New laws and guidelines tackle repatriation of colonial-era artefacts

Jennifer Venis, IBA Multimedia JournalistFriday 12 March 2021

In February, the government of the Netherlands created new guidelines to determine requests for the return of colonial-era artefacts from former colonies. The guidelines apply to objects held by state museums and galleries, and if an object is deemed to have been stolen from a former colony, it will be returned unconditionally.

The guidelines follow the conclusions of the country’s Advisory Committee on the National Policy Framework for Colonial Collections (the ‘Advisory Committee’). In its report published in October 2020, the Advisory Committee recommended the establishment of an Expertise Centre for the Provenance of Colonial Cultural Objects, which would be an independent committee tasked with adjudicating claims and examining provenance reports.

Anne-Sophie Nardon, Co-Chair of the IBA Art, Cultural Institutions and Heritage Law Committee and a managing partner of Borghese Associés in France, says that ‘in each country, whether it’s the government or administration that does it or a specific third body, it’s necessary and unavoidable that each provenance on each object should be analysed before a decision is taken.’

Whether it’s the government or administration that does it or a specific third body, it’s necessary and unavoidable that each provenance on each object should be analysed before a decision is taken

Anne-Sophie Nardon
Co-Chair, IBA Art, Cultural Institutions and Heritage Law Committee

‘Most of these artefacts are right now the property of a museum’, she adds. ‘If we value the respect of common principles of our democracies, such as property, we have to have a process to say whether the artefact should be returned or loaned and what the provenance is, because that’s the rule of law.’

Nick O’Donnell is Nardon’s fellow Co-Chair and a partner at Sullivan & Worcester in Boston, US. He adds that the Expertise Centre will need to carefully assign conceptual definitions before it commences work.

‘One of the things that the panels on Nazi-looted art have really struggled with is, what is Nazi looted art?’ he explains. ‘It seemed like an obvious category in 1998 to people who were writing the Washington principles, but the more it was thought about, people realised, well, what was it for sale? Was it “sell it or else”? Was it “I’m moving to Belgium because I’m fleeing the Nazis and I have no choice but to sell”?’

O’Donnell says there’s a whole continuum of categories that people didn’t think of. ‘So, in the case of colonial-era artefacts, who says the artefacts are looted? What’s the definition of looting? I think such a commission is doomed to fail unless they think about those things very carefully’, he concludes.

The Advisory Committee’s report notes that due to the lack of appropriate and retroactive legal frameworks on the issue, the handling of repatriation requests is less a legal question and more an ethical one.

Nardon notes that while the idea of repatriation or restitution is ‘as old as wars’, there has been a surge of interest in legislating around the practice when it deals with colonial-era artefacts.

‘In France, I would say that the first reason for this surge is a new generation of politicians that were born after the colonial era. It’s easier for younger people in charge to tackle those difficult memories. The second reason is the fight against terrorism’, she says.

She highlights the United Nations Security Council’s resolution 2199, which urged cessation of all trade of cultural objects with Iraq and Syria due to the terrorist threat in these countries.

O’Donnell believes ‘it takes a long time for the country which has possession of the cultural artefacts to change its understanding of the relationship of those objects to other people and places.’

‘The whole matter is highly emotional and that’s one of the reasons why I think it must not be systematic and the only way to deal with the question is to enter into the discussion with great humility and analyse the situation case-by-case’, adds Nardon.

In France, a law approved in November 2020 has established the return of 27 artefacts to former colonies. In the French Senate, there was debate around using the term ‘return’ over ‘repatriation’, to avoid property issues, or prescribing nationalities to artefacts, notes Nardon. Ultimately, the term repatriation was retained.

She adds that France did not – and should not have – made the decision of what to return alone. ‘A blunt decision by France could also have been interpreted as an act of colonialism’, Nardon says. ‘The idea was to have a dialogue with the country in question, to have their say and then to find an agreement on which artefact to loan or return and why, and how, and how fast.’

Indeed, the Dutch Advisory Committee’s report highlighted that only a shared policy for dealing with colonial cultural objects will be satisfactory for all involved. The former colonial state, it argued, must be careful to avoid a neo-colonial mindset.

Timothy Ryback is the Director of the Institute for Historical Justice and Reconciliation (IHJR) and one of the co-creators of Contested Histories in Public Spaces: Principles, Processes, Best Practices, a book published in 2021 by the IBA in conjunction with the IHJR and Salzburg Global Seminar.

Contested Histories focuses on controversial and colonial-era statutes in public spaces, and Ryback says that ‘Museums, unlike statues, allow for a lot more complexity and nuance in telling the story.’

The Dutch National Museum of World Cultures has created its own guidelines for examining its colonial-era objects, and, in the United Kingdom, the Arts Council England has asked the Institute of Art and Law, based in Wales, to produce guidelines for returning cultural objects from museums.

However, Oliver Dowden, the UK Secretary of State for Culture, Media and Sport, urged heritage organisations to ‘retain and explain’ controversial artefacts and statues instead of returning or removing those linked to the colonial empire.

Nonetheless, where artefacts are to remain in the possession of former colonial countries, the government and museums may need to think carefully about if and how such items are displayed.

For O’Donnell, it’s not just about contextualising the objects. ‘You’re already making a choice in a museum if you have it on display. If you’re choosing to show something and contextualising it, you’re already making a choice.’

For Ryback, there’s ‘not only no single solution, there’s no single way of understanding this. You have to look at this as a very complex interplay.’

‘Every single dispute has its own dynamics’, Ryback adds. ‘To the degree that can be dictated by laws, I don’t think laws are necessarily the best parameters for writing history. I think history should be left to historians, not legislators, lawyers or judges. But I think the need for legal parameters is right.’

‘Clearly we need laws to run societies and they should create frameworks’, he says. ‘Process is as important as legal frameworks and what processes exist within legal frameworks for addressing these disputes are as important and probably even more important than the laws themselves. One should proceed with maximum transparency, with maximum democratic engagement, and the broadest possible stakeholder engagement’.

Header pic: Shutterstock.com / Giannis Papanikos