Editorial: Alternative Dispute Resolution in Cultural Property Disputes: Merging Theory and Practice

INTRODUCTION

This special issue entitled “Alternative Dispute Resolution in Cultural Property Disputes: Merging Theory and Practice” was triggered by the growing gap in literature between practical-empirical and theoretical-academic approaches to this matter. It aims to close this gap by combining articles from practitioners and academics in the field, offering a new, interdisciplinary insight into this topical and critical subject.

Alternative dispute resolution (ADR) methods (such as arbitration, mediation, negotiation, and conciliation) are being used more and more in recent years to resolve a wide range of disputes, including international, commercial, and family disputes as well as many others. Within the fields of cultural heritage studies and cultural heritage management, disputes over the ownership of cultural objects and subsequent claims for their return are emerging even more often. ¹ However, contrary to the other types of disputes, certain aspects of the application of ADR methods to the resolution of cultural property disputes have not been explored in much depth, with current discussions usually focusing on the potential benefits of such methods and the related legal and procedural matters. All these at a time when a blueprint for the handling of such issues is more essential than ever, since the illicit antiquities trade flourishes, especially in war zones. The recent examples in Iraq (and the plunder of the archaeological museum) and Afghanistan, as well as the most recent examples of heritage destruction by the Islamic State of Iraq and others involved in the conflict, show that war and occupation still threaten cultural heritage, and many claims for the repatriation of antiquities should be expected in the future.

Most research carried out so far only touches upon introductory elements of this complex issue, with special attention given mostly to the legal aspect, ² and there is limited research combining practical-empirical approaches and theoretical-academic ones. Partly due to the sensitivity of the subject, publications on practical-empirical approaches are more limited, compared to the theoretical ones, since people involved in such disputes tend to be reluctant to share their experiences in the required detail. On the other hand, theoretical approaches to ADR often lack the practical and in-depth analysis of the process per se, ³ failing to depict the dynamic interaction of the parties in the dispute (which is expected from people with no direct involvement in the dispute).

We therefore argue that the handling of cultural property disputes and their successful resolution requires a collaborative, interdisciplinary approach and cooperation between a wide range of professionals from the fields of academia, museum management, diplomacy, law, and so on, who will come together and share their experiences and perspectives. It is the aim of this special issue to investigate the ways in which ADR methods can be practically applied in the context of cultural property disputes. It aims to do so by bringing together both scholars and practitioners, with a combined background in archaeology, cultural heritage, and law, who will not only share their academic knowledge but will also analyze their own experiences in the specific cases with which they were involved.

Thus, some of the articles in this special issue compare and contrast theory with practice, and others explore the problems that may occur during the ADR process. This special issue ultimately shares and compares real life experiences filtered through relevant scholarly discussions. It displays both well-known case studies and less known ones through a new lens, offering valuable insights with respect to the negotiation and repatriation process. Well-known cases presented include the repatriation of cultural objects from American museums to Italy and Greece and their negotiated agreements, the restitution of the Begram ivories, the repatriation of artifacts from the Leon Levy and Shelby White collection to Greece, as well as new insights into the Parthenon Marbles case. These cases are revisited and restudied through the lens of ADR in an amalgam of personal professional experience and academic research.

There are many cases in which the holders of the artifacts refused to even enter into an ADR process, which is also one of the main drawbacks of ADR processes acknowledged in the relevant literature. However, since there are also many examples of successful cases, settled through negotiation or other ADR processes, one cannot help but wonder about the parameters that can define the success or failure of such processes. Although it should be acknowledged that there are no predetermined rules defining the outcome of such processes, this special issue attempts to unveil, through the examined cases, some of the parameters that may affect the outcome of these cases.

