As has emerged in the preceding sections, neither regular ownership law nor the conventional regime for the art trade are particularly suited to solve title issues with regard to contested cultural objects. In the meantime, the proliferation of soft law instruments indicate that new standards are needed. In that regard, a human rights approach deserves further examination. The apparent advantages of such an approach are that human rights law is particularly equipped to address heritage and identity values; that human rights are of a universal nature, and penetrate and shape how private law is being interpreted and adjudicated. Which human rights notions can exactly be used, how these can inform the contents of heritage title, and how such title can be made operational will be addressed next. As the law is evolving, this should be read as an invitation for further debate on a human rights-inspired concept of cultural property.
A paragraph on the increasing interrelation between cultural heritage and human rights law will serve as an introduction.
Humanization of Cultural Heritage Law
International cultural heritage law has rapidly expanded and evolved over the last decades. Regulations may be binding or non-binding, but a common denominator is the increased attention for the intangible and social aspects of cultural heritage, away from an understanding solely in terms of exclusive rights or the intrinsic value of objects for mankind at large, and a shift in focus from State interests to the interest of communities and individuals: the ‘humanization’ of cultural heritage law.Footnote 119
The increased attention of the Human Rights Council and the Security Council in resolutions on cultural heritage protection, voicing concerns over destruction, looting and illicit trade, highlights not only the scale and urgency of the problems—mostly but not only in conflict areas—, but also the impact this has on the affected communities in terms of the realization of their human (cultural) rights.Footnote 120 In this sense, in a 2007 resolution that is dedicated to the protection of cultural heritage, the Human Rights Council affirms that ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.Footnote 121 As Hausler observes, this initiated a ‘human rights-based approach’ to cultural heritage protection developed by the Council in subsequent resolutions, in which protection is linked to the right of everyone to take part in cultural life.Footnote 122 Apart from concerns about the act of looting and the destruction this causes, the Council also addresses the illicit trade and return of looted objects. In this regard, it ‘invites’ States to adopt measures at the national level.Footnote 123
On the European level, the 2005 Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) also clearly illustrates this ‘humanization’. The Convention does not create enforceable rights, but rather voices policy aims for governments, opening the door to a new understanding of cultural heritage and its title holders.Footnote 124 It defines cultural heritage as ‘a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’.Footnote 125 As ‘right holders’ it introduces the notion of a ‘heritage community’, defined as ‘people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations’.Footnote 126 In as far as it concerns competing claims to heritage, the Faro Convention proposes ‘equitable solutions’—similar to the norm in soft law instruments. In this regard, the Convention calls on States to: (a) encourage reflection on the ethics and methods of presentation of the cultural heritage and respect for diversity of interpretations; and (b) establish processes for conciliation to deal equitably with situations where contradictory values are placed on the same cultural heritage by different communities.Footnote 127
Given this shift in thinking about values that should underly cultural heritage policies—and thus entitlement to cultural object—, the next question is which binding human rights norms could further inform heritage title.
A Human Right to Cultural Property?
The Right of Access to (One’s Own) Culture
Of key importance in this respect is the evolution of the right of ‘access to one’s culture’, as it developed from the right to culture in the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 128 According General Comment 21 that deals with the ‘right of everyone to take part in cultural life’ in Article 15(1)(a) of the ICESCR, this has come to include ‘access to cultural goods’.Footnote 129 Furthermore, the 2011 report of the independent expert in the field of cultural rights, Farida Shaheed, sheds further light on the content of this right, where she concludes that:
The right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, in particular, in the right to take part in cultural life, the right of members of minorities to enjoy their own culture, and the right of indigenous peoples to self-determination and to maintain, control, protect and develop cultural heritage.Footnote 130
Similar to the concept of ‘heritage communities’ in the Faro Convention, Shaheed notes that ‘varying degrees of access and enjoyment may be recognized, taking into consideration the diverse interests of individuals and groups according to their relationship with specific cultural heritages’.Footnote 131 She notes the following hierarchy:
‘source communities’, people who are keeping cultural heritage alive and/or have taken responsibility for it;
individuals and communities […] who consider the cultural heritage in question an integral part of the life of the community, but may not be actively involved in its maintenance;
scientists and artists; and
members of the general public accessing the cultural heritage of others.
