Cultural Heritage Law & Policy
7th September 2020
John C. Onyido, Esq.
International Regulation of Stolen and Illegally Exported Cultural Objects: Reclaiming Nigeria’s Pilfered Cultural Heritage
- Introductory Remarks
In an unusual twist to efforts to conclude the Brexit negotiations, it was recently reported that a demand for the return of “unlawfully removed cultural objects” had been inserted into the trade talks between EU member states and the United Kingdom, and as part of their respective negotiating mandate.
At issue here are some 2,500 year old Parthenon sculptures (famously known as the ‘Elgin Marbles’), alleged to have
been unlawfully removed by Lord Elgin when Greece was under Ottoman rule in the early 19th century. Although the British position remains one of sticking to the untenable position that these artefacts are lawfully in the custody of the British Museum, the spate of similar calls for the restitution of stolen or illegally acquired cultural objects globally is clear indication that more concerted efforts are required to ensure that these items are returned to their original locations for safe-keeping and to provide historical validation and associated context for the heritage and culture of pillaged communities.
2. Relevant International Treaties and Conventions
Whilst the rationale for the return of such cultural items are generally acknowledged and recognized by a vast majority of countries, the reason and occasion for the removal of historical artefacts from their localities are varied and multifarious and the process of securing the restitution of these stolen items can be complex and tedious. A lot of these cultural items were obtained by their current custodians during the colonial era either through the force of arms or deception, while others were evidently stolen and trafficked on the global black market for rare but illicitly acquired goods. In 2014 the Boston Globe reported an arrangement by the Museum of Fine Arts to return eight (8) Nigerian artefacts that were illegally removed to the United States decades ago. Among the items to be restored were a 2,000 year-old terra cotta head, a brass statuette that probably formed part of a tribal shrine dedicated in 1914 as well as a 4-foot tall wooden figurine believed to have formed part of the Oron Museum collections as at 1970. Similar accounts of recovered cultural items have been reported for countries like Cyprus, Egypt, Greece, Libya and Mexico, while other such requests (a couple of which are highlighted below) have been rebuffed, contested or ignored. Some of the seemingly legitimate reasons for failure or refusal to repatriate may be due to non-ratification of relevant treaties/conventions or the absence of a condition of applicability stipulated in these treaties.
Over the years, several frameworks of global application have been initiated under the auspices of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) charged with the responsibility for overseeing such matters. Prominent among these are the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocols emanating directly from the effects of the Second World War. Next is the Paris Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which served as the response by the international community to the emancipation of former colonial territories and the demand by these newly independent regions for the return of looted cultural property. Also, of some importance is the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects as a compliment to the 1970 Paris Convention.
The Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention) of 1972 took into cognizance the world’s diverse cultural and natural sites to ensure their preservation for posterity. In the 1990s, UNESCO commenced work on the possible regulation of the world’s underwater heritage, resulting in the 2001 Convention for the Protection of Underwater Cultural Heritage. A couple of years later, in 2003 the Convention for the Safeguarding of Intangible Cultural Heritage was adopted to cater to non-tangible cultural monuments like cultural expressions, traditional knowledge and biodiversity and the need to capture and store such expressions. The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions is regarded as the latest treaty to address the cultural heritage of the world.
According to one commentator, “[t]he Convention’s primary objective is to strengthen the five inseparable links of the same chain: creation, production, distribution/dissemination, access and enjoyment of cultural expressions conveyed by cultural activities, goods and services – particularly in developing countries.”
- Summary of Specific Normative Provisions
The 1970 Convention designates ‘cultural property’ as items which on religious or secular basis have been identified by the applicable state as significant for scientific, artistic, historical/prehistorical, or archaeological interest, whether created by individual or collective efforts (and genius), found or located within that region, is the subject of a willingly negotiated exchange, is received as gift or purchased lawfully and with the approval of the local authorities. In furtherance of its objectives, the Convention requires member states to institute national authorities tasked with the duty of protecting cultural heritage within their borders, drafting applicable laws and regulations, establishing an up-to-date inventory of all such items, developing and establishing technical institutions for the preservation of cultural artefacts and the introduction of educational programmes to stimulate interest in and respect for the cultural heritage of the nation-state.
