The Gyeongju Declaration of 2016

by Marc Masurovsky

Three years ago, representatives from China, Turkey, Greece, Cambodia, UNESCO, the United States, the United Kingdom, and South Korea, gathered at Gyeongju, South Korea, to discuss the status of looted cultural objects and their recovery by rightful owners.

A declaration was drafted by representatives of the above nations and NGOs and ratified by the conference participants, most of whom hailed from South Korea. The declaration is a worthy reminder that, in the absence of art market denizens and museums, cooler heads prevail and a more fruitful dialogue can produce more far-reaching statements of principle than the museum-inspired Washington Principles of December 1998. 

 
Therefore, I invitee you to read through the various components of the Gyeongju Declaration which still stands as one of the more progressive statements of its kind on market behavior, the rights of claimants and source nations, and means by which to achieve increased due diligence and ethical behavior in cultural institutions worldwide.

The Gyeongju Declaration, was drafted, revised, discussed and ratified, paragraph by paragraph, by all participants at the 6th International Conference of Experts on the Return of Cultural Property which took place in Gyeongju, the Republic of Korea, from October 17-19, 2016.


The Gyeongju Recommendation
We, the participants of the “6th International Conference of Experts on the Return of Cultural Property," held in Gyeongju, Republic of Korea, from 17 to 19 October 2016,

Expressing our sincere gratitude to our hosts, the Ministry of Foreign Affairs and the Cultural Heritage Administration of the Republic of Korea, to our organizers, the Overseas Korean Cultural Heritage Foundation and the Cultural Property Return Campaign Center, and last but not least to our sponsors, Gyeongsangbuk-do Provincial Government, the City of Gyeongju, and the Korean National Commission for UNESCO, for their outstanding efforts and dedication,

Recognizing that the International Conference of Experts on the Return of Cultural Property, which was first proposed by the Republic of Korea in 2011 and whose first session was held in Seoul in the same year, with the second session in Seoul in 2012, third session in Ancient Olympia, Greece in 2013, fourth session in Dunhuang, China in 2014, fifth session in Nevsehir, Turkey in 2015, and sixth session here in Gyeongju, the Republic of Korea this year, has provided precious opportunities for the international community to share its experiences and knowledge on the return of cultural property and join the fight against the illicit trade in cultural property,

Welcoming the U.N. Resolution A/70/76, unanimously adopted in its December 9, 2015 General Assembly meeting and especially the operative paragraph 7 of this Resolution, where for the first time the recent institution of International Conference of Experts on the Return of Cultural Property as well as their concluding documents were recognized,

Recalling the Seoul Declaration (2011), the Seoul Recommendation (2012), the Ancient Olympia Recommendation (2013), the Dunhuang Recommendation (2014), and the Cappadocia Recommendation (2015) adopted by the previous International Conferences of Experts on the Return of Cultural Property.

Noting that international legal instruments, including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and its two protocols (1954 and 1999), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970), and the UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects (1995), as well as the devoted efforts and subsequently-adopted resolutions of the United Nations (UN) and legal instruments of the United Nations Educational, Scientific and Cultural Organization (UNESCO), have contributed to the prevention of the illicit trade in cultural property and its return to countries of origin,

Acknowledging that not only international non-governmental organizations, such as the International Council of Museums (ICOM), but also public and private institutions, including museums, libraries, and religious organizations, as well as the general public and local communities, have ever-increasing roles to play in the struggle against the illicit trade in cultural property,

Commending, in particular, that the amicable efforts by Korean civil society and religious organizations to recover illicitly exported cultural property by means of dialogue and mutual exchange cooperating with other foreign institutions in possession thereof have set a positive precedent that can be emulated by numerous states which have similarly suffered from the illicit export of their cultural property,

Observing greater need for administrative and judicial mutual assistance between countries and closer cooperation from auction houses, museums, and libraries in each country to prevent new means of illicit trade in cultural property in the art market, including online sales,

Condemning any uncivilized acts of vandalism directed against cultural property, including the recent destruction and illegal removal of cultural property in the conflict-ridden Middle East and the rest of the world,

Recommend that:
1. Each State should closely cooperate with other States for the return or restitution of illegally exported cultural property and the prevention of the illicit export of cultural property, and reinforce existing networks among public and private organizations, as well as individuals to share and exchange information concerning stolen or illicitly exported cultural property and its restitution;

2. Each State should continue to update the existing inventory of state owned and privately owned cultural property, as well as the databases of stolen or illicitly exported cultural property, and share actively such information with governments, relevant institutions, and non-governmental organizations of other States aiming to establish a common publicly available international platform;

3. Each State should continuously monitor the art market, including online markets, to control the illicit trade in cultural property, raise awareness of the legal and ethical duties of due diligence for participants of such markets, and impose administrative and judicial sanctions, when appropriate;

4. Each State should allocate resources to encourage provenance research, to facilitate licit trade in cultural property, and develop and implement educational programs to share and disseminate the outcomes of such research, thereby improving the capacity of those who work in the area.

