The Claim For the Filandia Collection or Quimbaya Treasure of Colombia Against Spain

Mar 12, 2025 | HALO x ILJ Collaboration, Online Scholarship

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.

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Eighty Years Later, Progress of Nazi-Era Restitution Remains Inconsistent

Mar 12, 2025 | HALO x ILJ Collaboration, Online Scholarship

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Eleanor Gartstein

The Second World War saw the Nazis carry out the largest scale of art and cultural property plundering in history. It was not until fifty-three years after the war ended, however, that the first international agreement specifically addressing Nazi-era restitution was realized. The Washington Conference on Holocaust Era Assets was held in 1998, resulting in eleven agreed upon Principles of Nazi-Confiscated Art. These principles have since served as the guiding global framework for ownership disputes arising from the Nazi-era. 

The decades-long delay came alongside 1998’s Nazi War Crimes Disclosure Act, implemented in response to strong calls for the declassification of government records concerning Nazi activity. As the public gained access to over 8.5 million pages of records, the “largest congressionally mandated, single-subject declassification effort in history,” many victims and heirs gained the necessary documentation to move forward with their claims. 

The principal aim of the Washington Principles is the pursuit of “just and fair” solutions. This key phrase, which appears twice in the principles, unfortunately suffers from significant ambiguity. Principle 8 recognizes this, conceding that each “just and fair” solution can vary according to specific case circumstances. This is where Principle 11 refers to the need for a designated forum to assist in addressing these variations, encouraging the development of alternative dispute resolution mechanisms at a national level. 

Given the Washington Principles’ non-binding status, out of the forty-four countries in attendance at the Washington Conference, only five have since made substantive moves toward effectuating Principle 11. The five nations with existing designated commissions are Austria, France, Germany, the Netherlands, and the United Kingdom. 

The Existing Commissions 

Austria was the first country to make concerted efforts towards Nazi-era restitution, establishing the Commission for Provenance Research in February of 1998, even prior to the Washington Principles, to investigate their public federal collections. The day after the Washington Conference concluded, Austria also established their Art Restitution Advisory Board (the Beirat). The Commission and Beirat now work closely together, forwarding restitution recommendations to the Federal Minister for a final decision. The Federal Minister is empowered to do so under the Art Restitution Act, which was also enacted in 1998 to authorize the return of objects. 

Not long after, in September of 1999, France created the Commission for the Compensation of Victims of Spoliation That Have Occurred Due to the Anti-Semitic Legislation in Force During the Occupation (CIVS). The CIVS, now called the Commission for the Restitution of Property and the Compensation of Victims of Anti-Semitic Spoliations, has expanded several times since. Originally bound to cases committed in France from 1940 to 1944, the CIVS is now competent to advise on anti-Semitic spoliation in any country influenced by Nazi Germany between 1933 and 1945, if that cultural property now resides in a French public collection. In February of 2024, a new law went into force finally enabling restitution from French national holding institutions. This was previously barred by the principle of inalienability, which prohibits the deaccessioning of cultural property held in the public domain.

The United Kingdom established its Spoliation Advisory Panel (SAP) in 2000 to hear claims on cultural property lost from 1933 to 1945, now held in a national collection. Given the United Kingdom was never occupied by the Third Reich, cases tend to focus on problematic provenance for pieces that were later imported to the United Kingdom. Even with the SAP’s establishment, the United Kingdom was not able to actually effectuate restitution until 2009. The Holocaust (Return of Cultural Objects) Act was passed that year to confer power on museums to deaccession items on certain grounds related to the Nazi era. The law was originally valid for 10 years only, but a 2019 amendment removed the ten-year limit to enable future claims. Recent efforts also show progressive signs of reducing the United Kingdom’s otherwise steadfast barriers to removing property from national collections.

The Netherlands took action in 2001 to create its Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War  (Restitutions Committee). In cases involving artwork held by the Dutch state, the Restitutions Committee presents non-binding advice to the Minister of Education, Culture, and Science. Alternatively, for independently held artwork, the commission issues binding advice between private parties who choose to go through the panel as an alternative dispute mechanism. 

Until this year, Germany’s Beratende Kommission had from its creation in 2003 operated under an applied theory of subsidiarity, which encourages decisions be made at a local level rather than by a central authority. This meant the commission would issue non-binding recommendations only where a claimant and museum first attempted to reach a bilateral settlement, failed to achieve that settlement, and then jointly agreed to submit their case. This limitation’s practical effect led to most disputes never being heard at all. However, in January, Germany approved a major reform in recognition of this, introducing a new tribunal, the Arbitration Court for Nazi-Looted Property. The new system will involve a binding, unilaterally accessible arbitration process. 

