FAIR AND JUST DECOLONIAL SOLUTIONS: ADAPTATION OF THE WASHINGTON PRINCIPLES TO THE CONTEXT OF DISPUTED COLONIAL CULTURAL OBJECTS.

• Author: Peters, Emma

ABSTRACT:

Museum collections around the world contain objects that colonial forces unjustly took during times of occupation and colonization. Although some museums are beginning to return these disputed objects, cultural institutions and states are not utilizing international instruments designed in part to facilitate these returns, such as the 1970 UNESCO Convention and 1995 UNIDROIT Convention. Thus, a patchwork of possible paths for returning disputed colonial cultural objects has emerged, preventing formerly colonized claimants from successfully arguing for the return of their cultural heritage and hindering museums from cooperating with requests for return. This Note argues that the international community should adapt the Washington Principles on Nazi looted art to apply soft-law standards to the return of colonial-era looted cultural objects. Through this process of adaptation and adoption, the international community will be able to formulate a framework to achieve fair and just solutions in the return of colonial cultural objects.

TABLE OF CONTENTS ABSTRACT: TABLE OF CONTENTS I: INTRODUCTION II: BACKGROUND A: The Objects in Question: Disputed Colonial Cultural Objects B: Cultural Heritage Frameworks Today C: The Washington Principles: Fair and Just Standards Elsewhere III: ANALYSIS A: Fractured Contemporary Frameworks.. B: Adapted Soft-law Standards: A Fair and Just Solution I. Emphasis on Fair and Just Solutions II. Incorporation of Heritage Title as a New Mode of Property Ownership III. Encouraging New Approaches to Statutes of Limitations IV. Centralizing the Voices and Desired Solutions of Formerly Colonized Peoples, Indigenous People, and Minority Ethnic Groups V. Adoption of Specific, Accurate, and Effective Definitions and Understandings VI. Establishment of Accessible Public Databases and Adoption of New Modes of Provenance Research C: The Continuing Challenges and Potential Justice of Soft-law Solutions IV: CONCLUSION ANNEX: ADAPTED PRINCIPLES I: INTRODUCTION

Deep within the walls of the Cleveland Museum of Art, (1) tucked away within the first floor of the 1916-era building, items in the arts of Africa gallery rest on their pedestal-like displays, gazing out at viewers through panes of protective glass. The display of this collection is in a state of flux, as the curatorial staff balances the slow pace of exhibition adjustments with the need to refresh anthropological, outdated wall text. (2) Even though parts of the gallery currently reflect a past approach to the presentation of African art, one corner of this room takes a comparatively contemporary and transparent approach to a group of objects. These are the famed, and often controversial, Benin Bronzes. (3) The two bronze plates, along with a commemorative ancestral head and architectural decorative works, are unique in their presentation. (4) These are some of the only works where the museum presents their provenance and path from the western coast of Africa to north-east Ohio. (5)

The British Army forcibly removed many of these items from their original setting in the Oba's palace (6) during the punitive 1897 siege of Benin. (7) During this retaliatory attack, British forces looted thousands of objects and subsequently introduced them into art markets in western Europe. An immense amount of these items eventually landed in the hands of western private collectors and encyclopedic museums. (8) The stories of these items that the Cleveland Museum of Art's presents underscores two kinds of histories museums must reckon with: the life of an object in their collection before and after its accession. (9) The latter part of these items' life is one museums sometimes define in part by colonial violence and continuing cultural loss. When a viewer chooses to engage with the bronzes and their interpretive texts, they are forced to wrestle (10) with one of the most pressing and complicated questions facing museums and their audiences today: Are these works stolen? And if so, what in the world are they doing here in this museum?

