by ADA | Nov 25, 2025 | Views |
Dispute shows that the ‘moral’ case is not always clear cut
Passed as part of the Charities Act 2022, measures that have been suspended relating to deaccessioning in museums and the return of objects to source countries will now come into force.
The idea is to make it easier for institutions to return disputed objects on moral grounds. This is not as easy as it might seem, however, as different moral codes apply depending on who and where you are.
Evidence of this can be seen in the Horniman Museum’s return of Benin Bronzes to Nigeria in 2021, under earlier legislation. While the moral grounds for sending the bronzes back were their status as looted items from the British punitive expedition of 1897, the museum ignored the fact that they were the product of slavery – literally so as they were made from slave currency – which had enriched the Oba of Benin.
As the BBC revealed on November 13, however, the bronzes that have been returned have sparked widespread controversy. This is firstly because the Nigerian government has handed them over to the current Oba, thereby rewarding the direct descendant of one of Africa’s worst slavers. The descendants of former slaves in the US had protested through the courts against the return of bronzes from The Smithsonian, but lost their case because, as the bronzes had already been returned, the court decided it lacked jurisdiction in the matter.
The Oba’s links to the history of slaving have been entirely expunged from the record in Nigeria and are largely overlooked by the world’s media and those who have pressed for repatriation, but that does not mean they have been forgotten.
New museum remains shut as Oba launches legal case
Now the bronzes’ new home, the much-anticipated Museum of West African Art (MOWAA) due to open in Benin, the capital of the Edo region of Nigeria, remains shut. Its construction and fitting out has taken five years, and the idea is for it to provide jobs and boost the local economy. Funded to the tune of $25 million by British Museum fund-raising donations, among others, it has found itself at the centre of a political storm for various reasons, with permission for the land to be used to build the museum now revoked.
“Much of it comes down to internecine rivalries at a local state level, as it was Edo’s previous governor Godwin Obaseki – whose term in office ended last year – who was a major backer of the museum,” the BBC reports.
“And it seems the administration of the new governor, a close ally of the local traditional ruler, known as the Oba, may want more of a stake in the project. The protesters on Sunday, for example, were demanding that the museum be placed under the control of Oba Ewuare II.”
True enough, as it turns out, according to the Benin media, which reported on November 24 that the Oba is attempting to wrest control of the returned artefacts and any fund-raising operations linked to them by suing the museum promoters and demanding that neither the museum nor anyone else should be dealing in Benin artefacts without his permission.
“According to available court documents, the claimant is contending among others, that the Oba of Benin, being the sole custodian of the culture, tradition and heritage of the Benin Kingdom, is the only rightful person to determine where the returned looted artefacts and other items of Benin heritage should be kept,” The Benin Sun reports.
The Oba is calling for the court to declare him the sole owner, custodian and manager of repatriated looted Benin artefacts.
He is also demanding that no one else – neither individual nor institution – should be able to raise funds from outside Nigeria in his name, and he wants a perpetual injunction “restraining the defendants, their servants, privies or agents from establishing, opening and operating any museum in Benin City, Edo State, dealing with Benin artefacts without the consent of the Oba of Benin”.
One rule for the governor, another for the Oba, when it comes to family connections
In May 2023, Cambridge University’s Museum of Archaeology and Anthropology delayed the return of 100 of the bronzes when it feared that they would not be put on public display after outgoing President Muhammadu Buhari decreed that the Oba was the rightful owner of all returned Benin Bronzes and was responsible for the management of all places where the artefacts were kept.
One of the curious aspects to the internal political disputes over the issue in Nigeria has been the objection to former Edo state governor Obaseki, who was behind the establishment of MOWAA. The objection rests on the fact that he is the direct descendant of a palace official who was appointed as prime minster by the British after the 1897 punitive expedition. If such a direct link would disqualify him from involvement, why is the same standard not applied to the Oba himself following his forebears’ bloody past?