Regional Developments

This move by Germany is representative of a larger, continuous push to advance restitution measures. The sheer creation of commissions by Austria, France, Germany, the Netherlands, and the United Kingdom all demonstrate a sincere effort to carry out the aims put forth at the Washington Conference. Given civil law jurisdictions in Europe tend to afford protection to good-faith buyers in cases of stolen property, the presence of commissions can be especially impactful to ultimate ownership outcomes. Were it not for the establishment of these commissions, it is likely that most claims would be otherwise dismissed on statute of limitations grounds. 

While national-level forums bring great value, claims involving multiple nations can encounter more friction when faced with structural inconsistencies. In efforts to facilitate greater cross-border harmony, the European states reconvened at the 2017 London Conference, titled “70 Years and Counting: The Final Opportunity?” The given title stressed that even decades later, the response to Holocaust Era Assets remained inadequate. Accordingly, this Conference was predicated on the idea that it “not become simply another set of lukewarm promises.” While the 2017 London Conference acknowledged the structural differences between the committees, cooperative barriers have persisted. 

In 2019, the five countries established the Network of European Restitution Committees on Nazi-Looted Art, which aims to link the existing commissions to enable information sharing, joint action filings, and align endeavors. In the same year, a guide was published to aid both researchers and claimants in understanding the workings, and differences, of each commission. The Network maintains that “fair and just solutions for the spoliation of artwork can only be made effectively at international level: the mobility of looted cultural property adds to the geographic dispersal of victims.” 

International Developments

This persisting need to combine efforts on a more global scale has prompted multiple international follow-ups to the Washington Conference. The first, in 2009, produced the Terezin Declaration on Holocaust Era Assets and Related Issues, which recognizes that a substantial portion of property has yet to be restituted or compensated and explicitly urges those nations that have not already done so to establish mechanisms that can better assist claimants. 

Additionally, the Terezin Declaration asserts that restitution or compensation should be “expeditious, simple, accessible, transparent, and neither burdensome nor costly to the individual claimant.” The much more recent 2024 Best Practices for the Washington Principles on Nazi-Confiscated Art, procured fifteen years after Terezin, continues to stress the need for appropriate arbitration mechanisms.

“Countries are encouraged to create an independent expert body whose composition may be the states’ responsibility, to which unilateral access is available that can adjudicate cases of art and cultural property and arrive at or recommend a binding or non-binding decision (for example, the use of commissions in Austria, France, Germany, Netherlands, and the United Kingdom). Such bodies should have balanced, expert, and representative membership. Use of alternative resolution mechanisms is encouraged to avoid litigation.”

While the Terezin Declaration and the Best Practices reflect continued, good-faith efforts, they also demonstrate that progress has been slow. Even so, the revisitations have instituted change and kept Nazi-era restitution at the forefront of conversations. For example, Germany’s shift this year to allow for unilateral appeals responds to the Best Practice’s call for claimants to have access to panels, even if the current owner does not consent. This illustrates major framework adjustments remain not only ongoing, but achievable. 

Conclusion 

With this year marking the 80-year anniversary since the end of World War II, the issue of Nazi-era restitution has received varying degrees of attention globally. In the many places where victims and heirs are restricted to seeking restitution through the courts, contested ownership is unlikely to result in the aim of “just and fair” solutions as set in 1998. The prospects of existing commission frameworks can serve as a guide for the creation of new panels in countries that have yet to participate. Their limitations can also serve as a lesson into what should be avoided and amended. Irrespectively, the global displacement of art and cultural property resulting from the Nazi-era demands collaborative efforts across borders.

* Eleanor Gartstein is a second-year law student at the University of California, Berkeley School of Law. She holds a B.B.A. in International Business and a B.A. in Art History from the University of Texas at Austin. Her academic interests include international cultural heritage policy, art market regulations, restitution efforts, and museum issues.

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Crimes Against Culture: The International Law Framework for Cultural Heritage Destruction and its Limitations

Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Fahim Abrar Abid

A. Introduction

Cultural heritage is the reflection of a nation’s or community’s sheer identity, inherited from their predecessors. It can be a collection of sites or traditions that bring together all the values of different cultures around the globe. Crimes affecting such cultural heritage, whether tangible or intangible, are a direct threat to a group of people’s emotions, sentiments and dignity. In addition, cultural heritage upholds self-determination and is recognized as closely connected with peace. 

Intentionally directing attacks on such a significant aspect of humankind means an attack on the existence of people, resulting in long-lasting horror of trauma, as evident from the ancient history of the blazing of the Temple of Artemis in 365 BCE, to in the comparatively recent attacks in Mali, Iraq, Syria, Libya and Afghanistan. Hence, to protect humanity from a degrading act like the destruction of cultural heritage, international law has given it an introspective emphasis from time to time–particularly under international criminal law (ICL) from the Nuremberg Charter to the ICTY Statute, ECCC Law and most prominently in the Rome Statute. The ICL framework to protect cultural heritage has been evolving in a significant way, as evidenced by the conventions and landmark case law, but it is somewhat falling short of protecting cultural heritage as a whole, and more needs to be done to ensure better protection. 

