and Political Rights. In addition, several UNESCO Conventions protect these rights, including Article 5 of the 2001 Universal Declaration on Cultural Diversity; the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage; and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

The 1950 European Convention on Human Rights (the “ECHR”) does not explicitly acknowledge cultural heritage rights. However, there is a limited number of cases brought before the European Court of Human Rights (“ECtHR”) showing the intersection between cultural heritage and art restitution claims. Individuals may bring these claims against States upon the exhaustion of local remedies. The ECHR also provides for a State-State dispute resolution mechanism.

In Beyeler v Italy,[5] a Swiss national brought a claim for breach of property rights against Italy because he had bought a Van Gogh painting from a merchant, but the Italian Ministry of Culture had a legal right of pre-emption, which it exercised by paying the original sale price as a compensation. The ECtHR found that Italy breached the ECHR, specifically the right to property, because there had been an unreasonable delay of more than five years of the Ministry’s rights of pre-emption.[6] However, the ECtHR did not order to restitute the painting to the individual because the State taking measures to facilitate wide public access to the Van Gogh painting was a “legitimate aim for the purposes of protecting a country’s cultural and artistic heritage“.[7] The case of Debelianovi v Bulgaria[8] followed a similar fact pattern, whereby the applicant sought an order for the return of land which once belonged to their father that had been expropriated by the Ministry to build what became regarded as the most important historic and ethnographical museum in the local town. The ECtHR found a violation of the right to property despite noting that this was a legitimate aim in the context of the protection of a country’s cultural heritage.[9]

Cultural heritage and indigenous peoples

Claims for art restitution frequently come from indigenous communities. The 2007 UN Declaration on the Rights to Indigenous Peoples explicitly protects their cultural rights in Articles 11, 12 and 31. For example, the Constitutional Court of Colombia has relied on it in a case concerning 122 pieces of treasure belonging to the Quimbaya indigenous peoples.[10] The Quimbayan treasure was gifted to the President of Spain in 1892 by the President of Columbia, without consultation with indigenous peoples. The Constitutional Court of Colombia recognised the spiritual value and historical awareness within the Quimbayan treasure and, by way of reference to the indigenous people’s cultural rights protected by the 2007 Declaration, declared the act of donation of the treasure to Spain illegal, thus requiring immediate restitution.[11] Spain have challenged this judgement, and whilst the legal battle continues the treasure still resides in a Spanish museum.

Cultural heritage and international criminal law

Finally, in times of armed conflict, cultural heritage may also intersect with international criminal law.  The following instruments are relevant, namely: as set out the in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1998 Rome Statute of the International Criminal Court; and the 2003 Declaration Concerning the Intentional Destruction of Cultural Heritage. As such, intentional targeting of cultural heritage is a serious crime.[12]

In the 2006 case of Prosecutor v Ahmad Al Faqi Al Mahdi[13] the International Criminal Court prosecuted for the first time the destruction of cultural heritage as a war crime, under Article 8(2)(iv) of the 1998 Rome Statute. Mr Al Mahdi pleaded guilty to intentionally destroying mausoleums of saints and mosques in Timbuktu, which were historic buildings frequently visited by the local people and an integral part of their religious lives.[14]

Conclusion

Although there is not a one size fits all approach to restitution claims, the above examples show some of the creative ways to advance restitution claims with a cultural heritage angle outside national courts or before national courts relying on international human rights treaties. Not all human rights instruments provide for a dispute resolution provision or direct access for individuals to commence claims against States. The right of individuals or communities to access domestic or international fora must be assessed on a case-by-case basis.

Authors:
Eleni Polycarpou (partner), Camilla Gambarini (special counsel), Grace Finnigan (trainee), Withersworldwide

Published 17 January 2024

References

[1] N. Winfield. ‘Pope voices willingness to return Indigenous loot, artifacts’, The Independent (30 April 2023), available at https://www.independent.co.uk/news/pope-francis-ap-vatican-canada-hungary-b2329906.html (last accessed 4 August 2023).

[2] Sherwood. ‘London museum returns looted Benin City artefacts to Nigeria’, The Guardian (28 November 2022), available at https://www.theguardian.com/culture/2022/nov/28/London-museum-returns-looted-benin-city-artefacts-to-nigeriaL (last accessed 4 August 2023).

[3] C Mullins, ‘Ukraine’s heritage is under direct attack: why Russia is looting the country’s museums’, The Guardian (27 May 2022), available at https://www.theguardian.com/artanddesign/2022/may/27/ukraine-russia-looting-museums (last accessed 4 August 2023); K. Akinsha. ‘Scythian gold is at the heart of Russia’s identity war’, The Art Newspaper (19 January 2023), available at https://www.theartnewspaper.com/2023/01/19/scythian-gold-is-at-the-heart-of-russias-identity-war. (last accessed 4 August 2023).

[4] ‘Cultural rights: An empowering agenda. Report of the Special Rapporteur in the field of cultural rights’, United Nations, para 10. A/HRC/49/54 (22 March 2022)

[5] Beyeler v Italy, 33202/96 (ECtHR, 5 January 2000); Beyeler v Italy, 33202/96 (No.2) (ECtHR, 28 May 2002).

[6] Beyeler v Italy, 33202/96 (ECtHR, 5 January 2000), para 107.

[7] Beyeler v Italy, 33202/96 (ECtHR, 5 January 2000), para 112.

[8] Debelianovi v Bulgaria, 61951/00 (ECtHR, 29 March 2007).

[9] Debelianovi v Bulgaria, 61951/00 (ECtHR, 29 March 2007), para 54.

[10] Constitutional Court of Colombia, Plenary Chamber, Judgment SU-649-17 (19 October 2017).

[11] Constitutional Court of Colombia, Plenary Chamber, Judgment SU-649-17 (19 October 2017), para 10.5.5.

[12] ‘Policy on Cultural Heritage’, International Criminal Court, para 6. (June 2021), available https://www.icc-cpi.int/sites/default/files/itemsDocuments/20210614-otp-policy-cultural-heritage-eng.pdf (last accessed 1 August 2023).

[13] Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15 (ICC, 27 September 2016).

[14] Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15 (ICC, 27 September 2016), para 34.

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