THE CONTEXT

There is growing discussion and research related to the use of ADR in cultural property disputes. Both scholars and international organizations have given much attention to this topic in recent years, stressing the need for achieving optimal solutions to these disputes. ⁴ However, most available research limits the scope of its inquiry to particular aspects of ADR’s applicability, without capturing the many affecting parameters of such disputes. Most studies focus on the legal aspect of these disputes or on the facts around each case. In essence, there is a lack of interdisciplinarity in the examination of this topic, and so more interdisciplinary research is needed in this subject area. This special issue is an attempt to examine this topic from a new lens provided by the disciplines of archaeology, heritage management, and negotiation studies, among others.

Apart from the increasing use of ADR for the settlement of repatriation claims, ⁵ ADR’s popularity in the heritage sector is also reflected in the clauses included in international conventions, especially the conventions under the UN Educational, Scientific, and Cultural Organization (UNESCO), regarding many types of disputes. Several conventions have clauses referring to ADR in cases of disputes between the convention’s parties regarding the interpretation and application of the conventions’ rules, such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Article 17.5); the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (Article 25); and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Article 25). ⁶ Quite interestingly, in all of these conventions, negotiation is recommended as the first step for the resolution of disputes, and mediation is suggested as an alternative to unsuccessful negotiation.

In the context of cultural property disputes, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects highlights that parties to a dispute may “agree to submit the dispute to any court or other competent authority or to arbitration” (Article 8(2)). ⁷ ADR is also promoted at European Union level. The 2014 EU Council Directive (2014/60/EU) on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State states that “the competent authorities of the requested member state may … first facilitate the implementation of an arbitration procedure, in accordance with the national legislation of the requested state” (Article 4(6)). ⁸

ADR is also specifically advocated in the case of Holocaust-related claims to cultural property. Resolution 1205 on ‘Looted Jewish Cultural Property’ of the Parliamentary Assembly of the Council of Europe of 1999 states that “the Assembly encourages co-operation in this question of non-governmental organizations … such encouragement extends to the exploration and evolution of out-of-court forms of dispute resolution such as mediation and expert determination” (clause 16). It thus becomes apparent that ADR has been intensively discussed at the international level. Moreover, a number of international organizations currently offer assistance for the resolution of cultural property disputes. An example of this is the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation, which provides a framework for discussion and negotiation. In 2005, the committee added mediation and conciliation to its mandate and specific ‘Rules of Procedure for Mediation and Conciliation’ were developed for the facilitation of bilateral negotiations. This reflects a growing trend towards ADR methods that are more flexible and that can also consider non-legal issues, which is usually not the case with arbitration.

Nevertheless, although several cases have been resolved with the committee’s assistance over the years (and, currently, the Parthenon Marbles case is the only pending case before the committee), its effectiveness still remains uncertain. In the latest development in this particular case, Greece submitted a request to the committee to mediate the dispute, which was forwarded to the United Kingdom (UK) as a formal invitation to mediation. However, in 2015, the UK rejected the mediation request, stating that the museum “believes that UNESCO involvement is not the best way forward” (these developments are further discussed in Stamatoudi’s article in this issue). ⁹ The case of the Parthenon Marbles is undoubtedly a complex case, and it certainly reveals the limits of what can and cannot realistically be achieved through committees that function as facilitators in such disputes. However, it also provides an opportunity to reflect on the potential effectiveness of similar international procedures and the reasons behind their limited application or even the reluctance of the involved parties to participate in procedures under the auspices of international organizations.

Apart from UNESCO, the International Council of Museums (ICOM) has also long recognized the potential of ADR, and mediation, in particular, for resolving disputes in the museum and heritage sector. The trend toward negotiation was evident in the 2004 revision of ICOM’s Code of Ethics for Museums. Article 6.2 expects dialogues to be established by museums for the return of cultural property, and Article 6.1 encourages the development of partnerships with museums in countries that have lost significant parts of their heritage.

