Quantifying and Measuring the Use of ADR Methods in International Cultural Property Disputes

By Isioma Okocha

The use of alternative dispute resolution mechanisms to retrieve illegally acquired cultural artifacts, looted colonial-era art, and other cultural property obtained through dubious means has increased.  Alternative Dispute Resolution methods such as negotiation, mediation, and arbitration have been used to resolve international cultural property disputes.[1]  International institutions have made efforts to facilitate the return of cultural property.  The United Nations Educational, Cultural, and Scientific Organization (UNESCO) established the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP) in 1978.[2]  Additionally, UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of the Ownership of Cultural Property in 1970.[3]

Alternative dispute resolution in comparison to litigation provides an opportunity for opposing parties to foster relationships and build a foundation to resolve future disputes.  Litigation as a mechanism to retrieve colonial objects and cultural artifacts is riddled with complications.  In the litigation process, it is difficult to establish that one country has a superior right of possession to an object in comparison to another country and it is difficult for judges to understand the cultural significance of these objects.[4]  Moreover, non-legal issues, such as ethical, historical, emotional, and cultural factors can be given greater consideration in alternative dispute resolution processes.[5]

Recent cases demonstrate that alternative dispute resolution mechanisms can be utilized to resolve disputes over the ownership of artifacts however the success rate varies.[6]  In 2007, four antiquities illegally exported were returned from the J.P. Getty Museum to Greece.[7]  Before their return the Greek state utilized various methods to retrieve the artifacts.[8]  When diplomatic channels failed to resolve the dispute, charges were pressed against the director of the museum.[9]  With the threat of litigation looming, the museum accepted the request to enter into negotiations with Greece.[10]  Greece and the J.P. Getty Museum then signed an agreement for future co-operation between the parties to resolve possible future claims.[11]

In contrast, the Parthenon Marbles case has not been as successful.  The Parthenon Marbles have been in the British Museum since the early 19th Century and the Greek government has been campaigning for their return to Greece for decades.[12]  UNESCO invited the United Kingdom in October 2014 to consider Greece’s request to mediate the dispute over the Parthenon Marbles.[13]  The UK government responded by rejecting the offer of mediation and restated that the British Museum had a valid right of ownership.[14]  The dispute over ownership of the Parthenon Marbles continues with no compromise in sight.[15]

These cases involved countries and institutions in the Global North.  In cases involving countries in the Global South, there is the added element of economic inequality.  Cultural objects were removed from communities in Africa, Asia, and the Americas when European invaders inflicted mass atrocities upon the indigenous people in these areas.[16]  Often, museums and institutions in the Global North in possession of colonial objects have responded to restitution claims with denials or offers of long-term loans.[17]  For example, renewed calls for the repatriation of Benin Bronzes held in the British Museum have been denied.[18]  Alternative dispute resolution mechanisms can be utilized in this case; however, the unequal power dynamics will influence conversations.[19]  Alternative dispute resolution mechanisms are slowly being adopted more and more to resolve disputes involving cultural property retained through controversial means because they are better suited to build meaningful relationships between states and cultural institutions.[20]

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[1] Alessandro Chechi, Symposium on Confronting Colonial Objects: Returning Colonial Objects – The Role of Transitional Justice and Alternative Dispute Resolution, OPINIO JURIS (Apr. 17, 2024), https://opiniojuris.org/2024/04/17/symposium-on-confronting-colonial-objects-returning-colonial-objects-the-role-of-transitional-justice-and-alternative-dispute-resolution/ [https://perma.cc/YMX2-WHE9].

[2] Id.

[3] UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted Nov. 14, 1970, 16 U.N.E.S.C.O. Off. Rec. 1970, Doc. Conf. Int. 16C/Res.

[4] Chechi, supra note 1.

[5] Id.

[6] Irini Stamatoudi, Alternative Dispute Resolution and Insights on Cases of Greek Cultural Property: The J.P. Getty Case, the Leon Levy and Shelby White Case, and the Parthenon Marbles Case, 23 IJCP 433, 441 (Nov. 2016).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Elgin Marbles: UK declines mediation over Parthenon sculptures, BBC News, (Apr. 8, 2015), https://www.bbc.com/news/uk-32204548 [https://perma.cc/LR47-WT32].

[13] Id.

[14] Id.

[15] Tessa Solomon, British Museum Says It Wants ‘Realistic Solutions’ to Parthenon Marbles Restitution Debate, ARTnews, (June 5, 2024, 4:07 PM), https://www.artnews.com/art-news/news/british-museum-parthenon-marbles-restitution-debate-realistic-solutions-1234708923/ [https://perma.cc/6E3X-JLTN].

[16] Chechi, supra note 1.

[17] Id.

[18] Karen K. Ho, Nigeria Renews Call for Return of Benin Bronzes Following British Museum Thefts, ARTnews (Aug. 24, 2023, 5:16 PM), https://www.artnews.com/art-news/news/nigeria-renews-call-for-return-of-benin-bronzes-following-british-museum-thefts-1234677578/ [https://perma.cc/AGV3-RFB7].

[19] Chechi, supra note 1.

[20] Id.