To Repatriate or Not to Repatriate

The Imperial Powers are on a returning spree! In the last two years, Germany, France and Belgium have all agreed to repatriate stolen cultural artefacts. These artefacts include works of cultural import, as well as human remains of liberation heroes (like Patrice Lumumba’s tooth). Yet, there is one country conspicuously absent from this list. The Nation who, despite having a fraction of the world’s population, dominated and oppressed nearly a quarter of the world. The Nation that built an empire in which the sun would never set.

I, of course, am talking about the United Kingdom. 

As her neighbours recognise and acknowledge the harm they have caused, of course falling short of apologising and accepting moral and financial culpability, Britain has merely offered an expression of regret. This is unsurprising given that, in 2020, the British were more nostalgic about their colonial empire than its neighbours. Perhaps these sentiments are why the British have been reluctant to make good on that regret by repatriating the cultural property of the people they had conquered. Or, perhaps, the British Government cannot, rather than will not, repatriate the artefacts they plundered. Let us examine the possibilities. 

Context 

Presently, the British Museum has over 50,000 items in its collection and, according to Geoffrey Robertson, Queens Counsel: “The trustees of the British Museum have become the world’s largest receivers of stolen property, and the great majority of their loot is not even on public display.” Some of the loot includes the Benin Bronzes, a statue from the Parthenon, the Elgin Marbles and select items from pre-colonial Nigeria. Despite frequent requests to repatriate the cultural artefacts housed within the British Museum, the Museum has declined. Instead, the Museum presents its continued custodianship of these stolen items as inherently noble. It matters not how these items came to be in the possession of the British Museum, what matters is that they must be preserved for the common good of all humanity; or so the argument goes.

There is a legal underpinning for this argument. For the former, we regard the principle of adverse possession – the idea that a squatter may attain recognised property rights if they continuously, exclusively and obviously occupy the property, in a manner that goes against the interests of the original owner. The issue with this argument is that it presumes that the property in question was owned under Anglo-American jurisprudence. And many cultural artefacts were not owned in a manner that Anglo-American jurisprudence might recognise or sufficiently capture. There is also the common-sense principle that a thief is not allowed to retain the property they have stolen; even if they are better placed to care for it, according to standards the thief has established. And yet, the British Museum retains possession of stolen cultural artefacts; even when compelling moral and political reasons exist for repatriation. Thus, begging the question of why. Are they prohibited from returning the goods that were stolen, or do they not want to? Turns out, the answer is a little of both, but mostly the former. 

The British Museum 

Put simply, the governance structure of the British Museum prevents the Museum from repatriating cultural assets. This is because, when the Museum was constituted in 1753, the British Museum Act of 1753 held that the Museum did not own any of the collections within its care. They were merely its’ caretakers; preserving it, restoring it and, most importantly, displaying it. This obligation overwrites any moral obligation for repatriation. Today, the British Museum is governed by the British Museum Act of 1963. The Act spells out the duties of the Board of Trustees; the most relevant of which is the “duty” to “keep the objects comprised in the collections of the Museum . . . except in so far as they may consider it expedient to remove them temporarily for any purpose connected with the administration of Museum and the care of its collections.” Furthermore, Section 3(4) prevents the Trustees from disposing of any item under the collection except for; (1) if there is a duplicate; (2) if it is useless; and (3), if the object is “unfit” to be retained. Because the Act bars disposition, or repatriation, it allows the loaning of cultural property to other museums under section 4. This is why the British State, acting through the Museum, offers to loan stolen cultural assets back to their countries of origin; much to the indignation of those communities. The only way these obligations can be overwritten is through an Act of Parliament; as with what happened with artwork looted by Nazi Germany from a Jewish Family in Czechoslovakia. 

Legislating Repatriation 

In 2002, the Museum trustees were informed that it possessed artwork belonging to a Jewish Family in Czechoslovakia. This family had suffered looting at the hands of the Gestapo in 1939; at the start of World War II and two years after the German invasion of Czechoslovakia. After the War had ended, in 1946, the Museum had bought the looted paintings. Therefore, the Museum had lawful possession of the paintings. The family, however, disagreed and in 2002, sought redress. The resulting case, Attorney General v British Museum Trustees [2005], held that the Museum did not have the right to repatriate this property. According to Hannah Godwin, “despite the Board of Trustee’s commitment to right a moral wrong and notwithstanding the United Kingdom’s commitments to prevent dispossession of looted cultural property as a result of Nazi Germany, the Court found that the Museum Trustees lacked the ability to return the artwork and remained bound to its fiduciary duty—preserving the artwork in its collection for the benefit of the public.” 

This is because the law – the British Museum Act of 1963 – is clear; property may only be repatriated or dispensed with if the asset is useless, unfit or a duplicate. And the stolen painting, in question, did not fit any of these categories. But the Court also injected a moral component into the judgement. In arguing that the work must be preserved for the benefit of the public, they found that the needs of the nebulous many outweighed the needs of the specific few. And presumed that Museum was better positioned to protect the cultural property for posterity. In so doing, they presumed the purpose of cultural property within the UK – to recap the historical tale of a people and preserve this tale – was far more important than the personal benefit the Jewish family could have gotten out of it. 

Despite the Court's ruling, the moral question remained; should the British Museum have this absolute LEGAL right to the property within its collection? Especially when the moral rights for individual ownership, in this case, or repatriation, more generally, are so compelling? This question was answered by the Holocaust (Return of Cultural Objects) Act of 2009. According to Godwin: “The Act empowered the Board of Trustees, along with other museums, the temporary power to “return certain cultural objects on grounds relating to events occurring during the Nazi era” for a period of ten years.” In legislating the Holocaust Act of 2009, British Parliament established that the repatriation of cultural property was possible and that the power to repatriate lay, not with the Museum, but with Parliament. Put simply, Parliament could decide to repatriate all the stolen property within the British Museum collection, and the fact that they haven’t suggests that Parliament does not want to. 

Matters Politic 

This begs the question: Why doesn’t Parliament want to repatriate cultural property? 

Might it be because doing so would be an admission of fault and a relinquishing of soft political power and prestige? Or is it because Parliament genuinely believes in the mission of the British Museum; to preserve history for the good of all mankind? 

If it is the latter, then why do they get to decide that the needs of all are more important than the needs of the source communities whose property was stolen? If culture, and the property that represents it, is an expression of humanity, life and community, then what does the failure to repatriate cultural property mean for the source communities? Is the harm and dispossession they experienced equal to the benefits of preservation? 

 These are questions that Britain must answer; especially as they embark upon renewing relationships with their former colonies.