5. Museums, libraries, and other public and private organizations that hold cultural property and collections are encouraged to: a) Take appropriate action to facilitate the rapid return of human remains and sacred cultural property when they receive a request for the return of such property, taking into account the wishes of the departed, the interests and beliefs of the members of the community, ethnic group or religious society from whom the property was taken; b) Make every effort before acquisition, in compliance with Article 4.4 of the 1995 UNIDROIT Convention, to ensure that any cultural property offered for purchase, donation, or any other transfer thereof, has clear title, c) Provide their directors, personnel, and volunteers with periodic training and educational sessions to raise awareness of illicit trade in cultural property and endeavor to ensure that the ICOM Code of Ethics for Museums is fully complied with;

And also,

6. Auction houses, museums and art dealers should accept for consignment, acquire or trade in cultural property only when they are satisfied that a valid title is held and should make public all available provenance-related information on cultural property;

7. Governmental organizations, non-governmental organizations, the general public and local communities, private research institutes, museums, libraries, international academic institutions etc. should continue their efforts to further promote the purpose and spirit of this Conference which has been held annually in the Republic of Korea, Greece, China, and Turkey since 2011, respectively, for prohibiting and preventing illicit trade in cultural property and promoting return or restitution of illicitly exported or stolen cultural property.

Different shades of recovery

by Marc Masurovsky

The process of recovery of looted cultural, artistic and religious objects is daunting for several reasons:

If action is not taken right away to recover a looted object, it becomes exponentially difficult to identify its current location. In the case of losses during the Third Reich, “recovery” was an absurd notion since the perpetrators of the thefts controlled the reins of political, legal, and economic power. Hence, the process of tracing the object could only occur after a regime change and with rules in place that would facilitate such searches. Moreover, if the works confiscated or plundered by the Nazi regime ended up in neighboring countries, what rights did the claimants have to recover such works, since Nazi Germany was a recognized nation in the community of nations, for better or for worse? What rights do they have now? Since most of the domestic losses suffered by Jews living in Germany were State-sponsored, there was no mechanism in place in other nations to deem the actions of the Nazi state illegal and the confiscated property subject to restitution. Therefore, if you lost your property in 1934 and if you survived all of the subsequent events provoked by the Nazis’ fury against the Jews and others, you would have to wait for at least 12 years to assert a claim of restitution.

If your missing object is located in the hands of a new owner, regardless of how that person or institution acquired the victims’ property, the laws governing property rights and title to “legally acquired” property prevent the plundered owner from obtaining restitution of his/her looted property without going through a complex tangle of legal and political maneuvers. In the absence of explicit mechanisms put in place by the national governments of nations where such looted objects have ended up, it is extremely difficult, if not impossible, to recover them. This state of affairs endures to this day and has been a continual source of frustration for victims of plunder with minimal accommodations made by governments and courts to facilitate the process of recovery.

If the looted object is declared part of the cultural patrimony of the nation from where it ended up, the recovery process involves a direct negotiation with that nation’s government, a very laborious discussion which usually ends in utter failure. What is the word of a dispossessed Jewish owner against that of an official who upholds the notion of cultural patrimony and inalienability of art objects located in State collections, whether those objects were looted during genocidal acts? Culpable countries hiding behind such imperialistic arguments are: France, Germany, Belgium, the Netherlands, Spain, Italy, to cite the worst, Eastern European nations, all of the nations that once formed the Soviet Union.

When source nations seek the return of their looted patrimony which usually consists of antiquities illegally extracted from archaeological sites or illegally removed from religious and other sacred edifices, the wait can last for an eternity; it can also be circumscribed to anywhere from a year to several decades if the aggrieved nation is willing to compromise, accept trade offs like offer commercial advantages to the withholding nation, or agree to symbolic returns with a promise never to come back and ask for anymore as in the case of South Korea and the shabby treatment it received from France over a set of priceless manuscripts.

Aggrieved source nations include but are not limited to Greece, Turkey, Italy, South Korea, China, Egypt, Nigeria, Mali.

