perspectives

A Rock and a Hard Place

India's myopic approach to recovering the Kohinoor

By PRASHANT REDDY THIKKAVARAPU | 1 September 2016

On 18 April, the Supreme Court heard a Public Interest Litigation seeking the restitution to India of, among other cultural artefacts, the Kohinoor diamond, which is currently part of the British crown jewels. Arguing on behalf of the Indian government against any official action, Ranjit Kumar, the solicitor general, told the court, “Kohinoor cannot be said to be forcibly taken or stolen as it was given by the successors of Maharaja Ranjit Singh to East India Company in 1849 as compensation for helping them in the Sikh wars.” This caught many by surprise. Though the government had not actively pursued the return of the diamond in recent years, it had consistently asserted India’s claim to the gem since very shortly after Independence. Kumar’s position was lambasted by the media, which took it as an Indian surrender.

The next day, the government declared “its resolve to make all possible efforts to bring back the Kohinoor diamond in an amicable manner.” On 23 July, it convened a meeting to discuss potential strategies, which involved the ministers of both foreign affairs and culture. Among the options reportedly considered was a treaty with the United Kingdom to give up Indian claims to all other artefacts misappropriated by the British in exchange for the return of the Kohinoor.

This was a startling proposition. Unlike the Kohinoor, which is just a rock, several of these other artefacts are pieces of exceptional workmanship. Take the Amaravati Marbles, a collection of 120 Buddhist sculptures and inscriptions displayed in the British Museum. These were part of a ruined stupa dating back to the second century BCE in what is now Andhra Pradesh, and were excavated and shipped to Britain in the nineteenth century. Recently, the government of Andhra Pradesh has sought their restitution. And these marbles are only a small part of the British Museum’s extensive collection of objects taken from India during colonial rule. Elsewhere, there is also Tipu’s Tiger. This mechanical toy, commissioned by the eighteenth-century monarch Tipu Sultan, is currently one of the more popular exhibits at the Victoria and Albert Museum—which also holds a large number of looted Indian artefacts. Unfortunately, most Indians place little value in the return of these objects, if they are aware of them at all.

That the government would even consider giving up other artefacts for the Kohinoor reveals the poverty of India’s approach to seeking the restitution of its cultural artefacts—particularly from the United Kingdom, which has long remained an outlier in the international framework on the trade and protection of cultural artefacts. But even such a craven offer is unlikely to yield any results with the United Kingdom, which has consistently maintained that India has no legal grounds for the restitution of artefacts that came into British possession under colonial rule. In light of this, if India is to recover the Kohinoor or anything else, what the country needs is not a quick compromise of the kind the government considered, but rather a long-term diplomatic strategy that expressly links demands for restitution to the immorality of colonialism.Building such a strategy is no easy task, and in order to understand the complexity of the Indian position, it is necessary to first understand the international law on cultural restitution.

Since time immemorial, conquerors have seized artefacts from subjugated peoples with impunity, whether out of greed or a desire to make apparent their control. But the Second World War changed the rules of the game. Adolf Hitler and his minister Hermann Goering organised the systematic plunder of artwork throughout territories under German occupation, including from famous French museums (which themselves contain art looted by Napoleon) and from Jewish families. Many of these objects made it to German museums, or into the personal collections of Nazi leaders such as Goering. In 1943, even before the war ended, the Allies, including the United Kingdom, issued the Inter-Allied Declaration against Acts of Dispossession committed in Territories under Enemy Occupation and Control, also known as the London Declaration. This stated that the Allies could declare invalid all transfers of property, including of artwork, executed by the Axis powers in occupied territories. The declaration covered even “those transactions apparently legal in form, even when they purport to be voluntarily effected”—that is, even in cases where art was supposedly sold voluntarily by the owner, it would be presumed that the sale occurred under duress. During the war, the Allies constituted a special unit, nicknamed the Monuments Men, to retrieve stolen art; and, after the war ended, Germany was forced to return the cultural property it had looted. The international acceptance that the German plunder was illegal has helped Jewish families reclaim art even many decades after the war ended. In 2006, the ‘Portrait of Adele Bloch-Bauer I,’ by the Austrian painter Gustav Klimt, was returned to a descendant of the family that owned the painting before the Nazis stole it, following a long legal battle in the United States and Austria.

