CONFRONTING COLONIAL OBJECTS: Histories, Legalities, and Access to Culture, Carsten Stahn, Oxford University Press, 2023, 556 pages, $180
Critics of restitution have challenged the turn to cultural justice based on the argument that atonement for the past may politicize material culture, detract from the original meaning of artifacts, or sensualize looted object to the detriment of less visible items.… Some of these risks may be mitigated through the application of transitional justice principles (e.g. historical truth-seeking access to justice, recognition of the harm, memory or non-repetition) to processes of restitution and return. They are inherently reflected in some reports and principles. (pp. 417-418)
Admittedly, my personal views on the return of cultural objects reflected in Part One are rather rigid: anything inappropriately or unlawfully taken must be returned when requested. Getting to Yes (the formula for a win-win outcome explicated by Roger Fisher and William Ury in their seminal book on negotiating), however, is not easy. The disputing parties generally must agree to an acceptable historical narrative that accurately reflects the provenance (chain of custody) and biography of the disputed cultural objects before considering/agreeing to return them (a feat in itself). One of the main stumbling blocks is the absence of clarity in the law. Which law applies? How far back does today’s law apply, and if not, then what? Can the original owner’s title claim based on heritage (I am mostly thinking of communities) trump domestic acquisition laws giving lawful title to a purchaser? Are there enforceable remedies?
With domestic laws and treaty regimes being inadequate to resolve contested claims of cultural objects, agreeing to agree on the return of cultural objects requires a multifaceted approach, innovative thinking, fresh perspectives, and good faith to genuinely confront the past with a willingness to address uncomfortable and inconvenient historical facts.
To this end, Carsten Stahn, Professor of International Criminal Law and Global Justice at Leiden Law School and Queen’s University Belfast, provides a lively discussion with incisive advice in CONFRONTING COLONIAL OBJECTS: Histories, Legalities, and Access to Culture. It is packed with useful information and copious examples, is heavily sourced, and well organized. Written in easy prose, Stahn delivers nothing short of a tour de force on the topic of returning cultural objects.
With one of the prevalent impediments to the return of claimed cultural objects being the inability to retroactively applying international law, facts must be assessed based on the applicable standards when the taking/removal took place. There is usefulness to this “intertemporal rule”, which Stahn contends “is not absolute nor a bar to forward-looking models of responsibility for colonial takings.” One of the problems he sees is that the debate over cultural colonial objects has been framed in binary terms “grounded in the divide between cultural nationalism and cultural internationalism … which has polarized the debate and led to stalemate and antagonism.” Stahn finds this binary choice myopic, prone to bringing discourse and negotiations to a stalemate. Seeing things as much more complex, his main thesis is:
[T]he treatment of cultural colonial objects is neither a purely moral, nor purely legal question, but rather situated at the intersection of three different angles: justice, ethics, and human rights. It requires consideration of all three perspectives, i.e., justice, morality, and human rights. This intersectionality is needed to take into account the complexities of colonial injustice. Each of the three perspectives has its added value.
While atonement for past misdeeds may for some be a prerequisite for cultural justice (I’ll settle for unvarnished historical facts from which the truth can be inferred), Stahn rightly notes that this could lead to politicizing, detracting, and sensualizing looted objects while obscuring and overshadowing “less visible items.” The return of cultural objects “is not a ‘neutral’ act (i.e., a pure ownership determination), but a process of addressing the connection between objects and people.” Stahn sees this as a transformative opportunity; a process involving “backward-looking elements, such as acknowledging the past, as well as perspective steps towards ‘righting the future’”, considering “a broader spectrum of object possibilities and relations beyond return of restitution.” This is important. Cultural objects are part and parcel of cultural heritage. They play a significant role in expressing inherited ancestral traditions for descendants, forming what is acknowledged to be intangible cultural heritage: oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe, or the knowledge and skills to produce traditional crafts.
Stahn spells out what he calls “relational cultural justice principles” for untangling claimed cultural objects. Astutely, he suggests applying transitional justice principles such as “historical truth-seeking access to justice, recognition of the harm, memory or non-repetition.” Before I get them, a few words on how CONFRONTING COLONIAL OBJECTS is structured.
In Chapter one, Stahn sets the scene and lays out his thesis. He opens with the controversy over the taking of the automated tiger of Tipu Sultan (featured on the book’s cover), an emblematic vignette (no spoiler offered here) that has just about all the ingredients involved in entangled cultural objects. More vignettes follow, each presented with a balanced narrative, leaving it up to the reader to draw his or her own conclusions. These vignettes, sprinkled throughout the following chapters, are not just highly informative, but carefully selected in driving whatever point is attempted to be made.
In Chapters 2-5, Stahn sets out historic patterns in cultural takings from the sixteenth to the twentieth centuries. Here he breaks down the takings in three periods, giving the reader an evolutionary birds‑eye view. The first period covering the sixteenth to eighteenth century deals with the early takings. The second period covering the eightieth to the mid-nineteenth century deals with systematic collection of cultural objects as modern nation-states emerged, scientific knowledge pursued, and modern museums established. The third period covering the mid to late nineteenth century deals both with the collection of cultural objects and human remains. These chapters cogently show how cultural exploitation was justified, fueled by “rationales and rhetoric of civilization or protection as economic exploitation or territorial expansion … not only driven by curiosity, quest for knowledge, trade, or material profit, but by a means of enhancing national prestige or demonstrating power.”
The remaining chapters (6-9) deal with how the “colonial condition and commodification of objects shaped the framing and silences of legal frameworks in the twentieth century and contemporary approaches towards return.” Against this backdrop, Stahn argues for “a relational understanding of cultural heritage” that fosters “greater transparency of colonial collections, novel forms of consent or ownership for objects taken in a context of structural inequality, broader structures of participation and representation in discourses over memory.”
And this brings me to Stahn’s appealing approach in dealing with claimed cultural objects set out in CONFRONTING COLONIAL OBJECTS. By this point, the reader has been treated to 524 pages of a comprehensive factual and legal predicate that logically sets up and supports what I consider the gem of this book – Stahn’s relational cultural justice principles based on transitional justice principles. For the sake of brevity, I will not go into details of the principles; they sufficiently inform as framed.
Access to history and culture
Principle 1: Transparency of collections and object histories
Principle 2: Object accessibility
Principle 3: Seeking new forms of consent
Principle 4: Pluralistic access to justice
Principle 5: Recognition of injustice
Principle 6: Social repair
Principle 7: Plurality of pathways to achieve just and fair solutions
Principle 8: Collaboration
Principle 9: Meaningful redress for wrongful action
Principle 10: Multi-dimensional memorialization
Principle 11: Reviewing object ontologies and cultural national foundations of inalienability and deaccession laws
Principle 12: Object protection in source countries or communities of origin
Principle 13: Due diligence duties of auction houses and private collectors
Principle 14: Decolonial education
Having given considerable thought over the years on the return of entangled cultural objects, I find Stahn’s informative and nuanced articulation of a process that moves beyond the binary approach – “from a logic of restitution to a logic of social repair” – insightful and practicable. To his credit and to my benefit, he has refined my thinking and sharpened my appreciation of how best to deal with the past and plan for the future regarding cultural objects that rightly deserve to be returned. His “relational cultural justice principles” provide a road map for a process that results in a win-win equitable and just resolution.
I highly recommend CONFRONTING COLONIAL OBJECTS: Histories, Legalities, and Access to Culture. It is a brilliant academic treated on the subject.