To critically examine the issue, this article will first lay the foundation by providing an account of the importance of cultural heritage for humankind (connecting with section A) vis-à-vis the ICL framework protecting cultural heritage in section B. Then, in section C, this article will briefly explain the conceptual framework of constituting the crime of “destruction of cultural heritage” under ICL. Finally, this article will conclude in section D by highlighting the (in)effectiveness of the legal development around cultural heritage relative to its importance on the basis of the international instruments, case law and scholarship discussed in section A, B and C.

B. Importance of Cultural Heritage and International Criminal Law

Cultural heritage is not only the materialistic value of an object but “the meaning attributed to it” by any individual as well as relevant communities. The traditional motivation for attacking cultural heritage, to destroy the opponent’s morale as a tool for undermining their identity and legacy, ipso facto, reflects the importance of cultural heritage in individuals’ lives. Moreover, the preservation of cultural heritage is considered inter alia a determining factor as well as a resource for sustainable development by the United Nations Educational, Scientific and Cultural Organization (UNESCO). 

Nevertheless, this article attempts to capture the importance of cultural heritage through the lens of legal development over the years. Firstly, the aspiration of ICL was founded on the recognition “that all peoples are united by common bonds, their cultures pieced together in a shared heritage and concern that this delicate mosaic may be shattered at any time”, as stated in the preamble of the Rome Statute and scholarships. Secondly, the Rome Statute, which is the core international legislation concerning the ICL, expressly recognized “destruction of cultural heritage” as a crime. However, since not all the crimes committed during a war qualify as a war crime, not all the attacks directed against cultural heritage are protected by ICL. Nonetheless, the Rome Statute has broadened (perhaps upheld) the scope of protecting cultural heritage by including religious, educational, scientific, hospital and charitable purpose buildings in addition to artefacts and historical monuments in both articles 8(2)(b)(ix) and 8(2)(e)(iv), covering international and non-international armed conflicts, respectively. 

Through practice over the years, the protection of cultural heritage has gained the status of an erga omnes obligation because directing an attack on any cultural heritage is an attack on the entire international community, and all State parties have a responsibility to protect cultural heritage. Due to the erga omnes obligation status, all states have a legal interest in its protection and have standing to bring cases against violation states. Furthermore, the unanimously adopted Security Council Resolution 2347 has also reemphasized the State’s primary responsibility to protect cultural heritage.

The importance of cultural heritage is also reflected in scholarly discussion as well as legal precedents that provide an interpretation that the destruction of cultural heritage not only is a war crime but also can constitute a ‘crime against humanity’ when the destruction took place as part of a widespread attack. While the International Court of Justice (ICJ) decided on the Genocide Convention case that the destruction of cultural property cannot be considered a genocidal act, the ICJ held in the Krstic case that such biological destruction can be considered as “evidence of an intent” to physically destroy a group.

Finally, the importance of cultural heritage has been observed in the judgements of the ICC, ICTY and International Military Tribunal (Nuremberg Tribunal), mostly as part of broader armed conflict. However, the most prominent is the Al Mahdi case, which is the sole case that has the destruction of cultural heritage as the principal charge. The perpetrator was found guilty of destroying mausoleums in Timbuktu, Mali and was sentenced to 9 years. Also, the ICC recently prosecuted Al Hassan, who was initially inter alia charged with the destruction of cultural heritage, although the final sentence does not include this charge. Concerning ICTY, the landmark cases are Strugar, Blaškić, Kordić and Jokić, which prosecuted perpetrators for illegally destroying and looting cultural heritage. Lastly, the landmark Rosenberg case from the Nuremberg Tribunal can also be considered as involving the destruction of cultural property since it includes the systematic looting of the museums, palaces and libraries in the occupied territories of the U.S.S.R.

C. Conceptual Framework

Although the Rome Statute came into force only in 2002, the legal framework protecting cultural heritage has constantly developed since the 1899 and 1907 Hague Conventions that urged the protection of religious, educational, scientific, hospital and charitable institutions “as far as possible.” However, the scars of World War II inter alia widespread destruction of cultural heritage exposed the need for a more robust framework, so the 1954 Hague Convention was adopted, including provisions for sanctioning violations of the convention. Later developments were the 1977 Additional Protocol I and Additional Protocol II of the Geneva Convention 1949, expanding the protection of cultural heritage in international and non-international armed conflict. Along with these key ICL developments, significant contributions from the UNESCO Conventions and ICTY practice emphasizing the protection of cultural heritage as a customary international law have ultimately shaped the present-day Rome Statute framework. 