In the years after the Second World War, the newly created United Nations Educational, Scientific and Cultural Organisation, or UNESCO, spearheaded the creation of the Convention on the Protection of Cultural Property in the Event of Armed Conflict, which was signed by 49 countries at The Hague in 1954. This treaty created a legal framework that recognised the importance of cultural property, and required its signatories to protect cultural property from destruction during armed conflict. The United Kingdom signed the convention, but, crucially, did not sign its First Protocol. Scholars have speculated that the country’s specific concern was a clause stating that cultural property “shall never be retained as war reparations,” and that such property would be returned to competent authorities in its country of origin after a cessation of hostilities. The British were likely worried that agreeing to this would open the door for its former colonies to reclaim cultural artefacts, reasoning that their independence struggles were wars of liberation against colonial rule, and could be equated, for instance, to resistance to German occupation during the Second World War. This obligation under the First Protocol, however, was no different to the one imposed by the London Declaration of 1943—an instrument that the British did sign.

Another international treaty pertaining to cultural property is the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This focusses on preventing international commerce in cultural artefacts that have been stolen rather than seized during war, and came into force on 24 April 1972, with clear conditions that it applies only to objects stolen after that date. The record of the negotiations for the treaty show that China had demanded that it also deal with earlier cases, but UNESCO rebuffed it by stating that its treaties normally do not apply retrospectively, and that countries could reach bilateral agreements to handle older thefts. The United Kingdom only signed this convention in 2002.

India cannot press any claim to restitution against the United Kingdom under either the 1954 convention or the 1972 one. But though these instruments leave India without a basis for legal action, they offer the foundation for a strong moral claim. Both of them, and also the London Declaration, concede the principle that cultural artefacts removed from a country or taken from their owners under coercive circumstances should be returned by those who now hold them. What they fail to do is to treat colonialism as an illegitimate political project, the same as any act of territorial aggression. India must act specifically to change that skewed standard, on the part of the United Kingdom and of the West more generally.

There are plenty of examples of how the legal basis for cultural restitution, or the lack of it, depends on governments’ moral positions regarding the circumstances under which the artefacts in question were taken. Consider, for instance, that Jewish claims to artwork looted by Nazi Germany have been met with deserved sympathy in the West, while those by former colonies seeking the return of objects taken from them by the West have not. Many governments recognise how claims of cultural restitution must necessarily draw power from an acknowledgement of the wrongs of colonialism. Between 1972 and 1977, the UN general assembly passed multiple resolutions on the issue of restitution. Resolution 3187, passed in 1973, “recalls” an earlier resolution, the Declaration on the Granting of Independence to Colonial Countries and Peoples, while affirming the need for “prompt restitution to a country of its objets d’art by another country,” and the “special obligation in this connexion of those countries which had access to such valuable objects only as a result of colonial or foreign occupation.” When the assembly passed the Declaration on the Granting of Independence to Colonial Countries and Peoples, in 1960, several colonial powers, including the UK, abstained from the vote. On Resolution 3187, the UK once again abstained.

Getting the UK to acknowledge the illegitimacy of colonial rule will be difficult, but it is not impossible. Other countries have already achieved landmarks in that project. In 1997, the British prime minister apologised for the Great Famine in Ireland under British rule in the mid 1800s. In 2004, the UK parliament enacted the Human Tissue Act, allowing the return of human remains displayed in British museum to their native communities. One of the groups behind this was the Tasmanian Aboriginal Centre, an Australian organisation that had been demanding the return of the remains of 17 Tasmanian Aborigines. In 2013, the British government apologised to Kenyans who suffered torture and abuse during its suppression of a rebellion in the 1950s.

None of these apologies were won overnight. Each was the result of sustained political and diplomatic campaigns. India’s pursuit of redressal for colonial wrongs requires such campaigns too, yet neither the government nor civil society has pushed to make this a significant foreign-policy goal. India hasn’t even bothered to seek official apologies for specific atrocities such as the Bengal famine of 1943, which killed an estimated 3 million people. Private groups have pursued apologies for the Jallianwala Bagh massacre of 1919, but the UK has refused them.

In the recent fracas surrounding the Kohinoor, too, neither public commentators nor the government proposed any long-term approach to eroding the UK’s resistance to addressing the injustices of the colonial era. Yet that is an essential step in laying the ground for the restitution of misappropriated artefacts. The government might consider an immediate return of the Kohinoor in exchange for giving up all other Indian artefacts in the UK a victory, but in fact that would be a ringing defeat. It should not entertain any such deals.

Prashant Reddy Thikkavarapu studied law at the National Law School of India University and Stanford Law School, and is currently a research associate at the school of law at Singapore Management University. He tweets as @preddy85.

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