How Can the Protection of Cultural Property be Strengthened in Africa? Combining International Frameworks with Customary Traditions

About the Author

Leslye Obiora served as the Minister of Mines and Steel Development for the Federal Republic of Nigeria and is currently a Professor of Law at the University of Arizona. She was the Coca Cola World Fund Visiting Faculty at Yale University and the recipient of prestigious fellowships from the Institute for Advanced Study at Princeton, Center for Advanced Study in the Behavioral Sciences at Stanford, Rockefeller Foundation Bellagio Study Center, and the Djerassi Resident Artist Program. A member of the Council on Foreign Relations, she was a former Manager of the World Bank Gender and Law Program, the Genest Global Faculty at York University in Toronto, and the Visiting Gladstein Human Rights Professor at the University of Connecticut. Dr. Obiora has crafted an academic career anchored on an ethic of service and she has served on various boards. She grew up in Nigeria and holds a Bachelor of Laws degree from the University of Nigeria, a Master of Laws degree from Yale Law School, and a Doctor of Juristic Science degree from Stanford Law School.

About the Think Tank

The Antiquities Coalition unites a diverse group of experts in the global fight against cultural racketeering: the illicit trade in art and antiquities. This plunder for profit funds crime, armed conflict, and violent extremist organizations around the world—erasing our past and threatening our future. Through innovative and practical solutions, we tackle this challenge head on, empowering communities and countries in crisis.

In 2016, as part of this mission, we launched the Antiquities Coalition Think Tank, joining forces with international experts, including leaders in the fields of preservation, business, law, security, and technology. Together, we are bringing high-quality and results-oriented research to the world’s decision-makers, especially those in the government and private sectors. Our goal is to strengthen policy makers’ understanding of the challenges facing our shared heritage, and more importantly, help them develop better solutions to protect it.

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This commentary proposes that combining customary traditions with international frameworks is a compelling strategy to strengthen cultural property protection in Africa. It analyzes the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereafter the Convention) adopted in 1970 under the United Nations Educational, Scientific and Cultural Organization (UNESCO). State Parties to this treaty undertake to protect designated cultural property by controlling its movement, return and restitution, international cooperation, and substantiated national laws. They may also pursue more measures like bilateral agreements, special compacts, and other practical arrangements. Drawing upon Articles 7, 9, and 15 of the Convention, this brief highlights the provisions for transnational cooperation and special agreements. It builds on evidence-based knowledge to explain the importance of harnessing customary traditions and institutions within these frameworks. The analysis zeroes in on Africa’s reality through the lens of Nigeria, a country which is a microcosm of postcolonial predicaments that undermine the Convention.

This critique falls into four sections. The first foregrounds a crucial Memorandum of Understanding (MOU) between Nigeria and the United States. The second addresses concrete bilateral arrangements that Nigeria has concluded with European states and non-state actors for repatriation. To illustrate how domestic conditions impact the success of the Convention, the third section explores a controversy over the return of bronzes that were looted from the Kingdom of Benin during an attack in 1897 by the British. The final part evaluates the force of custom and tradition in source communities to mitigate barriers that are militating against the effective implementation of the Convention.

The first meeting of the State Parties to the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which marked a major shift in the global approach to antiquities trafficking. Image: UNESCO.

Memorandum of Understanding (MOU)

On January 20, 2022, the United States of America entered into an MOU with the Federal Republic of Nigeria, one of many global partnerships facilitated by the Convention.^[1] This bilateral agreement was realized through an elaborate process created by the U.S. law that domestically implements the treaty.^[2] It greenlighted U.S. import restrictions on threatened archaeological and ethnological materials from Nigeria. The agreement is intended to ease collaborations between the United States and Nigerian law enforcement and border control agencies to identify, intercept, and repatriate moveable cultural patrimony. It also aims to encourage cultural, scientific, and educational exchanges to increase public awareness and appreciation of cultural heritage.