In other words, we have not made much progress in the past several decades. As provenance continues to become optional in art market transactions and most nations do not encourage their cultural institutions to be more forthcoming in publicizing the history of the objects that are part of their “patrimony,” nothing short of a cultural revolution will sway them to change course and become, god forbid, ethical.

The domino effect

by Marc Masurovsky

In its most basic form, the domino effect is an uncontrollable chain reaction, an irreversible sequence of events brought about by one well-placed flick against a tile, which tumbles the neighboring tile, and then another tile, and then another tile, in a long line of domino tiles until the entire deck is down. Some of these “domino effects” make for fun, easy-to-produce effects. Many of us have tried them at least once to everyone’s delight.

Now apply the same idea to countries. The last time the domino effect was seriously invoked, it was in the form of a threat. American politicians and senior military officers used it to justify a hardline approach in Indochina against the “communist threat.” If one country “went” communist, the rest would fall. Here, the domino was South Vietnam. The other tiles were Laos and Cambodia, and then, who knows? Thailand? India? The “domino effect” was an integral component of the Cold War.

The domino theory in Southeast Asia

Let’s now turn our attention to the museum world. In order for the domino effect to work in the museum world, one needs a critical mass of cultural institutions predisposed to lean in one direction or another. In our case, the domino unit is “restitution”, the “return” of looted cultural assets to rightful owners, be they individuals, communities, tribes or source nations. For there to be a domino effect in the museum world, there needs to be a restitution, a repatriation which “tips the scales” in a way that paves the way for similar returns by other institutions and provokes a generalized onrush of claims that will ultimately provoke more returns, more repatriations, instability in the management of collections, loss of equilibrium in negotiations of loans with source nations, impending chaos, the end of the world as we know it.

Believe it or not, museum leaders and nations whose cultural institutions harbor looted cultural property have invoked the “domino effect” either to prevent restitutions or to isolate restitutions as unique cases which cannot be repeated, fearing that, if such restrictions are not imposed in a settlement, more claims will be filed and a generalized disgorgement of looted objects would ensue in favor of the aggrieved nations. As you know, that simply cannot happen.

The Wrestler from Koh Ker

The repatriation of the Koh Ker statues to Cambodia, it is argued, triggered a minor “domino effect” or a “breaking of the dam.” After Cambodia had won its case against Sotheby’s in December 2013, the matter could have been isolated to that one return. But there were many more statues located in different cultural institutions throughout the United States. The Metropolitan Museum of Art followed suit and agreed to return its two statues, followed by a return from Christie’s and the Norton Simon Museum in Pasadena, CA.  So did the Cleveland Museum of Art.

It is presumed that many more statues are located in European collections. Hence, the domino effect remained confined to the United States.

In the case of the Parthenon marbles, Michael Repps infers that the obstinacy of the British Museum to hold on to the marbles claimed by Greece constitutes a guarantee that, like Tom Thumb removing his digits from a hole in the proverbial dam thus causing the inevitable flood of the low lands, an unconditional surrender to Greece propelling the return of the marbles to their new home at the Acropolis Museum in Athens would trigger an irreversible chain of events, a domino effect, leading to uncontrolled disgorgement of cultural objects and their repatriation to aggrieved source. The counter argument is offered in a master’s law thesis entitled “What’s yours is mine—Indeterminacy in cultural property restitution debate” which was submitted to the University of Helsinki in 2014, by Pauno Soirila. In it, Soirila argues that the “domino effect’” threat is a non-argument since each restitution case is viewed as a unique case and should not cause such a massive disgorgement as threatened by some in the museum world and cultural officials in recipient nations. 

Parthenon Marbles on view at the British Museum, London

An unusual twist to the repatriation/domino effect dyad refers to the hypothetical “devolution” of Wales and Scotland which might provoke a deluge of repatriation requests against “English” museums that would gut them of significant numbers of objects. Hence, in a twist of irony, the threat of falling dominos may not come from those “nationalist” source nations which selfishly demand their looted property back, but rather from insurgent regionalist movements plaguing the halls of power in London. How fitting!

So, what’s all the hullaballoo about with all of these dominos falling and the world of museums as we know it collapsing around us because of incessant claims for return of looted cultural property to source nations and tribal communities?

In true fashion, France embodies the worst of the anti-restitution movement, whereby objects, as a rule, do not leave State-controlled museums under any circumstances. Once in, there is no conceivable exit. The principle of inviolability reigns over the management of cultural objects in French museums, regardless of provenance and origin.