Although this list is of a general nature and not per se aimed at lost cultural objects, this hierarchy underscores that, at times, there may be more than one right holder, and that the weighing of interests should depend on the specific social function of cultural objects. This resurfaces in the UNDRIP and NAGPRAFootnote 132 models discussed further on.Footnote 133
The Right to (Cultural) Property
Heritage title may also be addressed from the perspective of the (human) right to property, given that this protection is not only aimed at the right of ownership of things.Footnote 134 Of course, if owners lose their artefact as a result of unjustified expropriation, that loss in itself may constitute a violation of the human right to property.Footnote 135 Beyond the loss of ownership, however, other interests may qualify as ‘property’ in a human rights’ sense. For example, the Inter-American Court of Human Rights has on several occasions recognised pre-existing collective property rights by indigenous peoples to ancestral lands (owned by others) within the scope of the right to property (and political rights).Footnote 136
According to the the European Court of Human Rights (ECtHR) ‘the notion of “possessions” in Article 1 of the First Protocol indeed has an autonomous meaning which is not limited to ownership of physical goods: certain other rights and interest constituting assets can also be regarded as “property rights”’.Footnote 137 In that spirit, although the European Convention on Human Rights does not include a right to culture, rights to cultural objects (beyond ownership) have been addressed from the perspective of the right to property in Article 1 of the First Protocol by the ECtHR.Footnote 138 An example is the 2012 Nowakowski case in which the ECtHR acknowledged the ‘sentimental’ value of a cultural object to a certain person—in this case, a collection of firearms in private property that had been confiscated by Polish authorities—and gave that preference over other interests.Footnote 139
Whether (human rights) courts would be ready to acknowledge an infringement of human rights with regard to cultural property lost in the (far) past, remains to be seen. In 2016 the ECtHR rejected the application brought by an Athenian association with regard to the Parthenon Marbles—important sculptures from the Acropolis in Athens that the British Ambassador to the Ottoman Empire, Lord Elgin, hacked off and took with him to London at the beginning of the nineteenth century—, due to the time that had passed since the loss.Footnote 140 The court held that the claim was inadmissible, ratione tempore as well as ratione materiae, as none of the invoked articles ‘would give rise to any right for an association in the position of the applicant to have the Marbles returned to Greece or to have the UK engage in international mediation’.Footnote 141 Nevertheless, given that morality in this field is rapidly changing—whether it concerns present-day looting, Nazi-looted art or colonial losses—, this path should not be dismissed too soon.
Other Human Rights Norms
Potentially, many other human rights qualify to inform heritage title, such as the freedom of religionFootnote 142; respect for private and family lifeFootnote 143; the rights of minorities to enjoy their own culture,Footnote 144 or the right to self-determination.Footnote 145
This last right has been invoked and accepted in a 2008 Italian ruling dealing with a sculpture (the ‘Venus of Cyrene’) taken by Italian colonial agents from what is now Libyan soil. In this ground-breaking (albeit not exemplary) case the Italian Council of State confirmed the view that the return of cultural objects taken during colonial rule is inherent in the right of self-determination of newly independent States.Footnote 146 The right to self-determination, in other words, may include the right to the cultural heritage linked to the territory or peoples of that State.
Cultural Rights of Indigenous Peoples
While the right of ‘access to culture’ in the binding ICESCR may seem vague and unspecified, the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is clear and specific in its obligations.Footnote 147 The UNDRIP entitles indigenous peoples to rights with regard to their cultural heritage, including their lost cultural property.Footnote 148 In Article 11(2), this is defined as a right of ‘redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs’.Footnote 149 Article 12 deals with rights to objects of special importance—providing for a right to ‘use and control’ where lost ceremonial objects are concerned and a straightforward right to repatriation for objects containing human remains.Footnote 150
Since these provisions are acknowledged as part of the (binding) right of access to culture of Article 15(1)(a) ICESCR insofar as the cultural heritage of indigenous peoples is concerned, this is an important instrument.Footnote 151 That it is more than ‘just’ a non-binding declaration is also illustrated by the fact that the UNDRIP was adopted after 20 years of negotiations and by now is supported almost universally.Footnote 152 States, in other words, are under the obligation to assist indigenous peoples in providing ‘redress through effective mechanisms’ and to ‘enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned’.Footnote 153
As to the question of what exactly constitutes an indigenous people, the UNDRIP deliberately abstains from a definition to allow for the flexible evolution of the concept.Footnote 154 In general terms the link between people, their land and culture, and self-identification as a distinct community, are decisive factors.Footnote 155
Beyond direct applicability in specific cases, the approach followed in UNDRIP highlights three elements that shape the content of heritage title.
