THE LEGAL POSITION OF CLAIMS AND MUSEUMS’ TITLE TO CULTURAL OBJECTS

Over the years a museum will have acquired a vast number of different objects, from a wide range of sources and in a variety of different circumstances. Where it can be established that the object was recently removed from the original owner’s possession without their consent then it is likely that a claimant could establish the existence of a cause of action in the tort of conversion (wrongful interference with goods). Since possession is the cornerstone of one’s rights to personal property, a previous owner would bring a claim in conversion based on his immediate right to possess the goods,^{Footnote 14} rather than because he may be described as being the owner per se. This reflects the principle that there is no absolute right of ownership that can by itself be vindicated in court and that the English common law of personal property relies heavily on the concept of relativity of title.^{Footnote 15} Because title is relative, it can be resolved by a court in favor of one party, even though someone else, who is not a party to court action, may have a superior claim.^{Footnote 16}

Where there has been a conversion the claimant would be entitled to receive compensation, although under section 3(3)(b) of the Torts (Interference with Goods) Act 1977 the court has a discretion whether or not to order the delivery of an object under section 3(2)(a). Case law shows that return of the object tends to be limited to circumstances where damages are an inadequate remedy.^{Footnote 17} Cultural objects that might be considered as being unique or having an intrinsic value, thus rendering damages an inadequate remedy, would usually justify return.^{Footnote 18} If we consider two examples of claims made for recently acquired objects, it will be possible to see that in some situations, as well as civil liability towards the claimants, there may be additional criminal liability for the acquiring museum.

First, consider a cuneiform tablet originating from Iraq that was purchased by a London-based museum in 2011. It has now become apparent that this tablet was illegally removed from an Iraqi museum during the Gulf War and that the seller was in full knowledge of the facts of its wrongful removal. Here, the Iraqi museum would have an extant claim in the tort of conversion since the six-year limitation period would only start to run from the first purchase unrelated to the theft (here the purchase by the London museum, assuming it was made in good faith).^{Footnote 19} However, the museum may be guilty of an offence under the Iraq (United Nations Sanctions) Order 2003 of dealing or failing to transfer the object to a constable, unless it can show it “did not know and had no reason to suppose that the item in question was illegally removed Iraqi cultural property.”^{Footnote 20} Similar co-existing civil and criminal liability can also be seen in the context of a fixture taken from a listed building. The second example, therefore, involves a sculpture which formed an integral part of the architectural design of a listed building and which was sufficiently annexed to the land and was illegally removed in 2014 and later sold to a museum.^{Footnote 21} If the removal was made by someone other than the owner of the listed building then the owner would have a claim in the tort of conversion. Whether or not it was the owner of the listed building, or an unauthorized individual who sold the sculpture to the museum, there is a risk that both seller and buyer would be guilty of an offense under the Dealing in Cultural Objects (Offences) Act 2003 unless it could be established that they were not dishonest and that they did not know or believe that the object was tainted.^{Footnote 22} Similarly, if an object from illegal metal detecting activity on a scheduled monument were sold to a museum there is again a risk of criminal sanction under the 2003 Act.

These two pieces of legislation, which form part of criminal law regime, demonstrate the recognition that there is a need to respect the cultural heritage of particular states that might be at risk during times of war, but also the associative value of heritage that a heritage object may have with its archaeological or historical context.

