Unfit to be Retained: Repatriating Nigeria’s Benin Bronzes

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Last year, Jesus College of Cambridge returned an artifact known as a Benin Bronze to its native country of Nigeria.[1] It was a sculpture of a cockerel and is one of at least 3,000 artifacts that British soldiers took during a punitive, violent raid of Benin City in 1897.[2] By returning this artifact, Cambridge has set a precedent in repatriation of material culture—particularly for Africa given that 90% of its artifacts are located in western museums.[3]

When it comes to repatriation of material culture, all eyes are on the British Museum.[4] On the museum’s website, the Parthenon Sculptures from Greece, stone Moai from Rapa Nui (Easter Island), and Benin Bronzes, among others, command their own webpage explaining their contested nature and the museum’s position.[5] While the museum details its collaborative efforts with different countries and organizations, their willingness to repatriate typically stops at loaning certain artifacts.[6] In contrast, Cambridge permanently returned their Benin Bronze and was the first institution in the U.K. to do so.[7] Now that France, Germany, Belgium, and the U.S. have also returned Benin Bronzes, pressure across museums may increase.[8]

Christie’s, the internationally renowned art and luxury auction house, notes that when it comes to the repatriation of artifacts “there is often an impassioned moral discourse but rarely a clear legal one.”[9]  While the Hague Convention of 1954 was established after WWII to protect cultural heritage during armed conflict, UNESCO attempted to further guide countries with the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.[10] The 1970 Convention states that countries should “take necessary measures” to prevent the acquisition of illicit cultural property.[11] Nevertheless, UNESCO’s 1970 Convention only applies to goods stolen after 1970, allows states to decide whether they will repatriate, and does not outline consequences should a state decide not to repatriate.[12]

Even having accepted, but not ratified, the 1970 Convention, the British government must default any decisions on repatriation to the British Museum’s trustees due to the 1963 British Museum Act.[13] The Act states that trustees can only repatriate items in the rare circumstance that an object is a “duplicate” or is “unfit to be retained.”[14] Recently looted objects and human remains are the most likely to be returned thanks to the 1970 Convention and statutes like the Native American Graves Protection and Repatriation Act.[15] In 2020, the British Museum did assist the U.K. Border Force in returning 14th-century Uzbek tiles that were smuggled into Heathrow Airport, and Uzbekistan agreed to an exhibition in the museum prior to their return.[16]

However, for artifacts that are already within a museum’s collection, it can take years to conduct investigations into their provenance.[17] Thanks to a U.S. Supreme Court ruling that the Foreign Sovereign Immunities Act and its exceptions apply retroactively, Austria v. Altmann led to the return of five Gustav Klimt paintings that had been seized by the Nazis.[18] However, would the same reasoning apply if a case for the Benin Bronzes was brought to the U.S.? Given that (1) Altmann concerns jurisdiction and (2) the parties agreed to the restitution of the paintings in arbitration, it is very difficult to say.[19]

With the current trend of repatriation, one would hope that we will perhaps reach a point where each country will have the authority to loan or gift what was originally theirs. While continuing to exchange culture, how do we want to display cultural heritage, and when do those displays belong in their place of origin? As we attempt to move away from a colonial mindset, Yale art Professor Cécile Fromont stated, “[w]hat is at stake in the debate is the redefinition of the relationship between African countries and European countries past the moment of decolonization.”[20] Thus it will be up to the British Museum, among many other western museums, whether they will embrace the idea of returning material cultural heritage.

[1] Estelle Shirbon, Cambridge college, Paris museum return looted African artefacts, Reuters (Oct. 27, 2021), https://www.reuters.com/world/uk/cambridge-college-returns-looted-bronze-nigeria-setting-precedent-2021-10-27/.

[2] Id; Alex Marshall, This Art was Looted 123 Years Ago. Will It Ever Be Returned?, (Oct. 29, 2021);  https://www.nytimes.com/2020/01/23/arts/design/benin-bronzes.html?searchResultPosition=2.

[3] Shirbon, supra note 1; Carlie Porterfield, Europe’s Museums, Collectors Are Returning Artifacts To Countries Of Origin Amid Fresh Scrutiny, (Oct. 27, 2021), https://www.forbes.com/sites/carlieporterfield/2021/10/27/europes-museums-collectors-are-returning-artifacts-to-countries-of-origin-amid-fresh-scrutiny/?sh=100456ba675b.

[4] See Alex Marshall, As Europe Returns Artifacts, Britain Stays Silent, N.Y. Times (Dec. 20, 2021), https://www.nytimes.com/2021/12/20/arts/design/parthenon-marbles-restitution.html.

[5] Contested objects from the collection, Brit. Museum https://www.britishmuseum.org/about-us/british-museum-story/contested-objects-collection (last visited Feb. 9, 2022).

[6] Id.

[7] Shirbon, supra note 1

[8] Id.; Helen Holmes, The Metropolitan Museum Returned Two of Its Benin Bronzes to Nigeria, Observer (Nov. 23, 2021), https://observer.com/2021/11/the-metropolitan-museum-returned-two-of-its-benin-bronzes-to-nigeria/.

[9] Restitution and Repatriation, Christie’s Education, (Apr. 6, 2021) https://education.christies.com/news/2021/april/restitution%20and%20repatriation#:~:text=The%20Parthenon%20Marbles%20bring%20into,defined%20solely%20in%20the%20law.&text=And%20where%20repatriation%20is%20the,to%20an%20individual%20or%20group.

[10] See Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216; see also United Nations Educational, Scientific and Cultural Organization, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property art. 2, Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter 1970 Convention].

[11] 1970 Convention, supra note 10; Hannah R. Godwin, Legal Complications of Repatriation at the British Museum, 30 Wash. Int’l L.J. 144, 147 (2020).

[12] 1970 Convention, supra note 10; Vincent Négri, The 1970 Convention: Cultural diversity before the letter of the law, Unesco Courier, Oct-Dec. 2020, at 9; See Godwin, supra note 11 at 155-56.

[13] States Parties List in Alphabetical Order, UNESCO, http://www.unesco.org/eri/la/convention.asp?KO=13039&language=E&order=alpha  (last visited Feb. 8, 2022).; Marshall, supra note 4.

[14] British Museum Act 1963, c. 24 § 5, https://www.legislation.gov.uk/ukpga/1963/24/section/5; See Godwin, supra note 11 at 166.

[15] 1970 Convention, supra note 10; 25 U.S.C.A. § 3001 et. seq. (2018).

[16] Mark Brown, British Museum to repatriate ancient tiles smuggled into UK in a suitcase, The Guardian (Oct. 11, 2020), https://www.theguardian.com/culture/2020/oct/11/british-museum-to-repatriate-ancient-tiles-smuggled-into-uk-in-a-suitcase.

[17] See Stefanie Dazio, Religious artifacts returned to Thailand after decades, AP News (May 25, 2021) https://apnews.com/article/lifestyle-travel-government-and-politics-arts-and-entertainment-a9987cee57a5a2cb6eab73073b12572a.

[18] Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004).

[19] Id; Nina Totenberg, After Nazi Plunder, A Quest to Bring Home the ‘Woman in Gold’, NPR (Apr. 2, 2015), https://www.npr.org/2015/04/02/396688350/after-nazi-plunder-a-quest-to-bring-the-woman-in-gold-home.

[20] Halima Gikandi, Benin negotiates with France to return precious objects taken during colonial war, the World (Jan. 15, 2020),https://theworld.org/stories/2020-01-15/benin-negotiates-france-return-precious-objects-taken-during-colonial-war.