The U.S.-Nigeria agreement sets in motion conditions to gives teeth to the 1970 Convention, which extols international cooperation as one of the most efficient means of protecting cultural property against dangers (Article 2). Denouncing the illicit import, export, and transfer of ownership of protected cultural property as a main cause of the impoverishment of cultural heritage, the Convention affirms the commitment of the State Parties to counter such practices with the means at their disposal. This is with particular focus on removing the causes, averting illegalities, and helping to make necessary reparations.

The United States domesticated its obligations under the Convention in 1983 by enacting its own Convention on Cultural Property Implementation Act (CPIA).^[3] This law enables the government to execute Articles 7(b)(ii) and 9 of the UNESCO Convention. Under Article 7(b)(ii), State Parties to the Convention pledge at the request of the State Party of origin, to take appropriate steps to recover and return inventoried cultural property stolen from a museum, religious or secular public monument, or similar institution after the entry into force of the Convention in the States concerned. This is provided that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property post-importation.^[4] Article 9 directs any State Party whose cultural patrimony is in jeopardy from pillage to call upon other State Parties to carry out concrete measures, including the control of exports, imports, and international commerce of the specific cultural good that is at risk. Pending agreement, the States shall take provisional measures to prevent irremediable injury to the cultural heritage of the requesting State.

The CPIA authorizes the negotiation and conclusion of a bilateral cultural property agreement on a temporary basis following a request accompanied with a written statement of related facts known by a state party to the Convention. §2602 of this implementing legislation predicates the agreement upon the determination by the U.S. President that the cultural patrimony of the state is in jeopardy due to the pillage of archaeological or ethnographical materials. Other criteria include that the state has taken protective measures, the application of import restrictions would be a serious deterrent, less drastic remedies are not available, and the application is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes. §2605 of the CPIA invests in the presidentially inaugurated Cultural Property Advisory Committee the competence to investigate, review, report findings, and recommend whether an agreement should be consummated.

This elaborate process underpinned the 2022 agreement between the United States and Nigeria. Signing the MOU, the U.S. Ambassador underscored the rich tapestry of Nigeria’s cultural heritage, as personified by the unique Nok terracotta dating back to the fifth century B.C. and the incomparable bronzes of the Kingdom of Benin.^[5] The agreement was celebrated as a major milestone, especially because the United States, which has only reached around 30 MOUs since becoming a signatory to the Convention, is the largest art market in the world and a main gateway for illicit trading in cultural property.^[6] Although the bilateral arrangement was a momentous accomplishment, Nigeria only secured it more than half a century after the Convention came into existence.^[7]

On January 20, 2022 Minister of Information and Culture Lai Mohammed and Ambassador Mary Beth Leonard signed a cultural property agreement between Nigeria and the United States, committing both countries to combating the illicit trade in cultural property. Image courtesy U.S. Embassy and Consulate in Nigeria.

Other Cooperative Initiatives

The MOU was concluded in the wake of a growing trend of the historic returns of several Benin Bronzes from various entities in Europe. A pivotal event marking this trend occurred on October 27, 2021, when delegates from Nigeria visited Cambridge University’s Jesus College to commemorate the rightful return of a bronze statue of a cockerel known as “Okukur”.^[8] This icon was looted during a so-called “punitive expedition” in 1897 that decimated and annexed ancient Benin into a British colonial protectorate which was later incorporated into the creation of Nigeria in 1914.^[9] Jesus College’s Legacy of Slavery Working Party resolved to relinquish ownership to the Oba of Benin, who is the cultural, religious, and legal head of the erstwhile kingdom. Nigeria is negotiating more repatriations from Cambridge, Oxford, Horniman Museum, Glasgow City Council, National Museums of Scotland, and the Smithsonian among other cultural institutions.^[10]

Reginald Kerr Granville, Interior of King’s compound burnt during fire in the siege of Benin City, with three British officers of the Punitive Expedition [from left, Captain C.H.P. Carter 42nd, F.P. Hill, unknown], seated with bronzes laid out in foreground, 1897, photograph, 16.5 x 11.5 cm. Image courtesy: Pitt Rivers Museum, Oxford University.

