Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
Dr. Paloma Villarreal Suárez de Cepeda*
1. The Filandia Collection or Quimbaya Treasure
The Filandia Collection, also known as the Quimbaya Treasure, is an exceptional set of archaeological objects from pre-Hispanic tombs, discovered in 1891 near Filandia, Colombia by huaqueros or tomb looters. That same year, the Colombian government acquired the collection. The artifacts traveled to Spain in 1892 for exhibition during the commemoration of the Fourth Centenary of the Discovery of America. In May 1893, the Colombian government formally handed over the collection to Spain’s Queen Regent María Cristina in gratitude for her intervention in the border dispute between Colombia and Venezuela, which culminated in the adoption of the so-called, and still valid, Spanish Arbitration Award, or the Award in the Boundary Dispute Between the Republic of Colombia and the United States of Venezuela.
The 122 archaeological pieces that make up this extraordinary collection are currently preserved and exhibited in the Museum of America in Madrid.
2. Request by the Colombian Constitutional Court
In 2017, the Colombian Constitutional Court ruled that the act of handing over the Filandia Collection must be examined based on the current Article 72 of the 1991 Colombian Constitution rather than the international law in force at the time (the principle of contemporaneity, which refers to interpreting a legal act based on the law applicable at the time it was created). Article 72 classifies the collection as cultural heritage, rendering it inalienable, non-seizable, and imperishable (doctrine of “inter-temporal” law, which addresses the application of current law to past acts or events). The Court ordered the relevant authorities to undertake all necessary diplomatic, administrative, legal, and economic measures with Spain to achieve its repatriation.
From the perspective of current international law, the Court acknowledged that various dispute resolution mechanisms exist, such as bilateral agreements, good offices, mediation, and conciliation, among others. In its view, these diplomatic mechanisms offer the following advantages: first, the dispute can be resolved outside the framework of international treaties. Second, any solution reached would be implemented in good faith.
After the current Spanish Government rejected an informal request for the collection’s return by the Quindío Academy of History in 2022, a formal restitution request was submitted to the Government of Spain on May 9, 2024. The Colombian Government sent formal letters to the Minister of Foreign Affairs, European Union, and Cooperation of Spain, as well as to the Minister of Culture, requesting the “recovery” of the Filandia Collection. On December 5, the Ministry of Cultures, Arts, and Knowledge, along with the Ministry of Foreign Affairs, announced the dispatch of a second letter.
3. Spanish Regulations
3.1 Domestic Law
Article 1 of the Spanish Historical Heritage Act, applicable throughout Spain’s national territory, defines Spanish historical heritage as the collection of immovable and movable property of artistic, historical, paleontological, archaeological, ethnographic, scientific, or technical interest. It also includes documentary and bibliographic heritage, archaeological sites and zones, as well as natural sites, gardens, and parks of artistic, historical, or anthropological value. The law aims to protect, enhance, and transmit this heritage to future generations.
Article 2.1 of the law states that, “without prejudice to the competencies of other public authorities, the essential duties and powers of the State Administration are to ensure the conservation of Spanish Historical Heritage and to promote its enrichment. The State will protect such assets from illicit exportation and looting.”
A key form of protecting exceptional heritage is its classification as a Cultural Interest Asset, commonly referred to as BIC (“Bien de Interés Cultural”). BIC status can be granted either ex lege or through an individualized administrative declaration via Royal Decree. Additionally, Article 27 establishes that collections held in Spanish museums are automatically considered BIC. The declaration of BIC status prohibits the exportation of such assets, except for temporary removals, typically linked to their exhibition in foreign museum institutions under loan agreements that promote the exchange of objects for purely cultural or educational purposes.
The only lawful possibility for the permanent removal of a BIC belonging to Spanish Historical Heritage from the national territory, thereby resulting in its definitive loss, is through an exchange (“permuta”). Article 34 of the Spanish Historical Heritage Act stipulates:
“The Government may negotiate with other states the exchange of state-owned movable assets belonging to Spanish Historical Heritage for others of at least equal value and historical significance. Approval will require a favorable report from the Royal Academies of History and Fine Arts of San Fernando and the Qualification, Valuation, and Export Board for Spanish Historical Heritage Assets.”
The only exchange carried out in accordance with the requirements of this article took place in 2010 under the government of José Luis Rodríguez Zapatero and the Spanish Socialist Workers’ Party. Spain handed over to Mexico a flag preserved in the Army Museum, which had been taken from the troops of Priest Hidalgo at the Calderón Bridge in 1811, and in return, received a Coronela flag from the King Ferdinand Battalion, preserved in the Chapultepec Museum, originating from the Battle of Tampico in 1829.
As a BIC, the Filandia Collection cannot currently be legally delivered to Colombia except through the aforementioned exchange mechanism.
3.2 International Law
Public International Law, so named by analogy to national law, is fundamentally different from its national counterpart, as it lacks a centralized authority, such as a state, to justify its use as a mechanism for conflict resolution through force.
Whether the agreements reached by states or other subjects of international law, such as international organizations like the United Nations, will be honored depends on the political will of each party. These parties assess the risks of not fulfilling commitments based on the criteria of expediency and the capacity to defend against possible reprisals from third states.
