National legislation would help museums navigate the complex terrain of restitution

Museums Association 7 September 2023
By Manlio Frigo

Growing momentum must be matched by legislative action, says Manlio Frigo

In the realm of cultural heritage, the issue of cultural restitution has gained unprecedented momentum in recent years, fuelled by groundbreaking initiatives, shifting perspectives, and a growing demand for justice and equity.

Although the tide is shifting towards acknowledging the rightful ownership of cultural treasures, the current landscape of cultural restitution remains characterised by a series of complex issues that demand careful consideration if we are to encourage a change in practice to address this global phenomenon.

Growing momentum

The restitution of cultural heritage artefacts has become a topic of increasing importance in recent years. The historical opportunity presented by president Emmanuel Macron in Ouagadougou on 28 November 2017, which set the stage for the restitution of African cultural heritage artefacts currently held in French national collections, has likely heralded a new era in cultural relations between France and Africa, and more broadly, between the Global North and the Global South.

This shift is evidenced by a series of examples, such as the restitution to Nigeria by the universities of Cambridge (2019) and Aberdeen (2021) of bronzes looted by British soldiers in 1897 from Benin City, in southern Nigeria.

Additionally, Germany and Nigeria signed a pre-agreement for the restitution of Benin bronzes (more than 1,000 items), starting in 2022.

The Dutch Government has also announced its support for proposals leading to the restitution of looted artefacts from state-owned collections, based on recommendations made by a government-appointed advisory committee.

The Angolan Government recently initiated discussions with the Portuguese Government concerning the restitution of its cultural heritage. Belgium’s approach goes even further, as in 2022 it became the first country to establish a general legislative framework to decide the fate of cultural property connected with past colonial events.

Navigating legal obstacles

The context of how an artefact was acquired plays a crucial role in handling restitution requests. While some colonial events are seen as unacceptable today, they are not universally considered crimes under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

Therefore, states must enter into international agreements to handle the restitution of cultural items removed during colonial periods.

One case that highlights the intricate legal landscape is the Cullinan diamond used during King Charles’ coronation, which South Africa is seeking to reclaim.

The legitimacy of the acquisition depends on factors such as the diamond’s presentation as a birthday gift to King Edward VII in 1907 and the involvement of the Transvaal government.

The inclusion of some stones in the Crown Jewels and Queen Elizabeth II’s personal jewellery collection further complicates the legal status of the various components of the diamond. Resolving restitution claims for such culturally significant items demands careful examination of historical contexts and legal frameworks.

The recent declaration by the administration in Nigeria that recognised the Oba as the owner of the Benin bronzes – rather than the state – adds another layer of complexity to the issue.

This decision challenges the traditional state-centric approach to cultural heritage and recognises the rights of indigenous and local communities to their cultural heritage.

However, this decision also raises legal questions: Has the Nigerian state relinquished its claims to these artefacts? And if so, what are the implications for the restitution of these artefacts from foreign museums and collections?

Although the 1954 Hague Convention is not retroactive, it does not limit any claims which may be brought regarding illegal transactions that might have taken place before its entry into force.

Some countries, like Belgium and France, are making strides in this direction by adopting laws for the restitution of artefacts.

However, in contrast to European countries, the UK currently lacks specific domestic legislation on cultural restitution.

Consequently, requests for restitution and repatriation are typically addressed on a case-by-case basis, with no overarching legal strategy.

Arts Council England’s guidelines, Restitution and Repatriation: A Practical Guide for Museums in England, provide important guidance but do not establish binding legal obligations.

By contrast, Belgium has adopted a comprehensive legal tool, and France is in the process of developing a framework law for the restitution of artefacts held in its public collections.

These diverging approaches emphasise the importance of national legislation and its role in addressing conflicting interests and establishing a coherent restitution framework.

Charting a path forwards

Many African countries are becoming more proactive in their quest for the repatriation of their cultural heritage. They increasingly participate in international conventions and adopt more effective policies in these areas.

This includes the Niamey Declaration, adopted by the African, Caribbean, and Pacific (ACP) Ministers of Culture, which demonstrates a commitment to intensify cooperation.

The Charter for African Cultural Renaissance of 2006 also stresses the need to establish mechanisms whereby cultural property protection would become the responsibility of citizens, communities, societies, and states.

One such mechanism would be to introduce a framework for action on negotiations for the return of illicitly trafficked cultural property from the continent.

However, the restitution of artefacts is not straightforward. According to art historians, approx. 80–90% of Africa’s cultural heritage is believed to be in European museums, which makes the task daunting.

The debate on cultural restitution is far from over, and the path forward is fraught with legal, ethical, and practical challenges.

The modern open debate on cultural restitution heralds a critical moment in human history, driven by the quest for justice, recognition, and the restoration of cultural heritage to its rightful owners.

As we navigate the complex terrain of legal challenges, historical contexts, and international frameworks, it is vital to foster dialogue, international cooperation, and the establishment of comprehensive laws.

By doing so, we can embark on a transformative journey towards a future that upholds cultural equity, heals historical wounds, and safeguards the world’s shared heritage for generations to come.

Manlio Frigo is a professor of international and European law and of international contracts and arbitration law at the University of Milan. He is of counsel at BonelliErede and a member of its Art and Cultural Property Focus Team. He specialises in art and cultural property and has extensive experience working with various art-related entities and organisations
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