The 1970 Convention imposes an obligation on state parties to take appropriate steps to forestall the illicit transfer and reception of the cultural heritage of other state parties, to institute measures to return these items, and as may be appropriate, to impose penalties for such conduct on affected persons. Instructively, “the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit.” Parties to the Convention are also expected to lodge periodic reports with UNESCO on the legislative and administrative measures introduced as part of the implementation of their obligations under the Convention, other implementing actions member states have taken as well as the experiences garnered from such implementation efforts. Writing on the constraints bedevilling the effective application of the 1970 Convention, one author identifies the disparities in the reception and implementation mechanisms within the European Union as problematic. While some EU states have incorporated the provisions of the Convention into their laws through specific implementation statutes, others have simply amended existing laws to comply with the Convention and still others have not gone beyond the ratification process, leading to varying levels of effectiveness of individual state laws.
Other constraining factors arising from the differences in the individual legal frameworks include, definitions of ‘cultural property’ and the control of the movement of stolen cultural property, disparities in enforcement between the owner and possessor of identified cultural property in terms of due diligence obligations and notions of good faith dealings, criminal offences and use of relevant technical tools. Operational challenges regarding the adequacy of administrative competence, institutional cooperation and effective implementation, appropriate import controls and the absence of legislation for online sales constitute additional problems that require urgent attention.
The 1995 Convention, on the other hand, seeks to facilitate the restitution of cultural objects, while recognising the complementary importance of international cooperation of member states, the effective protection of cultural objects through the creation and utilisation of registers and physical protection of archaeological sites. This Convention defines stolen cultural objects as objects which have been unlawfully excavated or lawfully excavated but unlawfully retained based on the law of the place of excavation. Claims for restitution must be brought within 3-years from the date the claimant became aware of the location of the stolen item and the identity of the possessor and in other instances within 50-years following theft of the item. The Convention introduces the requirement of compensation to the possessor who did not know (or had reasons to suspect) that the objects were stolen and exercised proper diligence in its acquisition.
The courts or other competent authorities where the recovery proceedings have been instituted will only issue a recovery order where the requesting state establishes the significant impairment of the physical preservation of the cultural object, the integrity of a complex object, the preservation of historical or scientific information, the ritualistic or traditional import of the object by its local communities, or where the requesting state can prove that the cultural object is of significant cultural importance to it. The ratification of the UNIDROIT Convention has been recommended as an effective legal framework for states dissatisfied with the implementation of the 1970 Convention primarily due to its broad coverage for undiscovered cultural objects which have not been inventoried and the absence of compensation payable to the possessor who has not fulfilled the due diligence requirements of Art. 4(4).
However, the 1995 Convention has its own limiting factors due partly to its non-ratification by the major market economies of Britain, France, Switzerland and the United States, the disparities between the Civil and Common law regarding the treatment of property rights and the failure of these economies to alter their substantive laws to conform with the requirements of the 1995 Convention. While the common law accords greater recognition for the rights of the original owner by shifting the responsibility for conducting necessary due diligence inquiries to the good faith possessor, the civil law system generally grants the good faith possessor a valid ownership title from the date of acquisition, unless it can be demonstrated that the artistic property was not acquired in good faith.
Conversely, New York courts appear to accommodate the defence of laches against an original owner’s claim to ownership rights especially where such unjustifiable delays in prosecution has prejudicial effects. The harmonisation of applicable legal standards through inter-state/bilateral agreements, establishment of uniform due diligence standards as a way to introduce greater efficiency to the fight against illicit trafficking in stolen and illegally acquired artefacts has been recommended elsewhere.