Contemporary ideas and actions about the restitution of cultural property have been influenced by the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the United Nations in 1960.^[11] After this Declaration came into force and helped launch the formal end of colonialism, newly independent states championed heritage protection as a development imperative. This effort, which led to the Convention, confronted stiff resistance. Only serious accommodations could pave the way for the treaty’s acceptance by neo-colonial powers – who were often also the major art market states.^[12]

One of many such accommodations was the principle of non-retroactivity. While the Convention did not address the status of objects whose acquisition predated its existence, and nothing in its text bars retroactive application, the consensus is that it does not have retroactive effect. This opinion is grounded in Article 28 of the Vienna Convention on the Law of Treaties, which stipulates that unless a different intention appears from a treaty or is otherwise established, international agreements are not retroactive.^[13] Moreover, several of the signatories conditioned their consent on non-retroactivity, including the United States, which codified its opposition to claims for objects stolen and exported during colonialism.

The conflict in the aftermath of restituting the Benin Bronzes illustrates how this compromise undermines the core ideals and values espoused by the Convention. These storied indigenous assets “form part of the cultural heritage of” the state (Article 4). Nevertheless, Nigeria is handicapped from invoking its rights under the Convention to request recovery. For example, it is unable to cite the illegal removal of cultural property under compulsion during the occupation by a foreign power (Article 11). Non-retroactivity has come to define the normative pretext for the exclusion of repugnant violence, coercion, and conversion.

Under Article 15, State Parties can go beyond the terms stipulated to restore cultural property previously removed from another party’s territory. Thus, over time, cogent difficulties are organically being mediated by diplomacy and dynamic grassroots mobilizations. This trend is contingent on a confluence of factors reconfiguring the global politics of power. The breakthrough signaled by the bilateral MOU and by the returns of items like the Okukur presage a critical mass of cooperation apt to enlarge corrective pathways and buttress accountability for illegalities.

Heightening conscientization about the links between art and politics in the global ecosystem at this epistemic moment is provoking the younger generation to protest “the fruits of plunder.”^[14] This youthful public are waging campaigns demanding that major European and North American museums return what does not belong to them because they have been stolen, looted or ripped from their places of origin, especially during colonialism.^[15]

In October of 2022, the Smithsonian National Gallery of Art transferred ownership of 29 Benin Bronzes to the Government of Nigeria, building on the bilateral engagement of the Cultural Property Agreement. Lonnie Bunch, the Secretary of the Smithsonian (pictured), said in a statement that returning the bronzes is “the right thing to do.” Image: U.S. Department of State.

Addressing the 32^nd session of the United Nations Working Group of Experts on People of African Descent in Geneva, Sonita Alleyne, the Master of Jesus College at Cambridge University stressed that Africa expects its cultural property to be returned.^[16] Institutions in the United States and the national leadership of France, Belgium and Germany are returning collections of Benin Bronzes. As France’s President Macron pointed out, “African heritage cannot solely exist in private collections and European museums. … Within five years I want the conditions to exist for temporary or permanent returns of African heritage to Africa.”^[17]

Members of the British expedition to Benin City with objects from the royal palace, 1897, gelatin silver print, 16.5 x 12 cm. Courtesy Trustees of the British Museum.

Repatriation Controversy

The unprecedented steps taken by Western colonial powers to return Benin Bronzes and other looted objects to Nigeria brought a simmering conflict within the country to a head. This concerns a dispute between the Governor of Edo State, where Benin is currently situated in the Federal Republic of Nigeria, and the incumbent Oba of Benin, Omo N’Oba N’Edo Akpolokpolo, Ewuare II. This dispute gave center stage to questions about the ownership of the returning cultural artefacts, the corollary bundle of rights that arise from ownership, and the responsibilities reciprocal to such rights.^[18] The Oba who asserted ownership over the artefacts contested the initiative to conserve the items in a purpose-built museum that the Governor sponsored. Steps to settle the ownership, custody, and management of returning artifacts culminated in this fierce contention.