Clues come from reporting on the Restitution Study Group, which has led the campaign to retain the bronzes in public institutions within the United States: one argument is that while the manilla slave currency was indeed used to make the bronzes, some of it came from trading other goods, so it is impossible to say which was which. Another is the view shared by Nigerian art historian Chika Okeke-Agulu, a professor at Princeton University and an activist at the forefront of the campaign to return looted artwork. He dismissed the Restitution Study Group’s leader, Ms Farmer-Paellmann’s comments as sounding “like the arguments that white folks who don’t want to return the artefacts have made”. Whether this is true or not, he does not address the historic Obas’ role in sending more than 100,000 people into slavery down the years.
What will the governments and museums around the world, so keen to hand back the bronzes for public benefit, do now?
- Image top: A Benin bronze, and (inset), a manilla, probably made from a brass composite (Ashmolean Museum). The name comes from manilha, the Portuguese word for a bracelet.
by ADA | Oct 29, 2025 | Views |
Artificial Intelligence is undoubtedly useful, especially when carrying out research, but it is also a minefield of fake news if you don’t do your homework properly.
As an example, take a report inspired by the recent dramatic theft of Royal jewels from The Louvre and published by Global Initiative Against Transnational Organized Crime. Titled Lessons from The Louvre, it includes the following statement: “Organized crime groups are increasingly targeting art and antiquities held in European collections, drawn by the continent’s cultural repositories and art markets.”
Whether this claim is true or not, the article provides no supporting evidence. It does mention a series of crimes that have taken place within Europe in recent years that may have been – even probably were – carried out by criminal gangs. Two of those mentioned even involved antiquities, although the rest did not. What they do not prove in any way is the veracity of the statement about such crimes being on the increase in Europe.
Now comes the A.I. part.
As an experiment, the Antiquities Forum asked A.I. the following question: “Is it true that organized crime groups are increasingly targeting art and antiquities held in European collections, drawn by the continent’s cultural repositories and art markets?”
The response was unequivocal: “Yes, organized crime groups are increasingly targeting art and antiquities held in European collections. The continent is a key hub for the illicit trade due to its wealth of cultural artifacts and active art markets, which organized criminals exploit for profit and other illicit purpose.”
It then provided a series of paragraphs under the heading Key reasons for the increase.
This all looked very convincing until further investigation showed that the conclusions were based entirely on sources including the article mentioned above, where significant claims had been made but without giving the evidence to show they were true.
Checking out the sources
In fact, in the case of the headline claim about organized criminals increasingly targeting European collections, the top three sources quoted were:
Further sources include a 2022 European Union Action Plan against Trafficking in Culture Goods. Its claims that trafficking is a ‘lucrative’ business and that “increasing global demand from collectors, investors and museums” is driving looting and trafficking are based on the existence of UN Security Council resolutions, the size of the legitimate art market and estimates by Europol.
The problem here is that UN Security Council resolutions are preventive measures based on perceived risk rather than on evidence of actual crime; the size of the legitimate art market (which has been shrinking in recent years, not growing) sheds no light at all on crime levels, let alone showing that they are rising; and, at its own admission, Europol has no data to support the claim made on its behalf, despite all the headline figures on arrests and seizures (but not convictions or confirmation of the goods being illicit) relating to Operation Pandora and the rest.
In other words, as is almost always the case with such claims from the EU, they are not based on facts, but on supposition.
How the claims just don’t stack up
It’s a similar tale with Interpol, whose Cultural Heritage Crime page also features as an A.I. source in this context. There Interpol’s significant (but unsupported) claim is: “Trafficking in cultural property is a low-risk, high-profit business for criminals with links to organized crime. From stolen artwork to historical artefacts, this crime can affect all countries, either as origin, transit or destinations.”
In fact, not one of the sources given by A.I. to support the robust (but misleading) conclusions it comes to stand up to scrutiny.
Unfortunately, as reports from many sources have shown, researchers looking for confirmation of their suspicions when it comes to the international art market often fall victim to confirmation bias, failing to check the sources they cite through footnotes and embedded links because on the surface they seem to support what they believe.
