Two Doctrines of and for Cultural Property How Europe and America are Different

Chapter 1
Two Doctrines of and for Cultural Property How Europe and America are Different

Martin Skrydstrup

A New Order of Things?

In March 2008, a group of international experts on cultural property were invited and flown to Greece at the expense of the Greek Ministry of Culture to contribute to the conference ‘Return of Cultural Objects to their Countries of Origin’, which met at the New Acropolis Museum in Athens.¹ Before its official inauguration, these experts were allowed a first peek into the New Acropolis Museum, where one of its principal architects Prof. Dimitrios Pandermalis explained that the proportions of the concrete core and the rectangular glass box of the gallery at the top floor mirrored the exact dimensions of the perimeter of the Parthenon: ‘That way, visitors will get a sense of the scale of the sculptures in relation to the mother temple. The idea is that the visible facades of the Parthenon and the sculptures that once adorned it unite in your imagination, allowing you to picture the temple as it was in Periclean Athens’.² This frieze was a single long depiction of what is presumed by most classicists to be the Panathenaic procession, which once ran around the perimeter of the inner walls of the temple. Our guide told us that the panels lost to antiquity would be left blank and those that remained in London would be reproduced in plaster covered by a special mesh to make clear that they were not the originals. Pandernalis explained that: ‘the idea is that the fine veil will make the missing sculptures look like the ghosts of the missing pieces. We want these ghosts to haunt the visitors and make them wonder where these artefacts are. This is going to be the most eloquent way to present the problem of the Parthenon sculptures’.3 With ‘problem’ Pandermalis referred to the fact that currently, Greece possesses 36 of the 115 frieze panels, and 39 of the 92 metopes that ran above the exterior colonnade and showed scenes from Greek legend. By fusing sculpture, architecture and the ancient landscape into a unity, these top-floor galleries delivered a mesmerising message. This was about showing the concepts of genius locus and in situ context for the many visitors. It was a tangible aesthetic argument about the Parthenon, which evoked a powerful narrative about loss and belonging – and ultimately ownership.

The next day, the conference hosted by the New Acropolis Museum was officially opened by the Greek Minister of Culture Michalis Liapis in the presence of the President of the Greek Republic Karolas Papoulias and a number of dignitaries, VIPs and experts flown in from across the globe. Liapis opened the inauguration with the following words:

We find ourselves in a Museum that relates dialectically with the Sacred Rock of Acropolis that integrates in perfect harmony with the archaeological and natural surrounding environment. We want people to consider that this Museum is their own museum, every Greek person’s museum, every citizen of the world’s museum. The construction of the New Acropolis Museum is the best possible conjuncture for the return of the Parthenon marbles, the masterpieces of classical antiquity. The claim for return is not only a Greek demand; it is a universal demand, and a global debt, so to say, having to do with culture. A request comparative to the requests for peace in the world and for the protection of human rights. The best supporters of this demand are the thousands of visitors that will be coming to see the marbles, will see the voids there, and will be thinking that some pieces of these artefacts are 4000 miles away from their destination point.⁴

With Greek pathos the Minister continued to speak about the ‘dismemberment of the Parthenon temple by Lord Elgin’ and the ‘necessity of the reunification of the Parthenon sculptures’. Towards the end of his discourse, he recalled the top-floor gallery of the new Museum, which ‘stands as a constant reminder of the unfulfilled debt to world heritage’, which is currently ‘in exile’, but ‘British authorities can reunify the sculptures of the Parthenon for this and subsequent generations’. The Minister closed on a sentimental note, evoking a quote from his predecessor, Melina Mercouri (1920–1994), who originally raised the issue in UNESCO back in 1982: ‘I hope to see the marbles back home before I die, but if they come later I shall be reborn’.⁵

Following the address of the Minister of Culture, Ambassador and Permanent Delegate of Greece to UNESCO, George Anastassopoulos, took the podium:

We, as an international community of stakeholders, must explore all paths that lead us to the most appropriate solutions for all, in accordance with internationally agreed norms. The examples you will be studying today will uncover some effective strategies in this direction. These are so-called success stories that have been resolved in and out of the realm of the Inter-governmental Committee and hence offer invaluable insights into the resolution of diplomatic, legal and ethical dilemmas associated with the return of cultural property.6

