Of the 356 items, 10 have been on display since February 15 in an exhibition on till June 2 at the British Museum titled, ‘Rediscovering Gems’. The chair of the museum’s board of trustees stated that the new display was an ‘example of openness’.
Nobody can accuse the British Museum of not being ‘open’ with their displays of artefacts obtained through means fair and foul. An analysis of the museum’s online database found that there were 2.2 million items from at least 212 different countries, including 52,518 from India. This is apart from other Indian artefacts strewn across museums in Britain.
As far back as the early 2nd millennium BC, the Mesopotamian ‘Laws of Eshnunna’ impart that what is stolen must be returned. Unfortunately, enforcing international conventions for repatriations of cultural objects has always been a challenge. Until the second half of the 19th century, jus praedae – ‘prize right’, by which the victorious army could seize property of an enemy nation – was accepted norm.
Over time, several conventions have tried to tackle the issue.
Brussels Declaration, 1874: Dealing with laws and customs of war, was the first attempt to protect private property. Hague Convention, 1907: Sought to protect buildings dedicated to religion, art and science.Neither mentions cultural property.
Hague Convention, 1954: Sought to protect cultural property during armed conflict post-World War 2.
Unesco Convention, 1970: First convention to deal with artefacts stolen outside of war. It seeks to prevent illegal trafficking of cultural property and their restitution based on international cooperation. 142 countries, including India, have ratified this convention.
Unesco Convention, 1972: Adopted to ensure effective measures for ‘protection, conservation, and presentation of the cultural and natural heritage’ by parties to the convention. 194 countries have ratified it.
UNIDROIT Convention, 1995: On stolen or illegally exported cultural objects emphasises restitution and return of cultural objects. Neither India nor Britain is a signatory.
UN ‘Return or Restitution of Cultural Property to the Countries of Origin’ resolution, 2021
So, there is no shortage of good intent. The challenge is in enforcing any of these conventions.
Conventions have effect only if a country’s domestic laws affirm them. And even if they do, critically, they are not applicable retroactively. Most loot and plunder took place in the 19th and 20th centuries of colonialism. So, if a country like Britain decides to cancel a scheduled meeting with the Greek PM, rather than discuss the return of the Parthenon Marbles to Greece – as Rishi Sunak did with Kyriakos Mitsotakis in London last November – there is nothing that can be done.
Voluntary negotiations, a long-drawn process, require patience and acknowledgement of past misdeeds. This is a more effective mechanism for restitution. France, which announced restitution of African artefacts in 2021, triggered Germany, the Netherlands and Belgium to also initiate steps to return parts of their national collections that were ill-gotten through their colonial pasts.
Indian laws are aimed at preservation and preventing illegal export of any antiquity or art. But we have not done a good job. Unesco and a Tamil Nadu government survey point to regular theft of artefacts. We have also not documented all 58 lakh-odd antiques within the country. Interestingly, there was a PIL in 2017 in Supreme Court demanding that the Koh-i-noor diamond be returned to India from Britain. GoI informed the court that under the extant laws, Archaeological Survey of India (ASI) did not have any powers to do so.
The petition was dismissed, with the court advising GoI to try diplomatic channels. It is through these channels that nearly 357 antiquities have been retrieved from Australia, US and Singapore in the recent past.
While GoI, and the PM himself, should try and exercise diplomatic clout, one could heed what international arbitration lawyer Danilo Ruggero Di Bella suggested in his 2021 Cambridge International Law Journal article, ‘Repatriation of Artworks Throughout Investment Arbitrations’: that the bilateral investment treaty (BIT) route can be explored for return of cultural objects.
A BIT could impose the obligation to repatriate foreign investments on the host-state. By not returning cultural property, the latter could be in ‘breach of the prohibition to expropriate foreign investments’. India is in the final stages of its FTA with Britain while parallel BIT negotiations are also going on. GoI, forefronted by Narendra Modi, can explore this avenue.
Among items being exhibited in ‘Rediscovering Gems’ at the British Museum is an intaglio (a design incised or engraved into a material) of Minerva, Roman goddess of wisdom, justice and law. She, too, will nod in appreciation at this approach to get back what is ours.