Because of this, it has been surprisingly easy to debunk long accepted, but false, claims about the art market. And it also explains why the Antiquities Dealers’ Association (ADA) and the International Association of Dealers in Ancient Art (IADAA), who between them support the work of the Antiquities Forum, for years have operated a policy of checking primary sources for claims wherever possible.They provide those sources wherever possible in promoting their own views and arguments, and ask their audiences to check the sources given for their own satisfaction. Unfortunately, this is a highly sensitive and controversial arena where no one – no matter who they are – can simply be taken at their word. And A.I. is not going to fix that any time soon.
by ADA | Oct 27, 2025 | Views |
The latest news on the repatriation front is that the United States is working on a plan to send a major archive back to Iraq.
Shafaq News reports: “Minister Ahmed Fakkak Al-Badrani told Shafaq News that the Iraqi government is maintaining “continuous coordination and diplomatic engagement with US authorities to secure the archive’s return,” adding that joint committees involving Iraq’s security agencies, the Ministry of Tourism and Antiquities, and the Ministry of Foreign Affairs are working in coordination with the US Embassy in Baghdad to follow up this issue.
If that all sounds straightforward, it isn’t, and the reason is that the archive in question is the Jewish Archive currently kept in Washington.
It includes thousands of historical documents, religious texts, and personal records belonging to Iraq’s Jewish community: Torah scrolls, rare manuscripts dating back to the 16th century, a 400-year-old Hebrew prayer book, a 200-year-old Talmud volume, a 1902 Passover prayer book (Haggadah), and French-language prayer texts from 1930.
“It also features printed sermons from a German rabbi dating to 1692, along with school records spanning 1920–1975,” reports Shafaq News.
Also known as the Iraqi Mukhabarat Archive, it came to light in 2003 when a 26-member US “Alpha” unit operating in the country found it in the basement of Iraq’s former intelligence headquarters during a search for evidence of mass destruction weapons.
Seen as an important repository of information about the Jewish community that flourished in Iraq for 2,500 years, the repatriations would seem a fitting solution… except for the fact that almost all the Jews fled Iraq in the mid-20th century after being stripped of their citizenship and assets. The archive was in the basement because it had been stored there after being seized by the authorities.
In light of this, one can understand the calls from scholars and Jewish groups who have said that the US should instead send the archive to Israel.
Unanimous Senate vote started the process
Nonetheless, a unanimous Senate vote of 2014 passed a resolution calling on then President Barack Obama to reopen new negotiations on returning the archive to Iraq. Pending the outcome of those talks, it was agreed that the archive would remain in place until 2018, after which a further delay was set in place.
The US appears to think it has a contractual obligation to send the archive to Iraq, but not everyone agrees.
Back in 2013, Stanley Urman, executive vice president of Justice for Jews from Arab Countries (JJAC), cited“jus ex injuria non oritur”, a legal principle in international law arguing that a state cannot assert legal rights to property it has obtained illegally.
“[The materials] were seized from Jewish institutions, schools and the community,” he explained. “There is no justification or logic in sending these Jewish archives back to Iraq, a place that has virtually no Jews, no interest in Jewish heritage and no accessibility to Jewish scholars.”
Whichever way you look at the issue, the whole concept of repatriation is based on a sense of restorative justice, a common theme among all the speeches and media releases that accompany returns from the US via bilateral agreements and other mechanisms.
As with the recent return of Tibetan artefacts to the occupying forces of China, the idea of sending the Jewish archives back to the country that persecuted and effectively expunged its Jewish population is no less than an insult to the oppressed and a reward for oppression. The US needs to review its shameful policy now.
by ADA | Sep 18, 2025 | Uncategorized, Views |
In 2001, the Taliban took 25 days to blow up the extraordinary and important Bamiyan Buddhas – two ancient monumental cliff carvings in Afghanistan that were the largest standing statues of their type in the world.
It was as much a political as religious act of cultural vandalism by iconoclastic extremists who were demanding recognition and the acknowledgement of Islam’s pre-eminence in a country with a Buddhist tradition.
Who would have thought that less than a quarter of a century later, it would become official policy for the United States to repatriate Afghan cultural property to the Taliban, now the oppressive government of a people it subjects to innumerable human rights abuses on top of the cultural nihilism?