Nevertheless, several opinions and concerns have been expressed regarding the level of involvement that ICOM should have in cultural property disputes. ¹⁰ It has been emphasized that since cultural property disputes are often politically loaded, the involvement of ICOM in this arena would jeopardize the organization’s prestige. ¹¹ Indeed, the extent of involvement of an international body in such cases is a sensitive issue, and equal balances may be hard to find. The type and level of involvement is crucial since it can constitute one of the reasons why parties appear reluctant to follow such processes. The potentially “patronizing role” that such international organizations may adopt, and the need of the involved parties to remain “free” of any type of intervention (no matter how invasive this intervention may be), could be one of the reasons for the limited effectiveness of such processes.

It may be due to this sensitivity and need for equal balances that international organizations have placed a growing emphasis on less “invasive” ADR processes, such as mediation. For example, apart from UNESCO’s mediation procedure, ICOM has launched the Art and Cultural Heritage Mediation program in 2011 as a not-for-profit mediation service specially designed for cultural property disputes. ¹² However, the effectiveness of this particular process remains to be seen since, although certain parties have approached ICOM with pending requests, ¹³ no cases have been resolved so far through this program. ¹⁴

In the absence of many successful examples, the role that international organizations can play in such cases still remains uncertain, especially when taking into account past cases that, despite their successful outcome, have also attracted criticism. For example, ICOM was involved in the Makonde mask case, ¹⁵ which was settled in 2010, by offering its good offices. However, the outcome of the case, and the fact that the mask was returned as a donation, attracted criticism by some scholars raising more questions on the role of international organizations and their potential influences, positive or negative, on such cases. ¹⁶

Thus, both the level of involvement and the potential influences of international organizations on such cases should be revisited in an attempt to create more efficient resolution mechanisms. More importantly, the effectiveness of these organizations on this matter can also be affected by the possible sanctions for non-compliance, which are currently non-existent. Currently, parties that fail to respond to UNESCO’s invitations, or museums that do not adhere to the provisions of ICOM’s Code of Ethics on cultural property disputes, do not face any sanctions. This raises questions on the role that such organizations can play in both the protection of cultural heritage, in general, and the resolution of cultural property disputes, in particular. Such questions are more pressing than ever, and solutions are urgently needed, especially in light of the recent destruction of Palmyra and other archaeological sites of universal importance.

CURRENT DISCUSSIONS ON ADR

As mentioned above, ADR is on the rise in the cultural heritage sector, and in recent years, less “invasive” ADR methods for resolving cultural property disputes have been promoted by international organizations, such as negotiation and mediation, instead of arbitration. As international organizations become more aware of ADR’s potential for resolving cultural property disputes, the involved parties have even more ADR options to explore. However, despite the growing number of attempts to focus on alternative processes of resolution and the growing literature on the use of ADR, it appears that the way these processes work in the context of cultural property disputes has not yet been tackled in great detail. More importantly, what has not been systematically studied and explored is the identification of the various parameters that affect an ADR process and the interaction of these parameters.

One of the central issues in discussion relates to which body can or should be responsible for resolving cultural property disputes. This is particularly important when examining the role of international organizations such as UNESCO or ICOM in these disputes. Within the context of the possibly politicized and patronizing role of international bodies, there have been many proposals in the past for a permanent resolution mechanism for cultural property disputes. This is the subject of many studies so far, in which different possible mechanisms were suggested, without any of them being implemented thus far. ¹⁷ All of these proposals have been accompanied by a set of questions regarding the implementation process of these mechanisms, the rules by which they will operate, the scope and variety of the cases they will cover, and other procedural issues. However, despite the available proposals, all of these questions have usually been left open for further discussion, rendering their usefulness questionable.

Quite frequently, the discussion in relevant literature concentrates on the analysis of the advantages of the use of such methods in the area of cultural property. Many scholars focus on the comparison of litigation to ADR and especially on the presentation of the obstacles of litigation in cases of cultural property disputes or on the current trends in ADR and its use by organizations in the area of cultural heritage. Authors who have proceeded one step further to analyze procedural matters or issues of applicable rules and so forth have done so only for arbitration, ¹⁸ and there are very limited guidelines or proposals regarding negotiation. Thus, the possibilities of negotiation, mediation, or even conciliation, apart from the presentation of their definitions and their advantages for cultural property disputes, have not been fully examined. Significantly, there is a lack of interdisciplinary analysis, which is essential, especially for cultural property disputes that touch upon a series of issues: cultural, legal, archaeological, and ethical.