Deliberations and concrete action plans championed by Western governments and museums to return looted items prioritized constructing a world-class museum to preserve and exhibit them. The goal of privileging the establishment of such an infrastructure was to allay putative concerns about safety and security. The Edo State Governor, Godwin Obaseki, approved the preservation and exhibition in the Edo Museum of West African Art (EMOWAA).^[19] This museum was in the making by an organization named the Legacy Restoration Trust (LRT) with the official support of the Edo State government and funding from various Western entities.

The heart of the instructive controversy was that the Oba of Benin successfully objected to the Governor’s decision and the corresponding actions. Canvassing the superiority of his claim to ownership, he petitioned the Federal Government of Nigeria to temporarily take custody of the returning objects, pending the resolution of the disagreement in Edo State about the rightful destination.^[20] The Oba said that he had previous discussions to set up a separate proposed “Benin Royal Museum” with Governor Obaseki, who had appeared ready to work with the palace.^[21]

This Royal Museum was conceived to reunite Benin works of art currently in collections around the world in a permanent display. It was earmarked as a place of remembrance, education, and inspiration to showcase the kingdom’s rich history from the earliest archaeological evidence to contemporary creative expressions.^[22] The idea was connected with the Benin Dialogue Group (BDG), a network of experts from Austria, Germany, Netherlands, Sweden, and United Kingdom, along with delegates from the Edo State Government, Royal Court of Benin, and National Commission for Museums and Monuments representing the federal government.^[23] The Oba expressed surprise on learning later “that a new museum to be known as EMOWAA is now being proposed, which will be funded and executed through the vehicle of another body now referred to as LRT.”^[24]

Governor Obaseki underlined that the LRT was a credible vehicle structured specifically to attract funding from international foundations, institutions, and individuals, and to fulfill the criteria of these sources for accountability, transparency, reporting, and performance. He insisted that his administration acted transparently and in conformity with prevailing laws in all matters to aid returning the prized cultural artifacts.^[25] Conceding that the Benin Dialogue Group’s efforts predated his tenure, the Governor emphasized that he endorsed the EMOWAA to stem obstacles to returns. For him, the goal was to “provide a comprehensive, world-class set of infrastructure for the storage, research and display of objects not just for Benin artifacts, but for artifacts and art from all West Africa spanning the influence of [the] Great Benin empire.”^[26]

Clarifying that the LRT was a Trust meant to simply act as a common agent for the federal government, state government, and royal palace to ease the returns, Obaseki stressed that it “does NOT own the object and can only hold an object with the implicit authorization of each party, which means that all relevant parties continue to maintain any and all ownership claims it has.”^[27] The Governor entreated dialogue to resolve lingering concerns and cooperation to complement good faith in bolstering the foundations to optimize the value of the repatriated heirlooms. In this vein, he urged presenting a united position to “avoid the appearance of disunity which gives detractors and those opposed to the return of object the excuse to delay such returns.”^[28]

The Benin Bronzes were stolen from the autonomous Kingdom of Benin, which no longer exists as a sovereign polity. The kingdom’s spoliation in 1897 heralded its annexation under British colonial rule first into the Coastal Niger Protectorate and then in 1914 into the newly amalgamated country of Nigeria. After political independence in 1960, Nigeria evolved a federal system of government in 1963. Benin is now subsumed into a republic overlaid with tiers of governance that redistributed power in reshaping the political structure. This change relegated the office of the Oba of Benin to the local level where it is subordinated to the Edo state government, which itself is subject to the national government that is the apex of the federal system.