But that is exactly what is happening now in the name of U.S. citizens, and it is far from an isolated case.
This state of affairs is all part of a wider move by authorities in the U.S. and elsewhere to harness cultural heritage as a low-cost and highly useful soft power diplomacy tool. Help other countries recover artefacts that were either stolen or sold off legally before passing beyond their borders and it can assist power brokers such as the U.S. to boost their geopolitical influence in trouble spots where unwelcome rivals such as China and Russia may be gaining a foothold.
It may be a cheap and effective political tool, but where are the ethics and morals of such a policy, and who loses in the process?
A recent case involving the Manhattan District Attorney’s Antiquities Trafficking Unit sheds light on this.
Chinese or Tibetan?
As reported in March 2025, the unit, under the command of Assistant D.A. Matthew Bogdanos, handed over 41 artefacts to China on March 3. The problem is that the artefacts were not Chinese but Tibetan.
“The transfer was conducted as part of an agreement between the two countries to protect cultural heritage and identity and prevent Chinese cultural relics from illegally entering the U.S.,” reported Radio Free Asia. “Since the pact was first agreed to on Jan. 14, 2009, the U.S. has sent 594 pieces or sets of cultural relics and artworks to China.”
Returning cultural property to the oppressors of those to whom they should actually belong rightly raises concerns: “…sending Tibetan artifacts to China has raised concern that Beijing will use them to justify its rule in Tibet, which the country annexed in 1950,” RFA argues.
This view was echoed by Vijay Kranti, director of the Center for Himalayan Asia Studies and Engagement, based in New Delhi, who told the RFA: “The Chinese government will certainly misuse these returned artifacts and will use them to further promote their false historical narrative that Tibet has always been a part of China.”
Kate Fitz Gibbon, executive director of the Committee for Cultural Policy, the U.S. think tank established in 2011 to strengthen the public dialogue on arts policy, was equally critical.
“It is an outrageous act to return Tibetan objects in the diaspora to the People’s Republic of China, which is deliberately destroying Tibetan cultural heritage,” she said.
“Since China occupied Tibet, U.S. authorities have accepted that Tibetan artifacts belong to the Tibetan people, not China’s government,” Fitz Gibbon said in an email. “The turnover by the Manhattan District Attorney’s Antiquities Trafficking Unit directly challenges that policy.”
It is certainly an odd move when the D.A.’s office and ADA Bogdanos spend so much time declaring their dedication to righting historic wrongs.
What Memoranda of Understanding mean
If the Manhattan D.A. uses New York State law relating to theft to pursue its seizures and returns, the U.S. State department and Customs service take advantage of an ever-expanding system of bilateral agreements, also known as Memoranda of Understanding.
These allow law enforcement to bypass international conventions and human rights laws and conventions, giving them the authority to seize almost anything historic that originated in the country of an MoU partner, before handing it over to them. No evidence of the item in question being illicit is required. This is hardly in the spirit or terms of the United States Constitution.
As an example, consider the MoU with Turkey, which is up for renewal. Article 1 of the MoU restricts the import to the U.S. of a comprehensive list of archaeological material ranging in date from 1.2 million years BC to 1770 AD, and a similarly extensive list of ethnological material ranging in date from the 1st century AD until 1923.
Essentially, anything that falls into either of these categories – pretty much everything – will be seized at the U.S. border as it is imported and returned to Turkey unless it already has a valid export license from Turkey or Turkey agrees to issue it with a licence saying that its original export from Turkey did not violate local laws.
Effectively, then, the U.S. has handed a veto to a third country over legally held property that allows for its confiscation without proof of wrongdoing. Under such circumstances, this interference with an individual’s right to enjoy their property can easily be assessed as arbitrary – and therefore a direct breach of Article 17.2 of the Universal Declaration of Human Rights. The problem is that the UDHR is not a binding treaty, but the United Nations does consider that its member states, which include the U.S., have a moral obligation to respect the fundamental human rights in the Declaration. However, as this issue shows, they don’t. Constitutional rights also appear to have been cast aside here.
Turkey or Armenia?
