CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ BRINGING “TARA” HOME: SRI LANKA’S DISCONTENT WITH CULTURAL RESTITUTION… on the 2nd of March between the British and Kandyan chieftains. This convention held legal enforceability, which marked the end of Sinhalese sovereignty in the Kandyan kingdom by complete subordination to the British and the 5th Article of the Convention affirmed “The religion of Boodho, professed by the chiefs and inhabitants of these provinces, is declared inviolable, and its rites, ministers, and places of worship are to be maintained and protected.” 25 The events followed by the Kandyan Convention in history reveal how the British reviled the promises and the subsequent reasons that led to the 1818 Third Kandyan War. Under the Kandyan conventions, the British were obliged to preserve the heritage of the Buddhists and the ritual related to Tara Devi certainly fell under this category albeit the British later ignored the promise guaranteed by the Convention. In international law, the validity of the colonial treaties has become a cardinal point among the jurists as many of the European jurists in the infancy stage of the development of international law during the 19th century were reluctant to admit the admissibility of the treaties between the non-European colonized nations and the Europeans. In the 1800’s, the law of nations then known as Ius Publicum Europaeum, which was a system of norms intended to be a legal order to resolve the disputes among the civilized European states, which naturally excluded the Non-European Afro-Asian territories. 26 Thus, relying on the 5th Article of the Kandyan Convention that promised the preservation of Buddhism does not become a consoling factor in reclaiming the restitution from modern Britain for Tara Devi. On the other hand, the modus Operandi adopted by the British under Sir Robert Brownrigg contained a pure arbitrary manner without anyone’s permission. Although the British museum claims that the statue was gifted by Lady Brownrigg in 1830, the real story of its acquisition remains a riddle as some historians claim Brownrigg may have seized it from a private collection of the last king of Kandy during the Kandyan expedition. On the face of it, these different narratives stuck in the web of history further complicate the legal nature of the problem. At the same time, it should be noted that Sri Lanka’s tryst with Tara Devi’s statue is the same one that all the former colonies face in regaining their looted cultural properties. According to Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT) in 1995 and UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of the Ownership of Cultural Property, cultural property are simply defined as “as being of importance for archaeology, prehistory, history, literature, art or science” on “religious or secular grounds.” 27 The modern notion of ownership prohibits the forceful acquisition of properties from the parties, but the colonial formation of territorial rights legitimized the unmitigated control over the conquered lands. Hugo Grotius, in his classic work De Jure Belli ac Pacis , was of the opinion that a conqueror had absolute and unlimited rights over the conquered. However, this notion that pervaded the 17th century began to change with the contribution of Vatel, who carved the legal thought of his time by denying the looting of cultural properties. 25 OBEYASEKERE, G., Many Faces of Kandyan Kingdom , Colombo: Perera Hussain, 2019, p. 110. 26 VAN GELDERN, M., Carl Schmitt, Hugo Grotius and Ius Publicum Europaeum , History of European Ideas , Vol. 37, No. 2, 2011. 27 GIARDINI, G., Squaring the Triangle of Cultural Property Law. Seventy Years of UNIDROIT’s Work, Santander Art and Culture Law Review , Vol. 2, No. 1, 2023, p. 56.

73