Cultural assets restitution: why the British Museum & ‟Musée du Quai Branly”, amongst others, must act now

Cultural assets restitution

1. Cultural assets restitution: legal framework

1.1. International law: UNESCO conventions and UNIDROIT convention

Various UNESCO conventions, such as the convention for the protection of cultural property in the event of armed conflict dated 14 May 1954 (the ‟1954 Hague convention”), and the convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property dated 14 November 1970, were adopted to protect cultural property, such as monuments of architecture, art or history, archaeological sites, works of art, manuscripts, books and other objects of artistic, historical or archaeological interest, as well as scientific collections of any kind regardless of their origin or ownership.

While France ratified both UNESCO conventions, in 1957 and 1997 respectively, the UK belatedly ratified the 1954 Hague convention in 2017 and ‟accepted” – but did not ratify – the 1970 UNESCO convention in 2002.

The commitments made by the state parties to the UNESCO conventions serve to preserve cultural heritage through the implementation of the following measures, inter alia:

  • declaring the import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under the 1970 convention by the states parties thereto, illicit;
  • declaring the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power, illicit;
  • adopting preventive measures such as preparing inventories, planning emergency measures to protect property against the risk of fire or the collapse of buildings, and preparing the removal of cultural property to places of safety;
  • developing initiatives which guarantee respect for cultural property situated on their own territory or on the territory of other states parties. This involves refraining from using such property in any manner that might expose it to destruction or deterioration in the event of armed conflict, and by refraining from all acts of hostility directed against it;
  • registering cultural property of very high importance on the International Register of Cultural Property under Special Protection in order to obtain special protection for such property;
  • marking certain important buildings and monuments with a distinctive emblem of the conventions;
  • providing a place for eventual refuge to shelter movable cultural property;
  • establishing special units within the military forces responsible for the protection of cultural property;
  • setting sanctions for breaches of the conventions, and,
  • promoting the conventions among the general public and through target groups such as cultural heritage professionals and military or law-enforcement agencies.

These UNESCO conventions have a limited scope, with respect to artefacts taken and stolen before their entry into force.

Indeed, many objects, now in museum collections, were acquired from their original owners via violence or deceit, or in conditions linked to the asymmetry of the ‟colonial context”, even before the Hague conventions of 1899 and 1907 entered into force, when the practices of looting and bringing back trophies were still admissible. The collection of foreign objects, by scientific missions financed by colonising states, during the exploration and conquest of new territories, was another way to unilaterally obtain foreign cultural assets, widely used, in parallel to, and jointly with, military operations orchestrated by these same governments.

The acquisition context is therefore going to be determining in the treatment of restitution requests, because those above-mentioned acts are not legally qualified as crimes, pursuant to international law, contrary to nazi spoliations (against which the Inter-allied declaration against acts of dispossession committed in territories under enemy occupation or control dated 5 January 1943, a specific legal act, was adopted) and contrary to pillages and destructions in wartime posterior to the above-mentioned 1954 Hague convention.

Secondly, many objects from public collections were gifted or bequeathed to museums, by the heirs of colons, military men involved in the conquest operations, colonies’ administrators or missionaries, sometimes several decades after the death of their ancestors. The terms of the initial acquisition of these objects – which spread over almost a century and a half – may be very diverse: spoils of war, of course, thefts, gifts more or less freely consented, but also barter, purchases, fair or not, or even direct orders made to local artisans and artists. Most of the time, the museum that is the beneficiary of those gifts, already ancient, has limited information on the terms of the first acquisition of these objects, and even sometimes on their exact provenance. These objects do not fall into the scope of the above-mentioned two UNESCO conventions.

Also, those UNESCO conventions do not have any effect in relation to cultural assets which are held in private hands, as confirmed by the legal case relating to a restitution request, made for the Nok statues, by Nigeria: ‟The provisions of the 1970 UNESCO convention are not directly applicable in the internal public order of state parties, therefore M.X. is right in arguing that this convention only provides for obligations applying to state parties, and does not create any direct obligation against private citizens of these state parties” (Court of Appeal of Paris, 5 April 2004, Federal republic of Nigeria v/ M.X., case 2002/09897, confirmed by the Court of cassation civ. 1, 20 September 2006, nº04-115599).

Finally, these two UNESCO conventions do not provide for any restitution mechanisms, in relation to any stolen or looted cultural property, thereby leaving a legal void, in international law, with respect to art restitutions.

However, the UNIDROIT convention on stolen or illegally exported cultural objects, dated 24 June 1995 (the ‟UNIDROIT convention”), fills this gap and is therefore complementary to these UNESCO conventions. It is an important step of establishing a common mechanism, and minimal legal rules, for the restitution and return of cultural objects between contracting states, with the objective of improving the preservation and protection of the cultural heritage in the interest of all.

