CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ BRINGING “TARA” HOME: SRI LANKA’S DISCONTENT WITH CULTURAL RESTITUTION… “When people of European race come into contact with American or African tribes, the prime necessity is a government under the protection of which the former may carryon the complex life to which they have become accustomed in their homes, which may prevent that life from being disturbed by contests between different European powers for supremacy on the same soil, and which may protect the natives in the enjoyment of a security and well being at least not less than they had enjoyed before the arrival of the strangers. Can the natives furnish such a government, or can or can it be looked for from the Europeans alone? In the answer to that question lies, for international law, the difference between civilization and the want of it.” 15 Besides the colonial endeavors advocated by the European nations, the concept of the nation-state began to grow widely in the Western Hemisphere, which leveraged the idea of cultural nationalism as well. Inspired by the roots of 18th-century European enlightenment and the Romantic movement, which drew inspiration and tended to form cultural values, the British outlook towards cultural heritage took a nuanced attitude. Material culture, monuments and artefacts were intended to be tools aggrandizing the political power of a state, which preserved the identities of the communities. Yet the British view harboured by the 19th-century positivist international law towards the cultural heritage of the nations was ambivalent as it reflected the West’s idea of civilized nations. Also, another astute legal opinion emanated from British juridical thinking in the 19th century to legitimize the acquisition of cultural properties during warfare was to proclaim such objects as the common properties of mankind. In its infamous ruling on the seizure of paintings from the US vessel The Marquis de Someruelos) in the War of 1812 between the United States and England of 1812, the British Court of Vice-Admiralty in Halifax reached the following conclusion. “[t]he arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favour and protection. They are considered not as the peculium of this or that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.” 16 The civilizational rhetoric espoused by the 19 th century British international jurists affirmed the overarching ambitions of the empire in its territorial expansion and it consolidated the imperial mechanism to claim the cultural properties from the colonized territories without remorse. While applying the protection to cultural properties in the customary international law, British international lawyer Henry Wheaton argued “By the ancient law of nations, even what were called res sacrae were not exempt from capture and confiscation … But by the modern usage of nations which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war … This extension extends even to the case of an absolute and unqualified conquest of the enemy’s country.” 17 15 WESTLAKE, J., International Law , 3 rd Edition, Cambridge: London, 1926, p. 232. 16 Court of Vice-Admiralty at Halifax, ‘The Marquis de Someruelos’ (21 April 1813) in STEWART, J. Reports of Cases, Argued and Determined in the Court of Vice-Admiralty at Halifax in Nova Scotia. London: Butterworth and Son, 1814) 482–486, 483. 17 WHEATON, H., Elements of International Law with Sketch of the History of Science , Vol. 2, Philadelphia: Carey, Lea and Blanchard, 1836.

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