India has failed to take an active interest in promoting international legislation against the plunder of cultural property of one state by another.
IT is an honourable ambition for any state, as for any person, to excel in campaigns for justice. India has missed out in the last two decades on something which touches its interests and also affects the international community. The reference here is to the plunder of its cultural property. A country which lost the priceless Nataraja idol in the 1950s to regain it only three decades later - and that, at a price - and which continues to suffer such thefts, should be taking an active interest in promoting international legislation on the subject; indeed, it should lead it.
One is not so naive as to suggest that India make every other country's battle its own. But there is no harm, while carefully steering away from specific disputes - such as the one over the Elgin Marbles between Britain and Greece - to propound fundamentals that protect nations' cultural property from theft and plunder and provide effective remedies for their restitution.
The world community has just about begun to take a keen interest in the matter. It should be prodded to take yet keener interest. The subject figures on the agenda of the United Nations General Assembly every two years. On November 25, 1997, it adopted Resolution 52/24 commending the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and the "Inter-governmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation on the work they have accomplished." The accomplishment is little to talk about, however. The item has been retained for the agenda of the Assembly due to meet in 1999.
The resolution referred to two documents. One is the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted on November 14, 1970, by the General Conference of UNESCO. The other is the Medellin Declaration for Cultural Diversity and Tolerance and the Plan of Action on Cultural Cooperation adopted at the first Meeting of the Ministers of Culture of the Movement of Non-Aligned Countries held at Medellin, Colombia, on September 4 and 5, 1997. If the Non-Aligned Movement (NAM) took so long to bestir itself, it is not surprising that the affluent countries are indifferent. The U.N. General Assembly adopted so anodyne a Resolution by 87 votes in its favour. No member-country voted against it, but 23 abstained. They included the United States, West European countries, Russia, Japan and Israel. The rest, including Bangladesh, were "absent".
The result was none too encouraging on the previous occasion in 1995 either. Resolution 50/56 also endorsed the 1970 Convention which is wholly inadequate.
It has been trenchantly criticised by one of the world's finest authorities on International Art Law, Professor Leonard Du Boff. His work Deskbook of Art Law is the ablest on the subject. He began life as an artist, lost both his eyes and an arm as a result of an explosion in his studio, became one of the world's outstanding authorities on art law and Professor of Law at the Lewis and Clark Law School in Portland, Oregon. He also served as President of Oregon Volunteer Lawyers for the Arts Inc., which provides legal assistance to artists. His sympathies for the Third World were very evident in his book.
THE expression "cultural property" has been widely defined in the 1970 Convention to mean property specifically designed by a state as being of importance for archaeology, pre-history, history, literature, art or science and which belongs to certain named categories such as rare collection of fauna, flora, minerals and anatomy, products of archaeological expedition, elements of artistic or historical monuments; "antiquities more than one hundred years old", such as coins with inscriptions and engraved seals; paintings, engravings, sculptures, rare books and manuscripts. Much of the Convention comprises admirable formulations such as that cultural property found within the national territory "forms part of the cultural heritage of each state."
It is the crucial operative part which is woefully inadequate. Under Article 7, states will "take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another state party which has been illegally exported after entry into force of this convention, in the state concerned. Provided that such property is documented as appertaining to the inventory of that institution" (emphasis added throughout). This hinges on "national legislation", clearly.
There is an obligation to take steps to recover and return stolen cultural property at the request of the country of origin, provided it has been imported after the convention has come into force and the requesting state pays "just compensation to an innocent purchaser or to a person who has valid title to that property."
Prof. Leonard Du Boff pointed out that the original draft of the Convention "would have required nations party to it to have enacted regulations which, in essence, would have prohibited importation of works removed from another country in violation of its export laws." It was opposed by the U.S. because "in addition to imposing heavy burdens on signatory nations, it failed to make provision for legitimate cultural exchange." Although the present Convention is based on its own proposals, the U.S. has not done much by way of its implementation. The U.S. Senate ratified it on August 11, 1972, subject to a number of reservations and understandings. "The most important of these," Prof. Du Boff noted, "is the understanding that the Convention is not self-executing and therefore will not be ratified until enabling legislation is approved by Congress." No such legislation has yet been passed.
In 1979, UNESCO set up the "Inter-Governmental Committee for Promoting the Return of Cultural Property or its Restitution in case of illicit appropriation". Britain refused to be a member because of "the risk that full membership would possibly be an embarrassment under certain circumstances." The phrasing is exquisitely delicate and British too. On November 29, 1979, the U.N. General Assembly adopted, without a vote, a resolution inviting all governments to accede to the Convention. The ritual has continued for well-nigh two decades.
