AuthorDekker, Elsbeth

"Humanity and law, democracy and justice". These words are part of the closing lines of INDONESIA, a Police State (1937). (1) Powerful words, even without capitals and bold font, that, as the complete sentence implies, do not have the same meaning, nor equal distribution, among different people and under different circumstances. In this booklet, the authors Ms Philippo-Raden Soekaesih and G. Munster made an eloquent appeal to human dignity and equality of norms based on a conflicting situation: the juridical framework in the Dutch East Indies that protected, as well as restricted, fundamental rights with distinction to different layers of the colonial society. In this article, I want to broaden their discussion by morphing just one word in between the first lines: OBJECTS.

This (belated) addendum will draw a connection between the discussion of Soekaesih and Munster, particularly, their polemic regarding precarious legal positions and the area of cultural property. Ever since the period of political decolonisation, questions related to cultural property, ownership and restitution have occupied the thoughts and practices of scholars, curators, artists, critics, as well as activists and other social actors. (2) The recent publication of Felwine Sarr and Benedicte Savoy's report, recommending the restitution of Sub-Saharan African objects by the French State, appeared to have accelerated and energised debates on the possible return of objects taken during the era of European colonialism. (3) By bringing these topics together, I reveal how these discussions are intertwined, yet somehow separated by a sharp distinction of objects from subjects. Or, as argued by Achille Mbembe, I illustrate how the discussions are separated by a gap between "the law of property and use on the one hand and the act of creating and the creating subject on the other". (4)

This article will depart from the idea that as long as concerns for the object are detached from the underlying subject, this separation continues to have a hold on movements for justice and restitution. To capture this thought, the first part of this article focuses on the legal status of former colonial subjects. It will examine the genealogy of legal inequalities that have beset colonialism, as well as its legacy in (European) museums by drawing on the colonial context of the Dutch East Indies. It will start with a discussion of the document by Soekaesih and Munster and the legal inequalities existing in the colonies. The colonial distinctions will subsequently be related to the legal invisibility of former colonial subjects within international conventions on the protection and restitution of cultural property. The extent to which notions of cultural property and associated values have developed in the absence, or more precisely, the absent presence of former colonies, will function as a hinge where the discussion of subjects meets the discussion of objects.

The second part of this article focuses on cultural objects and the practices and ethics surrounding them. It will start with the idea of cultural property and protection as presented in texts by legal scholar John Henry Merryman (1920-2015). Merryman argued extensively that the laws and treaties on the protection and restitution of cultural property reveal disparate rationales: in which restitution becomes more or less opposed to universal values and interests of humanity. I discuss his arguments and demonstrate their resonance in contemporary debates on restitution based on a discussion of the report by Sarr and Savoy. While the discussion of this report highlights some of its significant features, it also situates the responses opposed to restitution within a system of thought that is either ambivalent to, or ignores, the subject; a system that generally fits our notions and understanding of art, objects or artefacts. The limitations and ambivalences of these notions, together with the solutions offered in the Sarr and Savoy report, subsequently come to the fore in the paragraphs concluding this article in relation to the theory of Ariella Aisha Azoulay.

Overall, I demonstrate that the words of Soekaesih and Munster have not lost their strength, nor relevance. Notwithstanding a different context and the passing of more than 80 years.


INDONESIA, a Police State (1937) by Soekaesih and Munster was written in another century, during a decade of political tensions in Europe, as well as in the colonial territories. Obviously, this document is marked by its own peculiarities: time-bound-issues, specific norms and standards, and subjects who experienced the world with a different pair of eyes. Nonetheless, the booklet is part of a larger discourse of resistance and rebellion against imperialism, in this case towards the colonial reign and legal system in the Dutch East Indies, nowadays called the Republic of Indonesia. While the above discourse predates the booklet, it simultaneously lingers through the present. (5)

In the booklet, Soekaesih and Munster reflect on the arbitrariness and inequalities of the legal system of the Dutch East Indies. By sharing the personal stories and memories of Ms Raden Soekaesih they elucidate, more specifically, that constitutional principles--for example of limited governance and the separation of powers--appeared to have different connotations inside and outside the European continent. (6) In 1927, Soekaesih was arrested for her membership of the women's wing of the anti-colonial party Sarekat Islam. (7) After being questioned and detained for nearly a year and a half, she was exiled without trial and sent to the Dutch prison camp Boven-Digoel. She was imprisoned in this camp until 1931 during which time she witnessed the "dreadful fate of those in exile"; the wretched and famished people who were punished for their efforts to be treated with equal respect; forced into poor conditions and helplessness, and by consequence made powerless in the camp. (8)

Following the authors, this experience of exclusion and, more generally, the precarious position of Indonesian subjects, was facilitated by the social structures of the Dutch East Indies: promoting colonial order by providing the Dutch authorities with discretion and a broad range of restrictions to limit constitutional rights. What was crucial according to Soekaesih and Munster, were the repressive effects of restrictions to limit politically relevant rights e.g. freedom of speech and the right of association. The latter were legitimised to protect public order, yet primarily used to undermine the emancipation of the Indonesian community. (9) Especially in respect to exorbitant rights: legal entitlements, held by the governor general, to restrict personal liberties through political deportation, banishment, exile and internment without the intervention of a judge. (10)

The exorbitant rights embodied a distinction between people born in the Dutch East Indies and those not, and alluded to a system of rules and regulations based on the principle of legal pluralism. (11) This principle had been codified in article 109 of the Regeeringsreglement of 1854, which divided the population of the Dutch East Indies along the lines of race. (12) It distinguished, on the one hand, Europeans and those equated with them (Indonesian Christians), from 'natives' and those equated with them (Chinese, Arabs, Japanese and other 'foreign oriental') on the other. (13) Each of these state-defined categories, subsequently, brought about different kinds of rights, norms and practices, resulting in a kaleidoscopic landscape with separate judiciaries and different regimes of substantive and procedural laws. (14) In general, 'natives' and those equated with them were issued with fewer protections and guarantees, rendering this group of people vulnerable to colonial governance and power. (15)

Even though the Dutch authorities were constantly criticised for accommodating legal differences, causing disparate ethnic relationships, the inequality of legal status and rights remained a constitutive part of the legal system in the Dutch East Indies. (16) In his lucid article on the legal history of Indonesia, Daniel Lev has argued that the colonial pattern of the law, predicated on the logics of pluralism, was sewn into the fabric of the independent State of Indonesia, "bearing with them instruments of repression no less useful to the later than the earlier regimes". (17) Drawing on this thought of legal patterns and continuity, I argue in the following paragraphs that the threads of distinction have reappeared, as if rewoven, in the fabric of the laws on the protection of cultural property and the discussion of restitution.


The framework for the protection of cultural property dates back to the mid-nineteenth century and expanded into a complex body of principles and instruments in the course of the twentieth century. (18) It evolved along thoughts of conquest and plunder, and became codified first within international humanitarian law, which treated 'cultural property' as an exceptional kind of property accompanied by a specific regime of rules and protections. (19) In most literature, thoughts on cultural property are placed in a progressive line of history. One that is entwined with humanism and the interests of people: protecting not just their objects and monuments, but their collective memory, consciousness and identity. The position of the colony, however, their interests and role in this evolution of legal thoughts and practices, often remains obscured or completely absent. (20) Regardless of the fact that the same period of time signaled the expansion of colonial collections and the formation of modern European museums. (21)

In this light, the earliest relevant treaties are the 1899 Hague Convention on the Laws and Customs of War on Land and its revised version, the 1907 Hague...

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