Indeed, the UNIDROIT convention applies to claims of an international character for (a) the restitution of stolen cultural objects and (b) the return of cultural objects removed from the territory of a contracting state contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (‟Illegally exported cultural objects”).

But the scope of the UNIDROIT convention is limited in practice, because countries such as France and the UK, where a considerable portion of Illegally exported cultural assets and stolen cultural objects, taken during the ‟colonisation period”, is stored in national public collections, have either not ratified, or not even signed (for the UK), such UNIDROIT convention.

Also, some time restrictions to claims for restitution of stolen, or illegally exported, cultural objects are set out in the UNIDROIT convention. Such claims may be brought in three years from the time the claimant or the requesting state knew the location of the cultural object, and the identity of the possessor, and in fifty years since the time of the theft, the export or from the date on which the object should have been returned (articles 3.3 and 5.5). However, there are exceptions to this rule for stolen objects. Cultural objects that form an integral part of an identified monument or archaeological site, or which belong to a public collection, are not subject to time limitation other than a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor (article 3.4). In addition, a contracting state may declare that a claim warrants an extended time limit of seventy-five years or longer, if so stated in its national law (article 3.5).

Besides, the UNIDROIT convention is not a retroactive treaty and, as such, it only applies to cultural property stolen, or cultural objects illegally exported, after the UNIDROIT convention entered into force (article 10). However, the UNIDROIT convention ‟does not in any way legitimise any illegal transaction of whatever which has taken place before the entry into force of this convention” and does not ‟limit any right of a state or other person to make a claim under remedies available outside the framework” of the convention (article 10.3).

1.2. European Union legislation: Directive 2014/60/EU of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a member-state

This issue of writing and adopting common rules, between states, to guarantee the restitution of cultural property, has first emerged in Europe, and more precisely within member-states of the European Union (‟EU”).

EU member-states benefit from economic, cultural and legal integration tools, which are highly developed on certain aspects, and in particular on restitution of cultural assets.

But the implementation, and benefit, from these automatic restitution mechanisms, for cultural assets which were stolen or illicitly exported, are limited to EU member-states only, of course.

Directive 2014/60/EU of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a member-state (the ‟Directive”) provides for this EU-wide right of restitution of cultural assets.

Since Brexit, the UK is no longer a member-state of the EU, and therefore the above-mentioned Directive no longer applies on its territory.

However, the Directive applies in France, one of the remaining twenty-seven EU member-states, via its transposition into French national statutory laws.

The above-mentioned Directive is a very ‟hands-on” framework, on how cultural assets should be returned, within which timeframe, and under which conditions.

However, when the request for restitution comes from a third-party state (i.e. not an EU member-state), the protection of the buyer acting in good faith, as well as the principle of territoriality of laws (i.e. the principle pursuant to which the judge will rule only in compliance with the law of the country in which the object is located, at the moment of the restitution claim) usually block any successful outcome to such restitution request.

So, in case the request for restitution comes from a state outside the EU, the above-mentioned UNESCO 1954 and 1970 conventions apply, but, as already stated, they have limited scope.

The imbalance between the law applicable in EU member-states, and the principles that the judge uses against third party states located outside Europe, seriously impacts the future of cultural assets’ restitutions to countries located in Africa, Asia, Australasia and the Americas. Such imbalance could be addressed if France and the UK, as well as African, Asian and Australasian countries ratified the above-mentioned UNIDROIT convention. This convention sets out an automatic restitution mechanism, which would apply to its contracting states. It could be the foundation for a common right to restitution, in particular, and potentially, in relation to cultural assets taken during the ‟colonial period”. The ratification of the UNIDROIT convention may therefore be the key to set up an automatic restitution mechanism, not only in the EU, but also outside the EU.

EU member-states have applied such ambitions by infusing the principles from the UNIDROIT convention within the Directive. Therefore, the extension of such principles to third party states, via the UNIDROIT convention, should be achievable.

1.3. French rules

The current French legal framework is set up in such a way that it blocks, and opposes, most restitution requests addressed to French museums, with respect to their museum collections, via its:

  • provisions from the ‟code du patrimoine” (‟CP”), which entered into force in 2004, and
  • provisions from the ‟code général des propriétés des personnes publiques” (‟CGPPP”), which entered into force in 2006.

The French current legal framework sets out a definition of the public domain furniture which covers all cultural assets – in particular, public collections. Such definition of the French public domain furniture triggers some legal protection backed up by the rules of imprescriptibility and inalienability of the public domain, which blocks all restitution requests.

Indeed, the statutory principle of inalienability of French public collections, enshrined in article L. 451-5 CP, is opposed to the transfer of ownership of any one of these assets preserved in these collections. This is because all assets belonging to the French public collections are national treasures, pursuant to article L. 111-1 CP.