However, where an object was taken from its place of origin years earlier and has been in the UK for many years there may be no direct legal impediment to acquiring this object because the current possessor would have the best title to the object and this could be passed on to the acquiring museum. This is because the statute of limitation would not only have barred the claimant’s claim, but would also have extinguished the original owner’s title. Where an object had been stolen before May 1981, under the Limitation Act 1939, the six-year limitation period started to run from the original conversion, not from the first good faith purchase (which is now the position under the Limitation Act 1980).^{Footnote 23} It is clear that both Limitation Acts have an effect beyond a purely procedural one, which would only bar a claim, but instead they alter who the holder of title to the object is.^{Footnote 24} Therefore, unlike the general position with regards to limitation periods, in the context of the tort of conversion the effect of the Limitation Acts 1939 and 1980, is to bar the right as well as the remedy.^{Footnote 25} So far, there has been no successful claim that the extinction of title to cultural objects in this way is contrary to human rights legislation. In the case of land, even though the extinction of title after a period of time necessarily affects the property rights of an individual and may take effect without the payment of compensation, the Grand Chamber of the European Court of Human Rights (reversing the decision of the European Court of Human Rights[ECtHR]) held that limitation periods pursue a legitimate aim in the general interest and that the application of limitation periods in the context of adverse possession to land did not upset the “fair balance” under Article 1 of the First Protocol of the European Convention on Human Rights.^{Footnote 26} There is ECtHR jurisprudence which acknowledges the importance of protecting cultural heritage as a legitimate aim which may justify interfering with the peaceful enjoyment of possessions,^{Footnote 27} as well as an emerging recognition of cultural identity.^{Footnote 28} However, this has not been applied directly, either in the ECtHR or in English courts, to claims for cultural objects from museums.^{Footnote 29} Therefore, by itself, it seems that at present there is little on which to base such a legal claim.

A more frequent situation will arise where museums, many years earlier, acquired objects for their collections and by now the Limitation Act 1939 will have extinguished the original owner’s title six years from the date of the conversion. This can be seen in several categories of claims. First, those claims involving dispossessions during the Nazi era as a result of Nazi persecution. Despite the original act of dispossession being wrongful and most likely amounting to an act of conversion, title would, in legal terms, still have been extinguished six years after entering into the UK. Secondly, the 1970 UNESCO Convention was only ratified by the UK in 2002 and has no retroactive effect. Consequently, illicitly exported or stolen cultural heritage post-1970 but before 2002 may be found in museums, but no claim could be made for its recovery due to the extinction of the original owner’s title. Such objects might include elements of historical monuments, antiquities which are more than one hundred years old, or archaeological objects from excavations.^{Footnote 30} Thirdly, claims for human remains may be made, but there is no legal obligation to return these, not least because it is questionable whether any legal title in them existed in the first place.^{Footnote 31} Fourthly, indigenous communities may have been dispossessed of objects which were taken to be housed in museum collections, but for which they did not give permission for removal. In these situations the claimant communities will often have a continuing relationship with the objects which may well form part of a cultural practice. Finally, an object in a museum may have been acquired by wrongful taking during times of war, but many years earlier than 1970. Examples might include the Benin Bronzes and the Maqdala treasure now housed in the British Museum.

The first four of these categories are what Campfens has called the grey areas where moral claims are necessitated because of the lack of a legal claim.^{Footnote 32} It is to the question of how moral claims arise and to the common issues relating to the different categories of these moral claims that the discussion now turns.

HOW MORAL CLAIMS EMERGE

“Disputes about who has good title—who is the legal owner—must be distinguished from disputes about who has the best moral right to the item in question. Claims are often made against museums and galleries, in this country and elsewhere, for the return of objects, where the claim is not (or not mainly) based on legal ownership, but on moral considerations.”^{Footnote 33}