- Nigeria’s Legal and Regulatory Framework for the Management of Cultural Artefacts
Prior to the 1979 consolidating legislation, the applicable local laws in Nigeria were the Antiquities Act 1953, the Antiquities (Amendment) Act of 1969 and the Antiquities (Prohibited Transfers) Act of 1974. An even earlier 1924 Ordinance appeared to prohibit the export out of the country of old artefacts without the government’s authorisation. While the 1953 Act established an Antiquities Commission with sole responsibility for preserving and managing ancient monuments and artefacts, it did not explicitly prohibit the sale and or transfer of these objects. This defect was corrected by the 1974 Act.
The 1979 consolidating legislation, while increasing the penalties prescribed in previous legislations, repealed them, abolished the Antiquities Commission, and the Federal Department of Antiquities. The 1979 Act then established the National Commission for Museums and Monuments for the conservation, restoration, and preservation of Nigeria’s historical, scientific, cultural, and artistic heritage. It delineates the modalities for the designation of national monuments and their appropriation by the government upon payment of applicable compensation.
Some of the shortcomings of the current legislation as articulated by a leading authority include, lack of specific provisions allowing archaeological surveys on land unless approved as containing items of cultural importance. There is also no provision addressing the sale and/or disposal of such objects of archaeological interest unearthed in the course of excavations. In addition, the definition of the term ‘antiquity’ contained in section 32(c) (i) as “…any work of art or craft work made or fashioned before the year 1918”, has been found to be too restrictive and disregards the functional utility of these endangered artefacts. The monetary fines stipulated in the Act are badly in need of an upward review to bring them in line with current realities.
Original jurisdiction to entertain matters arising under the 1979 Act rests with the Magistrate Courts by way of summary trials. Although this procedure is expected to ensure speedy and expeditious disposition of such matters, there are clear indications that the Magistrates who preside over these matters are not properly educated or informed on the policy objectives to be attained and the importance of enforcing the laws effectively to checkmate the theft and illicit transfer of Nigeria’s cultural artefacts by unscrupulous individuals.
- A History of Theft and Spoliation of Africa’s Cultural Heritage
When the Museum of Fine Arts returned eight Nigerian artifacts to Nigeria in 2014, it did so on its own initiative following a 2013 bequest by William and Bertha Teel, who had allegedly purchased them without any knowledge of their suspicious origins. It took the museum about 18 months of scrutinizing transfer records and gallery brochures that spanned several continents. The MFA started doubting the authenticity of the bills of sale and export licenses that dubiously backed the transfer of the items after reviewing Nigeria’s laws which require governmental approval for all antiquities taken outside the country. This proactive resourcefulness by the MFA earned it significant publicity in an area where museums and art curators are largely nonchalant about the source and provenance of historical artefacts displayed in museums and art galleries.
Writing in January this year, a Human Rights advocate and attorney drew attention to the report commissioned by the French President, Emmanuel Macron, which apparently confirms that at least 90% of Africa’s cultural property are currently retained in European museums. In the writer’s own revealing words: “[w]estern museums are beset with demands to give back stolen property – the cultural heritage of oppressed people plundered by colonial armies in the 19th century or taken unfairly by grasping missionaries or egregious ambassadors.” Interestingly, the French President had indicated in the same vein that he planned to return some of the 16th century Benin Bronzeheads obtained during the punitive expedition of that august empire in 1897. In that year, a British expedition led by James Phillips invaded the palace of the then Oba of Benin and carted away numerous works of art made of ivory, wood and bronze materials in a drastic bid to remove the impediments to British trade in that region. Indeed, the pilfered artefacts were intended to defray the cost of the expedition and were promptly sold off to various interests as spoils of war.
Leo Frobenius, a well-known German antiquities collector and ethnologist, has been accused of spuriously making away with precious Ife historical and religious relics and artefacts between 1910 and 1912. Although he appeared to have secured some semblance of local approval, he is alleged to have exceeded such authority. Between 1938 and 1939 several Ife bronze carvings were removed by collectors, motivated by the remarkable global recognition of the high quality of these artefacts, for pennies on the dollar. Between the 1960s and 1970s, there was a marked increase in the incidence of antiquities theft by smugglers, traffickers, dealers, and looters, a few of whom were expatriates working in Nigeria. The Ibadan, Ife, Abeokuta and Jos museums inclusive of sacred cultural sites have been raided by thieving raiders at various times, carting away precious and priceless artefacts sold off to collectors and dealers in foreign countries. This unsavoury state of affairs continued throughout the 80s and 90s even with renewed vigour.
