RESOLVING CULTURAL PROPERTY DISPUTES

Disputes relating to the ownership of antiquities can be very diverse in scope, covering disputes over antiquities that are stolen, illegally excavated ^{Footnote 4} or exported, ^{Footnote 5} plundered during war ^{Footnote 6} or colonial domination, ^{Footnote 7} removed before existing laws were enacted, ^{Footnote 8} and so on. The possible combinations of opposing parties in cultural property disputes are numerous: state versus state, individual versus state or museum (and vice versa), state versus museum (and vice versa), indigenous community versus museum or state, and so on. As will be argued in this article, the type of involved parties can affect the developments of a case, the way that it is handled, as well as the possible resolutions under consideration. Thus, such disputes are not only affected by the type of claim and the issue at stake but also by the type of involved parties, as is evident in the examined case studies.

The resolution of such disputes in court, as well as the legal and procedural matters relating to litigation for the return of cultural objects, has been the subject of extensive research. ^{Footnote 9} The fact that many cases do not fulfill all of the legal criteria, making a court outcome very uncertain, ^{Footnote 10} has led many scholars to turn to the examination of the possible benefits that alternative methods of dispute resolution have to offer to such cases. ^{Footnote 11} In cases resolved through litigation, the determining factor is the applicable laws and the facts supporting their possible violation. However, this may not always be the case in disputes resolved through negotiation, in which there can be a range of determining factors, apart from the applicable laws, such as the power dynamics, the available evidence, the politics at play, and the stakeholders involved. Nevertheless, no matter what process a claiming party will choose for resolving a dispute, the current legal regime on the protection of cultural heritage will inform, guide, and shape the process. The fact that negotiation may be chosen by a party does not imply that legal rules will be ignored or overlooked. Since heritage around the world is protected by national laws ^{Footnote 12} and international legal instruments, ^{Footnote 13} these will inevitably form the context in which the dispute will be resolved and will also constitute a “validation tool” for the assessment of the proposals of the two sides and of the final outcome.

Despite the growing number of attempts to focus on alternative processes of resolution and the growing literature on the use of alternative dispute resolution (ADR), ^{Footnote 14} it appears that the process of negotiation and how it works in the context of these disputes has not yet been tackled in great detail. Negotiation can be characterized as a dynamic process, affected by many parameters, one of which is politics. The outcome of a negotiation process is directly affected by the process itself. Thus, more in-depth analyses are needed on how possible parameters can affect the development of the negotiating process and, therefore, its outcome.

The lack of sufficient research on this aspect of the application of ADR to such disputes is rather paradoxical, given that many international organizations are promoting the use of alternative means of dispute resolution for resolving cultural property disputes. For example, the UN Educational, Scientific, and Cultural Organization (UNESCO) encourages negotiation and mediation ^{Footnote 15} through its Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or Its Restitution in Case of Illicit Appropriation (UNESCO Intergovernmental Committee). ^{Footnote 16}

SHAPING THE DISCOURSE OF THE DISPUTE

One of the first distinct characteristics of cultural property disputes in which the claiming party is a state is the discourse used by the involved parties to support their arguments. The dichotomy created by two different conceptions on the ownership of cultural heritage—the “nationalist” and “internationalist” approach to cultural property—usually predominates the discourse developed in these cases. ^{Footnote 17} The two approaches to cultural property—the nationalist and internationalist approach ^{Footnote 18} —were first described by John Merryman, who explains that there are two ways of thinking about cultural property. ^{Footnote 19} The first is “as components of a common human culture, whatever their places of origin or present location, independent of property rights or national jurisdiction.” ^{Footnote 20} The second is “as part of a national cultural heritage,” which “legitimizes national export controls and demands for the repatriation of cultural property.” ^{Footnote 21} Hence, the world could be divided, as he points out, into source and market nations. ^{Footnote 22}

