Law and Ethics
Nepal's Looted Art and the ethical and legal implications of looted art in international claims.
May 9, 2023
The expression “looted art” generally refers to cultural objects illegally exported from their place of origin to somewhere else. The transfer can have a national or international character and can involve private or public actors. Despite this variety, the common denominator is the violation of the owner’s right to the items and the request for restitution. The unlawful appropriation of cultural objects is not only a matter of law but of ethics. Looted items often appear in well renowned museums and private collections, but they lack their context. The result looks like a shopping window of beautiful items, without their stories or significance. It follows that looting does not only stand for depriving someone of their belonging, but also disrespecting their culture. This article will hence explore the legal and ethical implications of looted art in international claims. Mostly, Nepal and its struggles in recovering its cultural objects will be taken as the main case study to unveil some of the most common issues in international claims for the return of looted cultural objects.
Nepal is a source country, rich in art and history but with a poor economy and an unstable political system. Nepal was ruled by the monarchy until 2001 when the King and most members of the royal family were killed by the crowned prince, who died as well. After years of uprisings, the monarchy was officially abolished in 2007, and Nepal was declared a Federal Democracy. Despite the establishment of democracy, the country faced a political deadlock in drafting the new constitution. In addition, Nepal had to deal with a series of disasters that led to a strong and ongoing humanitarian crisis that saw people accusing the government to have poorly responded to the emergencies. Among the most predominant examples, it is important to remember the 2014 avalanche on Mount Everest that killed 16 sherpas, the landslide in August of the same year, where 156 people were killed, and the 2015 earthquake, which caused the death of hundreds of civilians.
Despite the internal politics of the country, Nepal, even prior to 2007, has always had clear national laws concerning its own cultural heritage. Order N.39/69 (1969) on the exportation of historical, archaeological, and artistic objects prohibits the movement of cultural objects without the permission of His Majesty. Also, Chapter 8 section 28 of the Customs Act 2064, enacted in 2007 with the establishment of democracy, declares that the import and export smuggling of cultural objects is illegal. Finally, the main source of law against the illegal trafficking of art is the Ancient Monuments Protection Act. It was originally enacted in 1956, but a new version was passed in 2013. It means to protect archaeological objects from damage or disappearance, and it clearly states that the reason for such action is the object's historical, archaeological, and artistic value. According to section 6 (13) (5), whoever acts against the law shall be punished with a fine not exceeding 25,000, or imprisonment for not more than five years, and the object confiscated. This last part is utterly important: the wording and the inclusion of confiscation make this law an ownership law. Therefore, the State is the owner of cultural objects illegally exported outside of the country.
It is important to remember that Nepal’s effort in protecting its cultural heritage can be also seen at the international level. The country signed and ratified the 1970 UNESCO Convention, which is the main international tool concerning cultural heritage still in use, and which requires member states to prohibit both the export and import of cultural property from and to their territory if they do not have appropriate licenses. Acknowledging this legal and political framework, it must be highlighted that Nepal was closed to foreigners until the 1950s, and, as the previous paragraph shows, has a longstanding ban on the export of culturally significant material dating back to 1956. Therefore, it is plausible to assume that objects from Nepal that appeared in museums around that time were in fact looted.
One of the most recent cases that saw Nepal claiming the return of its cultural objects involves an exhibition organized by the Art Institute of Chicago and the Marilynn Alsdorf private collection. The latter includes 24 objects with incomplete provenance, among which at least four have been looted from Nepal. The main piece of the exhibition is an inscribed gilt-copper necklace with semiprecious stones and designs from the 17th century. Originally, the necklace was a gift offered by Nepali King to the Hindu goddess Taleju, so it had an important religious meaning. It is significant that in Nepal, divine representations of Taleju are hidden from public view, and worshippers are only allowed inside her temple once a year. The necklace, now on display at the Art Institute of Chicago, was part of the treasure offered to the goddess, and it was therefore supposed to be kept in her temple, far away from the public.
Nepal was made aware of the presence of the necklace at the Art Institute of Chicago after a visitor saw it on display and shared the experience on social media describing it as overwhelming. Hence, the Nepali Embassy in Washington requested the return of the necklace and sent the museum an extensive report concerning the origin of the item. The report also recalled the smuggling of the artefacts in the 1970s, and the presence of a scroll in the Taleju Temple mentioning the necklace, which proves it was in the country when smuggled. Although the Nepali government could not precisely establish when or how the necklace left the country, the last official evidence concerns its moving in 1970 to the Hanuman Dhoka Museum in order to improve safekeeping. After that, the only piece of information comes from the Institute’s record, which states that the Alsdorfs acquired the necklace in 1976 from a Californian dealer, Bruce Miller, and donated it to the Institute in 2010.
