CYIL vol. 15 (2024)

PUNSARA AMARASINGHE CYIL 15 ȍ2024Ȏ The biggest dilemma that modern International Law envisages in confronting the restitution of cultural properties is none of the current international legal instruments from the 1957 Hague Convention on Cultural Properties until UNIDROIT are non-retroactive as they cannot be applicable for an act committed before they came into effect. When it comes to the 1970 UNESCO Convention, its concern on the cultural properties occupied by the colonial forces is parochial as Article 7 (b) I states “to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appearing in the inventory of that institution”. This provision has excluded the colonial cultural properties. Moreover, the time limit it sets for proceeding with legal action was not adequate. Given the salient vagueness that surrounds the international legal instruments, one should look for the international juridical opinion in search of Sri Lanka’s claim for Tara Devi’s statue from the British. In the lexicon of international law, the law that prevails is not the law in contemporary times, on the contrary, it becomes the law that is prevalent at the time of conquest. The resolution 3187, adopted by the UN General Assembly in 1970, creating a special obligation for the former colonial powers to return them becomes mere legal decoration due to its unrealistic stance in implementing. Sri Lanka’s biggest setback that hampers the applicability of international law to invoke the principle of restitution to claim Tara Devi’s statue form the British authorities is rooted in the colonial history of the island, in which Sri Lanka did not receive the protection of the law of nations as the European powers did not admit the standard of civilization among the Afro-Asian colonies. Neither Treaty of Paris during the Vienna Congress in 1815 nor Hague laws in 1899 supported Sri Lanka’s loss of her most revered artifact. Andera Caligiuri writes “Unfortunately, these rules were not universal. They were only applicable among contracting States, stopping at the borders of Europe, the ‘civilised world’, and did not apply to territories which were or were to be colonised. Indeed, the colonised territories were regarded by Western powers as ‘barbaric’ or ‘uncivilised’ and therefore not as States at all; hence, the conflicts among their armies and the colonial peoples and communities were not legally qualified as wars” 28 Cultural Self -Determination It is bizarre to generate such a principle called “Cultural Self Determination” as the literature and the academic opinions related to it remain obscure. From a sheer theoretical point of view, the idea of cultural self-determination affirms the right of the nations to safeguard, manage and foster their cultural heritages without any hindrance. The moral qualm of the colonial atrocities of the modern Britain can be shunned by invoking the principle of cultural self determination based on the mutual consensus as such a restitution enshrines the keenness of Britain to rectify its errors in the past. The treaty signed between Netherlands and Indonesia in 1975 was emblematic in the principle of cultural self-determination. This principle was

28 CALIGURI, A., Legal Aspects Concerning the Restitution of Cultural Property during Colonial Occupation, QILJ , Vol. 2, No. 2, 2015.

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