THE name of the game is Elginisme. It is as old as time itself, since even the Bible records it. But this particular round has gone on for two centuries. Karl E. Meyer, author of The Plundered Past - The Traffic in Art Treasures, described its origin in an article in The New York Times a year ago. Thomas Bruce, the seventh Earl of Elgin, was the British Ambassador to the Ottoman Empire when he received a murky permit from the Sultan to remove some of the famous sculptures from the Parthenon. The Ottomans in 1799 were urgently seeking British help against Napoleon. The Greeks, then under Turkish dominion, were not consulted about taking 17 figures from the Parthenon pediment, as well as 15 metopes, 56 slabs of friezes, a caryatid column, 13 marble heads and a miscellany of fragments. The 5th century B.C. masterpieces were thus ransacked in 1806.
Byron, an eyewitness to the plunder, severely censured Elgin. In 1924, on the anniversary of Byron's death, Harold Nicolson pleaded with Prime Minister Ramsay Macdonald to return the Elgin Marbles to Greece. The Prime Minister refused. The British argument has been that, but for the sanctuary London provided, the Marbles would have vanished anyway and "it would establish a precedent of incalculable consequences." Besides, Athens' notorious smog had damaged many sculptures on the Acropolis.
The late Greek actress and Minister for Culture, Melina Mercouri, was believed to have won a promise from the Labour Party, when it was in Opposition, to return the treasured marbles. But Meyer reported that "scarcely a day after taking office (in 1997), Britain's new Heritage Secretary, Chris Smith, informed a BBC interviewer that the Labour Government would not return the Elgin Marbles to their ancient and rightful home in Athens. It is not sensible or feasible, Mr. Smith contends, to remove the Parthenon carvings from their special gallery in the British Museum." (International Herald Tribune, May 19, 1997.)
Others have been no more fortunate. In April 1998, Russia's Constitutional Court ordered President Boris Yeltsin to sign a Bill barring the return of art trophies taken from Nazi Germany. The law declares works of art seized by the Red Army to be federal Russian property, making restitution all but impossible.
In Warsaw, talks between German and Polish diplomats on confiscated works of art, which started in 1992, have made no progress. The volume of art treasures taken from Germany in 1945 is staggering. Latest official estimates speak of one million works of art, 4.6 million rare books and historical archives extending to a length of some 3 km. The total value of the works is estimated at 65 billion marks ($36 billion).
Among the treasures held in Moscow are at least 137 paintings from El Greco, Goya, Tintoretto, Renoir, Degas, Monet, Rubens and Van Gogh; the fabled golden treasure of Priam from ancient Troy unearthed by German archaeologist Heinrich Schliemann; some 80 gold objects dating back to ancient Germanic times discovered at Eberswalde; and a Gutenberg Bible.
In Poland, the art treasures still being held have received less international publicity but could become far more politicised as Warsaw prepares for membership in the North Atlantic Treaty Organisation (NATO) in 1999 and seeks to join the European Union.
Poland holds some 700,000 books from Berlin's state library, most of which are now at Krakow's university library. (DPA; The Statesman; April 11, 1998).
ON the other hand, The Economist pointed out in an incisively written article on Misplaced Treasures: Unplundering Art, published on December 29, 1997: "In the Second World War, Germany plundered 427 museums in the Soviet Union and damaged or destroyed 1,670 Russian Orthodox churches, 237 Catholic churches and 532 synagogues. If Russia's War-time allies continue to insist on the return to Germany of objects seized by the Red Army as revenge for these losses, how can the demands from other dispossessed countries be contained? Is it still tenable for Britain to refuse demands from Greece for the return of the Elgin Marbles? Or Germany to refuse Nigeria's demands for the Benin Bronzes? Or Russia to refuse Ukraine's demands for paintings of Vladimir Borovikovsky and Dmitry Levitsky - artists the Russians claim as their own?"
The Economist criticised "the fundamentalists", the ones who take a moral stand. It said that Codes of Conduct are starting to emerge under three headings: 1. art works acquired through recent or continuing thefts; 2. art works acquired through war; and 3. art works acquired through colonial exploitation.
The journal's counsel, as one might expect, weighs heavily on the side of pragmatism: "By conceding that many of the objects in Western hands were acquired legitimately, claimant countries could more effectively concentrate their efforts on securing the return of the plundered treasures they really crave. Many of them are languishing in the reserve collections of Western museums. The curators of these museums are often on shaky ground when they claim, as they customarily do, that the materials should stay where they are, to be pored over by scholars.
"As Sir Roy Strong, a former Director of the Victoria and Albert Museum, noted in his diaries, this is the age of the 'consumer museum'. It is now adjudged elitist to claim that the interests of Western academics in studying an object should override the interests of people longing to see things of beauty. This is the most powerful argument in the locker of those who demand the return of art - even art originally stolen way back in King Nebuchadnezzar's day."
There is ample room here for legal creativity and diplomatic skills. Indifference is treason to our cultural heritage. Only last year, Peter Watson showed in his documentary for Channel Four's Despatches programme and in his book Sotheby's: Inside Story how priceless antiques continue to be smuggled from India. While an international campaign is launched, India's own law should be reviewed to plug the loopholes.