In 1868, a marauding British army looted and plundered the royal treasures, ancient books and sacred manuscripts of the Ethiopian (then Abyssinian) monarchy and the Coptic Christian church in the battle of Magdala, culminating in the death by suicide of Emperor Tewodros. Although a number of the pillaged items have been returned over the years, the golden crown of the Ethiopian kingship is still been withheld and was exhibited as late as 2018 in the Victoria and Albert museum in London.
A Makonde cultural mask stolen from the National Museum in Dar-es-Salaam, Tanzania, in 1984 and which was later located at the Barbier-Mueller Museum in Switzerland, was only returned under a mutual agreement as late as 2010. Ironically, the terms of the agreement indicated that the prized artefact was being ‘gifted’ to Tanzania after years of negotiations with the Swiss government and the Swiss museum and intervention by the UNESCO Intergovernmental Committee on return or restitution of cultural property.
Some examples of the unconscionable practice of appropriating cultural artefacts belonging to vanquished territories in times of war or armed conflict, include: the seizure and removal of the golden stool of the Ashanti kingdom by Frederick Hodgson, who was then the British governor of the Gold Coast and the forceful removal of the Ethiopian statue of the Lion of Judah and the two-centuries old obelisk at Aksum by Mussolini’s invading forces circa 1935.
- Some Challenges Faced by Local Authorities in Preserving Cultural Artifacts
Over the years, the Nigerian government has been engaged in sporadic and largely uncoordinated efforts of seeking the return or restitution of the country’s looted cultural objects through diplomatic negotiations, international collaboration and the occasional repurchase of these items from current custodians. Although such efforts have resulted in the reacquisition of some of these irreplaceable items, a number of impediments have interfered and continue to interfere with the proper management and preservation of the country’s cultural heritage. Some of these constraints include poor legislative enactments and policy-making and the attitudinal maladjustments of the citizenry most of whom see little or no value in these ancient objects. Other factors are inadequate security and enforcement mechanisms, underfunding, absence of grassroots participation and the lack of comprehensive and digitalized database/inventory of Nigeria’s cultural objects and monuments.
- Concluding Observations
Despite the herculean work of individuals like Kenneth Crosthwaite Murray in initiating the process of preservation of our unique cultural heritage, arts and crafts, a lot still needs to be done both by the administration and by Nigerians to preserve our cultural identity and legacy. While the government needs to pay more attention to this area in terms of policy-making, close administration and funding, the citizens are in dire need of a mental reorientation on the need to recognize Nigeria’s cultural artefacts and monuments as objects of great pride worthy of enduring preservation. Unless this mental reorientation is achieved, other equally important objectives associated with reclaiming Nigeria’s pilfered cultural heritage may continue to remain a mirage. It is one thing (and justifiably so) to strive for the return of these priceless and irreplaceable artefacts from far-flung places, but quite another to have them disrespected, disregarded and stowed away in dusty, dingy and decrepit storages where no one gets the opportunity to see them, merely because the people to whom they belong do not even appreciate them.
For further information on this article and area of law,
please contact John Onyido at S. P. A. Ajibade & Co., Lagos by
Telephone (+234.1.270.3009; +234.1.460.5091) Fax (+234 1 4605092)
Mobile (+234. 803.2204371, +234. 815.1191865)
 John Onyido, Partner SPA Ajibade & Co., Lagos, NIGERIA.
 See “Row over Elgin Marbles as EU demands return of ‘unlawfully removed cultural objects’,” available at: https://news.sky.com/story/row-over-elgin-marbles-as-eu-demands-return-of-unlawfully-removed-cultural-objects-11937363, visited 22.06.2020. See also Rachel Cunliffe, “Britain stands to lose more than its Marbles if it folds now”, available at: https://www.cityam.com/britain-stands-to-lose-more-than-its-marbles-if-it-folds-now/, visited on 22.06.2020.