Any claim for an object where legal title has been lost would necessarily need to rest on an extralegal claim since the current possessor museum would otherwise be entitled to the object based on its better title. It is argued that claims will necessarily be based on moral reasons as to why it is more appropriate that the claimant either have possession of the object, or have some entitlement to be consulted or involved in the decision-making process about the curation of the object. It is argued that this claim to an entitlement would then have a strength which would be recognized as moral title to the object. Gillman suggests that where a possessor has good title (i.e. legal title) then any claim made for the return of a cultural object would necessarily take a moral rather than legal form such that the claimant would frame it in terms that he “has a greater moral right to the property than the present individual or corporate owner, their claim should be enforceable through political channels or at international law.”^{Footnote 34} It is acknowledged in legal scholarship that there are moral rights which “exist independently of any legal system,” but which are shown to exist “by moral argument.”^{Footnote 35} They are “capable of being deduced from the nature and experience of ourselves, and the world and society in which we live. Rational people can recognize such rights independently of their being given force of law.”^{Footnote 36} It is argued that in the context of cultural objects such moral rights have been reasoned by the arguments made in favor of facilitating the resolution of claims. These have arisen in the contexts discussed in the previous sections and will be more fully analyzed below. It is argued that where a moral right exists, there is also “a moral right against the wrongdoer that he will correct the wrong he has done.”^{Footnote 37} In the context of cultural objects now in museums, one problem is that the wrongdoer may not now be the person against whom any moral claim can be made, but instead it will be the museum which now possesses the object against whom a claim (more usually for transfer) will be made. In such circumstances, whilst the museum may have benefited from the original wrong, it did not cause it and the claimant will usually not be the original owner, but may be an heir or a descendant of the originating community, but who can show a continuity of belief, customs, or religion. In these circumstances, though, it may be more accurate to talk of claims, rather than rights.^{Footnote 38} Frequently the term “rights” is used to denote a claim that a person may make against another but “claim” is appropriate phraseology for the situations that arise in the context of cultural objects since statements of entitlement will be couched in terms of claims which may be given effect to, rather than absolute rights.

There are two ways in which one could analyze these moral claims. The first is that these are historical claims which have survived the years based on the original owner’s loss of property. The basis on which these claims are made is arguably a type of historical entitlement which has as its basis the moral circumstances.^{Footnote 39} This could be based on the circumstances of the dispossession, which may have taken place as part of the commission of a crime against humanity.^{Footnote 40} Alternatively, these could be analyzed as situations where the remedy is focused on the claimants who require acknowledgment of the wrong that befell their forefathers and that this acts as part of the reconciliatory justice.^{Footnote 41} Thompson treats claims for family heirlooms as a situation where the later generations have the claim to the object and the importance of the object to the family means that the claim preserves down the generations.^{Footnote 42} This would cover the situation where claims are made for the return of cultural objects that were owned by Jewish families but which were taken during the Nazi era. The importance of recovering these objects may pass down the generations such that their recovery now takes on a symbolic value.^{Footnote 43} However, where the circumstances of loss took place in the context of breaches of human rights or crimes against humanity then there may be an ongoing obligation which is not based on a historical claim, but which has continued to the present day. In this regard, Vrdoljak suggests that indigenous claims are not just about historic injustices, but are about continuing violations of human rights or “violation of their right to self-determination.”^{Footnote 44}

Gillman identifies three bases on which moral claims to cultural objects outside the legal system may be grounded: “remedying historical inequity”; “the overall utility [being] greater in one place than another”; or “a collective right to the property.”^{Footnote 45} Nazi era dispossessions would fall into the first of these categories as would objects or human remains that were taken during colonial times from indigenous originating communities. Claims from such communities would also fall into Gillman’s third category. Wrongful taking of cultural objects may well fall into all three categories (whether before or after the 1970 UNESCO convention came into force).

Whilst these claims arise in a variety of different situations, there are commonalities in the ways in which they arise and in the ways in which they can be resolved. One common feature of certain types of moral claims that has found widespread public support and which has been justified on the basis of moral reasoning is where the circumstances of loss involved genocide, crimes against humanity, or some other breach of human rights, and therefore acceding to claims is a means of remedying the historical inequity, as Gillman would describe it. This can be seen in the context of Nazi era dispossessions which have been treated as sui generis because of the scale,^{Footnote 46} but were recognized because of the “methodical and systematic manner” of dispossession as it was directed at specific people,^{Footnote 47} which was not just for the Nazis’ self-enrichment but also “formed an integral part of their attack on other races.”^{Footnote 48} Cotler has described these widespread dispossessions as thefticide.^{Footnote 49} This close link with genocide and crimes against humanity has therefore been a justification for the differential approach and the keenness to facilitate return of Nazi era dispossessions.^{Footnote 50} The similarities with genocide and the past infringement of human rights has also been seen as justification for the restitution of Aboriginal human remains.^{Footnote 51} However, as Scovazzi points out:

