Feature Article : "The views expressed here are those of the authors and do not necessarily represent or reflect the views of Modernghana.com."

I find the proposal to apply principles developed in child custody cases to disputes regarding the ownership of looted artefacts, very interesting but also problematic and, in the end, not feasible. (1)

To compare cultural artefacts with children under any circumstances is itself very disputable. Artworks cannot be compared to children and hence from the very nature of the subjects concerned, the comparison falters. A good judge would try to ascertain the wishes of a child at the centre of marital dispute but we surely cannot ask an art object where it would like to be, Berlin or Benin?

Custody of children cannot be compared to ownership of artefacts. Parents awarded custody of children do not own them. Children are not the property of their parents whereas artworks are the property of the owners.

While divorcing parents have, ab initio, equal rights of custody of the children they have both produced, it cannot be said that in disputes over cultural artefacts both sides have equal right to ownership. Usually, one side is accused of stealing or looting what belongs to the other party and has not participated in creating the object. If we consider, for example, the looted Benin artefacts, we cannot say that the British contributed to producing the artefacts even though Neil MacGregor has argued that the bronze came from Europe. (2) When the artefacts were first produced by the Edo, the British were probably not even aware of the existence of the Edo kingdom. Definitely, the Benin artefacts are not part of British culture and do not have in Britain the same respect and veneration they enjoy in Benin, Nigeria.

Current holders of looted artefacts should not be considered as owners simply because they are in control of the objects. Determination of ownership is the basic question to be answered and we should not prejudice the issue by describing as owners those who have looted cultural objects or are in control of them.

There are too many basic assumptions in the proposal that are either not true or appropriate.

Could the first sentence in the proposal stand critical examination? “The Elgin Marbles and the Machu Pichu sculptures at Yale pose vexing questions of how to determine art's rightful owner, after it has belonged to many owners in many countries through many conflicts over many years.” Have the Parthenon/Elgin Marbles really gone through many hands since they were brought to Britain by Elgin? Are there other countries other that Greece and Britain that are involved in the dispute over the Parthenon/Elgin Marbles?

Relationships between parties disputing ownership of artefacts cannot in the least be compared to the relationship of divorcing couples.

Could we, for example, consider the relationship between Britain and Benin as similar to those of a divorcing couple? Should we ignore the fact that the whole dispute between Benin and the United Kingdom was due to the determination of the British to control trade in West Africa? The resistance of the Edo to British hegemonic designs, especially under Oba Ovonramwen, led the British to conclude that control of trade could not be achieved without subjugating the Edo to British imperialist rule and hence the Punitive Expedition of 1897. The invasion enabled the British to loot over 3000 artefacts, some of which they later sold to other Europeans and Americans. In the process, the British killed thousands of persons, including innocent women and children, and deposed the king whom they sent into exile.(3) These hostile and aggressive actions clearly preclude any possibility of comparing Anglo-Benin relationships to those of divorcing couples, even though one often has the impression that divorcing couples are at war.

One only has to re-read some of the comparisons made in the proposal to realize how invalid they are:

“Like the emotional ties and relationship between parent and child, the cultural ties and relationship between a country and a piece of art should count in determining where the art ends up.”

"Society has an interest that the art be accessible to the public, and the owners.

Which society are we thinking about here? British society in London where the Parthenon/Elgin Marbles are now or Greek society in Athens from where they were illegally removed in acts which can only be described as vandalism? (4)

From these few comments, it becomes clear that principles developed in child custody cases cannot be transposed, modified or not, to cultural property disputes, The parties involved in cultural property disputes cannot be compared to estranged couples. The violence involved in the acquisition of many artefacts, especially those considered as war trophies, makes it impossible to compare family law disputes with cultural property law disputes.

This proposal, as well as similar others, fails because of the apparent unwillingness or inability of many in the West to accept that the moral precept, “Thou shall not steal,” also applies to cultural objects. Many have placed the value of cultural objects above all ethical values. No wonder. We have persons in important and respectable institutions arguing that such stolen or looted objects must be kept by the present holders. They speak and write as if

elementary moral principles were not part of Western culture. They try to defend the indefensible plunders of the past colonial and imperialistic ages as if they were the best things that ever happened to humankind. The result of all this is that many persons are hesitant to condemn the plunder and stealing of cultural objects. It is no surprise then that many students in the West consider as benefactors of humankind those whose activities, often involving great violence, brought outstanding cultural objects to the museums in London, Paris, Berlin Chicago, New York, Madrid, Lisbon and other Western cities.

This inability or unwillingness to consider the morality involved in disputes leads to over-valuing the need to protect the interests of current holders of looted artefacts. It is this false estimation of such a need that leads to thinking that principles developed in child custody disputes could be transposed to disputes regarding ownership of artefacts. The high value attached to protection of children is seen as offering a possible solution to disputes concerning another high or even higher value, namely the protection of the interests of holders of looted art. A properly examined value system would not allow such a comparison or transposition.

Another consequence of the confusion of values and the exaggeration of the importance of protecting present holders of looted artefacts is the rather shameful position of some legal systems towards the restitution of Nazi-looted artworks. Apparently, some consider the need to protect the interests of present holders of Nazi-looted art more important than the interest of the deprived owners who almost invariably suffered Nazi atrocities. The British parliament will soon be considering legislation which would make it possible to return to their proper owners Nazi-looted artworks now hanging in the British Museum and other public galleries. (5) It makes one wonder why a world war had to be fought if sixty-five years later some legal systems confirm, directly or indirectly, the legitimacy of Nazi-looting. A proper consideration of the values and needs of a free, democratic society would have led to restitution of Nazi-looted objects without delay.

False prophets, professors and museum directors who approve the acquisition of cultural artefacts by all means, have influenced many art students in their thoughts.

Kwame Opoku, 11 May 2009.
 Continued    Source: Kwame Opoku, Dr.

"The views expressed here are those of the authors and do not necessarily represent or reflect the views of Modernghana.com." To have your articles publish, please submit them to editor@modernghana.com.

Other Articles by Kwame Opoku, Dr.