Jordan, Noah and Sinéad were law student scholars, participating in the WS Society Summer Scholarship programme during August 2023. This article summarises their research and presentation.
Introduction
This report seeks to examine how the law and institutional policies interact to impede or facilitate the return of cultural property to its original owners. This will be achieved by first defining cultural property, mentioning its legal importance contemporaneously, and looking at ownership issues. It will then touch on barriers to conveyance and possibilities for compelling conveyance of cultural property. Finally, it will discuss alternative dispute resolution and internal policies created by relevant institutions.
This report’s title refers to pieces of tangible cultural patrimony removed from the place where they originated -- not heritable or immoveable property. The Draft Common Frame of Reference defines cultural property as:
“National treasures possessing artistic, historic or archaeological value”
Ethical matters relating to cultural property have come to the fore of public discussion in past years, scrutinising the racial and socioeconomic context of historic collections: it is asked whether it is right to be maintaining a colonial legacy in a modern world. On the other hand, some oppose repatriation efforts based on nationalism or reluctance to apply morals retroactively. Spoils of war are a complicating factor, and were only formally prohibited after the Hague Convention of 1899.
Ownership and Existing Legal Rights in Cultural Property
Scots International Private Law rules indicate that the lex situs applies. This means that Scots law will govern the circumstances in which the object was acquired in its home country and whether these were legitimate or not.
If there was a valid sale or gift, this will mean that a good title was conveyed and the Scottish collection has clear ownership over the object. This is the best-case scenario.
In instances of forced sale or duress, the title to the object would have been void, and the original owner still would have had ownership of the object after the conveyance. Section 8 of the Prescription and Limitation (Scotland) Act 1973 states that if a right “has subsisted for a continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished.” This would indicate that ownership would negatively prescribe and that ownership of corporeal moveable property would therefore go to the Crown per common law.
In the situations where the property was stolen from its original owners, Schedule 3(g) of the Prescription and Limitation (Scotland) Act 1973 includes as imprescriptible “any right to recover stolen property from the person by whom it was stolen or from any person privy to the stealing thereof”. This may counteract negative prescription of ownership in corporeal moveables. A possible interpretation is that regardless of subsequent good will or value given, an original owner can indefinitely seek recovery of stolen goods.
In contrast to other moveable objects, in Scotland there is no right of ownership over human remains, only right of possession (Robson v Robson 1897 SLT 5 351). Thus in Scotland, human remains exist in the category of res extra commercium, or things which are not exchanged in the course of normal commerce. The list in Schedule 3 of the Prescription and Limitation Act also includes the right to recover property extra commercium as imprescriptible.
“With improvements in DNA technology, this report predicts that individuals will increasingly be linked biologically to human tissue in existing collections and could seek recovery of ancestral remains.”
Barriers to Repatriation Decisions
Having established who has legal rights in cultural heritage, what action can be taken by the owner or possessor?
Individuals owning artefacts can of course do whatever they wish. However, other bodies are regulated by schemes with different restrictions on gifting property.
A Māori skull which has been held as part of a museum collection in Moray for more than 130 years is to be repatriated to New Zealand.
National public museums and galleries are governed by detailed primary legislation. In Scotland, there is one scheme for museums and another for galleries. Both only allow the Boards of Trustees to gift objects in the collection in five situations: firstly, where they hold a duplicate; secondly, where it would be unsuitable to retain and would not impact the public or education; thirdly, a gift to another specified national museum or gallery; fourthly, where the Secretary of State consents to gifting to another organisation; or fifthly, due to damage or destruction.
In England, the rules are very similar under the British Museum Act 1963, the National Heritage Act 1983 and the Museums and Galleries Act 1992. Notably, the British Museum cannot gift to organisations abroad; a substantial impediment to repatriation efforts. In the Attorney General v Trustees of the British Museum, the High Court decided that these restrictions prevented the return of artwork stolen by the Gestapo during the Second World War. This was rectified in the Holocaust (Return of Cultural Objects) Act 2009. It authorises national museums and galleries to return objects looted between 1933 and 1945 if recommended by a Panel and the Government consents.
Human remains may be outwith these restrictions since they cannot be owned: can they be “vested” in a museum’s collection? It is possible that the right of possession can be interpreted to argue that they are, but this is ambiguous. Nevertheless, legislation authorises specified museums to de-accession remains from less than a thousand years ago for any reason, thus having potentially wide-ranging applications for those institutions.
The general powers of local authorities and their museums are uncurtailed in Scotland or in England and Wales; decisions will be left to the council or a delegated committee.
Private organisations may be restricted by the rules in their Partnership Agreement or Articles of Association. For example, companies may require different quorums of directors in agreement or may be vetoed by shareholders.
Trustees in Scotland must be specifically granted the power to gift trust property compatibly with trust purposes since the Trusts (Scotland) Acts 1921 and 1961 are silent. Though an upcoming revision of the law may change that. Scottish charities must abide by charity purposes and always prefer the charity’s interests.