In most cases of cultural property disputes in which states are involved, it is evident that the discourse used to support the arguments of the parties is shaped by these two, mostly contradictive, approaches. ^{Footnote 23} In the case of claiming states, which usually constitute source countries, the arguments used for supporting the claim reflect in most cases the rhetoric of the nationalist approach ^{Footnote 24} and emphasize issues of national sovereignty and identity. ^{Footnote 25} Thus, in many cases of claims for the return of cultural objects, the rationale behind the claim is based on the importance of the object to the country’s national identity and the need to restore the claimed objects to their original context, which is connected to the historical and traditional or even sacred background of a particular nation. ^{Footnote 26} For example, Greece’s claim for the repatriation of the Parthenon marbles is an illustrative example of this argumentation. ^{Footnote 27} This case, in particular, moves beyond the role of the object in shaping national identities since what seems to matter for the wider public is the process of repatriation as a symbolic process of social justice rather than the object itself. ^{Footnote 28}

Indeed, within this frame of thought, the claimed objects tend to become symbols of a lost past, which is extremely important to the formation of the modern nation’s identity. Iconic heritage objects become part of the collective identity and memory since “cultural patrimony can be understood only in terms of cultural memory,” which contributes to nationhood. ^{Footnote 29} Therefore, the removal of such objects disrupts social justice: “The displacement of the visual image of a cultural object disrupts the collective memory of identity.” ^{Footnote 30}

On the other hand, museums receiving such claims usually adopt a rhetoric based on aspects of the internationalist approach ^{Footnote 31} and may emphasize their role in providing access to the contested objects to a wider public or even a higher level of safety and protection to the disputed artifact. ^{Footnote 32} In some cases, museums may also argue that national claims on antiquities may be considered to be political claims that serve the purpose of the modern claiming nation since “cultural property is not, and cannot be claimed to be the absolute property of a nation” but, rather, the common heritage of humanity. ^{Footnote 33}

During negotiations for the resolution of such disputes, a large part of the discourse used is based on the parties’ perceptions of entitlement and on standards considered to be fair and legitimate as these are formed by both the current legal regime on the protection of cultural property and the two different conceptions on the ownership of cultural artifacts. This leads to the adoption of a rights-based approach during negotiations. ^{Footnote 34}

When parties follow a rights-based approach in negotiations, they attempt to determine who is right based on an independent standard perceived as legitimate or fair. In the case of the disputes in question, both the applicable legal rules and the rhetoric of the nationalist and internationalist approach act as the standard on which the claims are evaluated. ^{Footnote 35} A rights-based approach offers the advantage of providing a sense of fairness to the parties and may reduce uncertainty on future rights or on power imbalances. ^{Footnote 36} However, there are instances in which it may prove unproductive, as in cases in which the facts of the case are not clear and not covered by existing laws or in which the legal burden of proof cannot be met to the extent that it would be sufficient to vindicate such a claim in court. ^{Footnote 37}

Thus, it has been argued that in cases that are difficult to pursue in court due to legal requirements and in which a rights-based approach is followed in negotiations, the discourse used is based on “broader normative claims regarding a presumption for where an object should be located.” ^{Footnote 38} The nationalist and internationalist approach used by the involved parties are typical normative claims used in this respect. In the absence of clear and strong evidence to support a claim based solely on legal arguments, the conflict between these two positions is not easily resolved. Thus, the adoption of this discourse and of a purely rights-based approach during negotiations in such cases may “trap” the parties, locking them into positions that cannot always be supported or enforced by the existing laws.

An example that illustrates this situation is the claim by Italy for the return of the Bronze Statue of a Victorious Youth (also known as Athlete of Fano or Getty Bronze) from the J.P. Getty Museum. The statue was discovered in the sea by Italian fishermen in 1964 and was bought by the museum in 1977. ^{Footnote 39} Since its discovery, many investigations on the origin of the statue have been carried out, and several court judgments have been issued in Italy with regard to both the fishermen who had discovered the statue and the Getty Museum’s acquisition. ^{Footnote 40} The Italian side claims that the statue constitutes illegally traded and stolen state property that was smuggled out of Italy without the appropriate export licenses and that, therefore, the museum does not have a clear title. ^{Footnote 41} On the other hand, the museum claims that the statue was found in international waters and was purchased through legal channels in good faith. ^{Footnote 42}