The MoU with Turkey is highly relevant now as the Cultural Property Advisory Committee (CPAC), which officially advises Congress, considers its renewal and update.
Objections to its standing terms have come from the Armenian Bar Association and the International Association of professional Numismatists (IAPN).
The Armenian Bar Association is concerned that without its proposed amendments to the MoU, Turkey may lay claim to Armenian cultural artefacts that predate the arrival of Turks in the Armenian homeland which is now part of modern Turkey. “Equally perverse, Turkey may argue that Armenian cultural property currently located in the United States, which originated on the land mass of current-day Turkey, belongs to Turkey as well and, therefore, must be repatriated,” it argues.
Likewise, the International Association of Professional Numismatists (IAPN) has raised objections to the renewal of MoUs with Afghanistan and Turkey. IAPN Executive Director Peter Tompa set out the association’s detailed objections in his Cultural Property Observer blog, arguing that for both countries, “renewals raise fundamental contradictions that cannot possibly be reconciled”.
In tune with the Armenian Bar Association, Tompa also objects to a renewal of the Turkey MoU on the grounds of Turkey laying claim to the cultural heritage of minority groups within its borders: “Erdogan’s aggressive repatriation efforts abroad must be contrasted with his government’s active promotion of ‘treasure hunting’ at former Jewish and Christian sites at home. This is just another provocation directed at minority religious groups like the conversion of Hagia Sophia and the Cathedral at Ani into mosques,” he writes.
Tompa had previously raised concerns about Jewish artefacts being returned to the Libyan government that had expelled the Jews.
Libya or the Jews?
“Jewish groups are outraged and say the MoU legitimizes the confiscation of Jewish property seized by Libya’s government when they were forced from the country,” Tompa wrote in 2018. “Others in the cultural policy world are wondering why the US government would put faith in Libya to act responsibly to safeguard the heritage of minority and exiled peoples.”
Add to all this the fact that many of those regimes with whom the U.S. establishes these bilateral agreements are not only lacking in democratic principle, but actively hostile to the U.S., and the injustice burns all the brighter.
Tompa has also written in-depth in Cultural Property News on how MoUs work and what they mean.
How aware are U.S. citizens that their own State department and Customs service are acting like this in their name or that they might find their own property subject to such confiscation? And how would they feel about it, particularly if their own legally held property was seized in this way? Will CPAC do the right thing in advising Congress?
Image caption: US Ambassador to Turkey David Satterfield and Turkish Minister of Culture and Tourism Mehmet Ersoy sign an MOU on cultural heritage, effectively acknowledging Turkish government control of minority religious communities’ heritage. Photo Credit: US Embassy in Turkey
by ADA | Jun 26, 2025 | Views |
Supranational authority’s failure to join the European Convention of Human Rights – despite promising to 15 years ago – protects it from legal action by citizens unfairly suffering under import licensing law
Although every member state is a signatory to the European Convention on Human Rights, the European Union itself is not.
It committed to joining as long ago as 2010, but concerns arose that submitting itself to the ECHR might cause conflicts between the European Court of Justice and the European Court of Human Rights. Joining the ECHR would also lead to fundamental changes to EU powers.
Essentially, as an autonomous body, the EU would be ceding sovereignty to the ECHR, allowing individuals to challenge it legally over human rights in a way that they cannot do now.
While the EU remains committed to joining, 15 years after saying it would, the debate over resolving these conflicts continues.
This is important for those subjected to the EU import licensing regulation for Cultural Goods (2019/880), which comes into full force on June 28.
The fundamental driver for the legislation was the requirement to prevent illicit cultural goods that might have funded terrorism from entering the EU.
Finding evidence of this threat was essential to justifying the regulation under the terms of the European Commission President’s guiding principles for making policy. They stipulated that regulation had to be “targeted, easy to comply with and does not add unnecessary regulatory burdens… we must send a clear signal to citizens that our policies and proposals deliver and make life easier for people and for businesses.”
Ursula von der Leyen also ordered her commissioners to operate a policy of one-in-one-out so that “every legislative proposal creating new burdens” would “relieve people and businesses of an equivalent existing burden at EU level in the same policy area”.