These fundamental moral entitlements might arise from the circumstances of dispossession which may fall short of genocide, but would nevertheless be considered morally questionable.^{Footnote 53} They include claims made by states to cultural objects that they treat as emblems of their cultural heritage. Some objects of cultural importance may have been lost by communities or nations during times of unequal power relations or as a result of war or colonial dispossessions; prime examples of this are found in the British Museum in the cases of the Benin Bronzes and the Maqdala Treasure (the latter having been described by a Parliamentary Select Committee as being one of the clearest examples of when a museum should give effect to a moral claim).^{Footnote 54} Where the circumstances of dispossession are morally questionable then this may lend strength to a moral claim. So too might the actions of the museum when they initially acquired the object; the provenance research undertaken by the museum may have fallen short of the standard that would have been expected at the time. UNESCO, through its Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation and the ICOM-WIPO Art and Cultural Heritage Mediation initiative, shows a strong international commitment to such claims and the need for return.

Strong parallels have been highlighted between Nazi era claims and those for indigenous cultural objects in terms of the contexts of removal, the discourse about the objects, return being a form of redress as well as the importance of the assertion of control.^{Footnote 55} However, similarities can also be drawn with other acts of dispossession. For example the removal of objects from the City of Benin in 1897. There is a similarity of the context of removal, although in a shorter period of time than in the case of Nazi era and colonial dispossessions. The discourse concerning the objects and return as a form of redress and the importance of control hold similarities across these different objects. This can be seen by the importance attributed to the recent return of certain bronzes to the Oba of Benin by a private individual whose grandfather acquired them during the post-conflict looting.^{Footnote 56} It is therefore argued that similar moral claims could be justified on these bases.

RECOGNITION OF MORAL CLAIMS IN ETHICAL INSTRUMENTS

Through a variety of ethical norms found in museum codes of ethics and associated guidance there is an increasing recognition of a pre-existing and persistent entitlement on moral grounds. Museums shift themselves away from reliance on traditional legal concepts of title to a more ethical notion of title to cultural objects. Not only can this be seen in the way in which museums act as ethical guardians,^{Footnote 65} but also through their focus on ensuring, when they acquire objects, that they obtain valid title to them.^{Footnote 66} Furthermore, in the context of existing collections, we can see that museums recognize that their strict legal entitlement might need to give way to a moral one, for museums are entreated to be cognizant of potential claims for restitution or repatriation of objects from within their existing collections.^{Footnote 67}

This section analyzes the way in which both the framework of ethical norms derived from professional codes of ethics and other guidance recognize the validity of third party claims to cultural objects that are held by museums. Each of these is analyzed below. First, when acquiring objects for their collection, museums should ensure that the objects are not tainted by any potential legal or moral claims. Secondly, in the context of their existing collections (i.e. historically acquired objects) museums need to be alert to potential third-party claims which may again be made on either legal or moral grounds.

THE EMERGING CONCEPT OF MORAL TITLE

The notion of the importance of moral as well as legal title to cultural objects was first raised in the context of auctions and has since developed in the field of museums.^{Footnote 93} It is argued that one can interpret the work of the Panel as recognizing the existence of an entitlement by claimant which is based on moral grounds, which might be called a moral title to the original object. This arises because the Panel has determined (based on its assessment of the overall legal, factual, and moral situation, specifically (a) the moral strength of the claim, or (b) the moral obligation on the museum) that the claimant is entitled, based on moral grounds, to some remedy.^{Footnote 94} This may be by recommending the return of the object, the payment of either an ex gratia payment or compensation, or the display of the account of the object’s history next to the object in the museum.^{Footnote 95} It is argued that this moral title is now vested in the claimant, as heir to the original owner’s estate. This moral title may either have been inherited by the claimant from the original owner, or may have vested first of all in the claimant by virtue of the Panel’s recommendation. Moral title could therefore arise at various stages. Each of these is analyzed below.