The Cleveland Museum of Art is not unique in its stewardship of items with documented colonial-era provenance. Museums across the world are filled with disputed colonial cultural objects and are striving to overcome these facets of their elitist-and sometimes imperialist-pasts. (11) Regardless of whether museums acknowledge the sometimes-brutal underpinnings surrounding their acquisitions of colonial cultural objects (12) or silence this aspect of the object's life, (13) to characterize the continuing presence of these items in collections as merely a "complex problem" would be a grave understatement. Cultural dispossession, specifically in the context of colonialist theft, has resulted in widespread deprival of visual and material histories as well as cultural legacies. (14) For instance, museums and institutions outside the African continent hold a staggering 90% of the material cultural objects of sub-Saharan Africa. (15) For decades, (16) museum holdings of cultural objects have spurred impassioned global calls for return. (17) Some scholars even argue that museum holdings and displays of these objects perpetuate colonialist violence that spirited away many of these items from their place of origin. (18)

Although there are two international instruments (19) dedicated to the protection of cultural heritage and property, the return of colonial cultural objects to source nations and people groups has largely occurred in a bottom-up pattern. (20) Institutions often self-initiate these instances of return, or respond to calls of individuals or people groups, rather than looking to the international instruments at their disposal to facilitate the return of colonial cultural objects. (21) The diverse driving factors behind institutional return, coupled with the differences in museum governance laws across the world, has left a patchwork of possible paths for returning colonial cultural objects. A lack of effective international guidelines means that depending on what country a museum is located in, claimants face an uncertain path for the return of their wrongfully taken cultural objects.

This Note argues that the international community should adapt the Washington Principles on Nazi looted art (22) to apply soft-law standards to the return of colonial-era looted cultural objects. (23) The adoption of these Adapted Principles will facilitate return of disputed colonial cultural objects by empowering signatory states and their cultural institutions to strive for fair and just solutions, center the voices and needs of source communities and decolonized peoples, recognize new human-rights oriented conceptions of cultural ownership, establish accessible databases for return requests, and employ radical new modes of provenance research. These guidelines will not only work within the current, effective bottom-up approach of return, but eventually create a framework for the international community to concretely adopt through U.N. General Assembly endorsement in the future.

Part II of this Note examines the background of cultural heritage protection and colonial theft. This part begins by exploring the expansive history of cultural theft, what colonial cultural objects are, and how they ended up in encyclopedic museums across the world. Next, this Note investigates the international frameworks in place for protection of colonial cultural objects. This Note then explores the Washington Principles, a set of international soft-law standards available for facilitating the repatriation of Nazi-looted art.

Part III of this Note dives into the ways in which the existing international law frameworks are unsuited for promoting just and fair return of colonial cultural objects. This Note will then move to look at a potential solution for facilitating more fair and just results by exploring the adaptation of the existing Washington Principles. This effective expansion of fair and just solutions into the decolonial context will pave the way for subsequent international solutions building off of the Adapted Principles, solidifying these soft-law solutions as a viable pathway for facilitation of return in lieu of today's ineffective international solutions and patchwork domestic remedies.

Part IV of this Note addresses the continuing issues with soft law solutions for facilitating the return of cultural objects. Although the soft-law solutions of the Washington Principles have accomplished fair and just results, their implementation and execution are highly dependent on the acts of individual states. The Adapted Principles may face similar hurdles, but the decolonial moral underpinnings and significant trends towards return may assist the Adapted Principles in being successful regardless of their non-binding, soft-law status. This part of the Note revisits current steps taken by former colonizing powers to underscore the relevance and contemporary need for an Adapted Principles. By exploring the ways that the Adapted Principles will more so represent an acknowledgement of current trends rather than novel encouragement for return generally, this Note argues that the human rights focused approach of today's patterns of return are embodied in the Adapted Principles, and subsequently, can serve as a framework for international adoption of the Adapted Principles through U.N. endorsement of the principals.

The objects that this Note focuses on are the disputed colonial cultural objects located in museums rather than in the hands of private collectors. Although private ownership of stolen cultural goods is a pressing concern, (24) museum ownership and display of colonial cultural objects is distinctly connected to the colonialist violence that led to these objects' eventual display in a uniquely different way. For instance, British museums in the Victorian and Edwardian era housed stolen cultural objects from colonies partially to prime...