Although many initiatives for the use of ADR are currently in place and are constantly promoted by several international organizations, there is limited literature for the encouragement or guidance of the parties to get involved in such processes. Of course, ADR’s advantages are analyzed in the current literature, but the lack of additional information on the process, as well as obstacles that might arise during the process and ways to overcome them, may lead to an unwillingness or even a hesitation by the involved parties to enter such processes in the first place.

PRESENTATION OF ARTICLES IN THIS SPECIAL ISSUE

This special issue comprises of five articles, including two theoretical papers informed by rich case studies (Shehade and Fouseki; Woodhead) and three articles based on case studies (Tsirogiannis; Simpson; Stamatoudi). The first article entitled “The Politics of Culture and the Culture of Politics: Examining the Role of Politics and Diplomacy in Cultural Property Disputes,” by Maria Shehade and Kalliopi Fouseki, focuses on the role of politics as an affecting parameter during the negotiation for the resolution of cultural property disputes (especially disputes associated with the repatriation of cultural artifacts). The article argues that negotiation is a dynamic and poly-parametric process that evolves over time as a result of the interaction of several factors. The article focuses on one of the most critical factors, the factor of politics. As the article contends, a synthesis of research on how politics affect the evolution of negotiation has not been achieved so far. The article focuses on states acting as claimants for the repatriation of cultural objects and argues that negotiation in such cases is affected by the discourse and argumentation used, the available means to pressure the other party to negotiate, the possible political interventions, and the international political scene and its effect on the development of the dispute. Politics is only one of the several factors that affect and shape a negotiation (as well as any form of ADR process). The following articles make reference to a greater or lesser extent to some other factors affecting these processes.

The second article is entitled “Putting into Place Solutions for Nazi Era Dispossessions of Cultural Objects: The UK Experience” by Charlotte Woodhead. The article examines the practical outcomes of claims heard by the Spoliation Advisory Panel (SAP), a process established by the UK government in 2000 that has dealt extensively with Nazi era dispossessions of cultural objects. The article explores the effectiveness of the Panel’s work in overcoming some of the shortcomings of litigation. It further analyzes the way in which remedies are used to respond to the moral severity of the claim and discusses the ways in which the parties have put into effect the Panel’s recommendations, given the absence of any legal sanction for non-compliance. The article argues that despite the absence of any legal sanction for non-compliance with the Panel’s recommendations, “there nevertheless appears to be a respect for the Panel’s recommendations in practical terms.” ¹⁹ The article indicates possible obstacles affecting the effectiveness of the Panel’s recommendations, including legal impediments to returning an object or cases where parties have reached a consensus on a financial remedy instead of a return. Interestingly, as will be illustrated in the following articles in this special issue, the role of evidence is critical in the outcome of an ADR process. New evidence can delay the outcome, but, in the case of the Panel, evidential barriers can be surmounted as the Panel is able to respond to moral claims that might otherwise not attract a remedy in a variety of different remedial ways.

The article “False Closure? Known Unknowns in Repatriated Antiquities Cases” by Christos Tsirogiannis provides a practical case clearly outlining the role of evidence in the repatriation of cultural objects. Tsirogiannis’s article vividly explicates the power of evidence in the case of looted artifacts that lie at the core of state claims for repatriation. However, Tsirogiannis also argues that although the actual repatriation should require evidence, there have been cases of repatriated looted objects that were not accompanied by sufficient evidence. He uses the cases of the Vivia Sabina statue and the Kyknos krater—both claimed by Italy—in order to illustrate that repatriation of cultural objects can occur without the provision of adequate evidence.