The statue was also the subject of intense negotiations between the two sides in 2006 and 2007 as part of a dispute concerning many other objects claimed from the museum by Italy. The claims of the two sides on the statue have brought the negotiations to a standstill on many occasions since Italy has insisted that the statue should be included in the final agreement, while the museum has insisted that the fate of the statue cannot be discussed together with the other contested artifacts. ^{Footnote 43} An agreement was finally reached in 2007, only after it was decided that the negotiations for the statue should be set aside until the final results of a new criminal investigation, which had begun in Italy on the exportation of the statue. ^{Footnote 44}

Although, in 2010, the Italian court ruled that the bronze had been smuggled out of Italy and ordered the museum to return the piece, the dispute is still ongoing, and its return is highly uncertain. ^{Footnote 45} Thus, the approach followed in the negotiations, solely based on a rights discourse and on positions that either could not be proved or supported by the applicable laws or that could not be enforced by the laws in place, have resulted in a dispute that is still ongoing after almost 30 years. In essence, it can be argued that in cases in which states are acting as the claiming parties, and in the absence of a strong legal basis or evidence for the support of the arguments used, the parties resort to other normative claims based on the nationalist and internationalist approaches, following a purely rights-based approach. ^{Footnote 46} Since the “conflict between these two positions is not easily resolved,” there is a high possibility for the parties to remain trapped in long and unresolved disputes. ^{Footnote 47}

EXERCISING GOVERNMENTAL PRESSURE: MEANS AVAILABLE AND THREAT CAPACITY

Another major difference in the cases involving governments is the means available to them to bring the other party to the negotiating table and to pressure them toward resolution. First, many governments have a range of international laws and legal instruments that can be used for claiming cultural objects, such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention), the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention), and the European Directive 2014/60/EU on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State. ^{Footnote 48}

For example, Articles 3 and 4 of the 1995 UNIDROIT Convention include provisions for the restitution of cultural objects, while Articles 5 to 7 include provisions for the return of illegally exported cultural objects. ^{Footnote 49} Council Directive 2014/60/EU also protects cultural objects that are considered by member states as “national treasures” and includes provisions describing the process that EU states should follow for requesting the return of cultural objects. ^{Footnote 50}

There are also cases in which international organizations have stepped in to assist governments in recovering claimed artifacts. For example, in 1995, UNESCO asked the Metropolitan Museum for the return of a Buddha sculpture on behalf of Afghanistan. ^{Footnote 51} More recently, UNESCO provided assistance to Cambodia in the country’s attempt to recover a complex of sculptures from Koh Ker that were held by auction houses and museums such as the Metropolitan Museum and Sotheby’s. ^{Footnote 52}

A number of cases were also resolved with the assistance of the UNESCO Intergovernmental Committee. The last two cases, which are the most recent, are the case of the Sphinx of Bogazkoy, which is a dispute between Turkey and Germany that had been pending since 1975 and was resolved in 2010 with the signing of a memorandum of understanding and the return of the sphinx to Turkey, ^{Footnote 53} and the case of the Makonde Mask, which was resolved in June 2010 when the Barbier-Mueller Museum of Geneva returned the stolen mask to the National Museum of Tanzania. Currently, the only case pending before the committee is the case of the Parthenon marbles.

Second, cultural sanctions have proved to be a very powerful tool in the hands of claiming states, and there are many cases in which governments have used such power to pressure the other side. Cultural sanctions can be used by claiming states as leverage either before negotiations (to pressure the other side to negotiate) or during negotiations (to pressure the other side to make concessions and reach an agreement). In these cases, such sanctions work as bargaining tools that strengthen the claiming state’s bargaining power. Thus, they can also change power balances during negotiations and give negotiating power even to countries that feel or appear to be in a weaker position.

The most illustrative example of using cultural sanctions is the case between Italy and the J.P. Getty Museum, which was eventually resolved in 2007. When negotiations between the two sides came to an impasse in April 2007, Italy announced that it would be imposing a “cultural embargo” on the Getty Museum. ^{Footnote 54} The threatened embargo meant that the Getty would not be able to receive loans from Italy and that the government’s collaboration in Getty research and conservation projects in Italy would be suspended. ^{Footnote 55} During that time, several requests from the Getty Museum to borrow Italian art for upcoming exhibitions in Los Angeles were delayed or ignored by the Italian authorities. ^{Footnote 56} When the negotiations came to an impasse, the embargo seemed to affect the projects and scheduled exhibitions of the Getty Museum. ^{Footnote 57} As the announced date for the initiation of the embargo was approaching, the two sides felt more pressure to reach an agreement. Eventually, the agreement came just a few days before the full embargo was scheduled to take effect. Although it was not the sole reason for the achieved resolution, the threat of an embargo nevertheless played a role in the developments.