To delve into the importance of cultural heritage in international law, it is essential to understand how and when an act constitutes “destruction to cultural heritage” under international criminal law. Destruction of cultural heritage has precisely been classified as a “war crime” under the Rome Statute. The first and foremost criterion for an act to be considered “destruction to cultural heritage” is thus to meet the threshold circumstances of a war crime, which needs to be during the existence of an armed conflict, either international or non-international character. Secondly and most importantly, there must be a “closely related” “nexus” between the direction of the attack on cultural heritage and the existing armed conflict as established in the case laws of the International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).

A classic example would be the illegal destruction of the Bamiyan Buddhas by the Taliban in Afghanistan, which did not constitute a war crime because it was not done as part of the conflict going on in the country back then. Nevertheless, it is also important to note that if the illegal destruction of cultural heritage took place as part of a “military objective,” it would not constitute a war crime ipso facto. The term ‘military objective’ is defined in Art. 52(2) of 1977 Additional Protocol I, as ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ This is a customary rule of international humanitarian law and its distinguishment in the context of cultural heritage was further clarified by the ICTY in  Kordic and Cerkez (para 92), upholding customary rule 9, that historical monuments, places of worship and cultural property are prima facie civilian objects, as long as they don’t serve the military purposes. 

In addition, the contemporary development of international law is another vital determining factor of the crime of “destruction of cultural heritage.” For example, the bombing of the Temple of the Tooth (a world heritage site) by Tamils in Sri Lanka during their civil war could have been qualified as a war crime had today’s customary international law been the same back then. Lastly, the Rome Statute does not have jurisdiction over any such act like the Sri Lankan example (1998) that took place before 2002. Similarly, the Rome Statute cannot enforce its jurisdiction over the states who are not party to the Statute. 

D. Conclusion and Looking Ahead

Despite the broadening scope and all these existing mechanisms, the world is witnessing the destruction of cultural heritage in Palestine, Ukraine and Sudan. These incidents expose the ineffectiveness of the current ICL framework derived from the politics of law, the lack of willingness of the State to refer such cases, and, to some extent, the principle of complementarity. As 3 of the ‘P-5’ States are not parties to the Rome Statute, they do not fully acknowledge inter alia the obligation, under the ICL framework, to protect and not destroy cultural heritage, which reflects human identity, dignity and self-determination. Therefore, the international community must strengthen its commitment to protecting cultural heritage by enhancing international cooperation, ensuring the political will to enforce ICL, and possibly revisiting the principle of complementarity to allow for more robust international intervention when national jurisdictions fail to act.

*Fahim Abrar Abid is an Erasmus Mundus Scholar of International Law of Global Security, Peace and Development with a specialisation in Human Rights at the University of Glasgow, Institut Barcelona d’Estudis Internacionals and University Tartu. He is also the Coordinator (Head) of Bangladesh Campaign at Global Human Rights Defence—a UN ECOSOC NGO.

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Protecting Sacred Art and Identity – From Intellectual Property to Traditional Cultural Expressions

Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

CHEN Jun* and Danny Friedmann**

Sacred art is imperative for the sustainability of a collective identity. Its protection via both intellectual property and cultural heritage rights is not well aligned to this objective. This article uses the Balinese Sanghyang Dedari as a case study to demonstrate how elements of this sacred trance dance were transformed by a German and an Indonesian into the secular Kecak dance in the 1930s, which is presented and perceived, incorrectly, as the quintessential traditional Balinese dance, protectable via cultural heritage rights.  

The sacred dance Sanghyang Dedari has been passed from generation to generation. It is thought to predate Hindu influences on the island. The dance can only be performed within the confines of the temple. Its function is to mediate between gods and humans (Stepputat). The dancers include two prepubescent girls who enter a trance state, embodying spiritual entities to ward off negative forces and epidemics. Walter Spies, a German painter and musician who arrived in Bali in 1927, witnessed the trance dance. He and his local partner, Wayan Limbak, adopted some musical and dance elements, namely the male chant and some pengecak movements (body and hand movements while seated in a circular formation), based the storyline on the Hindu epic Ramayana, and provided the choreography to make it into a dramatic spectacle, accessible for mainly Western tourists (Stepputat). 

The Kecak dance, performed in the Gianyar region of Bali (Stepputat), gained worldwide fame. The spectacle is largely linked to Spies’s knowledge of both the Western gazer and the observed “Other.”¹1 See generally Edward W. Said, Orientalism (Penguin Classics ed. 2003). Similar to a chef who creates an “exotic” dish with some traditional ingredients but catered to the specific tastes that his clients are acquainted with, it serves exoticism with some familiarity. However, the audience is in awe and regards it as an authentic spiritual dance. In 2021, the Kecak dance was performed by twenty-five cak groups on secular performance stages. Lim points out the commercial and Orientalist transformation of Spies’s Kecak dance (Lim), especially with the increased number of half-naked men and emphasis on sensual scenes, which signifies Bali as the “Other” and a sexual subject to be gazed at.  