WAYS IN WHICH TO GIVE EFFECT TO MORAL TITLE

If the person who enjoys good title therefore has a right to possession and we treat moral title in a similar vein to the person who has the best title to the cultural object, then it seems appropriate to suggest that a successful claimant would be entitled to have the object transferred to him. In most cases, where the claimant has been successful the Panel has recommended that the museum should transfer the object to the claimant. Moral title could be said to merge with the legal title when the legal title is transferred and that would be the only title on which the claimant would need to rely in the future. This is similar to a situation where property is owned by an individual and there is a merging of both the legal and equitable title (where it is unnecessary to talk about the two as separately occurring), rather than where property is co-owned where it is necessary to separate the legal and equitable interests.

Where the Panel recommends the payment of an ex gratia sum and that the object remains in the museum, were this to be accepted by the claimants in full and final settlement of the claim,^{Footnote 111} then the claimant’s moral title would surely cease to exist.^{Footnote 112}

The remedy of the display of an account of the object’s history, as well as being recommended in conjunction with the payment of an ex gratia sum, can also be recommended as a freestanding remedy. This has occurred even where the Panel made no accompanying recommendation of the payment of an ex gratia sum and consequently this commemorative action has been the only remedial response despite there being a moral strength to the claim, albeit one that does not justify return. Appropriate situations include where the claimant’s had already been compensated or where the forced sale was not at a significant undervalue.^{Footnote 113}

Alternatively, the Panel may have recommended that the museum retain the object but that it should display an account of the object’s history next to it. Here moral title would not entitle the holder to possession of the object, but rather to an entitlement regarding the manner in which the object is, in future, displayed. To this end, the use of the word “title” may differ somewhat from the traditional legal concept of title which equates to the entitlement to possession. However, it could nevertheless still be described as the quantum of interests that the holder has,^{Footnote 114} (albeit not an interest to possess, but something altogether different) and correspond with the approach that suggests that it is possible to have title to a lesser interest in property.^{Footnote 115} Potentially a museum may well overlook the need to display the account of the object’s history in the future and display it without the explanatory text. In such a case moral title would need to be considered. If a claimant has accepted the Panel’s recommendation as full and final settlement of a claim and the museum failed to display the account, then this failure could have the effect of allowing the claimant to revive his claim. Whilst in theory a moral title could give the claimant the right of some form of redress, it would be difficult to quantify what this would be, for he would not have suffered any financial loss. A recommendation of the payment of a nominal sum would seem inappropriate here as the very nature of the original remedy was commemorative in nature and necessarily not loss-based. It might seem more appropriate then to require performance of the obligation itself since damages would be inadequate.^{Footnote 116} Having said that one could envisage that in many situations, if the account were omitted then the museum would be willing to reinstate it without any further recourse to the Panel being necessary.

APPLICATIONS BEYOND NAZI ERA CLAIMS

Dispossessions at the hands of the Nazis have been treated in the UK as sui generis as discussed above. Yet, the Panel’s jurisdiction and the power granted to national museum governing bodies extend to any object taken during the Nazi era (defined as 1933–1945^{Footnote 117}) and so the Panel “not without some hesitation” accepted jurisdiction of a claim for the return of the Beneventan Missal even though it had no direct connection with the actions of the Nazis.^{Footnote 118} As discussed above, it was most likely to have been removed during or after the Allied bombardment in 1943.^{Footnote 119} Since this dispossession was not part of the systematic pillaging and physical and cultural persecution of the Jews by the Nazis, but was instead lost either as a result of theft or pillage, moral title appears to be capable of deriving from actions that fall short of genocide perpetrated on a particular group.^{Footnote 120} The author has argued elsewhere that this claim provides support for the possibility of establishing moral title in claims brought by other groups since the determinations by the Panel are not based solely around the genocide or persecution suffered by the claimant group.^{Footnote 121}

