The bilateral disputes between museums and states of origin for the recovery of cultural objects : artistics creations and indigenous heritage

Abstract

The removal and return of cultural objects represents a vast phenomenon, and its international dimension experienced several changes over time. Given the historical and cultural developments, cultural heritage law evolved as a specialized branch. Currently, some limits still prevent the actual effectiveness of the two main international tools in force to ensure the restitution implementation of cultural objects, the 1970 UNESCO and 1995 UNIDROIT Conventions. As conventional means, they are binding only for States Parties. This research employs qualitative research methods to specifically focus on the international process of recovery of cultural objects originally removed from their States of origin and in possession of museums. In the First Part, the study moves from introducing the theoretical international legal framework, illustrating the historical development of the cultural heritage law. As second step, the examination proceeds to analyze the actual provisions in force for the restitution of cultural objects, considering also the stakeholders involved. Later on, a brief review of the taxonomy adopted in the UNESCO Conventions related to cultural heritage protection and on the distinction among “restitution”, “return” and “repatriation” was necessary to select a functional terminology in the research. On this basis, this research adopts “recovery” as general term to address the process under analysis, considering the three terms aforesaid as sub-categories, which identify different historical and social contexts in the recovery frame. The Second Part represents the core analysis, developed on the basis of the interviews released by the legal advisers of the U.S. museums, information provided by the curators of the Italian museums involved. Chapter Four analyze ADR application to Art-Law disputes, considering the actors involved, the main relevant institutional experiences, and the solutions applicable to the international recovery of cultural objects. Given this pattern, Chapter Five considers four cases of bilateral disputes, chosen for some specific elements: all cases regard recovery requests of cultural objects; Italy is always involved as a party to the dispute; the disputes oppose a State of origin and a museum. In the first three cases, Italy claims works of art in possession of U.S. Museums. The first two cases exemplify ADR advantages: the restitution occurred through bilateral agreements of cultural cooperation. The third case aims to illustrate the negative impact of traditional dispute resolution means. Finally, the fourth case overturns the previous dispute pattern: the Italian position changes from claimant to required State, while the requested object are no longer works of art, but human remains. This implies a further quantum jump in the research framework: evaluating cultural objects specificity to work on the most suitable solution. The partition between artistic creations and Indigenous Heritage intentionally adopted in the title of the research aims to make of it the most relevant “so what” question in the study. The Third Part sums up the conclusions on the issues taken into account all along the research. Starting from evidences gathered through the case studies, two main conclusions are outlined. First of all, even a limited number of examples shows the high level of complexity of the cultural objects recovery issue, because of the manifold range of possible situations. Contextualizing this element in the international arena, characterized by high fragmentation and the lack of coercive means, determine the necessity of case-by-case solutions. Secondly, given the limited effectiveness or applicability of Conventions in force, the need of balancing them through ethical principles and soft law tools clearly emerges. Thus, after the completion of the study, addressing the problem from an evolutionary trend profile, the aforesaid elements appear potentially able to determine lead new customary rules developments; eventually able to overcome the limits of the Conventions currently in force.