John Dewey, who defined art as experience,²2 See generally John Dewey, Art as Experience (1934). believed that the creation and appreciation of art are integrated with how we perceive ourselves and deal with the world around us. Artists often need to anchor themselves in the process of creation. Before expressing themselves, they need to deeply explore elements that may reflect themselves or the group. To convey such content to others through the language of art, one must incorporate these elements into their artistic creation. By doing so, they can, to some extent, recreate an experience—whether visual, auditory, or tactile—and ultimately forge a meaningful connection with others. According to Dewey’s theory, such connections possess a transformative power (Goldblatt). 

Spies, as a well-cultivated artist from Europe, before producing any form of cultural representation of Bali, needed to establish his own perception of the originals, imagine himself as an audience, and then create a cultural expression for the gazer. This is to see the “Other” via a gazer’s eye, which we call a double-Orientalism cultural representation. However, both the Balinese and outsiders gain the sacred spiritual Bali experience via this representation. Some will eventually internalize it as part of the elements that construct their identity, which is neither constructive nor preferable from a cultural heritage preservation perspective. 

How to protect sacred works? Artistic works that have been passed on from generation to generation are by definition not independently created and thus not original. Internationally, originality is the standard prerequisite of copyright eligibility. Since Bali was part of the Dutch East Indies, and the Dutch Authors Law of 1912 was applied by extension, the work had to reflect the author’s personal stamp or individuality (Van Dale v. Romme). One can argue that Spies’s and Limbak’s choreography of the Kecak dance could have been protected under copyright law to the extent that it differs from Sanghyang Dedari. However, they did not claim copyright. The applicable Dutch Authors Law 1912, which is still valid, protects the author’s right for seventy years after the death of the author. Spies, who was arrested and charged with sexual acts with a minor (Green), was released from prison in 1939 and soon after imprisoned for being German. Spies died in 1942 when the merchant ship SS Van Imhoff on which he was being deported was hit by a Japanese bomb. His co-choreographer died in 2003 at 106 (LA Times). Thus, theoretically, they could have protected the choreographic work under copyright law until 2073. 

In 1971, Balinese scholars convened to prevent the unchecked exploitation of Balinese culture and established a classification system for Balinese dances, dividing them into three categories: tari wali (sacred dances), tari bebali (ceremonial or ritual dances), and tari balibalihan (secular dances) (Stepputat). Tari wali cannot be performed outside of their ritual context (Stepputat). 

Even though the Sanghyang Dedari and Kecak dances are ontologically different, they are both regarded as customs, rituals, traditional knowledge and arts, and fall under Indonesia’s Law No. 5 of 2017 on Cultural Advancement.  

The utilitarian objective of copyright law in the United States is to provide a temporary monopoly as an incentive to authors to create more expressive works (U.S. Constitution). In other words, the  objective of copyright law is to create a giant warehouse of works, as Professor Litman called it. After the copyright period expires, the work ascends to the public domain. Communities that have created sacred works that are crucial for the survival of their collective identity want to shield people outside their community from experiencing the work. Therefore, copyright protection, which ultimately aims to add each work to the public domain, is a bad fit for the protection of sacred works. At first sight, trade secrets seem a better match. However, the two prerequisites of trade secrets, to maintain secrecy and commercial value due to secrecy, are also problematic. It is difficult for communities to keep these works secret in the exercise of their traditions and rituals, and the works have a spiritual value that cannot be monetarily expressed. 

In addition to the utilitarian justification of copyright law, there are Locke’s labour theory,  and Gordon’s application of Locke’s labour theory, as well as Hegel’s personality theory, and Radin’s application of Hegel’s personality theory. Under these doctrines, the link between the author and the work is emphasized. Because of the intergenerational character of Traditional Cultural Expressions (TCEs), this link is often strongly diluted. However, in the best case scenario, each generation builds upon the work, updates it to the contemporary context, and ensures its relevance and vitality. Since copyright is individualistic, and the concept of joint authors is only reluctantly accepted by the courts, TCEs are the better option. This process started in 1967 with the addition of Article 15.4 to the 1967 amendment to the Berne Convention for the Protection of Literary and Artistic Works, which provides a mechanism for the international protection of unpublished and anonymous works. According to the Guide to the Berne Convention of the Paris Act 1971, the aim of this addition at the Stockholm Conference of 1967 was providing international protection of folklore. The term “folklore” was not literally used in the Berne Convention in 1967. The provision was confirmed in the Paris Revision of 1971. 

TCEs encompass tangible and intangible cultural heritage, including music, dance, art, designs, names, signs, symbols, performances, ceremonies, architectural forms, handicrafts, and narratives passed from generation to generation.  