On March 23, 2023, the President of the Federal Republic of Nigeria, Muhammadu Buhari, ordered that the "ownership of the artifacts looted from the ancient Palace of the Oba and other parts of Benin Kingdom be and is vested in the Oba.^[29] Given that sovereign States remain the main actors in international law, and many reserve ownership rights to their territories’ cultural treasures, they are the formal recipients of repatriated objects. However, Buhari resolved the dispute in the Oba’s favor, declaring that the federal government, in collaboration with the Oba of Benin, shall superintend the safety and security of any repatriated artifact.^[30] Buhari’s decision has far-reaching ramification for the public interest within and beyond Nigeria’s territory.

Some commentators worried that transferring authority to the Oba would slacken the pace of progress for the rightful repatriation of looted artwork, which they already perceived as slow, even if steady. Skeptics claimed that it “threw a spanner in the works” especially for European entities that appear to “have backed the wrong horse”.^[31] In Germany, reactionaries ridiculed it as a derailing public relations nightmare, frenetically indicting the President’s plan as having “recklessly consigned African world heritage to oblivion”.^[32]

Oba Ewuare II has acknowledged right from the start that the looted artefacts “are the cultural heritage of the Benin Kingdom created by our ancestors and forefathers within the traditional norms and rites of the kingdom” [emphasis added].^[33] Working out the rights and responsibilities of ownership within this framework hold profoundly instructive insights for strengthening the protection of cultural property in Nigeria as a microcosm of Africa.^[34]

International Frameworks and Customary Traditions

The conflict unleashed by the returns of the Benin Bronzes betrays the folly of marginalizing the influence of the customs and traditions embodied by these cultural heritage expressions in the quest to protect cultural property. The scenario that played out in the conflict paints a clear picture of the complexities of the conditions that must be considered to protect cultural property in sovereign states like Nigeria where legal pluralism is prevalent. The resolution of the conflict in the Oba’s favor foregrounds the abiding relevance and significance of indigenous institutions in the contemporary arena.

The disagreement between the Oba and the Governor vividly captures radical changes that occurred since the British looted the heritage objects over a century ago. These changes are rooted in the same colonial conditions that caused the theft of the objects which was ancillary to the suppression of indigenous sovereignty. After the conquest of Benin, the British emasculated traditional institutions, despite capitalizing on their usefulness to administer the colonial policy of administration. This diminution has redefined the role of these institutions in Nigeria to date.

This commentary proposes that customs and traditions reflected in the agency and authority of indigenous institutions should serve as a pillar of meaningful protective reform in specific national jurisdictions. Conversely, the Convention makes no mention of customary tradition, besides reciting that the true value of cultural property can be appreciated only in relation to the fullest possible information about its origin, history, and traditional setting. But for this perfunctory reference, it ignores the role of the traditional practices and institutions that give heritage items meaning and that are significant for their promotion, preservation, and protection. Likewise, the U.S.-Nigeria MOU which is a bilateral agreement between two sovereign states does not address sub-national customs and traditions.

The most perplexing paradox is that the Nigerian constitution is completely silent about the status, roles, and rights of traditional institutions within the domestic jurisdiction. The omission of local customs and traditions in dispositive legal measures is counterintuitive and leads to controversy, as this article has proven. Closing this gap illuminates a concrete path to improve the outcomes and impact of strategies to combat the injuries and threats from pillaging, trafficking, and transnational criminal activities to priceless cultural property and heritage.

To ensure the protection of cultural property against illicit import, export and transfer of ownership, Article 5 of the Convention enjoins the State Parties to undertake to set up national services, where such services do not exist. This is to contribute to the formation of draft laws, rules, and regulations designed to secure the protection of cultural heritage as well as to establish and keep up to date a national inventory of protected property. Additionally, the services are intended to promote the development of scientific and technical institutions like museums, libraries, archives, laboratories, and workshops needed to ensure the preservation and presentation of cultural property.

Member states also undertake to organize the supervision of archaeological excavations, preservation in situ of certain cultural property, and protect research areas. Moreover, they agree to take educational measures to stimulate respect for the cultural heritage of all States, spread knowledge about the provisions of the Convention, and create in the public mind a realization of the value of cultural property and the threat to the cultural heritage created by theft, clandestine excavations and illicit exports. Further, states are requested to see that proper publicity is given to the disappearance of items of cultural property.