Commenting on these six precedents for the return of cultural property, George Bizos – a Greek expatriate and prominent human rights lawyer who has campaigned against apartheid in South Africa – spoke with pathos and poetics about the natural light of Attica under which rationality was born and that no one at the foot of the sacred rock should refer to the Acropolis as being in ruins, since it embodied paidea – the spirit of Greek learning. In 1963, Bizos reminded the audience that the law of the Trustees of the British Museum was not ‘written in stone’. It could be changed, just as Cecil Rhodes’s apartheid laws were changed, because they prevented a nation-state from ‘doing the right thing’. Observing quite rightly that most of the six case studies were in fact so-called ‘exchanges’ or ‘loans’ and not transfers of legal title, Bizos powerfully argued that: ‘loan is a four letter word that obstructs justice’.⁷

Did this highly orchestrated event taking place at a site of singular significance signal a new order of things? Did it mark something akin to a contemporary shift in the meaning of ‘legitimacy’ and ‘justice’ in the question of the Parthenon Sculptures and by implication the global debacles of ownership of cultural artefacts?

A year later, in June 2009, when the New Acropolis Museum was officially inaugurated, the British Queen, the Prime Minister Gordon Brown, as well as Directors and staff from the British Museum, politely declined the invitation extended to them by the Hellenic Ministry of Culture to participate in the opening ceremony. In its aftermath, the impending Greek state bankruptcy and bailout in 2011 has perhaps transposed the scene of the argument about the cultural debt which the world owes to Greece, into the unpaid economic debt which Greece owes to the world.

My purpose in writing this rather lengthy description of the 2008 event in Athens is to make three introductory arguments. Firstly, what was at stake in Athens in March 2008 was a contest between different moral-ethical-legal regimes competing for recognition of global status. The audiences of this event were left to judge which institutional regimes handled the question of cultural property in the most ethical and most morally convincing manner. Secondly, it seemed that the nations and natives taking on the role of claimants vis-à-vis metropolitan museums were all to some degree involved and embroiled in self-conscious projects of nation-building, or perhaps more accurately, projects of re-imagining what nationhood might mean in a globalised postcolonial world. The institutions of ‘cultural property’ are remarkably productive sites for observation of different and at times competing ways of national imaginations. My third argument is that this event in Athens invites a comparative project: How can we account for the fact that some nation-states are positively inclined to return cultural objects in their museums to claimants in far-away institutions, whereas others are not? To undertake such a comparative project seems full of modernist illusions and pitfalls. It reinforces stereotypes of nationhood, reifies boundaries and overlooks heterogeneity, i.e., that Hawaii and Rhode Island are not America, and Denmark and Greenland are not Europe. Such critiques have merit, but they miss the virtue of comparisons: bringing into sharper relief the fundamental principles or in a legal sense the doctrines which govern the political life of cultural property in particular nation-states vis-à-vis their subaltern claimants. Moreover, given my second argument, it makes sense to retain the nation-state as a unit of comparison. My aim in this article is to explore the expertise of modern nation-states in their dealing with claims for cultural property and in so doing chart the main contrasts between American and European approaches. A comparative project works best when the entities to be compared are different enough to present stark differences of a common phenomenon and yet similar enough for the variations to be consistent. I claim to meet this standard by choosing one of the ‘success stories’ mentioned in Athens, namely the transfer of more than 35,000 objects from Denmark to Greenland (1984–2001) entitled UTIMUT (the term designates ‘return’ in Greenlandic) and the American repatriation regime NAGPRA (Native American Graves Protection and Repatriation Act), which significantly was not mentioned as a model of amelioration in Athens. These two regimes are similar in so far as they offer different responses to the same problem of cultural property within the broader realm of a nation-state8 and they are different enough to offer a perspective on one another.