In this case, objects of doubtful origin were returned to Italy because of the cumulative force of the evidence presented for the rest of the antiquities claimed by Italy. It seems to be important, therefore, that these two objects were claimed among other antiquities for which there was concrete evidence of their Italian origin. In other words, the Italians, intentionally or not, grouped objects of doubtful origin with objects of an established origin in large-scale claims, thereby strengthening by association their claim to the objects of doubtful origin. Regardless of whether the evidence on which the claim was based was accurate and sufficient for these two objects, the accumulated evidence for a larger group of objects was powerful enough to lead to the repatriation of the two objects discussed in the article.

In addition, it becomes obvious that evidence is not always the only reason for the success of a repatriation claim. Tsirogiannis argues that an additional factor, which is critical for ADR processes, may have played a role. This is the factor of reputation. As Tsirogiannis states, “since we would expect that the claim on each object would be checked by legal and archaeological experts on behalf of the museums and collectors, the decisions to give the doubtful objects to the Italians seem to have weighed reputational factors above the requirement for strict evidence.” ²⁰ The reputational factor is associated with the bad reputation for an institution resulting from a court-case involving an undoubtedly tainted artefact, the museum and collector’s desire to keep the negotiations private, the likelihood of negative publicity and the fear of provoking further claims (by Italy or by other countries) from circumstantial information revealed if the case reached the courts.

The role of evidence and reputation in the outcome of an ADR process (especially a negotiation process) is further emphasized by Irini Stamatoudi in her paper “Alternative Dispute Resolution (ADR) 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.” Stamatoudi outlines a series of case studies on the return of cultural objects in which she has personally been involved. She argues that the successful outcome of an ADR process results from the combination of several factors, including pressure from the courts and the press, the change in attitudes concerning the acquisition policy of the museum, the international trends in the area, the reputations and interests at stake, and the preparation, research, and collection of information/investigation and the skills of the negotiators involved.

In her personal experience, Stamatoudi identifies time and cost-effectiveness as catalytic factors in the negotiation process, including the fact that a court decision could not be guaranteed for either party. She points out that, in cases resolved through ADR, the involved parties proved to be willing to take into account ethical and public policy concerns in order to reach mutually acceptable solutions and shape the way towards their future cooperation and establishment of good relations.

Finally, the article “The ‘Begram Ivories’: A Successful Case of Restitution of Some Antiquities Stolen from the National Museum of Afghanistan in Kabul” by St John Simpson illustrates an example of a novel partnership between private organizations and international museums towards the research, safeguarding, and successful return of illicitly trafficked objects. The article focuses on a group of 20 carved ivory and bone furniture overlays excavated at Begram in 1937 and 1939, which were part of the collection of the National Museum of Afghanistan in Kabul from the point of division with the excavators in 1937 and 1946 up to the outbreak of civil war in 1992. These objects, generally known as the Begram ivories, were stolen and re-acquired by private means with the view that they would be returned to Kabul. The objects were conserved, scientifically analyzed, and displayed at the British Museum as part of the exhibition “Afghanistan: Crossroads of the Ancient World,” raising awareness of the scale of loss from the museum in Kabul while also informing about their safe return to Kabul. Simpson rightly highlights that this type of collaboration requires time, close dialogue, and mutual trust.

Simpson’s article provides an opportunity to consider the way forward when it comes to ADR. A mutually agreed and constructive consensus between the involved parties can have the potential for further collaboration (as also pointed out by Stamatoudi). For this to occur, all affecting factors should be considered, including politics, the role of evidence, in conjunction with reputational factors and the uncertainty of court decisions and outcomes. This special issue emphasizes and examines some of these factors. Nevertheless, more research needs to be done to identify the multiple factors affecting an ADR process and the interaction of such factors over time on both the process itself and the involved parties. ADR is certainly a complex process that, if studied in more depth, can have positive outcomes for all of the involved parties.