In France, the rare restitution cases which took place during the last twenty years were made possible via mechanisms designed to go around the rules relating to the French public domain. Two legal avenues were pursued, as follows:

  • enacting a law creating an exception to the principle of inalienability of French public collections, derogating to the above-mentioned rules applicable to French cultural assets and public domain. For example law nº2002-323 dated 6 March 2002 relating to the authorisation of the restitution by France of the mortal remains of Saartjie (Sarah) Baartman, also known as the ‟Hottentot Venus”, to South Africa, and law nº2010-501 dated 18 May 2010 relating to the authorisation of the restitution by France of the Maori heads to New Zealand, are such laws providing for exceptions to the principle of inalienability on the grounds of the principle of dignity and of the respect due to dead people, and
  • removing a cultural asset, from the scope of the laws relating to the French public domain, because such object does not belong to the museum’s collection. For example, art works stamped ‟Musées Nationaux Récupération” since 1953, which are comprised of 60,000 works pillaged by nazi occupiers and never restituted, were never added to the French public collections, precisely in order to allow their restitution once the owners or right-holders would be identified or recognised. Also, the restitutions of Chinese cultural assets, done in 2015, were possible via the withdrawal, at the request of the French state, of the gift made a few years earlier, by a private collector, to the Guimet museum. Consequently, rebranded as ‟private property”, these objects were able to be restituted, directly by the donor, to the Chinese state. Moreover, the removal of a cultural asset from the French public domain may be due to an irreparable original defect tainting its acquisition. Objects coming from illegal trafficking, entered into French public collections after 1997 (as France ratified the above-mentioned 1970 UNESCO convention on 7 January 1997), because of some negligence in controlling their provenance upon acquisition, or which illicit status was revealed further to discovering new facts, may be the object of a cancellation of their acquisition (by way of sale, gift or donation) via legal proceedings initiated by the defrauded French public entity, in compliance with law nº2016-925 dated 7 July 2016. The object is therefore deemed to have never entered the French public domain, and new article L. 124-1 CP provides that the judge may order its restitution to its original owner.

1.4. UK rules

Similarly, the current UK legal framework is set up in such a way that it blocks, and opposes, restitution requests addressed to UK museums, with respect to their museum collections.

As mentioned above in this article’s introduction, London’s British Museum is fiercely targeted by growing calls for repatriation of cultural assets, with repeated requests from various countries, such as Greece, Ethiopia, Italy and Nigeria, to return items from its vast collection.

However, the British Museum, and the UK government, have systematically opposed those restitution requests by citing the British Museum Act 1963, a national statute which prohibits the institution from returning works. Indeed, section 5 (Disposal of objects) from the British Museum Act 1963 provides that ‟the trustees of the British Museum may sell, exchange, give away or otherwise dispose of any object vested in them and comprised in their collections if:

  • (a) the object is a duplicate of another such object, or
  • (b) the object appears to the Trustees to have been made not earlier than the year 1850, and substantially consists of printed matter of which a copy made by photography or a process akin to photography is held by the Trustees, or
  • (c) in the opinion of the trustees the object is unfit to be retained in the collections of the Museum and can be disposed of without detriment to the interests of students (provided that where an object has become vested in the trustees by virtue of a gift or bequest the powers conferred by this subsection shall not be exercisable as respects that object in a manner inconsistent with any condition attached to the gift or bequest)”.

Similar very limited exceptions to the principle that objects from UK public collections cannot be deaccessioned, are set out in the National Heritage Act 1983, which focuses on the collections from the Victoria & Albert Museum, the Science Museum, etc.

The UK has enacted only two acts so far, which carve additional exceptions to the principle of prohibition of returning works from UK public collections.

The provisions of the Human Tissue Act 2004 create a new exception to the provisions of the British Museum Act 1963. Indeed, pursuant to the Human Tissue Act 2004, the trustees of the British Museum have the power to deaccession human remains, and return them to their owners and/or the descendants of such deceased persons. Consequently, the British Museum has set up a pragmatic policy, which sets out the circumstances in which the trustees may consider a request for the deaccessioning of human remains. It gives guidance on the procedures to be followed by those seeking to submit a claim for the return of human remains in the British Museum collection that are less than one thousand years old to a community of origin.

Also, the Holocaust (Return of Cultural Objects) Act 2009 opened up repatriation of artwork looted during the nazi era.

Aside from those two above-mentioned ‟ad hoc” exemption acts and processes, the UK has stuck to its guns and objected to each one of the restitution requests, made by various third party states or indigenous communities in Africa, Asia and Australasia, a stern ‟no” because it is not allowed under the British Museum Act 1963 and/or under the National Heritage Act 1983, which provide that objects considered part of the country’s national heritage may not be taken out of the UK.