 Currently housed in the British Museum which has always claimed they were legitimately procured by the Earl of Elgin, while the Greeks have demanded for their return for decades.
 Ibid. While the ‘returners’ challenge the dubious claim of legitimate acquisition and to the contextual value of viewing them in their original location, the ‘retainers’ fall back on the documentation pointing to lawful possession and the fact that these items would not have survived if they had remained in situ.
 See Jean-Jacques Neuer and Clea Hance, “A Common Standard of Due Diligence in Art Practice: Towards a Harmonization of Restitution Claims”, available at: http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/2015_Common_Standard_Due_Diligence_Art_Practice_towards_.pdf, accessed July 20th 2020. See also Michael Bakwin v. Robert M. Mardrosian & Ors., 467 Mass. 631 (2007); US v. Mardirosian, No. 09-1144 (1st Cir. 2010).
 Geoff Edgers, “Museum of Fine Arts Returns 8 Artifacts to Nigeria”, available at: https://www.bostonglobe.com/lifestyle/style/2014/06/26/museum-fine-arts-returns-artifacts-nigeria/z2RenPtuhh9qyPoSi05fRO/story.html, visited 23.06.2020.
 A 6th century AD mosaic of saint Mark was repatriated from the Netherlands to Cyprus in November 2018.
 In October 2018, Kuwaiti authorities handed over the lid of an antique coffin believed to have been smuggled out of Egypt.
 In September 2018, an ancient Attica engraved marble dating to 340 BC was repatriated to Greece from an Auction House in England.
 In July 2018, a US government official returned a collection of pottery artefacts originating from the ancient city of Germa to the Libyan Ambassador.
 In March 2018, the Mexican Foreign Ministry was able to recover two 3000 year old archaeological works from Germany after 10 years of legal and diplomatic negotiations.
 See Geoffrey Robertson, “It’s Time for Museums to Return Their Stolen Treasures”, available at: https://edition.cnn.com/style/article/return-stolen-treasures-geoffrey-robertson/index.html, accessed 18.06.2020, referencing other reasons for a denial as including repatriation to conflict ridden regions, return to locations where the items would be placed in jeopardy due to corruption or absence of requisite infrastructure for safe storage, countries engaged in human rights abuses and return to locations where the affected items would be utilised in propagating false historical narratives.
 4 September 1956, No. 3511. First Protocol, The Hague 14 May 1954, Second Protocol, The Hague 26 March 1999.
 Paris, 14 November 1970.
 Rome, 24 June 1995.
 Paris, 21 November 1972.
 Paris, 17 October 2003.
 Paris, 20 October 2005.
 Maria Susana Pataro, in her Foreword to: Cultural Heritage Law and Management in Africa (Folarin Shyllon), Concept Publications Limited, Lagos 2013, p. xxv.
 Article 1.
 Article 5
 Article 5(a).
 Article 5(b).
 Article 5(c) and (f).
 Article 11.
 Article 16.
 See Marie Cornu, “Implementation of the 1970 UNESCO Convention in Europe”, available at: http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Cornu_en.pdf , accessed July 20th 2020. The author cites to a 2011 EU study on the trafficking of cultural property which identifies issues like the codification of the requirements of due diligence, time limit for instituting claims, conditions for restitution and imposition of penalties in addition to operational and cooperation requirements.
 Ibid, pp. 3-4.
 Ibid, pp. 4-5.
 UNIDROIT Convention Article 3(2).
 Article 3(3).
 Article 4(2).
 Article 5(3).
 Under Article 3(1).
 See Lyndel V. Prott, “Protection of Archaeological Objects Under the 1970 UNESCO Convention”, http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Prott_arch_objects_en.pdf, accessed July 18th 2020.
 See, Jean-Jacques Neuer and Clea Hance, op. cit., n.5, pp. 1-2.
 Solomon R. Guggenheim Foundation v. Mrs. Jules Lubell, 567 N.Y.S. 2d 623 (1991).