“Proposals must be evidence based, widely consulted upon and subject to an impact assessment reviewed by the independent Regulatory Scrutiny Board. You will ensure that they respect the principles of proportionality and subsidiarity and show the clear benefit of European action.”
So, what happened here?
– No one-in-one-out. In fact, with additional anti-money laundering legislation, it has been at least two in and none out.
– No evidence of terrorism financing could be found, according to the two official reports (Deloitte and Ecorys) ordered by the European Commission.
– Data published by the European Commission to justify the regulation turned out to be wrong.
– The European Parliament concluded that the Impact Assessment conducted to see how the regulation would hit home lacked “sufficient and reliable background evidence” and “robustness and depth” in its analysis, and it dismissed it as “not always entirely convincing”.
– The Regulatory Scrutiny Board was highly critical of the regulation even as it passed it on the second review. Its recommendations were not followed up.
– Few dispute that the regulation will make life for citizens and businesses considerably harder.
Protocol 1. Article 1 of the European Convention on Human Rights (ECHR) protects the right to peaceful enjoyment of possessions, meaning everyone is entitled to own property and have it protected. This right isn’t absolute; it can be limited in certain situations, but any interference must be lawful, serve a legitimate public interest, and be proportionate.
Likewise, Article 17.2 of the Universal Declaration of Human Rights (UDHR) states that “No one shall be arbitrarily deprived of his property”.
So, the ECHR recognises that such interference must be legitimately in the public interest and proportionate. The UDHR says interference must not be arbitrary. ‘Arbitrary’ here means without justification or in a way that is not proportionate.
Now, as the law was introduced to counter the threat of terrorism financing AND no evidence of such terrorism financing was found after extensive official and expert investigation, the measures brought in seem wildly disproportionate.
They:
– Do not make the lives citizens or businesses easier
– Do not honour the one-in-one-out principle
– Arguably breach human rights conventions to which all member states are signatories because they appear to be neither justified nor proportionate, and so could reasonably be termed arbitrary in their interference.
In addition, while they deprive ordinary citizens of fundamental human rights and blight honest business, they are unlikely to have any serious impact on crime, because this crime has not been identified as taking place in the EU, and criminals tend to smuggle illicit material, not submit it to customs. On top of that, other financial crimes such as fraud and money laundering are already addressed through alternative existing legislation.
The next few months will reveal just how damaging the new regulation is. Let’s just hope that dealers, auction houses, collectors and ordinary EU citizens can stay the course while this highly inadvisable experiment continues.
by ADA | May 16, 2025 | Views |
Sotheby’s proposed sale acts as a useful study in the dispute over rights between nations and individuals when it comes to cultural property
Much in the news has been Sotheby’s proposed (and then suspended) sale of the Piprahwa Gems, a collection of gem relic duplicates from the Stupa found in 1898 on the estate of William Claxton Peppé close to the border of Nepal in North East India.
The story of their discovery and what happened afterwards is well documented: a reliquary urn found inside a stupa contained ash, some bone fragments, gold and gems.
But it was the inscription on the urn that caused the greatest excitement as it was interpreted to mean that the bone relics were the remains of the Buddha given to his own Shakya clan after his cremation.
Under the Indian Treasure Trove Act 1878, The British Crown claimed the find before dispersing it as follows: the bone relics were presented as a gift to King Rama V of Siam, while all the major pieces of gold and gems were donated to the museum in Kolkata. The remaining minor portion of duplicate gems was returned to the Peppé family.
Passing by descent in the family over the next century and more, they ended up in the hands of Chris Peppé and his two cousins in 2013. They conducted a great deal of research into their history and decided to put them on public display: “From the time we received the Piprahwa gem relics, my cousins and I have sought to make them available for viewing by the public (ideally a Buddhist public) to see at no cost to the institution borrowing them,” he says in Sotheby’s preview for the sale.
This led to six years of exhibitions around the world “from the Museum Rietberg in Zurich, the Rubin Museum of Himalayan Art and the Metropolitan Museum of Art in New York to the Asian Civilisations Museum in Singapore and the National Museum of Korea in Seoul”.