This is not the only example since there are many cases in which claiming governments have interrupted scientific collaborations, denied loans for exhibitions, or threatened to cancel excavation permits provided to the institutions in question. For example, in 2009, the Louvre returned to Egypt five fresco fragments that were illegally taken from a tomb in the Valley of the Kings. The return came only after Egypt suspended its collaboration with the museum for exhibitions, cancelled a lecture in Egypt by a former Louvre curator, and suspended an excavation sponsored by the Louvre at the necropolis of Saqqara. ^{Footnote 58} Another example is the case involving Egypt and the Boston Museum of Fine Arts. In 1988, the museum returned nine fragments of tomb paintings to Egypt, and its director noted that one of the reasons for his decision was that he did not want to jeopardize the museum’s relationship with Egypt since the country’s cooperation enabled the museum to sponsor many of its digs in the country. ^{Footnote 59}

Turkey is also one of the countries that has used cultural sanctions in many cases in the past. In recent years, “Turkey threatened to bar foreign archeologists from excavation sites in the country by not renewing their digging permits if governments refuse to return artefacts” and has also “threatened to halt the lending of its treasures to foreign museums.” ^{Footnote 60} The case of the Sphinx of Bogazkoy, which was returned to Turkey by Germany in 2011, is a prime example. ^{Footnote 61} Before the return of the Hittite statue, Turkey threatened Germany with the non-renewal of excavation permits. In particular, the German Archaeological Institute lost its excavation rights for the ancient Roman town of Aizanoi, in which it had worked since 1926. ^{Footnote 62}

The same events happened in an ongoing dispute between Turkey and the Louvre for an Ottoman tile panel from the Piyale Pasha mosque that the Louvre acquired in 1985. The panel is one of the highlights of a new wing of Islamic art launched by the museum in 2012. As a result of this outstanding dispute, the French lost their license for the excavation of the Lycian city of Xanthos in 2011, which had been funded by the French Foreign Ministry since 1950. ^{Footnote 63}

Another example is the case of the “Troy Gold,” a collection of antique jewelry that was returned as an indefinite loan to Turkey in 2012 from the Pennsylvania Museum of Archaeology and Anthropology. The excavation projects of the University of Pennsylvania had played a role in the settlement of the dispute since the university had been excavating the site of Gordion in Turkey since 1950 under the directorship of a university professor who was also a curator at the museum. ^{Footnote 64} In many cases in the recent past, Turkey has also denied loans to foreign museums from which it was demanding the restitution of objects, such as the British Museum and the Metropolitan Museum in New York. ^{Footnote 65}

The basic issue that should be stressed here is the effect that these means have on the dispute resolution process when compared to cases involving individuals or institutions. In a dispute resolution process, such measures produce power-based approaches to the resolution of these disputes, which are affected by the power that the foreign government can exert on the museum or cultural institution of another country. ^{Footnote 66} Through such measures, the bargaining power of the claiming state increases during the negotiations, creating more chances for an outcome that is more favorable for the state.

Although, in many cases, such measures and sanctions work as leverage and bring parties to the negotiating table or pressure them to agree to return the requested objects, they can also have some negative results. It has been acknowledged that power-based approaches can harm the relationship between the parties and their cooperation on many other issues, apart from the implementation of a possible agreement. ^{Footnote 67} For example, Grant Strother acknowledges that cultural property disputes with a power-based frame can lead parties to “feel as if the negotiation was a zero-sum win-lose game or a compromise in which neither party feels good about the result but both can co-exist until the next opportunity for conflict and a win.” ^{Footnote 68} Therefore, the means available to claiming states in a cultural property dispute facilitate the adoption of power-based approaches, which can affect the course of the dispute, on the one hand, but can also harm the relationship between the two parties, on the other.