Interestingly, and maybe not surprisingly, it becomes apparent that ADR seems to be more effective in cases of indigenous heritage, human remains, and Nazi looted material, contrary to cases involving antiquities. ²¹ This is because in such cases, apart from the provisions of evidence, ethical and moral concerns are also taken into account. On the contrary, in cases where antiquities are the subject of long-standing demands, the arguments are solely based on the available evidence, without usually taking into account moral or ethical concerns.

ADR: SOME FINAL THOUGHTS

The articles in this special issue demonstrate that negotiations are facilitated by mutual respect and a willingness by the parties involved to entertain the potential for compromise. Nevertheless, as will be shown, compelling evidence may push reluctant possessors to accede finally to the return of illicitly trafficked cultural objects. This has been evident in museum responses to claims made by Italy. Arguably, the “game-changer” has been incontrovertible evidence of criminality by networks engaged in trafficking looted objects, produced by the Carabinieri per la Tutela del Patrimonio Culturale. ²² This has resulted in long-standing demands for cultural objects being met by negotiation, where the outcome of litigation for their recovery by the claimant suddenly looked much more likely. An illustrative example is the resolution of a long-standing claim by Italy for the return of objects from the Ny Carlsberg Glyptotek in Copenhagen, which was presented in a press release by the two parties, announcing an agreement. The press release announces the return of “a number of archaeological objects … acquired at the beginning of the 1970s” as “the result of the academic dialogue which has proceeded since the spring of 2012.” ²³

It is interesting to contrast this with the coverage on the “Chasing Aphrodite” blog, which states that “[a]fter years of stonewalling, the Ny Carlsberg Glyptotek has agreed to return hundreds of looted antiquities to Italy.” ²⁴ The blog also refers to American museums that have been previously persuaded in light of the available evidence. Italy had the evidence to pursue their claims through the courts as a stick, but the alternative negotiated settlement came with the promise of future loan exchanges and collaboration.

On the other hand, there is a paradox appearing in certain cases in which illicitly trafficked objects from countries at war were protected through illicit trade, as the case of the Bergram ivories revealed. In other words, the catastrophic process of illicit trafficking resulted in the protection of cultural heritage in this instance. However, this does not mean that conflict and war can justify the illicit trade of cultural objects removed from war zones. Because of the growing number of illicitly traded objects from war zones, which are a product of illicit excavations and have never been documented, any future efforts to repatriate these objects back to their countries of origin through ADR may not have the same success as the Begram ivories case, due to the lack of sufficient evidence on their origin. Given the current events in Iraq and Syria, it does bring to the fore the urgent need to develop mechanisms for the protection of cultural heritage in countries in a state of conflict, so as to also facilitate subsequent repatriation claims.

ADR that is related to the repatriation of cultural objects is complex because it is multi-dimensional. Ethical, legal, and cultural issues are interwoven, rendering the process of ADR a complex and dynamic process that changes over time. Various factors can trigger a turn in this process such as politics, the presence of evidence related to illicitly trafficked objects, and the reputation of the museum in which the objects have ended up. There are certainly many more factors that may affect the process that need to be studied in detail and in conjunction with each other, given that ADR is a systemic process.

In view of this, future research could focus on the examination of each of these parameters and the extent to which they can affect the process per se. Moreover, the role of international organizations in these disputes should be revisited as well as the reasons for the limited effectiveness of available international procedures. One of the main challenges in future attempts to appreciate the effectiveness of ADR processes is the confidentiality surrounding such cases, which may impede our understanding of the effectiveness of the processes followed. International organizations may have a role to play in overcoming the confidentiality barrier by collecting and providing information on successfully resolved cases. Future research could also be more centered on the parties that have been involved in past and ongoing cases, their anxieties, concerns, and desires. This will facilitate the creation of effective mechanisms, which will be more people-centric and will accommodate the needs of all of the parties involved in the quest for optimal solutions.