For TCEs, a certain degree of evolution is possible through cultural practices that reflect contemporary reality depending on how the TCE policy is implemented. With collective stewardship, the community of a sacred work needs to balance authenticity and innovation. However, for most sacred works, stability seems to be more important, and the community of a sacred work might want to keep a certain manifestation of the work secret. Control over their TCEs is of cardinal importance to traditional communities and indigenous peoples. Of course, deciding if someone is part of such a community can be difficult indeed.  But these problems of delineation one can find in many fields of law, including geographical indications.  

In the United States, moral rights are being protected via the Visual Artists Rights Act of 1990, which is only relevant for a small category of subject matter, and a patchwork of laws that focus directly or incidentally on moral rights for the other subject matter (U.S. Copyright Office). In contrast, Indonesia’s Copyright Law recognizes moral rights under Law No. 28 of 2014 on Copyright. These rights are distinct from economic rights and are granted to creators to protect the personal and reputational connection they have with their works.  

Certain copyright frameworks such as communal copyrights (Gebru) and moral rights, the right of integrity and the right of attribution, could be combined with cultural heritage policies to safeguard against exploitation without freezing TCEs in time. 

Balinese can still perform the Sanghyang Dedari trance dance or partake in the ritual. The Kecak had partially its origin in this sacred dance, but it never replaced it. The tourists lured with the promise of an authentic Balinese cultural experience are brought under the spell of a relatively modern spectacle. This mirrors the Orientalist view of Balinese culture, which effectively distracts them from the true, spiritually pure trance dance: a decoy to shield the prize. However, without effective legal protection of the TCE, the threat is that the popular Kecak dance will eventually overshadow the Sanghyang Dedari. 

*CHEN Jun is a researcher in the field of culture & tech, he is now a Doctoral candidate at Chinese University of Hong Kong,Faculty of Social Science, researching identity issues, especially via the lens of digital art.His interests on identity issues are strongly attributed to his teaching experience in inner city public schools in Los Angeles. CHEN was trained as a computer engineer at college, received his MA from CUHK in Intercultural Studies, and spent one research year at Universitat Autònoma de Barcelona.CHEN has worked in education, technology and art sectors around the globe, curated exhibitions in mainland China, Hong Kong and Singapore. He has published articles on various topics with journals including Artron, Asia Pacific Law Review, Imaginist, MIND, etc.

**Dr. Danny Friedmann is researcher and associate professor of intellectual property law at Peking University School of Transnational Law in Shenzhen. His monograph is titled “Trademarks and Social Media, Towards Algorithmic Justice” (Edward Elgar Publishing, September 2015). His student-reviewed articles are published with IDEA (and republication with Intellectual Property Law Review in 2024, which is an annual anthology of a selection of 19 articles out of all published U.S. articles), and CWIJ, and his article with NYU JIPEL is forthcoming. Peer-reviewed articles are published by Journal of World Intellectual Property (Taylor & Francis), Journal of Intellectual Property Law and Practice (Oxford University Press), GRUR Int., European Intellectual Property Review, Benelux Trade Marks and Design Rights (BMM) Bulletin, Asia Pacific Law Review, International Journal for the Semiotics of Law – Revue internationale de Sémiotique juridique and Jus Vini. His book chapter on Google and China was quoted by the Advocate General of the Court of Justice of the European Union in C-131/12 Google Spain in 2013.

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Case Review: Bennigson v. The Solomon R. Guggenheim Found.

Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

Weitong Shan*

On 6 June 2024, the New York Supreme Court dismissed a restitution claim against the Solomon R. Guggenheim Foundation. The lawsuit, brought by the heirs of German Jewish collectors Karl and Rosi Adler in 2023, sought the restitution of Pablo Picasso’s painting La Repasseuse (1904) (“Painting”). The heirs claimed that Adler had been forced to sell the painting under duress in 1938 while fleeing Nazi persecution as part of a desperate fund-raising effort due to the Nazi’s confiscation of Adler’s assets. They alleged that Justin Thannhauser, who bought the Painting in 1938 from Mr. Adler, was aware of the Adlers’ plight and profited from their misfortune, and in the absence of the Nazi persecution, Mr. Adler would not have sold the Painting for $1,552 despite the value appraised at $14,000 in 1931. The plaintiffs demanded either its return or commensurate compensation of $100 million to $200 million.

The Painting was a bequeath of Thannhauser to the Guggenheim. In 1963, the New York Times ran a full-page article announcing that Thannhauser was to bequeath his collection, including the Painting, to the Guggenheim, and prominently featured a photograph of the Painting. In 1974, before receiving the Painting while Thannhauser was still alive, the Guggenheim contacted the Adlers as a part of the provenance studies. Eric Adler, the eldest son of Karl Adler, responded a few weeks later without indicating, explaining, or mentioning that the Painting had been sold under duress to Thannhauser, nor did he suggest anything remotely untoward about its disposition or otherwise make the demand for its return. The plaintiffs alleged that it was not until November 2013 that they first learned that they might have a possessory interest in the Painting.