Basis for Entitlement
First of all, such entitlement is not per se based on the unlawfulness of a loss of ownership in the past, but on the continuing injustice of remaining separated from objects with a specific meaning for people who identify with them.
In many of today’s restitution cases, the unlawfulness of the taking at the time is not a given. If a loss occurred during times of historical injustice, such as the Holocaust or colonial rule, often a changing notion of justice and legality is at the core of such claims: In some instances the original taking can indeed be classified as unlawful, but in other cases the loss was legal at the time.Footnote 156 In other words, such cases rely on present-day norms that aim to reunite people with cultural objects that have a specific symbolic meaning, and to provide redress for a continuing injustice.
A continuing cultural link and entitlement without regard to the proven unlawfulness of the loss at the time, similarly underlies UNDRIP. In this sense, the notion of ‘cultural affiliation’ introduced in the American Graves Protection and Repatriation Act is also noteworthy.Footnote 157 It is used to allocate rights to (lost) cultural property of Native Americans of ‘ongoing historical, traditional or cultural importance’ on the basis of a shared group identity and the (continued) existence of an identifiable group. Likewise, as discussed above (in Sect. 4.1), a continuing cultural link is the rationale for entitlement of States to their lost cultural patrimony. In sum, heritage title depends on a (verifiable) continuing cultural link between people and objects.
Classification of Objects
The second element of heritage title is that it enables the classification of objects depending on their social function and identity value for the people involved. UNDRIP differentiates for example between ceremonial objects, objects containing human remains and a general category of cultural objects ‘taken without free, prior and informed consent’. Objects that contain human remains or are sacred to a living community, such as the Chinese Buddha statue (Master Zhang Gong) and the Hopi masks (Katsina) in the examples in the introduction, clearly stand out.Footnote 158 Regalia or other objects symbolic to the identity of people are other obvious examples. The way in which objects were lost may enhance that symbolic meaning. For example, this was key in the repatriation of a kris (an Indonesian dagger) that belonged to the ‘rebel prince’ Diponegoro, who led an uprising against Dutch colonial rule, by the Netherlands, and that of the Witbooi Bible that had once belonged to the Namibian hero Hendrik Witbooi by Germany.Footnote 159 Likewise, also family heirlooms that were lost in the course of racial persecution stand out, as tangible symbols of a (lost) family life. As discussed above (in Sect. 4.1) archaeological objects and elements of a monument form another separate category as these are strongly, and often intrinsically, connected with a territory.Footnote 160
The third element is that the rights involved are defined in terms of access, return or equitable solutions, not in terms of (the restitution of) exclusive ownership rights. Rights, in other words, tailored to the heritage interests involved, and this enables remedies that take account of the interests of other right holders, such as new possessors.
The jurisprudence of the Inter-American Court of Human Rights is noteworthy in this regard, apart from its acknowledgement of pre-existing rights of the indigenous peoples (to their ancestral lands, not cultural objects), in its choice for participatory solutions. In the 2015 Kaliña and Lokono Peoples v. Suriname case the Court held that the right of access can be compatible with the rights of other title holders.Footnote 161
This reflects soft law and (best) practice in the field. The 1998 Washington Principles on Nazi-Confiscated Art, for example, prescribe ‘fair and just solutions, depending on the circumstances of the case’.Footnote 162 In a similar spirit, the 2015 Operational Guidelines to the 1970 UNESCO Convention suggest cooperative solutions in the event of competing claims of States ‘to realize […] interests in a compatible way through, inter alia, loans, temporary exchange of objects […], temporary exhibitions, joint activities of research and restoration’.Footnote 163 Such creative solutions are not uncommon in practice as it is. For example, when France returned looted scriptures to (South) Korea on a renewable long-term loan—to circumvent laws prohibiting French museums to deaccession national patrimony—, it separated ownership rights from rights to access, use and control.Footnote 164 A solution mirrored by the Korean example is the transfer of title of (presumably looted) Nok and Sokoto statuettes by France to Nigeria, whereas they physically remained in France under the terms of a 25-year loan in the Quai Branly Museum.Footnote 165 In the Korean example physical possession, whereas in the Nigerian example rehabilitation and a formal recognition appear to have been key.