 Cass. Crim., 4 juin 1998, no 96 85871. See https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007070581, accessed 8th September, 2020.
 See Bakalar v. Vavra and Fischer, 569 US (2013), cert. denied; Bakalar v. Vavra, No. 11-4042-ev, 2012 WL 4820801 (2nd Cir. 2012).
 See n. 37, supra, at p. 4. See also, Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State.
 Ordinance No. 17 of 1953. See Folarin Shyllon, Cultural Heritage Law and Management in Africa, Concept Publications Limited, 2013, pp. 34-43.
 Ibid. No. 19 of 1969.
 Ibid. No. 9 of 1974.
 Folarin Shyllon, supra, p. 34.
 Ibid, p. 38.
 Cap N19 Laws of the Federation of Nigeria 2004.
 Section 1(1).
 Sections 13 and 17.
 Sections 19 and 20.
 Folarin Shyllon, supra, pp. 41-43. It could be argued that sub. para. (ii) may capture a few of the items not covered under sub. para. (i). The latter provision accommodates a work of art or craft work that “…is of historical, artistic or scientific interest and is or has been used at any time in the performance and for the purposes of any traditional ceremony.”
 See for instance, Commissioner of Police v. Ogungbemi, Charge No. MCO/36C/88; C.O.P. v. Kayanka, Charge No. M1/602C/91; Customs, Immigration and Prisons Services Board v. Bashiru Mohammed, Charge No. FHC/AB/2C/92, cited by Folarin Shyllon, supra, at pp. 67-69.
 Geoff Edgers, “Museum of Fine Arts Returns 8 Artifacts to Nigeria”, available at: https://www.bostonglobe.com/lifestyle/style/2014/06/26/museum-fine-arts-returns-artifacts-nigeria/z2RenPtuhh9qyPoSi05fRO/story.html, visited 23.06.2020.
 See Geoffrey Robertson, “It’s Time for Museums to Return Their Stolen Treasures”, available at: https://edition.cnn.com/style/article/return-stolen-treasures-geoffrey-robertson/index.html, accessed 18.06.2020.
 Folarin Shyllon, supra, pp. 84-86.
 Ibid, pp.86-88.
 Ibid, pp. 89-91.
 Ibid, pp. 91-99.
 Ibid, pp. 105-106. Matters came to a head with the inauguration of an Inter-Ministerial Committee on the Looting of Nigeria’s Cultural Properties. That Committee issued its report in 1997 highlighting the inadequacies in terms of security, infrastructure, funding, and a solid legal framework to address these concerns.
 Folarin Shyllon, “Negotiations for the Return of Nok Sculptures from France to Nigeria: An Unrighteous Conclusion”, Art Antiquity and Law, Vol. 8 Issue 2, 2003, pp.133-48.
 See Geoffrey Robertson, supra, n. 55.
 Folarin Shyllon, “Return of Makonde Mask from Switzerland to Tanzania: A Righteous Conclusion?” Art Antiquity and Law, Vol. 16, Issue 1, 2011, pp. 79 – 83.
 Folarin Shyllon, Cultural Heritage Law and Management in Africa, supra, pp. 368-370; 374-76.
 In March this year Nigeria sought US import restrictions over ethnological and archeological materials forming part of the country’s patrimony pursuant to Article 9 of the 1970 Convention. See https://www.govinfo.gov/content/pkg/FR-2020-08-20/pdf/2020-18266.pdf, accessed 9th September 2020.
 Folarin Shyllon, ibid, p. 54.
 Ibid, pp. 53-80.
 Ibid, pp. 47-49.
 Such a reorientation would lead to increased investment in the preservation and showcasing of these artefacts by private collectors and the creation of specifically targeted endowments by wealthy Nigerians.
 We can emulate other enterprising countries who have turned their cultural heritage, artefacts and ancient monuments into veritable tourist destinations and sources of significant revenue generation through traditional tourism methods and even via the creation of virtual museums and opportunities for the virtual touring of local heritage sites.
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