Raiders of the lost ark
Restitution and repatriation are separate but linked concepts: restitution occurs when a cultural object is returned to an individual or community; repatriation when cultural objects are returned to a nation or state at the request of the government of that nation or state.
A useful definition of a ‘cultural object’ is contained in the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: “Cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science.”
Restitution or repatriation normally occur on foot of a request. The owner or owners of a cultural object make their case for the return of the object, either on the basis that it is held illegally (in contravention of an existing national or international law or treaty) or they request its return on broader ethical grounds.
However, there is an increasing movement towards cultural institutions being proactive in offering restitution or repatriation. Pressures on resources can make the prospect of restitution or repatriation attractive as an avenue for ‘deaccessioning’ of collection items, without the opprobrium that often accompanies attempts to sell or otherwise dispose of unwanted material.
Northampton Borough Council’s sale of the 4,500 year old Egyptian Sekhemka sculpture may have resulted in a £7 million windfall, but it also resulted in the expulsion of its museum’s service from the UK Museums’ Association and loss of accreditation for five years.
The last crusade
In Ireland, State ownership of cultural objects is provided for under the terms of statutes, including, but not restricted to, the National Monuments Acts 1930-2014 and the National Cultural Institutions Act 1997.
Under section 68 of the 1997 act, the director of the National Museum of Ireland (NMI) may dispose of archaeological objects. Section 47 of the act allows for the transfer or exchange of cultural objects between designated cultural institutions. Section 18(2) allows the disposal by sale, exchange, or gift of any library material by the National Library under conditions similar to those imposed under Britain’s Museums and Galleries Act 1992.
There are clearly some significant gaps in the statutes – for instance, no provision is made for how the NMI might dispose of items that are not archaeological.
The NMI has produced a Collections Disposal Policy, which outlines principles in relation to deaccession, based on best international practice.
The basic tenet of this policy is that the NMI will retain all cultural objects until there are exceptional reasons put forward in a written proposal for their deaccession.
Section 3 of the policy states, among other things: “Reasons for deaccession of a Museum Heritage Object may include:
- 3.1. Legal: Lack of title or other legal reasons where the holding of an object in the core collection is brought into question.
- 3.2. Repatriation: Response to a request to repatriate an object.”
Section 5.5 of the policy states that “objects will not be disposed of in any way that results in financial or commercial gain”.
Kingdom of the crystal skull
One problematic category of cultural object, as defined under the UNIDROIT definition, is human remains. Human remains are captured under the definitions of cultural objects as “anatomy” or “products of archaeological excavations” or, indeed, from the perspective of their original collectors, “objects of ethnological interest”.
The UNESCO-UNIDROIT Model Legislative Provisions on State Ownership of Undiscovered Cultural Objects of 2011 specify that states are also free to interpret more broadly than the strict definition given for cultural objects and, therefore, can apply it to human remains.
The balancing of ethical considerations with scientific rationale for retention are often called into play when dealing with anatomical or archaeological human remains, as distinct from the ethnological category, which are addressed further below in light of the UN Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP).
One prominent example is the case of the ‘Irish Giant’ Charles Byrne, who grew to a height of 7’ 7” before his death in 1783.
Byrne had requested a burial at sea to prevent his remains from being put on show, but they were purchased and eventually exhibited in the Hunterian Museum at the Royal College of Surgeons.
The RCS decided to remove the remains from display following a refit, but opted to retain them for future scientific analysis.
In 1890, 13 human skulls were removed by academics from Inishbofin, off the coast of Co Galway, and subsequently gifted to Trinity College Dublin. In 2022, TCD set up a Legacies Review Working Group to “review the university’s complex historical legacies since its foundation in 1592”.
One of its first decisions was to “work with the community to ensure that the (Inishbofin) remains are returned in a respectful manner and in accordance with the community’s wishes”. The skulls were returned to Inishbofin on 16 July 2023.
UNDRIP sets out at article 12 that:
1) “Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
2) States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.”
The very diversity that is implicit in the term ‘indigenous’ itself opens up questions about the application of UNDRIP.
According to the UN Permanent Forum on Indigenous Peoples, “an official definition of ‘indigenous’ has not been adopted by any UN-system body. Instead, the system has developed a modern understanding of this term based on ... self-identification as indigenous peoples at the individual level and accepted by the community as their member.”
Temple of doom
These issues are complicated by the nature of Ireland’s relationship with Britain and its close involvement in the administration of the British Empire during the period 1860 to 1914.
In 1860, 40% of recruits to the British Army were Irish and “were drawn in particular to serve in the European regiments of Britain’s Indian Armies and played an important role in the building of the British Empire”, according to Britain’s National Army Museum website.
A direct result of this involvement was the collection and acquisition of around 11,000 ethnographic cultural objects that made their way back to Ireland via the Royal Dublin Society and TCD into the collections of the National Museum of Ireland from 1877 to 1922, including some materials sent back from Congo by Sir Roger Casement.
Following the establishment of the Irish Free State in 1922, a movement to “accumulate, preserve and display such objects as may serve to increase and define the knowledge of Irish Civilisations, of the National History of Ireland” (1927 report to the NMI) resulted in ethnographic and colonial exhibits being de-emphasised.
This change of focus met with public approval as “imperial war medals and uniforms [and] … the disgusting spectacle of a dead or dying sepoy [an Indian soldier serving under British or other European orders] at the feet of a British officer was removed from our offended eyes” (Irish Press, 27 May 1937).
Other Irish institutions have similar holdings. The Ulster Museum repatriated ancestral Hawaiian human remains and sacred objects that were removed by collectors from burial caves in 1840.
According to Dan Hicks, author of The Brutish Museums, the Hunt Museum in Limerick holds material looted during the destruction of Benin City, Nigeria, in 1897 – also known as the Benin Bronzes.
In 2022, University College Cork announced its intention to repatriate a collection of mummified human remains dating from 100AD to about 975BC, on foot of enquiries from the Egyptian Embassy in Dublin.
Recent developments in Ireland include the Historic and Archaeological Heritage Bill 2023 – at the time of writing before Dáil Eireann (third stage) – which enables the Irish State to accede to the 1995 UNIDROIT Convention.
The State will also be enabled to ratify the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
Dial of destiny
On 20 June 2023, the Irish Government announced the formation of an advisory committee on the restitution and repatriation of cultural heritage. Membership of the committee will be drawn from the museum, archives and gallery sector, the civil service, and legal and ethical expertise, as well as representation from claimant communities.
If Ireland accedes to the UNIDROIT Convention, it will be possible for private individuals to seek the return of stolen or illegally exported objects through the Irish courts. Claims under the convention will be brought in the Circuit Court, which will be conferred with the necessary jurisdiction.
The convention places the burden on the possessor of the item to demonstrate that it “exercised due diligence when acquiring the object”.
Article 4(4) states: “In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances.”
It is clear that the Historic and Archaeological Heritage Bill 2023 may significantly change existing processes for repatriation and restitution in Ireland, particularly for any institutions that are not able to meet the UNIDROIT Convention burden of proof.
The formation of the advisory committee on the restitution and repatriation of cultural heritage will, hopefully, lead to the creation of useful policies and guidance for institutions to navigate this potentially fraught new legal landscape.
Martin Bradley is a practising barrister who focuses on art and cultural-heritage law, GDPR and copyright. He is the Ireland national coordinator of Knowledge Rights 21, a qualified archivist with over 25 years’ experience, and director of Archives Ireland.
Look it up
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