The notion of heritage title that thus emerges relies on a (verifiable) continuing cultural link between people and an object. Dependant on the type of object and the values it represents, it entitles people to an equitable solution. The specific circumstances and interests involved, including the interests of other right holders, should determine what is ‘equitable’.
Operationalisation of Heritage Title
The last question that needs to be addressed is how to make heritage title operational. Alternative dispute resolution and cultural diplomacy on the interstate level are often promoted as being best equipped to solve disputes in this field.Footnote 166 However valid this may be in specific cases, access to justice is eventually key, not only in the recognition of unequal power relations, but also for the development of standards in a field that is hindered by legal insecurity.Footnote 167
The question if norms can be made operational obviously depends on the binding force of norms that a party invokes for its heritage title. Here, hurdles exist as the law is evolving. Nevertheless, even if the mentioned norms would not be directly applicable in a court of law, heritage title may operate as a ‘narrative norm’.Footnote 168 Heritage title should thus instruct judges on the interpretation of open norms that exist in all jurisdictions, for example through the application of concepts such as ‘(international) public policy’, ‘morality’, ‘general principles of (international) law’ or ‘reasonableness and fairness’. In fact, courts in various countries have already prevented unjust outcomes to cultural property disputes in a strict private law approach in that way.Footnote 169 In that setting of dispute resolution before national courts, the notion that the private sector should adhere to human rights standards, as advocated by the UN, may be relevant in cases where auction houses, art dealers or private museums are involved.Footnote 170
In terms of a straightforward human rights claim, the question is whether a forum could evaluate a claim based on the argument that the continued deprivation of a specific cultural object is an infringement of the right to ‘access to culture’. In this respect, the Optional Protocol to the ICESCR offers a complaints procedure. This procedure, however, appears limited to nationals or groups in the State responsible for the alleged violation, whereas claimants are not usually nationals of a holding State, and is subject to ratification of the Protocol by that State.Footnote 171 Within the European human rights system, while a stumbling block is that the European Convention on Human Rights does not include a right to culture, claims may be addressed through the right to property of the First Protocol, or other rights, as mentioned above.Footnote 172
Lastly, an interesting roadmap on how to proceed is given by the Colombian Constitutional Court in a 2017 case concerning the ‘Quimbaya Treasure’.Footnote 173 In its ruling, the Court ordered the Colombian government to pursue—on behalf of the indigenous Quimbaya people—the return from Spain of a treasure of 122 golden objects lost at the close of the nineteenth century. The Court argued that under today’s standards of international law, referring to human rights law and UNDRIP—but interestingly also to the 1970 UNESCO Convention—, indigenous peoples are entitled to their lost cultural objects. How such a claim is pursued is left to the discretion of the government, but according to the Court the fact that governments should work towards this goal is clear.Footnote 174 In a first reaction to the subsequent request by the Colombian authorities for the return of the Quimbaya Treasure, the Spanish authorities, however, declined on the grounds that today the Quimbaya Treasure has become Spanish patrimony and is inalienable.
As discussed earlier in this article, that has long been a common European reaction to restitution requests by former colonized people.Footnote 175 It is also reminiscent of the (initial) position that the Austrian government took in the Altmann case: due to national administrative law (patrimony laws) the Klimt paintings that were lost during the Nazi era were inalienable. In that case, however, after US Supreme Court established a violation of international human rights law, the Austrian government accepted to abide by an arbitral award that the rights of Altmann should prevail.Footnote 176
It illustrates the difficulties in this field and the clash of laws on various levels, but also highlights the potential of the human rights framework as a universal language to further develop this field.