The Court dismissed the claim on two grounds: the equitable doctrine of laches, and the failure of the plaintiffs to show economic or third-party duress. This decision raises complex legal questions surrounding the restitution of stolen art and historical injustices.

Legal Issues

The equitable doctrine of laches

On 16 December 2016, the Holocaust Expropriated Art Recovery Act (‘HEAR Act’) was signed into law to revive claims otherwise barred by the statute of limitations, enabling Holocaust victims and their heirs to pursue justice and reclaim property unlawfully and inhumanely taken from them. Sec. 5(a) of the HEAR Act establishes that, regardless of any Federal or State law or time-related legal defenses, a civil claim to recover artwork that was lost due to Nazi persecution may be filed within six years of the claimant or their agent discovering the identity and location of the artwork or property and the claimant’s possessory interest in it.

The Court did not address the issue of whether the plaintiffs’ claims were timely. Instead, it invoked the equitable doctrine of laches, as the HEAR Act explicitly precludes the application of “defense[s] at law relating to the passage of time” but does not interfere with the application of defenses at equity. It has been established that laches is appropriate where the delay results in deceased witnesses, faded memories, lost documents, hearsay testimony of questionable value, and the injustice of having to defend under these circumstances. The Court followed the decision in Zuckerman v Metro. Museum of Art, where the Second Circuit explicitly held that laches is an available defense to claims revived under the HEAR Act. In Zuckerman, similarly, the Leffmans sold their property to corporations without direct Nazi intervention in these sales. Neither the Leffmans nor their heirs made a demand for the artwork until 2010 despite their pursuit in other claims for their Nazi-era losses and their knowledge of the identity of the buyer. Consequently, the Second Circuit found the claim to be unduly delayed.

In contrast, the Court distinguished the present case from Reif v. Nagy, where the heirs were awarded ownership of property. Duress was found to taint the chain of title due to direct Nazi involvement in the transaction. The doctrine of laches did not bar recovery because the then-current owner acquired the artworks in 2013 at a substantial discount and specifically insured these artworks against the title claims in light of their blighted provenance. These specific facts indicated that the plaintiff suffered no change of position, loss of evidence, or other disadvantages resulting from the delay.

Economic or third-party duress

The Court ruled that a contract may be voided for economic duress if the complaining party was compelled to agree to its terms by a wrongful threat that deprived them of free will. However, general economic conditions, even the severe economic pressures felt during the undeniably horrific circumstances of the Nazi regime, are insufficient to establish duress if the counterparty had no role in creating those pressures. There is no indication in the Complaint that the Thannhausers were associated with the Nazi regime, collaborated with the Nazis, or were in any way linked to Nazi atrocities, and the plaintiffs conceded during oral arguments that they were not. 

The claim of third-party duress also failed because the plaintiffs did not allege that Thannhauser was aware of or consented to any direct consequences tied to the failure to sell the Painting at the agreed but below-market-value price. In other words, there was no specific threat of harm contingent on Adler declining to sell the painting to Thannhauser

Analysis of the Case and Broader Implications

In terms of the laches defense, although a few courts, including the current one, have upheld its applicability, the growing number of cases concerning sales under Nazi persecution, rather than art directly confiscated by the Nazis, may provoke future disputes involving this defense. The reasonability of the laches defense remains contentious, as it arguably undermines the scope of the HEAR Act, which was intended to enhance protections for victims of Nazi persecution in line with the legally non-binding 1998 Washington Conference Principles and the 2009 Terezin Declaration. The Washington Conference Principles to achieve a “just and fair solution” for issues relating to Nazi-confiscated art.¹1 Washington Conference Principles on Nazi-Confiscated Art, released in connection with the Washington Conference on Holocaust Era Assets, Washington, DC, December 3, 1998, https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/ (last accessed 9 Feb 2025), paras. 8-9. Notably, the Terezin Declaration expanded on the Washington Conference Principles by broadening the concept of “Nazi-confiscated art” to include “sales under duress”.²2 Terezin Declaration of 30 June 2009, released in connection with the Washington Conference on Holocaust Era Assets, Prague and Terezin, June 26-30, 2009, https://www.state.gov/prague-holocaust-era-assets-conference-terezin-declaration/ (last accessed 9 Feb 2025), “Terezin Declaration on Holocaust Era Assets and Related Issues,” para. 2; “Nazi-Confiscated and Looted Art,” Preamble. However, the general stance of U.S. courts in interpreting the HEAR Act—where only defenses at law related to the passage of time are set aside, while equitable defenses remain unaffected—suggests that the courts have understood the HEAR Act in a restrictive manner. Furthermore, Congress’s decision to sunset the HEAR Act on January 1, 2027, around the time when most Holocaust survivors can reasonably be expected to have passed away, may also reflect concerns about the potential for heirs to bring claims indefinitely and the need to limit the scope of the HEAR Act.