They also set up a website dedicated to the gems, giving access to all their research materials.
The outcry arose when the Peppés decided to sell
The problem came when they decided to sell them.
Suddenly the Indian government stepped in to say that the sale was unlawful, against international conventions, unethical, and that the gems should be repatriated. The Indian Ministry confused the issue by adding the colonial exploitation argument to the claim. Was its demand based on law, ethics or morals?
The Guardian quoted the ministry as saying that the gem relics “constitute inalienable religious and cultural heritage of India and the global Buddhist community” and that they were “sacred grave goods … inseparable from the sacred relics and cannot be commodified”.
Is the Indian government right? Several other questions need answering first.
There appears to be no dispute over ownership. The Indian Treasure Trove Act 1878 applied at the time of discovery and, clearly, the find was reported because of the Crown’s subsequent claim and what came after, including the return of a part of the find to the Peppé family.
Is India trying to do what so many other countries have been doing: insisting that the world honours laws introduced long after the fact so that they have retroactive tenure?
Legal opinion in a Financial Times article on the issue points to this.
Of vital importance – and not yet divulged via the media – is when the Piprahwa gems left India. If it was before current relevant legislation passed into law, then it may be reasonable to assume that they left legally. If not, then regardless of who owns them, they would have been exported illegally if a licence was not issued.
If we assume that the gems left India before 1972 (when India’s Antiquities and Art Treasures Act came into force) and did not need an export licence prior to that, then it is difficult to see how Indian law would apply, unless other relevant legislation existed at the time that has not come to light.
The Indian government may be outraged, but is it right?
If the contents of the urn did indeed include the remains of the Buddha, then a strong moral case for their return might be argued, but while some scholars have interpreted the inscription on the urn to mean this, the facts are far from certain.
The Indian government’s outrage might be understandable, but that does not mean its rights are being transgressed here, and if the gems were legally exported, it would appear to have no legal claim.
Without stipulating exactly which laws and conventions it argues would apply to the case, the ‘moral’ and ‘ethical’ elements appear to be little more than an attempt at emotional blackmail. Such emotional outbursts often act as cover for a poor argument, or lack of evidence. Effectively they want to inflict a substantial loss on a third party, with no costs to themselves, in pursuit of an asset grab, and to do so without damaging their own reputation.
This sort of attitude and behaviour is far too common these days and is exacerbated by the questionable practice of international relations using cultural property as a soft power diplomacy tool through vehicles such as bilateral agreements, also known as Memoranda of Understanding. These allow countries to bypass the norms of evidence, as well as international conventions such as UNESCO, to get what they want. It is exactly this arrangement that gives retroactive power to current national policy in making historic claims. If anything is unethical, it is this policy, but cross cultural misunderstanding means that this sort of approach may well be seen as perfectly acceptable in countries with little or no tradition of democracy or individual rights.
UNESCO’s 1970 Convention on illicit trade in cultural property is extremely important because it sets out to avoid these situations by balancing conflicting interests between nations and individuals with valid rights.
The 1970 UNESCO Convention is the key to resolving the conflict
India ratified the UNESCO Convention in January 1977, and so should stand by its principles and articles. Under Article 5 (b), these include “establishing and keeping up to date, on the basis of a national inventory of protected property, a list of important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage”.
While proposing lists of buildings and sites for UNESCO recognition, India – along with all other States Parties to the Convention – has failed to produce such an inventory, despite having had almost 50 years to do so. Why not if this issue is so important?
If the gems are as inalienable as the Indian government claims, then they would surely have made such a list. Why has India been so lax in publishing it?
If the Peppés are the rightful owners of the gems and exported them from India legally, and India really wants the gems back, then it should honour its commitments under Article 7 (ii) of the UNESCO Convention by agreeing to pay fair and just compensation for them to the owners. It will also need (at its own expense) to provide the documentation and other evidence necessary to establish its claim for recovery and return, and cover all ensuing costs associated with the return. At Sotheby’s estimate of HK$100m (£9.7m/US$13m), this would be a good test to see just how important the gems really are to it and would also leave all parties to the dispute satisfied.
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