In particular, with respect to the contested objects from the collection of the British Museum, the UK government and institution have muddled the waters, proposing the development of ‟long-term relationships with the communities” (sic) making the restitution claims, signing ‟memorandums of understanding to develop mutually beneficial projects with artists, scholars and other community members” (sic), suggesting that some new museums be built in the territories of third party states which have made the restitution claims to facilitate permanent displays of objects, while still fiercely opposing any attempt to restitute these objects.

Many think that such backward attitude towards restitution of stolen or illegally exported cultural assets is no longer acceptable, with Vice’s ‟unfiltered history tour” being a very poignant illustration of how many communities are reeling at not being able to get their cultural objects back from the British Museum.

Some stakeholders even use guerilla war techniques, to shock members of the public and make a point, in particular with respect to African cultural assets. Mwazulu Diyabanza, a Congolese pan-African political activist, expressed his support of cultural restitution and the removal of African artefacts from European museums obtained during colonisation by barging in the ‟Musée du Quai Branly in June 2020, and subsequently taking a 19th-century funeral post of the Bari people from this French institution.

2. Cultural assets restitution: actions taken – or to be taken – to allow the return of stolen or illicitly exported objects to their countries of origin

While French president Emmanuel Macron is widely disliked in France, in particular due to his autocratic and violent ways to impose ‟reforms”, he was surprisingly ‟avant-gardiste” in his approach to cultural assets restitution during his first five-year mandate. Indeed, he commissioned Senegalese academic, Felwine Sarr, and French art historian, Bénédicte Savoy, to research, and then write, an ethics report on the restitution of African cultural assets, which was issued in November 2018 (the ‟Report”).

The Report, which is excellent, extremely well-researched and well-balanced, on the whole, to find an appropriate, lawful and systematic approach to ethical restitutions of African cultural assets – which are currently predominant in French public collections, that contain around 90,000 sub-Saharan African objects acquired in dubious circumstances by France – is a major step in the right direction.

In particular, the Report suggests to amend the CP, in order to institutionalise the restitution process and enshrine it in law, in a new section 5 of such CP, relating to the restitution of cultural assets on the grounds of a bilateral cultural cooperation agreement with countries which used to be French colonies, protectorates or managed under French mandate. Such suggested new section 5 of the CP and such proposed bilateral agreement template are both enclosed to the Report, in its Annex 2. The Report does set out that such ‟ad hoc” restitution process would be an exception to the overarching principles of inalienability and imprescriptibility of the public domain, in particular to return African objects to their countries of origin.

Helpfully, the Report sets out a list of restitution criteria, even providing a suggested timeline of the restitution programme in three stages. During the first stage, from November 2018 to November 2019, the Report suggests to return several African cultural objects, listed in the Report, to African countries such as Benin, Senegal, Nigeria, Ethiopia, Mali and Cameroon. During the second stage, from spring 2019 to November 2022, further works and initiatives should be implemented, relating to inventories, digital sharing, workshops, joint committees between France and each of the African states that wish to recover their cultural assets. During the third stage, from November 2022, the Report suggests that the restitution process, with respect to African cultural assets in particular, should become permanent and allow third party states to continue claiming back their objects.

For now, the Report has been mostly wishful thinking. However, France has returned the sword of Omar Tall, a 19th century Islamic scholar and ruler, to Senegal in November 2019, and returned twenty six artworks looted from Benin during the colonial era, after its parliament adopted an ad hoc” law allowing such restitutions.

The UK continues to have a ‟stiff upper lip” attitude, when it comes to restitution requests. However, many think that this is no longer acceptable, and push towards either the enactment of more acts providing for further exceptions to the British Museum Act 1963 and/or a complete overhaul of this act (even if, after such amendments, the trustees of the British Museum would deal with each restitution request on a case-by-case basis). A potential loophole in the UK legal arsenal had even be identified in the Charities Act 2022, with its new sections 15 and 16 allowing for charities, including national museums like the British Museum, to return objects if trustees felt a moral obligation to do so and gained approval from either the UK courts, charity commission or attorney general. However, in November 2022, the UK government deferred the introduction of these legal provisions which would enable national museums to deaccession items from their collections on moral grounds.

With up to ninety percent of the sub-Saharan Africa’s material cultural legacy outside of the African continent, for example, according to the Report, much more needs being done, in France and the UK, to return cultural assets to their rightful owners and countries of origin, and put things right. Private initiatives, such as a recent USD15 million, four-year initiative by George SorosOpen Society, hope to spur momentum in reparation efforts through legal, financial and technical support to governments, regional bodies, museums, universities and civil societies.

Crefovi’s live webinar: Cultural assets restitution – why the British Museum must act now – 29 June 2023

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