Despite adhering to the general stance of previous courts on the laches defense, the Bennigson Court was slightly less reluctant to address the duress issue. It thoroughly considered the third-party duress claim as a matter of law, a factor that was absent in previous cases. This judgment thus offers guidance for future litigation involving Nazi-era takings and wartime transactions. That said, the decision also signals a bleak outlook for the applicability of third-party duress claims, as New York law sets a high threshold for proving a third party’s awareness of the duress. 

The restrictive application of the HEAR Act and the reticence in domestic law on substantive issues regarding the implementation of international initiatives on Nazi-confiscated art stand in sharp contrast to Europe’s more pro-victim stance. In Europe, State practices in the context of sales due to persecution are significantly influenced by international soft-law instruments.

For instance, the heirs of Curt Glaser, a Jewish art historian who sold his collection before fleeing Germany in 1933, brought claims against both European and American institutions. Glaser sold most of his art in two auctions when he was forced out of his home after being removed from his job at the Berlin State Library. In Switzerland, the heirs of Glaser requested the Kunstmuseum Basel to restitute two lithographs by Edvard Munch. Initially, in 2008, the government of the Canton of Basel City and the Kunstmuseum Basel rejected the claim. However, in 2017, the heirs petitioned the Canton of Basel City to re-examine the case. Following this review, the Kunstmuseum Basel announced in 2020 that the parties had reached an agreement: It was acknowledged that the involuntariness of the ownership transfer and the extent of the duress remained unclear, and the Kunstmuseum Basel was found to have acted lawfully in acquiring Glaser’s works. Nevertheless, in the spirit of the Washington Conference Principles, the museum and the heirs agreed on a “just and fair solution” that the Kunstmuseum Basel held an exhibition honoring Glaser and provided financial compensation to his heirs. In the proceedings brought by the heirs of Glaser before the Dutch Restitutions Committee, the Committee advised in 2010 that the State Secretary for Education, Culture, and Science grant the restitution of the painting in question to Glaser’s heirs. This decision was guided by the third recommendation of the Ekkart Committee, which presumes that sales by Jewish private owners in Germany from 1933 onwards are involuntary unless expressly proven otherwise. The Committee concluded that the sale should be considered involuntary, as it is likely that Glaser was unable to freely dispose of the proceeds from the auctions. Due to the circumstances of the time, he probably had to use the funds to finance his escape to the United States and to pay the exit taxes imposed by the Nazis.

By contrast, in the United States, both the Metropolitan Museum of Art and the Museum of Fine Arts, Boston, rejected the claims of Glaser’s heirs despite the fact that the artworks were sold in the same auctions. The museums argued that there was insufficient evidence to prove that Glaser sold his artworks under duress, suggesting that his decision to sell could have been influenced by other personal factors unrelated to duress, especially considering the transaction price was considered fair according to their research. However, even when the price was apparently unfair, as is the circumstance in the Bennigson case, it is concluded that third-party duress cannot be established. Due to the lack of alternative dispute resolution mechanisms for Nazi-looted art, such as the restitution panels used in Europe that offer more flexible solutions, claimants in the U.S. are left to seek restitution through the courts. However, the legally non-binding international instruments have a very limited impact on the decision of the U.S. courts, which is often attributed to the private status of the current possessors of these artworks in the U.S.      in contrast to the public nature of State-owned museums in Europe. As the Second Circuit stated in Zuckerman, a “just and fair solution” includes considering justice for the defendant as well.

Nevertheless, the dismissal of the Bennigson case does not signal the end of litigation regarding sales of property due to Nazi persecution. In the Bennigson case, the plaintiffs did not provide evidence and conceded on whether the purchaser was aware of or consented to the consequence of failing to sell the artwork, leaving it uncertain whether the outcome might differ if more substantive arguments were presented. Each case involving Nazi-looted art presents its own unique set of circumstances, and it remains to be seen how courts will ultimately define the parameters of duress claims in such cases when more facts come to light.

1. Washington Conference Principles on Nazi-Confiscated Art, released in connection with the Washington Conference on Holocaust Era Assets, Washington, DC, December 3, 1998, https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/ (last accessed 9 Feb 2025), paras. 8-9.
2. Terezin Declaration of 30 June 2009, released in connection with the Washington Conference on Holocaust Era Assets, Prague and Terezin, June 26-30, 2009, https://www.state.gov/prague-holocaust-era-assets-conference-terezin-declaration/ (last accessed 9 Feb 2025), “Terezin Declaration on Holocaust Era Assets and Related Issues,” para. 2; “Nazi-Confiscated and Looted Art,” Preamble.

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