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Home > School of Law > Law School Journals > ILJ > Vol. 10 > Iss. 2 (2009)

 

San Diego International Law Journal

Document Type

Article

Abstract

The repatriation of cultural property is a controversial issue throughout the world, creating a sharp divide between states with a wealth of antiquities, such as Greece or Peru, and states which, lacking such extensive cultural property, have nonetheless built international museums housing the patrimony of other nations. The conflict surrounding the proper ownership of the Elgin marbles, probably the most famous dispute over cultural property, is but one example of many. In recent years, calls for the repatriation of cultural property have become increasingly common, involving world famous museums such as the Metropolitan Museum of Art and the J. Paul Getty Museum. This paper will examine the ongoing dispute over the Incan artifacts currently housed at the Peabody Museum at Yale University. These artifacts, originally unearthed by Yale professor Hiram Bingham in his excavations of Machu Picchu and surrounding areas, have generated significant controversy between the University and the Peruvian Government. Although Peru did not have the clear legal framework for the ownership of cultural patrimony at the time of Bingham’s expeditions that it does now, the nation’s patrimony was a central subject of public, intellectual and legal debate even in 1911, the year of Bingham’s first expedition. This paper will examine Bingham’s three expeditions to Peru, focusing on the legal framework and controversy surrounding his excavation and exportation of thousands of artifacts to Yale. Following this discussion will be an examination of the equally contentious current negotiations for the return of these Incan artifacts to Peru and the legal frameworks proposed by Peru and Yale for their repatriation. Many of the arguments about the nature and meaning of cultural patrimony that surfaced during the original expeditions have been repeated in the course of Peru and Yale’s current negotiations, demonstrating the different legal frameworks of the two nations. While the result of the initial debates was the export of thousands of Incan artifacts to the U.S., there remains an opportunity in the present negotiations for a settlement that does not repeat the neocolonial aspects of Bingham’s original expeditions on behalf of Yale and instead addresses the questionable manner in which the objects were originally exported. Overall, an examination of the historical record pertaining to the three expeditions demonstrates that Peru never transferred full legal title over the artifacts to Yale, and that Yale’s legal arguments for retaining possession are based primarily on procedural loopholes. Although Yale might win a lawsuit in U.S. court over the artifacts, important ethical considerations, more recent developments in international law, and the problematic history of the objects point to their return to their country of origin.

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