Over the past 40 years, nation-states, or as I prefer to call them, metropolitan property regimes, have converged on how to curb illicit traffic in cultural property, which the number of signatories to the UNESCO 1970 Convention shows.⁹ However, if there is consensus on restitution, there is much less uniformity on the question of return or repatriation of cultural property, that is transfers of cultural objects which took place before 1970 and which are currently claimed by the nations and natives from where they originated. Thus, we are dealing with a type of claims, where there often is no direct evidence of criminality, but where the vicissitudes and circumstances of history have transported cultural artefacts away from the places where the objects were made and which are now claimed back with recourse to restorative justice by the descendants of those who once held the objects. The case of the Parthenon Sculptures is the archetype of this sort of claim.

We might argue that nation-states challenged with such claims have met them in two distinctive ways. Their responses reflect the pragmatic and strategic needs of their institutions and the historical predicaments they find themselves in as nation-states, be that couched as post-nationalism or post-colonialism. Most generally, these responses can be divided into two basic forms: rights-based regimes cast as legal formalism, versus debts-based regimes cast as situational ethics. The first type of regime is prescriptive, the latter subscribes to the ideology of voluntarism. This contrast is systemic and does not correspond to actual societies or nation-states, which may have adopted one approach internally and another externally, or may have blended them in various hybrid assemblies. How can we account for these differences? In this chapter, I intend to draw out and juxtapose the stark contrasts of two cultural property regimes and by doing so hopefully arrive – albeit by a somewhat indirect route – at an answer to this question. However, before I begin to depict the salient features of a property regime gravitating towards a rights-based approach, namely the American NAGPRA polity, and one which comes closer to a debts-based morality, namely the Danish UTIMUT framework, which has come to be known under that rubric – through its conspicuous returns to Greenland – I would like to begin with my ethnographic inroads to each regime.

Sites of Cooperation and Complicity

Among the first problems with which a comparative anthropological project on cultural property is confronted, is where to conduct fieldwork and what might constitute its ethnography. As an anthropologist, I would argue that doctrines cannot be gleaned from canonical texts, but have to be sought at varied sites and in successive episodes of enactment and performance, rather than in codified regulatory traditions. Trained in cultural anthropology, I am generally inclined towards descriptive thickness of situations, places and persons in the tradition of Clifford Geertz. More specifically, I would choose to follow the trajectories and itineraries of specific objects involved in controversial disputes, which were thought to challenge the regime in which they were embedded, taking my methodological cues of multi-sited ethnography from Bruno Latour (2005), George Marcus (2000) and Arjun Appadurai (1986). However, whereas much contemporary anthropology is interested in material objects on the move, their agentive potentialities and the flux and instability of their materiality, I am more interested in the self-perpetuating normative and moral commitments that give regimes of expertise their coherence, authority and legitimacy. Thus, I have singled out ‘case studies’ on the basis of their capability of provoking substantial arguments, which usually drew forth a discernible policy response at the national level. In other words, case studies, which gave rise to new institutional arrangements, altered existing terms of normative discourse and were associated with a sense of novelty and challenge to the state of affairs. However, what happens when an anthropologist enters this politically and morally charged terrain through a mode of inquiry that remains close to the micro-politics and social practices on the ground?

Early in September of 2006, I arrived at the Bishop Museum (BM) in Honolulu, Hawaii, on a multi-sited fieldwork itinerary following the single most contested material object within NAGPRA. The record stated that the artefact – a kii aumakua – had been repatriated jointly to Hui Malama and the Office of Hawaiian Affairs (OHA) from the Museum of Natural History in Providence (RI) in 1998; however, nobody knew where the object currently was. In Hawaii, I contacted the Bishop Museum (BM), asking if they knew the whereabouts of the piece. An employee at the Museum responded that the object in question was currently sitting in the basement of the BM, on loan from OHA. However, the employee told me that if I wanted to see the object for research purposes, a request for access was necessary and this was made conditional upon the premise that I was accompanied by representatives from the Native Hawaiian community, more specifically OHA representatives. As I later arrived at the museum with a whole delegation of OHA representatives, the employee noted my entourage with the comment: ‘You brought the right people with you! Wow, a whole delegation! Let’s first see the exhibition on Native Hawaiian Featherwork and then we can go to the basement and see the kii aumakua.’10 Within the NAGPRA regime, access to objects and information on part of the BM was made contingent upon cooperation with the Natives.