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Looted art and restitution: a changing cultural climate

Posted on 30 September 2022

This article was written for the YFLA Autumn 2022 newsletter published on 21 September 2022.

In the depths of the British Museum, stored in a locked room, are 11 Tabots. The Tabots are wooden tablets carved with the Ten Commandments, and they are sacred artefacts of the Ethiopian Orthodox church.1 So sacred are they, in fact, that only Ethiopian Orthodox priests are permitted to see them. In the 150 years the British Museum has held the Tabots, it has never put them on display. British Museum staff are not even permitted to enter the room where they are held.

You might ask why the Tabots are held by the British Museum when they can never be displayed. It is a controversial issue. The Tabots could be seen to be prisoners of war. They were looted by the British in 1868 after the Battle of Magdala in Abyssinia (which is now Ethiopia), along with hundreds of other cultural treasures.

For years, calls have been made for the Tabots to be returned to Ethiopia. In March 2022, the issue was debated in the House of Lords, with persuasive arguments put forward as to why the items should be repatriated to their homeland.2 In early September 2022, a Freedom of Information request was submitted to the British Museum requiring it to provide, inter alia, details of all requests to return the Tabots since 1990 and of the trustees' considerations of these requests.3 It remains to be seen what may come from this.

The history of the Tabots is, regrettably, not uncommon. Around the world museums and private collections hold items which were looted from their country of origin. Another example is the so-called 'Benin Bronzes', cultural treasures looted by the British in 1897 from the Kingdom of Benin, in what is now Nigeria, which are now scattered in collections across the globe. It is believed that around 5,000 Benin Bronzes were looted, but the exact number is unknown.

Yet recent years have seen a shift in the perception of looted cultural property, and a significant increase in restitution (i.e. the return of cultural property to its original owners) and repatriation (i.e. the return of cultural property to its country of origin). For example, in 2018, France announced an intention to return 26 Benin Bronzes to Nigeria.4 In 2021, Germany announced that it too would repatriate its Benin Bronzes.5 Other countries and institutions have followed suit. In the last few months, museums in Oxford, Cambridge and London have announced that they will also be returning Benin Bronzes to Nigeria.6 The Horniman Museum in London, which is to repatriate 72 Benin Bronzes, released the following statement: "The evidence is very clear that these objects were acquired through force, and external consultation supported our view that it is both moral and appropriate to return their ownership to Nigeria".7

Cultural property is more than just property, it is part of the national identity. As Benin's President Patrice Talon said of the return of the Benin Bronzes: "The stars have been aligning for Benin for some time now. The symbolism of the return to Benin is about our soul, our identity - to use a word that is easier to put on it to understand. This return is testimony of what we've been. The testimony of how we existed before."8 The growing support for cultural restitution and repatriation reflects an awareness of this. It also demonstrates a reassessment of our colonial history and of the ethics of retaining cultural property taken by force. The moral and political arguments for the restitution of looted antiquities are strong.

Further, cultural property can be a powerful ambassador for friendship between nations. This is apparent from the images of French President Emmanuel Macron and Benin's President Patrice Talon standing together at the return of France's Benin Bronzes.

But restitution and repatriation are not always straightforward and the legal and ethical position is not necessarily clear-cut. For example, what if there are competing claims to an artefact, or if the country of origin itself is not united on how an artefact should be dealt with? What about calls to return cultural property which could be considered to have been acquired legally?9 Or what if there are concerns about the safeguarding and preservation of the returned property?

In order to better understand the considerations that underpin the decisions about returning cultural property, it is necessary to identify some of the challenges faced by the institutions which receive these requests. In August 2022, and in a further sign of the changing cultural climate, Arts Council England released its long-awaited guidance ‘Restitution and Repatriation: a practical guide for museums in England'10, produced in collaboration with the Institute of Art and Law in London. This document draws together the practical, ethical and legal considerations of restitution and repatriation for museums in England.