Furthermore, the Benevento Missal recommendation is the only claim where the claimant was a legal rather than natural person and where the claimant was actually also the original owner (usually claims are made by heirs of the original owner). This feature of the claim lends further support to any argument which seeks to justify the extension of these principles of moral title to other claimants, such as communities or nations, rather than to specific, identified heirs. As a concept then, moral title has the potential to extend beyond purely Holocaust-related dispossessions and to apply more widely to situations where claimants were dispossessed of objects and have a continuing connection with them, along the lines of the notion set out in the MA guidance discussed above.^{Footnote 122}

Campfens suggests that “[t]he question of whether any specific procedure can serve as an example for future models will, in the end, depend on the use, acceptance and authority of the solutions to deal with disputes as they emerge.”^{Footnote 123} It is argued that the bases on which the Panel determines the moral strength of the claim and any moral obligation on the museum are starting to develop into objective principles that can be applied in subsequent moral claims.^{Footnote 124} By focusing on moral title, rather than taking either restitution or identifying the “rightful owner” as the starting point, the process permits the balancing of different factors to reach a solution that will respond with nuance to the moral circumstances. If the moral strength of the claim lends itself to return as a remedy then this is an available option. However, in a situation where the claimant or his descendant received financial recompense, either by receiving the market value of the object, or post-war compensation then alternative remedies can be considered instead.

To further develop the concept of moral title, it may be relevant to take into account the public benefit that is derived from a cultural object so that that can be weighed in the balance when considering how to give effect to moral title. It may be that where there is little connection between the claimants and the original object, the public benefit derived from the object far outweighs the benefit of receiving the object, rather than money or some remedy. However, the Panel has been unwilling to take into account the importance of the object to the museum as “a paramount consideration” when reaching its decisions.^{Footnote 125} In this way, in circumstances where the value of the cultural heritage object may be more fully realized in the public domain, this is a factor that could be taken into account when determining the appropriate course of action to take. Further, the remedies which could be used to respond to the recognition of the claimant’s moral title could include collaborative ventures or other civil society solutions to cultural heritage disputes.^{Footnote 126}

Although in a Scottish, rather than English context (but where the differing legal systems do not affect the analogy), the approach taken to hearing moral claims can be seen in the procedure adopted by several institutions with a resultant moral title. The “influential model” of Glasgow City Council,^{Footnote 127} commended by the Select Committee,^{Footnote 128} looks at the following factors when deciding whether or not to transfer a requested object from its collection:

1. 1. The status of those making the request...

2. 2. The continuity between the community which created the object(s) and the current community on whose behalf the request is made.

3. 3. The cultural and religious importance of the object(s) to the community.

4. 4. How the object(s) have been acquired by the museum and their subsequent future use.

5. 5. The fate of the object(s) if returned.^{Footnote 129}

Rather than focusing on the circumstances of the loss of possession in establishing the strength of the claimant’s claim in Panel recommendations, here the moral strength of the claim is derived from the cultural and religious importance of the object to the claimant community. It also looks at the moral obligation on the museum derived from the circumstances in which the object was acquired by the museum. These factors, again take into account the moral aspects of the claim, and their application can be seen in the context of the successful claim for the Lakota Ghost Dance Shirt which was returned to the Lakota people in 1999. The return of the shirt was described as “an exception to the general presumption against return because of its unique position in the history of the Lakota, because of the way the object found its way into Glasgow’s collection, and because the delegation were able to meet the Council’s concerns for the long term preservation of the object.”^{Footnote 130}