A Review of the Arts Council of England’s Restitution and Repatriation: A Practical Guide for Museums in England

By Dr Idahosa Osagie Ojo

Introduction

Image courtesy of © Scarborough Museums and Galleries

Restitution and Repatriation: A Practical Guide for Museums in England,[1] hereafter referred to as The Guide, was commissioned by the Arts Council of England in collaboration with the Institute of Art and Law [2]. It was written to regulate and harmonise the museums in the restitution and repatriation of cultural objects that were unjustly appropriated from their owners. The objectives were to provide a practical framework for dealing with restitution and repatriation demands. Despite these lofty objectives, The Guide is unnecessary for restitution and repatriation of wrongfully acquired cultural and historical objects as there are other legal frameworks and provisos already available for the same purpose within the United Kingdom and the larger global scene. In addition, the provisos of The Guide encourage the Museums to hold on to these artefacts until the procedures it recommended including provenance research are completed, and did not provide any hint on how the museums that cannot afford the provenance research can be funded. By suggesting digital copies of these objects be uploaded to individual museum websites, The Guide implies museums continue to benefit from these objects to the detriment of the real owners.

Despite its shortcomings, The Guide empowers the museums in England to take action in resolving the problem of unfair possession of other peoples’ cultural and historical materials through transparency, collaboration and fairness. It provides a procedure for processing common issues on the wrongful possession of looted artefacts and other cultural materials that applies to the museums. These issues are often matters of process and they also relate to the ethical considerations involved in assessing claims for repatriation and restitution. This review analyses The Guide in four sections. Following this introduction is the second section entitled, “Summary of Instructions and Recommendations to the Museums” while the third section, “Assessment of the Guide” examines these guidelines and recommendations in resolving the issue of unfair translocation of cultural and historical materials. The final section draws deductions from the explanations and analysis. 

 

Summary of Instructions and Recommendations to the Museums 

The Guide demands that the museums meet some conditions before beginning restitution or repatriation of any objects. The condition of greatest emphasis is the provenance research that it requires the museums to undertake before commencing the restitution and repatriation process. This, according to The Guide, will enable the museums to have elaborate knowledge of the items in question and set the stage for the assessment of restitution or repatriation claims as well as in developing a restitution and repatriation policy. It recommends that the research be done according to organizational need, and museums should demonstrate due diligence in the prioritization of research around collections which may have contested histories. It admonishes the museums to be transparent with countries or communities of origin, or other past owners, because transparent conversation only becomes possible when those parties are aware of the items in museum collections and those of interest to them.

Signage from the From Local To Global exhibition © Scarborough Museums and Galleries

The Guide also demands that museums tell the full stories behind collection items, including those that may reveal a controversial past. It required that both physical and digital labels and interpretation panels should reflect the true and full provenance of the item and any relevant historical context. Museum records should be archived and updated with newly discovered information  and should be made available in a form which is accessible not only to professional researchers but for anyone with an interest in finding out more about the history of any museum object.

The Guide recommends that museums digitize objects and their provenance details and publish them in an easily searchable format on the museum’s website. It also requires the museums to undertake proper communication and transparency in handling claims and in providing useful information to members of the public and potential claimants. It recommends that the policy should be clear and located in a prominent place on a museum’s website and be reviewed on an appropriately regular basis. It recommends a clear basis of contact for communications, verifying that the requested items match the items held by the institution. It also recommends ensuring the party is aware of the museum’s written policy on responding to restitution and repatriation cases, urging that the party would follow the procedure set out in that policy.

According to The Guide, there are a number of possible ways a claim for restitution or repatriation can be resolved. These include outcomes whereby:

I. Legal ownership of the object is transferred to the claimant and the object handed to the claimant or a representative on a date to be arranged by mutual agreement.

II. The museum remains the legal owner, but the object is lent to the claimant (on a short-term or long-term basis)

III. The museum remains the legal owner, but the claimant is given certain rights of access to the object and/or control over its future care and display

IV. Legal ownership is transferred to the claimant, but the object remains at the museum (i.e. on loan from the claimant)

V. A form of shared legal ownership is agreed

VI. Legal ownership of the object remains with the museum without further undertaking. The claimant should be notified of this outcome and a record of the claim be made for the museum despite no action being taken.

 

Assessment of the Guide

The transparent and fair procedure emphasized and required of the museum by The Guide is commendable but it is unfair that it requires these objects be digitized by the museums and placed on their website for continuous benefit before restitution and repatriation can be done. It is also unfair that The Guide did not mandate the museums or any other body to return the materials in question. Similarly, it does not require the museums to take initial steps in returning cultural artefacts in their possession that have been identified and confirmed as theft or looted objects. It does not consider the interests of the owners who are demanding these objects, instead creating complicated restitution or reparation guidelines.

