Abstract

A common response to the issue of colonial looting is that no legal rules apply. But is that so? This paper argues that it is not a lack of legal norms that explains this (belated) discussion but, rather, the asymmetrical application of norms. Moreover, it suggests that a human rights law approach to claims, focusing on the heritage aspect of cultural objects, offers tools to structure this field. To illustrate these points, a case concerning an African ancestral sculpture will be assessed on its merits under international law.

Cultural objects have a special, protected, status because of their intangible ‘heritage’ value to people, as symbols of an identity since the first days of international law. Despite this, throughout history, cultural objects were looted, smuggled and traded on. At some point, their character tends to change from protected heritage to valuable art or commodity in a new setting, subject to the (private) laws in the country where it ended up. This paper proposes that, irrespective of acquired rights of new possessors, original owners or creators should still be able to rely on a ‘heritage title’ if there is a continuing cultural link. The term aims to capture the legal bond between cultural objects and people, distinct from ownership, and is informed by universally applicable human rights law norms, such as the right of everybody to (access one’s) culture. A human rights law approach to claims implicates a shift in focus from past events to present-day interests; that the rights involved are defined in terms of access, control or return - not merely in terms of absolute ownership rights; and the classification of cultural objects depending on their social function and heritage value.

Profile

Evelien Campfens is a lawyer specialised in cultural heritage law. Since June 2020 she holds a post-doc position with the Museums, Collections and Society Research Group of Leiden University. After a position at the Dutch Restitutions Committee for Nazi looted art (2001-2016) she joined Leiden University (Grotius Centre for International Legal Studies) in relation to her PhD research. She is research coordinator of the Heritage Under Threat group of the LED Centre for Global Heritage and Development; a member Committee on Participation in Global Cultural Heritage Governance of the International Law Association; and a member of the Ethics Committee of the Dutch Museum Association (Ethische Codecommissie).

Evelien Campfens

Museums, Collections and Society Research Group of Leiden University