INTERNATIONAL POLITICS AND FOREIGN AFFAIRS

Cases of cultural property disputes involving states are often affected by the international political scene in several ways. First, the relation between two countries can either facilitate the resolution of such disputes (in the case of good relations and collaboration at a governmental level or through established agreements) or create obstacles for settlement (if such relations are not in place). Second, cultural property disputes may be affected by current political agendas, either in the wider context of international relations or in internal political scenes.

GOVERNMENTAL INTERVENTION: POLITICS AND CULTURAL DIPLOMACY

Governmental intervention for the resolution of a cultural property dispute has become a common occurrence in such cases. As Bandle notes, “restitution claims have frequently become a political issue, triggering governments to intervene,” and they have done so “with increasing enthusiasm and are not afraid to use aggressive pressure means on possessors to obtain the return of disputed objects.” ^{Footnote 103} Such interventions are often made in the context of the wider cultural diplomacy practices of the countries involved. Many scholars have acknowledged the power that cultural diplomacy may have as a means to resolve a large number of issues and conflicts, ^{Footnote 104} as in the aforementioned case of Iran and the United States. In many cases, this is connected to the issue of respect, which is closely associated in many instances with cultural property disputes, since restitution is considered by many countries to be a gesture of respect for the heritage of the claiming country. Thus, it has been acknowledged that “we should no longer think of culture as subordinate to politics. Instead we should think of culture as providing the operating context for politics.” ^{Footnote 105}

Diplomacy in general has been acknowledged as having an influence in conflict resolution processes, and many scholars consider track-two diplomacy as a means of ADR. ^{Footnote 106} In fact, there are many cases in which diplomacy was acknowledged as an important factor to the resolution of a dispute. ^{Footnote 107} The most illustrative example of the role that diplomacy can play in the resolution of such disputes is exemplified by the return of the Nataraja Idol to India from the Norton Simon Foundation in the United States in 1976. In this particular case, diplomacy played a vital role since the case was pursued during the 1970s when there were not many legal instruments to support such claims, and the UNESCO Convention was just beginning to get ratified. When an exhibition, which was to include the idol, was planned at the Metropolitan Museum in 1973, the Indian government managed to block the exhibition with the help of the US Department of State. Moreover, when the idol was sent to the British Museum for restoration in the same year, India exercised political pressure on the UK government to confiscate the idol through Scotland Yard. ^{Footnote 108}

There are many examples of the intervention of diplomats, ambassadors, and other government officials in the resolution of cultural property disputes. Such interventions have facilitated resolution in many instances and broken negotiation impasses, such as in the case between Peru and Yale University for the return of a collection from Machu Picchu. ^{Footnote 109} When a first agreement between the parties failed to materialize in 2007, Peru withdrew from negotiations and filed a lawsuit in the United States against the university. The deadlock was broken thanks to the intervention of Christopher Dodd, a US Democratic senator from Connecticut, who was member of the Senate Foreign Relations Committee and chairman of its subcommittee on Latin America. He met many times with Peruvian President Alan Garcia and other government officials as well as with Yale representatives to facilitate a settlement of the dispute. ^{Footnote 110} The senator worked for years with the two parties, and, in 2010, the lawsuit was dropped, and the parties reached an agreement that also provided for an extensive collaboration between the parties.

There was also a similar intervention in the case of the Nataraja Idol claimed by India in 1974 from the Norton Simon Foundation. In this case, Daniel Moynihan, who was then ambassador to India, became involved in many negotiation sessions between the parties and assisted in the resolution of the dispute. ^{Footnote 111} Another example is the dispute between two cantons of Switzerland for a collection of objects, including manuscripts and a cosmographical globe. ^{Footnote 112} After the parties had negotiated unsuccessfully for eight years, they requested the confederation’s intervention as a mediator in the dispute. The dispute was settled in 2006 between political representatives from both cantons, with the aid of a mediation team assigned by the Swiss government. ^{Footnote 113}