In the case of the Oekyujanggak Royal Manuscripts which South Korea claimed, the French government rejected the Korean repatriation claim. Granted, the case was complicated. The French navy had stolen these sacred royal documents in 1866 presumably in retaliation for the deaths of nine Catholic priests. [This bears strange similarities to the punitive confiscation of bronzes in Benin  in 1897 as a retaliatory act by British colonial troops].

These manuscripts were rediscovered in 1975 at the “Bibliothèque nationale” in Paris. 

Sample pages from the Oekyujanggak Manuscripts

The idea of recovering these manuscripts first was discussed in 1991 by scholars at Seoul National University. South Korea filed a formal request for restitution in 1993. The claim quickly became entangled in larger trade issues between South Korea and France involving high-speed train contracts. [A similar entanglement occurred in the United States which linked high-speed train contracts between France and the United States to pending Holocaust-era claims against French railroads.] The discussion between the two nations evolved into a possible exchange through loans of artifacts of equal worth between the two nations.

As Professor Keun-Gwan Lee of Seoul National University rightfully asked during the ICECP conference held in Gyeongju on October 18-20, 2016, which law should be applied: the 1866 law or the 2011 law?

Regardless of what law applied, France invoked the “domino theory” and felt that an unconditional return of the royal manuscripts without any “contrepartie” from South Korea might provoke a generalized gutting of colonial-era plunder from French institutions.

In Korea, opposition built up and voiced against a proposed exchange of similar documents with Fraance, because, the argument went, any exchange or loan would be tantamount to a recognition of the plunderer’s right to good title, enabling nations like France to loot another nation’s treasures and get away with it.

In February 2011, an agreement was signed between France and South Korea outlining the terms under which the royal manuscripts could return to the Korean people. It wasn’t so much a return as a long-term loan renewable every five years. Hence, title remained with the French government while South Korea obtained the equivalent of “custodial rights” over their stolen royal manuscripts.

Furthermore, the French government insisted in Article 4 of the 2011 agreement that:

“The loan of the Uigwe manuscripts by France to Korea is a transaction characterized by its uniqueness, which cannot be replicated under any circumstance and cannot be viewed as setting a precedent…”

In other words, France would never repeat this folly again.

The so-called “domino effect” of repatriation and restitution of looted cultural assets is a convenient, albeit cynical, scarecrow invented by nations with long histories of cultural plunder to atone for and museum boards worldwide which fear the impending, unproven, gutting of their collections by aggrieved source nations should they surrender prized items. It’s unfortunate, however, that source nations should succumb to these idiotic arguments. We can only surmise that larger considerations—trade, politics, geopolitics—have more to do with the compromise settlements that put an end to these restitution claims than simple fears of a scarecrow wafting in the wind in some abandoned corn field.

A scarecrow

Peace? An unabashed biased view

by Marc Masurovsky

South Korea hosted the 6th International Conference of Experts on the return of Cultural Property (ICECP), a forum which it helped create in 2011. The three-day conference was held from October 18 to October 20, 2016, at the Hilton Hotel in Gyeongju, a historic city situated at three hours train ride south of Seoul.

The conference host was the Korean Overseas Cultural Heritage Foundation, an affiliate of the Korean Cultural Heritage Administration (CHA). It invited specialists and government officials from China, Cambodia, Greece, Turkey, Switzerland, the United Kingdom and the United States.

Several speakers, including Ieng Srong, director of movable heritage and museums section at UNESCO, and Keun Gwan Lee, a law professor and dean of planning and coordination at Seoul National University, called for peaceful solutions to be sought in the resolution of cultural heritage disputes worldwide. These conflicts regularly pit current possessors, i.e., museums in recipient nations, whether State-owned or privately-owned, against aggrieved communities or source countries from which the cultural property was illegally removed either as a result of colonial rule, military conflict, civil strife, or good-old fashioned commercial theft. Their presentations were complex, rich, and raised more questions than they themselves could answer. Thoughtful, they encapsulated the complexity of source nations’ attempts to recover the cultural property lost to predatory practices implemented by uninvited guests, invaders, colonizers, State-sponsored thieves backed by significant force and armies. Decades later, their treasured property remains displayed in the halls of “global” museums which pride themselves on providing to their loving public the result of their illicit purchases and acquisitions, indifferent to the twisted provenances that these objects carry with them.