Hands holding a book

Image courtesy of © Scarborough Museums and Galleries

Advising within the framework of fairness and justice, The Guide is expected to require the museum to transfer ownership and repatriate the objects to the owners immediately after the claims are proven and the demand assessed. We would have hoped that The Guide recommends museums apply the words of Chimamanda Ngozi Adichie: “These objects are not ours. Tell us what to do with them.” It did not, instead it recommended further discussions on the future of the objects based on negotiating legal ownership, continuing possession of the object by the museums, and even loan of the object to the owners, amongst future negotiations with an owner who has completely proven ownership of the object and demanded it back. Telling the owners that you are not returning what is proven to be legally and rightfully theirs until further discussions are concluded, is not in line with the spirit of fairness emphasized by The Guide. The series of requirements and procedures recommended for the museum to observe does not make it easier for restitution and reparation. While these processes continue, the museums get to enjoy having these artefacts in their custody, as they continue to potentially gain financially by displaying them, a benefit which is also unjust.

For the original owners, The Guide serves as a continuing global discourse on the issue of restoring the cultural heritage of indigenous peoples across the world. Artefacts are held up in foreign museums and attest to the relevance and value that various stakeholders place on these objects, hence lending credence to the clamour of these groups for imminent restoration.  For the museum, The Guide sheds light on European actions historically and current attitudes which draws potential unwanted attention that European institutions may have preferred to ignore. The Guide further hints that European museums should be guided and empowered ‘to take proactive action in a spirit of transparency, collaboration and fairness.’ Not only does it cast some light on their colonial past that has created the issues surrounding this discourse, but it exposes their unwillingness to take action to remedy the situation and act swiftly. The entire process recommended in The Guide lacks holistic consideration of the original owners of the objects in question and is therefore void of equitable outcomes. Museums in England still retain full power over the entire process as they are still in possession of the contested objects and reserve the freedom to decide what rules they would consider in discussing possible options for restitution and repatriation. Judging by these standards, they have the capacity to decide the outcome of events.

Image courtesy of © Scarborough Museums and Galleries

The Guide was really not necessary for restitution and repatriation of stolen cultural and historical objects to take place. This is truer when considered against other legal instruments and provisos already in force in the United Kingdom and the global community. For instance, the UN Declaration on the Rights of Indigenous Peoples [3], which in Article 28 provides a global framework for restitution and compensation for resources taken, used or damaged without their free and informed consent. It also provided for the rights for redress and compensation where their lands, territories and resources have been taken, used or damaged without consent and where possible are returned. Article 13 of The General Conference of the United Nations Educational, Scientific and Cultural Organization [4] also provides for the prevention of transfers of ownership of cultural property which has been illicitly imported or exported. It mandates signatory states to ensure that their competent services co-operate in facilitating the earliest possible restitution of illicitly acquired cultural property to its rightful owner and urges them to admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners. [5] Others include the UK legislation dealing in Cultural Objects (Offences) Act 2003 [6] and Cultural Property (Armed Conflicts) Act 2017 [7].

Conclusion

The terms of reference for The Guide are found in UK law. Other European states have similar statutes. These legal frameworks pose the major hindrance to the true success of The Guide's objective as they merely offer a singular term of reference and do not reflect the perspectives of the original owners of the contested objects.  The Guide stipulates actions that museums should take in cases of restitution and repatriation, but these are consequently one-sided.

Former colonised states that may be the original owners of objects, appear to have not been consulted in the development of the guide. Their views were not considered and they are therefore left disempowered and disenfranchised in the entire process. The Guide adds nothing to the legal instruments and provisos already in force in the United Kingdom and the global community for restitution and repatriation of cultural objects, and therefore seems unnecessary. There is a growing recognition that perhaps the biggest barrier to the restitution of contested artefacts from European museums, galleries, libraries and other collections is current national and international museum legislation, which places severe restrictions on the disposal and accessioning of collection items. This limitation poses core issues of concern to civil societies working to ensure the just and equitable return of these objects to their respective owners. The Guide only serves to complicate these laws and the simple demand for stolen or looted cultural and historical objects to be rightfully returned.

 

About the author

Dr. Idahosa Osagie Ojo is a diplomatic historian in the Department of International Studies and Diplomacy, Benson Idahosa University, Benin City, Nigeria. He is currently a research fellow at the Department of History, the University of Hamburg. His scholarship focuses on diplomatic, military and colonial history of Africa.