The dancing girl in distress

International laws that may facilitate the statue’s return

This was a collaboration between Muhammad Majid Bashir and Minahil Ali

 

The best option would be to plea to UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation

 

The dancing girl, excavated in the Hargreaves area of Mohenjo Daro in 1926 by Ernest Mackay, is currently displayed at National Museum in New Delhi. Pakistan’s demand for its return bases itself on the belief that it was taken from Pakistan, 60 years ago, on the request of the National Arts Council in Delhi, for an exhibition from the Lahore Museum, but was never returned. The statue forms an integral part of Pakistan’s national heritage as a prehistoric cultural object, and its return to Pakistan is vital. The dancing girl may be classified as an “ancient antiquity” under the Antiquities Act 1975.

Provided that the dancing girl was sent for an exhibition, under Section 26(1) (a) of Pakistan’s Antiquities Act of 1975 it, at the first place, should have been sent after acquiring a license from the Director of Archeology of Pakistan for “a temporary export… for the purpose of exhibition…

The ruins of Mohenjo-Daro, and all associated cultural property thereof, are listed as a world heritage site in the United Nations Educational, Scientific and Cultural Organisation (UNESCO). Moreover, Pakistan is also a member of the International Institute for the Unification of Private Law (UNIDROIT). Therefore, reference to both the UNESCO Conventions and UNIDROIT Conventions may be made for any dispute resolution.

Both India and Pakistan are signatories to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. The dancing girl falls within the definitional requirements in Article 1 of the Convention. Article 7 of the Convention further makes the return of stolen property mandatory to the state of origin. Article 13 additionally imposes an obligation upon state parties to bring their domestic laws in consistency with the Convention in order to prevent by all appropriate means transfers of ownership of cultural property likely to promote the illicit import or export of such property.

Pakistan is signatory to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995. This Convention divides itself into two parts; the first part caters to the restitution of stolen cultural objects in Chapter II of the Convention and the second part caters to the recovery of illicitly imported cultural objects in Chapter III. Cultural objects take the same meaning as that in the 1970 UNESCO Convention. The definition establishes the general limits of the substantive scope of application of the Convention by providing that cultural objects are those which “on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science.”

Demanding the restitution of the dancing girl as a stolen cultural object under this Convention shall be viable as “Restitution” applies in case of theft and illicit appropriation. By virtue of Article 3 India is bound to return the statue which although lawfully excavated before partition, has been unlawfully retained by them. Furthermore, because the dancing girl forms part of the Mohenjo Daro as an integral prehistoric archeological site, there stands a 3-year limitation on Pakistan’s claim meaning that the claim would have been valid had Pakistan brought it within three years of discovering the statue’s location. However, this can be extended to 75 years if Pakistan’s law provides so. Due to the absence of such legislation it is likely that the three year limitation shall prevail. Article 4 lays down the compensatory guidelines under which India shall be further liable to pay compensation as they had more than reasonable knowledge that ownership of the statue belonged to Pakistan. Perhaps the most helpful provision of this convention is Article 5 as under it the Dancing girl, which was temporarily exported to India for an exhibition, so claimed by Pakistan, shall be deemed to be illegally exported because it has exceeded its terms of stay.

While this Convention in its entirety may no doubt help us bring the precious dancing girl back home, it unfortunately as yet has not been signed by India. The absence of India as a signatory to the Convention becomes an obstacle in the dancing girl’s journey back home.

The best option would be to plea to UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation. This Committee is one of UNESCO’s diplomatic offices. Its purpose is to assist and ease claims for restitution and return of cultural property to its origin state, which otherwise become too complex or difficult. Due to the lack of certainty as to the events and circumstances that led to the dancing girl’s situation in India; an appeal to the government should be made to request UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation to take into consideration this matter for the unharmed and peaceful return of the dancing girl to its home.

It is further suggested that a fact-finding committee be set up to trace the actions and circumstances that resulted in the statues final destination in India, and to further inquire as to the reason for delay in its return. Historically speaking considerable cultural assets with heritage value, belonging to Pakistan, have dissipated due to the lack of due diligence on government official’s part. It is thus absolutely vital that the statue and other valuable articles stolen from our national archives be brought back to their rightful place.

 

The writer is an Advocate Supreme Court, Senior Associate ABS & CO, former Additional District and Session Judge and Founding President of Centre for Rule of Law Islamabad-CROLI and can be contacted at: judgemajid@hotmail.com



One Comment;

  1. Hail Trump said:

    Indus valley civilization is precursor to Hinduism, Muslims have nothing to do with it

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