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Deaccession, repatriation and the British Museum thefts. By Fahrid Chishty and Natalia Ameen
In August 2023, the British Museum issued a press release that set hares running in the art world. Two thousand assets from its permanent collection had been stolen or damaged. Some, it transpired, had gone missing in plain sight. This prompted a fast-moving review into the Museum’s security apparatus, resulting in the resignation of its director and the dismissal of members of staff implicated in a programme of digital heists. But most notable, perhaps, was the ire of public scrutiny that was raised in the wake of the scandal: how did the Museum drop the ball so critically that the security and integrity of its entire collection came to be compromised? The seriousness of the matter was compounded, no doubt, by the fact that the provenance of scores of the stolen pieces derived from other civilisations. As such, a decades-old debate has now reignited concerning the moral basis for the acquisition and continued custodianship over foreign cultural treasures.
Over several decades, the Museum has received requests from overseas governments to repatriate antiquities pursuant to a process of deaccession. Notable cases include Greece vis-à-vis the Parthenon Marbles and Nigeria à propos the Benin Bronzes. The Museum’s principal response has been to hide behind the shield of limitation. A series of provisions in the British Museum Act 1963 (BMA 1963) oust the ability of a State to reclaim Museum pieces after the expiration of an allocated period. An alternative stance insists that the Museum is better placed to protect and preserve cultural assets than the countries from which they originated – although this has undeniably lost force in recent years. These two positions have been brought into close focus in the aftermath of the recent thefts, with serious questions now punctuating public discourse as to whether the Museum is morally entitled to safeguard the cultural assets of other nations.
In this article, we set out the legal framework governing the disposal of objects as contained in BMA 1963. We then assess discrete provisions in the Holocaust (Return of Objects) Act 2009 (HA 2009) and the Charities Act 2022 (CA 2022) which may provide routes to deaccession and repatriation – notwithstanding the strictures of the prevailing legislative regime. As to whether the Museum will pivot away from its past positions, to our minds this is a question that will turn on political and diplomatic considerations as much as legal principles.
Section 5 of BMA 1963 regulates the manner in which Museum trustees are permitted to dispose of objects from its collection. There are two points of contention relating to the drafting of the section that should immediately engage our concern. First, s (5)(1) establishes a power on the part of trustees to dispose of any object ‘vested in them’ – although the use of the term ‘vested’ is decidedly ambiguous. Second, s 5(1)(b) places significant limitations on the disposal of collections obtained prior to 1850.
In relation to s (5)(1), the Act does not define the term ‘vested’, nor does it shed any light on the nature of legal title the Museum or its trustees may have over its pieces. This is problematic in the context of objects that were acquired in unlawful circumstances – the Benin Bronzes being a point in question. This is compounded by the express limitation of the legal principle, ‘nemo dat quod non habet’, which restricts legal title in items gifted, sold or granted objects that were acquired illegally: the judgment of Morritt VC in Attorney-General v The British Museum [2005] EWHC 1089 (Ch) is particularly instructive on this point.
This engages the issue of stolen or looted antiquities, which has gained currency in recent years. At the time BMA 1963 was drafted, the propriety of exhibiting such items was evidently not at the forefront of lawmakers’ minds. To use the language of Professor Flessas of the LSE: ‘No one was really thinking about repatriation at that time.’ As such, it is important that the Act be construed as a product of its time: a relic of post-war Britain that may not reflect the realities of the social fabric of the 21st-century.
The second issue – the limitation imposed by s 5(1)(b) – is similarly problematic. The 1850 ‘cut-off date’ is, at least in our eyes, arbitrary. It effectively precludes the disposal of swathes of objects acquired more than 173 years ago. Accordingly, much of the Museum’s collection is by default placed beyond the reach of deaccession. This makes sense in the context of 1963: plainly at that point in time Parliament did not foresee that the Museum’s right to retain objects in its collection may be morally challenged.
So how could – or should – the Museum begin to navigate complex issues of deaccession and repatriation in view of shifting public opinion and a restrictive statutory regime?
HA 2009 creates a power – to be exercised by certain British institutions including the Museum – to return property looted by the Nazis during 1933-1945 to Holocaust victims and their families. As such, HA 2009 establishes an exception to the BMA’s general position on disposal and permits the return of certain objects. What can the Act teach us – by way of analogous reasoning – about the repatriation of objects acquired unlawfully generally?
There is no doubt that HA 2009 was a response to exceptional circumstances. During the atrocities of the Holocaust, the Nazi regime deprived the Jewish community of its fundamental rights, including ownership rights over land and property. As such, the Act was passed decades later to deliver justice for the victims of these abhorrent policies and return what assets could be traced. Critical to our discussion is the point that HA 2009, having entered into force 50 years on from the horrors of the Holocaust, permitted the retroactive restoration of assets to the victims of pillage. Could that set a precedent for legislative amendments to BMA 1963 which would see the repatriation of cultural assets, the acquisition of which is deemed to clash with modern-day British values?