The Art Institute of Chicago claimed that it is taking the matter very seriously, and is not only researching the provenance of the necklace but also the possible involvement of the royal family and government or religious actors in the smuggling. Even though the last point would be proven to be true, which is unlikely since there is no factual evidence and the member of the royal family died in 2001, it does not change the illegality of the action. Also, the necklace has a strong and meaningful religious significance, and its display in a museum is not only unlawful but disrespectful and unethical. Acknowledging that the repatriation of looted antiquities is a long and hard process, usually, the claimants need to meet three basic requirements: proving clear ownership, proving the object was in the claimants’ territory when looted, and proving due diligence. In this case, Nepal’s law states the country has the right to its cultural objects, the necklace was definitely in the Nepali Temple when the unlawful transaction occurred, and the government immediately started investigating its repatriation.
The necklace is only one of the most renowned cases of looted art from Nepal. In fact, looted items from the country are present in several famous collections, and Nepal’s effort in claiming the return of its cultural heritage is internationally recognised. Among some of the most recent and relevant cases, it is important to remember the return of a 10th century statuette of a Hindu deity from the MET, and the return from the Barakat Gallery in London, in 2022, of a 16th century carved wooden Torana, a ceremonial gateway, and a 17th century stone statuette of a kneeling devotee. Furthermore, the Art Gallery of New South Wales in Australia is negotiating the possible repatriation of a statuette of a wooden goddess that disappeared 50 years from a local temple in Nepal, while the Rubin Museum of Art in New York contained more than 600 objects from Nepal lacking proper provenance.
The examples mentioned in this article are only a small part of Nepal’s cultural heritage illegally spread around the world. In fact, Nepal itself is only an example to illustrate one of the most dramatic threats against cultures and traditions. The appropriation of another culture’s heritage deeply impacts the population. Looking again at Nepal, most of the objects stolen belong to the religious sphere. They are statuettes, gifts, and symbols, and they have uses and purposes. Nepal has living religious traditions where idols are statues are worshipped and taken out during ceremonies. Hence, without the relics, people cannot have their celebrations. Each stolen artefact contributes to the progressive erosion of the culture itself.
Although the international standards for the repatriation of stolen might seem clear, they are not easy to be met. It must be acknowledged that, often, the dramatic internal dynamics of a country wounded by economic and humanitarian crisis leaves no time to revise cultural laws. Sometimes, despite the correct intention, the wording is wrong, and the court does not look beyond the literal interpretation of the law. At the same time, when it comes to looted antiquities, tracing their actual original location can be impossible due to the lack of information on their provenance. However, the moral component might feel the legal gaps. Understanding the importance of artefacts for their cultures, the traditional value that they hold, and the generational ties that they embody, are key elements that could contribute to their repatriation to the legitimate owners. However, they all entirely rely on the defendants’ ethics, which not always comes through.
 Shrestha, B. G. (2008) “The End of Monarchy in Nepal and Its Delicate Journey Towards a Republic”. Contributions to Nepalese Studies, 35(1), 63.
 The 1970 UNESCO Convention, https://en.unesco.org/fighttrafficking/1970.
 The collection already returned nine pieces to Nepal because illegally acquired.
 Sushila Manandhar, “The Royal Devotion to Deity Taleju”, . https://himalaya.socanth.cam.ac.uk/collections/journals/ancientnepal/pdf/ancient_nepal_107_02.pdf
 Elyssa Cherney, Steve Mills, “Nepal Wants a Sacred Necklace Returned. But the Art Institute of Chiacago Still Keeps It On Display”, Crain’s Chicago Business and ProPublica, 2023 https://blockclubchicago.org/2023/03/21/nepal-wants-a-sacred-necklace-returned-but-the-art-institute-of-chicago-still-keeps-it-on-display/
 It is worth mentioning that in 2010, an Indian court unveiled Miller’s work with antiquities smugglers in India in 1992
 Tessa Solomon, “London Gallery Returns Two Artefacts Looted from Nepalese Temples”, 2022 https://www.artnews.com/art-news/news/london-gallery-returns-two-nepal-artifacts-1234622423/
Ilaria Bortot is a Global Contributor & Consultant working across Art Legal's Cultural Heritage, Research, Provenance, and Repatriation Departments. Ilaria's areas of expertise and interest include, Nazi-looted art, repatriation issues, looted antiquities, provenance research and the illegal trafficking of art.
Ilaria graduated in Art History and International Affairs from John Cabot University in Rome, achieved an LLM in Art Law from the University of York, and studied Foundation of Art Law at the Institute of Art and Law in London as well as attending the Geneva Summer School program in International Cultural Heritage Law with the Centre du Droit de l’Art / Art-Law Centre and the UNESCO Chair in the #internationallaw of the Protection of #culturalheritage, and completed postgraduate course in Antiquities Trafficking and Art Crime with the University of Glasgow. She published her dissertation on the repatriation of the Discobolus Lancellotti with the Journal of Art Crime and wrote an article on the use of 3D printing on the Parthenon Marbles to facilitate their return to Greece for the Center of Art Law in New York.
Photo Credit: Shaouraav Shreshtha Unsplash - Worshippers at Kaal Bhairav Hindu shrine in Kathmandu Durbar Square in Nepal’s capital.
Necklace Inscribed with the Name of King Pratapamalladeva - CCO Public Domain Designation from The Art Institute of Chicago®