Yes, negotiations can be fraught and frayed between aggrieved nations and the current possessors, self-described “internationalist” institutions which support a “global” view of displaying cultural objects, regardless of origin, licit or illicit. The strategies that source nations must consider using when attempting to recover their property can have direct consequences on their foreign relations, cultural, commercial, political, with the nations where their objects rest on display.

At what price must these negotiations be conducted, short of declaring war, to recover sacred and cultural objects, prized possessions that are an integral part of their cultural and spiritual heritage? What are the costs of maintaining a durable peace when the current possessors flaunt their acquisition and retention of title to these looted objects which source nations and aggrieved communities have asked to be returned to them out of respect for their heritage and the meaning, symbolism, and (non-monetary) value which they imbue in those objects. These arguments invariably fall on deaf ears, as the current possessors refuse to acknowledge them, so sure they are of their right to maintain title to the stolen property, obtained in “good faith”, mind you.

What does peace really entail when negotiations become protracted, drawn out in order to ensure the return of these looted cultural assets to source nations? Peace subsumes lengthy exchanges, endless mediations provided by international organizations, specially designated committees and individuals to present the arguments that will lead to some kind of resolution. Is it worth waiting for 20 years? And why does it have to take an average of 20 years to recover stolen cultural objects?

This is where it gets interesting. The spokespersons for aggrieved nations reason differently than the individual claimant victims stripped of their property as a result of acts of genocide, like Holocaust victims and their families. Source nations’ attachment to the cultural, spiritual, national significance of their lost objects carries with it a different sense of responsibility which compels varied strategies in how these objects will be recovered.

A brief tour of Korean cultural and sacred sites was enough to make anyone’s blood boil at the immensity and scope of the crimes committed by the Japanese occupying authority against the culture of millions of Korean citizens for close to half a century. It was as heartbreaking to see what no longer is there than to visit ruined Jewish settlements overgrown by forests and bushes, the bare remnants of thriving communities before the Nazis sowed their genocidal wrath against them.

The same reactions would obviously apply to China which suffered unspeakable violations and depredations for fifteen long and endless years at the hands of the Japanese imperial army and its allies. This is history, it happened. And there is no denying it. The scars are still visible. The discussions of this history continue to be awkward and painful, unresolved, an objective history of these tortured events remains a difficult task to accomplish. And it is in this context that the recovery process of the lost cultural and sacred heritage of these aggrieved nations must take place. Korea and China are but two examples of similar crimes perpetrated in other countries around the world. And each time, the fortunate recipients of these crimes—wittingly or unwittingly—are museums and other cultural institutions residing in Western nations. This is not meant to be an anti-Western diatribe but the facts are as they are. Those countries most willing to absorb cultural and sacred material looted from non-Western nations lie mostly to the West of the Oder River and between the Atlantic and Pacific Oceans, with the exception of Japan and its absorption of Chinese and Korean cultural material.

How does one achieve peace in this context? It is almost impossible to ask victims to be peaceful. But it is worth noting that the aggrieved parties have maintained, in most instances, the high ethical ground against the apparently selfish, self-righteous and self-aggrandizing motives put forth by the current possessors as justification to retain title to their looted property.

In that regard, calls for peace to resolve cultural heritage disputes echo the “just and fair solutions” developed as of the late 1990s by international diplomats and their allies in the museums community to achieve peaceful, non-litigious compromises between Holocaust victims’ heirs and the current possessors of their looted property, without the latter ceding title to the looted assets. The victims are asked to be reasonable while their painful legacy is explicitly acknowledged. The same appears to hold true in the recovery of looted cultural property illegally removed from source nations. Their painful heritage and history is readily acknowledged, empathy evenly distributed, but title must remain with the current possessor. Conflict arises when the source nation rejects that rationale, complaints are filed and some form of mediation ensues which can last for years, if not decades, which will require intervention by policymakers, politicians and experts from many countries and international bodies. Why waste all of this time and energy when the facts underlying the thefts and illegal removals are clear? Even if they are somewhat muddy and blurry, the obsession that current possessors have with retaining title borders on obsession and pathology. What would happen if current possessors ceded title to a long-sought object embodying far more meaning to the claimant than it could ever have to the current possessor? Without a fight, swiftly and efficiently.  Would the world fall apart? No, the present and future role of museums  as global institutions might be redefined, that's all.

For now, let’s stop here and ponder.

We will return to this discussion in forthcoming dispatches, inspired by the Sixth International Conference of Experts on the Return of Cultural Property (ICECP) which took place in Gyeongju, South Korea, from October 18 to October 20, 2016.