PPRC21 Kamardeen

The Shifting Goalpost. A Colonial Perspective on Cultural Property

by Naazima Kamardeen

Abstract
The issue of cultural property has evoked partisan feelings in the minds of both those who retain it, and those from whom it has been taken. With the rise of human rights jurisprudence and the corresponding affirmation of cultural rights as part of that discourse, the retention of cultural property that was taken by means legal at the time, yet illegal by modern standards (and unjust by any reasonable yardstick) continues to be a matter of deep concern to many countries including Sri Lanka, which was colonised by three European nations over a period of almost five hundred years.

In ascertaining the possible legal arguments for and against the original taking and current retention of cultural property, it is argued that the operative system of international law during the heyday of European colonialism was created by Europe itself, and served its expansionist agenda. The positivist thrust of international law, elucidated by European jurists, supported the view that the ruler was always right and that the law was what the ruler said it was, enabled invasion, looting, taxation of the population to fund invasion, and the taking of war booty.

With the ending of the Second World War, and the subsequent affirmation of human rights, the positivist agenda was no longer tenable, and therefore the goalpost was shifted yet again, to the position that previous takings were legal, but future takings would not be. Prescriptive periods impossible to be met by newly independent states were also set, again by the very nations who were the perpetrators, which effectively ensured that previously taken cultural property would not be returnable. The most recent example of shifting the goalpost is the false hope given that restitution will be made provided that the provenance can be established, even though it is well known that documentation of this type has not been made in most cases, especially when the property was indiscriminately looted.

Against this backdrop, the legal basis for the return of cultural property taken in colonial times has been negated, and what is left is to appeal to a sense of justice, that the taking was wrong, whatever the legal regime at the time dictated, and that the historical injustice must be corrected even at this late stage, if we are to achieve global harmony. However, this does not seem to have had much impact, especially where the collections have economic potential.

 

Profile

Naazima Kamardeen holds a Doctor of Philosophy degree from the University of Colombo, Sri Lanka, a Master of Laws degree in International Legal Studies from Georgetown University USA, where she studied as a Fulbright scholar, and a Bachelor of Laws degree from the University of Colombo, Sri Lanka. She is also an Attorney-at-Law of the Supreme Court of Sri Lanka.

Currently, she teaches international investment, intellectual property and tax law at undergraduate level, and international trade and intellectual property at post-graduate level. Her research interests include intellectual and cultural property, international law, biopiracy and traditional knowledge, trade and investment, environment, research ethics and Muslim personal law reform.

She is a member of the Law Commission of Sri Lanka and the Ethics Review Committee of the Sri Lanka Medical Association.

She has authored two books, “Global Trade and Sri Lanka: Which Way Forward?” published in 2016, and “Biopiracy’s Forgotten Victims: Lessons from Sri Lanka” published in 2019.

Naazima Kamardeen

Professor, Department of Commercial Law, Faculty of Law, University of Colombo