Agreements can take various forms, but only those treaties intended to produce legal effects— creating rights and obligations between the parties—are formally binding. Therefore, agreements or instruments that generate only political commitments, such as gentlemen’s agreements, joint communiqués, declarations of principles, or memoranda of understanding, are not considered international treaties.
In Spain, constitutional norms and the Law 25/2014 of November 27 on Treaties and Other International Agreements govern the valid conclusion of such agreements. This law differentiates between international treaties, administrative international agreements, and non-regulatory international agreements. The latter is defined in Article 2(c) as:
“An international agreement that does not constitute a treaty or an administrative international agreement, concluded by the State, the Government, bodies, agencies, and entities of the General State Administration, Autonomous Communities and Cities of Ceuta and Melilla, Local Entities, public universities, and any other public-law entities with competence to do so. These agreements contain declarations of intent or establish political, technical, or logistical commitments and do not constitute a source of international obligations nor are governed by international law.”
These are mere political commitments, declarations of intent, or non-legal coordination agreements. Such agreements are not subject to the procedures required for treaties and are not published in the Official State Gazette.
The current Spanish Minister of Culture, a career diplomat, has noted in the context of Colombia’s claim that Spain is obliged to undertake a “decolonizing” review of its museums based on agreements or best practices from the ICOM (“International Council of Museums”), the UNESCO World Conference on Cultural Policies and Sustainable Development (Mondiacult), and the 10th Ibero-American Museum Meeting of 2022. The Minister has cited these frameworks to support the need for such a review.
The most recent Mondiacult summit took place in 2022 in Mexico and concluded with a Declaration that makes no mention of “decolonization” or “colonial” issues. Likewise, the Conference Report published by the Mexican Government does not use these terms.
The 10th Ibero-American Museum Meeting of 2022, held simultaneously with the Conference, resulted in a final Declaration in which the “representatives” of Ibero-American countries proposed and promoted reflection and commitment to incorporating a “decolonial perspective in museum institutions and processes.” Other commitments included incorporating a culture of peace in museums, addressing gender perspectives, climate emergencies, combating racism and xenophobia, and emphasizing solidarity-based values of ancestral knowledge and practices.
However, the list of recommendations does not mention the “decolonization” of museums, but instead includes more general concepts, such as strengthening funding, combating illicit trafficking, promoting digitalization, enhancing the educational role of museums, and so on. In any case, the representatives who signed this Declaration primarily hold management rather than political positions, which means they lack the authority or legitimacy to assume obligations on behalf of their respective countries.
4. Conclusion
The Filandia Collection consists of relics—material remains produced by deceased individuals that are part of our present moment and tied directly to our history. Relics by themselves explain nothing; they always require a narrative to endow them with meaning. Relics and narratives, therefore, are the foundational materials that nourish history as an academic discipline, allowing people to study the actions of others long deceased while generating new narratives in the process.
Thus, it can be said that the international conflict surrounding these relics is closely tied to the history of both Spain and Colombia, but is necessarily political as well, given that history is a discipline capable of guiding the future of a political society. In the case of the Filandia Collection, Colombia seeks to “know itself” or “understand its identity” through relics from the pre-Columbian period, aiming to distance itself from its Hispanic heritage.
Although the collection was handed over in the late 19th century as a gesture of gratitude for Spain’s mediation in the conflict with Venezuela, the current Colombian government, along with Spain’s current Minister of Culture, seek to seize the opportunity offered by the decolonization movement. If this movement affects any European nation, it would not necessarily be limited to Spain but will likely extend to other nations such as Britain, France, the Netherlands, and Belgium.
Opposing this political trend, however, is the solid defense of Spanish legislation, which may or may not prove insurmountable depending on the current government’s ability to pass legislative amendments. Such amendments would replace the existing regulations that limit the government’s ability to act by requiring the approval of independent institutions in the case of an exchange. There is always the possibility that these amendments could aim to give the government free rein to act as it sees fit within a future “decolonization” framework.
In any case, the current Colombian government finds itself in the best position to secure the return of the Filandia collection from Spain. This opportunity arises not only from Colombia’s determined efforts to reclaim its “pre-Columbian heritage” as a means of redefining its national identity but also from Spain’s internal political fragmentation. Colombia’s strength contrasts sharply with Spain’s weakened position in reclaiming its own political losses, such as the spoils of Napoleonic looting from France.
The fate of the Filandia Collection highlights the complex relationship between history, politics, and philosophy, as the idea of identity is a philosophical idea. It emphasizes how relics, far from being static artifacts, are dynamic symbols that all nations mobilize to shape the present and future. The resolution of this conflict will serve as a case study in how the decolonization movement continues to challenge historical narratives and power balance.
Dr. Paloma holds a PhD in Law and divides her teaching activity between training future lawyers and teaching the Master’s Degree in Legal Practice, specializing in Art Law. She is the lead lecturer for the Legal Aspects of Trade in Artistic and Collectible Goods course in the Master’s Degree in Art Markets, as well as the Master’s Degree in Archaeological and Museum Projects, both at UDIMA.
