Where do ethics, morals and the law really lie in India’s claim to the Piprahwa gem relics?
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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