As a starting point, ACE's guidance emphasises the importance for museums of understanding the objects in their collection, through a process known as provenance research. The provenance of an item is its history and this needs to be thoroughly investigated to inform the museum's understanding of and approach to that item. Provenance is an ongoing process which can itself lead to an item being returned. For example, in August 2022 the Metropolitan Museum of Art announced that, following internal provenance research, it would be returning two sculptures to the Nepalese government, which it discovered had been looted.11

The guidance provides information on how a museum should approach a claim for restitution and repatriation. This approach will be informed by whether the claim is based on legal or ethical grounds (or both). Claims based on legal grounds, in particular civil claims, are less common than one might think. Often the passage of time will have extinguished the original owner's title (although in some cases establishing this may require consideration of the laws of other jurisdictions, as English laws of conversion apply the rule of lex situs).   

Where an item has been dealt with in a way that constitutes a criminal offence in the UK, there may also be criminal law issues. For example, looted property may engage section 22 of the Theft Act 1968, which makes it an offence to handle stolen goods knowing or believing them to be stolen, which can include handling cultural objects that have been illegally excavated or removed and then imported into the country.12 In such cases, the police have powers to seize and detain the item in question.

More commonly, the claim will be made on ethical grounds. There is no objective standard for assessing such claims, but the guidance identifies four key factors for consideration: 1) the significance of the object to the claimant, 2) how the object was removed from its place of origin or from a past owner, 3) how the museum has engaged with the object, and 4) who is raising the claim. Having taken all these factors into account, the question is whether the ethics of today favour the claimant’s claim.

Yet even where a claim is legally and/or ethically compelling, this is not the end of the matter. The museum must address the extent to which it is legally and practically able to effect the return of the item (while keeping in mind the desirability of ensuring that the returned item will be safeguarded and preserved).

Certain national museums, for example, are subject to statutory restrictions on the permanent removal of items from their collection, called 'de-accessioning'. The British Museum is restricted from de-accessioning by the British Museum Act 1963, except in certain limited circumstances, the effect of which, in almost all cases, is to prevent it from being able to restitute or repatriate items in its collection.

However, there are exceptions. Section 5(1)(c) of the British Museum Act 1953, for example, allows for the de-accessioning of museum objects if "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". This is a provision that has frequently been pointed to in the debate about the Ethiopian Tabots, though it appears the British Museum is yet to be persuaded.

Alternatively, where none of the legal exceptions apply, the museum can consider options other than a transfer of legal ownership, such as loaning the item to the claimant, or granting special rights of access or control, though the claimant may not always consider these an acceptable solution.

As a final resort, it is possible to create new law to amend or repeal the problematic legislation. This is not without precedent: the Holocaust (Return of Cultural Objects) Act 2009 (extended in 2019 by Holocaust (Return of Cultural Objects) (Amendment) Act 2019) gives certain national institutions the power to de-accession items claimed in relation to events that occurred during the Nazi era of 1933-45, so long as the transfer is recommended by the Spoliation Advisory Panel and approved by the Secretary of State.

Restitution and repatriation are gathering momentum on the world stage and bringing with them the opportunity for discourse around cultural heritage and the building of friendships between nations. It is important that the United Kingdom, which holds a wealth of cultural and historical treasures from around the world, is not left behind. It is time to review the legal and practical obstacles faced by our museums and to find pro-active and creative solutions. This context provides the British Museum with an opportunity to engage constructively with the Ethiopian Orthodox Church and the Ethiopian Government, navigate the issues associated with de-accessioning the Tabots and agree a way forward. Surely it is time for the Tabots to return home.

Addendum (4 October 2022)

Since publication of the above, it has been identified that the Charities Act 2022, expected to come into force this autumn, will give museums and galleries in England and Wales the power to deaccession items from their collections if the trustees consider themselves under a "moral obligation" to do so.* For low valued items the institutions will be able to act of their own accord, whereas for other items they will require authorisation from the Charities Commission, Attorney General or Court. Significantly, these new powers will also be available to national museums, such as the British Museum, which are otherwise subject to the statutory restrictions on de-accessioning discussed above.  

This is a seismic moment for restitution and repatriation claims in this country. It creates an unprecedent opportunity for claimants to seek the return of cultural property from our national institutions, as long as they can persuade the trustees of the moral value of their claim. This development will invigorate debate about returning cultural property and is also likely to increase the pressure on our national institutions to be seen to be doing the right thing. At the very least, we can expect further scrutiny of, and discussion regarding, such controversial objects as the Elgin Marbles, the Benin Bronzes and the Ethiopian Tabots.  

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