This kind of intervention has also occurred in cases with individuals as claiming parties, as in the case of the Blumengarten painting by Emil Nolde, which was claimed by the heirs of Holocaust victims Otto Nathan Deutsch from the Moderna Museet of Stockholm. When several requests to the museum since 2002 failed, the family asked in 2009 for the intervention of the Swedish culture minister, Lena Adelsohn Liljeroth. ^{Footnote 114} Following this development, the case was settled six months later. The latest example involves the agreement for the return of two Schiele drawings from the Leopold Museum in Vienna to the heir of Karl Maylander, which was announced in April 2016. ^{Footnote 115} Although the negotiations between the parties came to a standstill, the agreement was reached following the intervention of the Austrian culture minister, Josef Ostermayer. ^{Footnote 116}

Such interventions can also be indirect through the involvement of ministries of foreign affairs. For example, some of the claim letters sent by Turkey to many prestigious museums around the world, in the context of an aggressive strategy for the repatriation of antiquities, were signed by Erdoğan, who was the prime minister at the time, in an attempt to illustrate that the new policy had the approval of the prime minister himself. ^{Footnote 117} In the aforementioned case between Peru and Yale University, Peruvian President Alan Garcia wrote a letter to US President Barack Obama “to request his help in recovering the artefacts.” ^{Footnote 118} As Rosemary Listing notes, “in the wider scope of repatriation tactics, this maneuver by Peru had the capacity to reduce the artifacts to contested and undesirable property” in Yale’s possession. ^{Footnote 119}

However, it should be noted that there have been cases in which such interventions have yielded the opposite results and created even more tension between the two sides. For example, in the case between Italy and the Getty Museum initially involving a total of 52 objects, ^{Footnote 120} the Getty’s lawyer asked the help of US ambassador in Rome, Ronald Spogli. ^{Footnote 121} This move created tension between the two sides since it was perceived by the Italians as an effort by the Getty Museum to gain sympathy from the Italian government. Italian officials were offended by Spogli’s inclusion in the negotiations, something they interpreted as a clear attempt to “politicize the cultural negotiations.” ^{Footnote 122} Therefore, although diplomatic interventions may facilitate the resolution of such disputes, they can also create misunderstandings and be perceived badly by the other side.

THE IMPACT OF POLITICS IN NEGOTIATION DYNAMICS

From this analysis, it would seem that several elements relating to the role of politics are at play during a negotiation process and can affect its evolution. This section summarizes these elements and their influence on negotiations. It was emphasized that the adoption of rights-based approaches can lead the parties to an adversarial, win-lose frame in the dispute, ^{Footnote 123} which can harm their relationship and also increase the possibilities for a deadlock. The same applies to power-based approaches, which again can harm the parties’ relationship and cause impasses or even a recurrence of disputes.

A party’s sanction power as well as its availability of means to resort to during the negotiations increases its bargaining power, ^{Footnote 124} which in turn increases the pressure on the other side to either negotiate or concede. Moreover, high sanction power is one of the main instigators of power-based approaches. It also would seem that the aggressive profile of a claiming country during the pursuit of a claim can affect its negotiating profile and can harm the relation or communication of the two parties, which, in turn, could make an agreement harder to achieve. Finally, cultural diplomacy can increase the bargaining power of a state during negotiations by cultivating the relations of the claiming state with the country that the museum receiving the claim is located, increasing the chances for agreement. This, in turn, can potentially pressure the museum to negotiate.

Thus, the role of politics as an affecting dynamic during the negotiation process is multi-dimensional, consisting of many different interrelated dynamics that can potentially alter the course of the process. However, as is evident from the preceding analysis, this is not absolute since the effect of these dynamics can be different in each case. For example, political interventions into a negotiating process can either facilitate a resolution or create tension between the parties. This is because each of the aforementioned dynamics is not isolated but, rather, constitutes part of a wider matrix of interrelated affecting dynamics. These interrelated affecting dynamics may either relate to politics or to other parameters, such as the available evidence, the power of the parties, media attention, public pressure, and so on. Thus, one should have a comprehensive understanding of all of the interrelated dynamics so as to be able to understand the full range of their potential effects on the negotiating process. Uncovering the complex dynamics of one of these parameters will illuminate only one of the many possible aspects of these disputes.

This summary of the dynamics of politics in cultural property disputes is illustrative of the complexity of such cases and indicates that similar analyses should be carried out for many other elements that can affect the negotiating process. Such research can shed more light on this highlighted complexity of these cases and further our understanding of cultural property disputes.