This brief argues that traditional authorities exemplified by the Oba of Benin are indispensable for the effective execution and invigilation of many of the functions stipulated in Article 5. The national services stipulated by the Convention are increasingly commercialized, professionalized, and outsourced away from the grassroots. It is particularly in this vein that the fiat issued by Nigeria’s President Buhari at the eleventh hour of his administration to resolve ownership of the returning Benin Bronzes in favor of the Oba augurs well for the protection of cultural property. This intervention casts light on the possibility of engaging traditional practices, institutions, and systems to augment the enabling environment to strengthen the global protective enterprise. However, the top-down enunciation can only be seen as a starting point for closing the loop on how to better harness the agency and resources of indigenous governance apparatus to enhance the purpose of the Convention. This is especially in milieus where the devolution of power by custom and tradition is an empirical matter.

The Convention does not only aim to prevent illicit trade and control the movement of designated cultural property. It also targets the implementation of procedures for return and restitution and for the improvement of international cooperation along with national laws to promote respect for cultural heritage. Against this backdrop, it is auspicious that the agreement between the United States and Nigeria coincided with the beginning of the historic returns of the Benin Bronzes.

Bilateral agreements exemplified by the Memorandum of Understanding that Nigeria reached with the United States and the special compacts that it entered with respective entities in the West for the return of the Benin Bronzes unlock enormous prospects. These enlarge opportunities to rethink orthodox norms about how to substantiate the global imperative to protect cultural property. Learning from these experiences promises to help refine understanding about the fundamentals for cultural property protection in specific local settings. Key takeaways from the analysis of these achievements include the following:

1. The domestication and implementation of the mitigation measures stipulated in the Convention are insufficient to foster the conditions for treaty compliance and change without attentiveness to prevailing customs and traditions within respective territories.

2. Isolated from the wider context, growing international consensus about restitution as a mechanism of reparation for past injuries can only go so far in achieving the desired compensatory results. In Nigeria’s case, for example, given that the harm suffered from colonial violence went beyond the theft of physical items to entrench other inequities, restituting material cultural property mainly signifies a crucial opening to redress overlapping injustices coherently. This has ample resonance for remedying impairments to intangible cultural heritage symbolized by traditional institutions which are personified by native authorities like the Oba of Benin.

3. Recognizing traditional institutions is a necessary condition for strengthening the protection of cultural property in Nigeria. The practical effects of the politics that unfolded in Benin offer reliable evidence about the potentialities of these institutions in the present epoch. Lessons learned from this experience equally expose the adverse consequences of excluding indigenous customs and tradition from the global ecosystem for protecting shared cultural heritage.

4. There is a need to mobilize the transformative potential of indigenous agency as a vital resource to deepen the domestication of the responsibility to protect cultural property and to enrich the sociopolitical returns of the evolving restitution practice. This is at least in terms of the treaty mandate to enhance education, information, and vigilance to restrict the illegal movement of cultural property. Pivoting to this strategy can harness the stumbling-block posed by the factors that fomented the conflict about the returning Benin bronzes into a stepping-stone to strengthen the international regime for cultural property protection.

5. This case-study of Nigeria suggests that the momentum for protecting cultural property via bilateral agreement and restitution widens the window to advance the purpose of the Convention through cooperation and constructive dialogue which presupposes the appreciation of dissent.

Conclusion

This policy paper draws on two recent developments to explain what is happening with global efforts to protect cultural property under the 1970 UNESCO Convention. The first affirms the importance of bilateral cooperation, as seen by the cultural property agreement between the United States and Nigeria. The second examines circumstances surrounding the returning Benin Bronzes to evaluate the progress of international restitution. The paper examines the convergence of the bilateral agreement and the returning bronzes within the context of the conflict that arose at the national level between critical stakeholders. The thrust of the analysis argues the usefulness of recognizing indigenous customs and traditions for the protection of cultural property and heritage as a shared global priority.