England gives a sharp contrast: trustees can request authorisation for a gift for “an exceptional moral reason” (Re Snowden [1970] Ch. 700). Currently unimplemented legislation would allow charities to make low-value gifts without authorisation but this has been delayed by the government.
As we see, there are differing barriers for those who seek to repatriate cultural property. However, it will be up to those making the decision as to whether they actually wish to return an artefact.
Compelling Repatriation
We can now question what action could be taken to require repatriation, both domestically and internationally.
For objects in Scotland, the first option would be to go to court to assert their ownership and seek return to the owner. In many cases, alas, the party seeking repatriation may not own it or proof may be impossible.
Alternatively, a decision to refuse repatriation could be judicially reviewable, including over non-public bodies in Scotland. The applicable grounds would vary case-by-case but may include irrationality or breach of Convention rights.
Recent cases from the Supreme Court and the European Court of Human Rights have limited potential for that development. In Syllogos v. the United Kingdom, the European Court considered whether the “Athenians Association” suffered an infringement of its human rights due to the refusal to return the Elgin Marbles and withdrawal from the UNESCO mediation procedure. The applicant argued that retaining the Marbles was a deprivation of access to cultural identity and national historical information.
The application was held inadmissible and the Court dated the claim to the acquisition of the Marbles in the early 1800s, rather than the refusal to return them. This approach to dating could be a significant barrier for other claims. There is a body of precedent recognising that human rights can be engaged when a State expropriates cultural property from individuals to protect it but this is limited to being a justification and legitimate aim of State action. Syllogos highlights that Convention rights have not, yet, been successfully translated to where an individual seeks to positively assert a Convention right over cultural property.
Importantly, developments at Strasbourg can only benefit the signatory States, excluding African, Asian, American and Oceanic countries. The same can also be said for the EU scheme, though the UK left this mechanism in 2020.
Following recent thefts from the British Museum, Greece has expressed concern over the safety of the Marbles. Such persistent irresolution betrays the ineffectiveness of formal procedures, reinforcing the need for processes, outwith courts, better suited to deal with complex social, historical and ethical issues.
ADR and Internal Policy
Due to the lack of legal clarity, generally these issues are resolved through methods of alternative dispute resolution. This allows the parties in question to put aside the arguably harsh legal stances to also focus on their cultural connections and reach an, often ethically-led, solution.
UNESCO has an international mediation strategy for intergovernmental communication regarding cultural heritage established in 2005. This is not a perfect solution as these procedures have not yet been used by Member States, and the aforementioned Syllogos case shows that if a Member State does not want to engage with proceedings, UNESCO has no power to compel them. This framework is a positive step towards a clear path to restitution, however generally, methods of ADR tend to be used in an internal setting between institutions and cultural leaders directly.
Another area where ADR has been particularly advantageous is reaching resolution, as through negotiations, there is room for compromise and case-by-case specificities. There can of course be simple restitution or a refusal of restitution, however many case outcomes land somewhere in the middle. These outcomes show us the importance of ADR in this sector, and many domestic institutions have adopted policies and procedures to provide clarity and streamline this process in the best interests of claimants and possessors, which we argue the law can draw from for future reform.
Repatriation of Indian artefacts from Kelvingrove Museum, Glasgow, 2022
As for informal ADR, Scottish institutions such as local authorities, museums, and universities have developed their own internal procedure to deal with repatriation requests.
National Museums Scotland is a non-departmental government body which presides over the National Museums of Scotland. The organisation has set out clear criteria for when trustees will consider a claim, what should be included in the initial request, types of admissible evidence, and a non-exhaustive list of criteria they will use to evaluate a claim. As discussed, the trustees will recommend a position on a claim but it ultimately is in the hands of the Secretary of State.
Many local authorities have taken a similar approach in their internal process, for example, a working group for Glasgow City Council established their policy after numerous repatriation requests in the 1990s. This includes a relatively limited list with less emphasis on the detriment of Scottish museums, and more on the continuity between the original owners and the claimant, the cultural importance and the fate of the object once returned.
Universities are perhaps a surprising inclusion, but accounted for 9 out of 32 repatriation requests in Scotland from 1990-2022. These policies are very similar to those discussed, with the University of Aberdeen prioritising close to the same criteria as Glasgow City Council. The University of Edinburgh falls into the slightly more conservative bracket with NMS, however all of these internal procedures place significant emphasis on the ethical issues at the heart of these requests, which the legal regulations neglect.
It is through these internal procedures that all successful repatriation requests in Scotland have been achieved. Our research suggests that
“Internal policy and procedure is not just filling gaps in the law, but acting as the primary agent in repatriation regulation ”
Hence why this reform is imperative to guarantee a standardised equitable procedure. These policies provide clear and extensive criteria that we believe could be examined, for example by the Scottish Law Commission, and act as inspiration for reform.
Conclusion
This report has covered a wide range of legal concepts in relation to cultural heritage: from establishing ownership to domestic statutory framework and the human rights element, but our overarching message is that this is an underdeveloped area of law in great need of reform. We propose that this sector needs clear legal guidance to establish an ethical and all-encompassing approach to cultural heritage, to facilitate fair and binding outcomes for all stakeholders.