While this retroactivity could provide a basis for a paradigm shift, HA 2009 clearly has its own historical context which gave rise to its focussed legislative agenda. The statute provides a basis for restoring assets whose acquisition dates from a particular period (1933-1945). Likewise, it is concerned with restoration to a clearly defined group of persons. This is qualitatively different from the case of the Museum, whose collections represent decades – if not centuries – worth of acquisitions from various cultures and civilisations. As such, there are no obvious descendant groups to whom the items could be restored, for which reason the mandate to repatriate is usually associated with States as opposed to individuals or communities. Accordingly, we anticipate that any legislative attempts to pave the way for large-scale deaccession and repatriation would require careful drafting to obviate inevitable issues relating to the scope of application and interpretation later down the line.
CA 2022 is a wide-sweeping statute, encompassing several matters relevant to the operation of the charitable sector. But recently tabled amendments propose an interesting step-change in relation to repatriation specifically. These amendments could constitute a loophole, permitting Museum trustees to repatriate cultural assets where morally obliged to do so – providing that express provision is granted by either the Charity Commission, the Courts or the Attorney-General. We should tread with caution, however; the amendments were due to be implemented in October but have been delayed – or some may say, filibustered – for further consideration.
Sections 15 and 16 of the CA 2022 contain the critical changes. Respectively, they establish a limited power for charity trustees to repatriate objects where there is a moral obligation to do so, as well as an attendant power of the Commission to authorise repatriation. While the language of ‘moral obligation’ in s 15(3)(c) has been received with appreciation in many quarters, the term lacks definition and relies upon additional conditions which are roundly restrictive. For example, s 15(3)(a) effectively bars the repatriation of objects valued at more than £20,000. This is plainly too low a threshold, essentially precluding the repatriation of major contested artworks such as the Parthenon Marbles and Benin Bronzes. Are these amendments mere lip-service to the shift in public discourses surrounding the spoils of empire?
The issues at stake are not purely legal. The question of repatriating assets obtained through illegal and tainted measures engages political, diplomatic and sentimental concerns. It will evidently require a governmental appetite to seriously progress. Although there may well be routes to securing limited deaccession in the current framework, our survey has found the law to be inconsistent and atavistic in its treatment of cultural assets and major institutions operating in this field. While the Museum has positioned itself as the guardian of the shared heritage of mankind, it is only now – in the wake of the theft of up to 2,000 assets – that that narrative has begun to unravel.
Fahrid Chishty is a barrister practising from Guernica 37 Chambers. He specialises in criminal, regulatory and international law. He has a special interest in international legal responses to crimes against or involving art and antiquities.
Natalia Ameen is an aspiring lawyer, focusing on public law and international human rights. She received her Graduate Diploma in Law from City, University of London, and previously read English Literature and Language at Jesus College, University of Oxford.
In August 2023, the British Museum issued a press release that set hares running in the art world. Two thousand assets from its permanent collection had been stolen or damaged. Some, it transpired, had gone missing in plain sight. This prompted a fast-moving review into the Museum’s security apparatus, resulting in the resignation of its director and the dismissal of members of staff implicated in a programme of digital heists. But most notable, perhaps, was the ire of public scrutiny that was raised in the wake of the scandal: how did the Museum drop the ball so critically that the security and integrity of its entire collection came to be compromised? The seriousness of the matter was compounded, no doubt, by the fact that the provenance of scores of the stolen pieces derived from other civilisations. As such, a decades-old debate has now reignited concerning the moral basis for the acquisition and continued custodianship over foreign cultural treasures.
Over several decades, the Museum has received requests from overseas governments to repatriate antiquities pursuant to a process of deaccession. Notable cases include Greece vis-à-vis the Parthenon Marbles and Nigeria à propos the Benin Bronzes. The Museum’s principal response has been to hide behind the shield of limitation. A series of provisions in the British Museum Act 1963 (BMA 1963) oust the ability of a State to reclaim Museum pieces after the expiration of an allocated period. An alternative stance insists that the Museum is better placed to protect and preserve cultural assets than the countries from which they originated – although this has undeniably lost force in recent years. These two positions have been brought into close focus in the aftermath of the recent thefts, with serious questions now punctuating public discourse as to whether the Museum is morally entitled to safeguard the cultural assets of other nations.
In this article, we set out the legal framework governing the disposal of objects as contained in BMA 1963. We then assess discrete provisions in the Holocaust (Return of Objects) Act 2009 (HA 2009) and the Charities Act 2022 (CA 2022) which may provide routes to deaccession and repatriation – notwithstanding the strictures of the prevailing legislative regime. As to whether the Museum will pivot away from its past positions, to our minds this is a question that will turn on political and diplomatic considerations as much as legal principles.
Section 5 of BMA 1963 regulates the manner in which Museum trustees are permitted to dispose of objects from its collection. There are two points of contention relating to the drafting of the section that should immediately engage our concern. First, s (5)(1) establishes a power on the part of trustees to dispose of any object ‘vested in them’ – although the use of the term ‘vested’ is decidedly ambiguous. Second, s 5(1)(b) places significant limitations on the disposal of collections obtained prior to 1850.
In relation to s (5)(1), the Act does not define the term ‘vested’, nor does it shed any light on the nature of legal title the Museum or its trustees may have over its pieces. This is problematic in the context of objects that were acquired in unlawful circumstances – the Benin Bronzes being a point in question. This is compounded by the express limitation of the legal principle, ‘nemo dat quod non habet’, which restricts legal title in items gifted, sold or granted objects that were acquired illegally: the judgment of Morritt VC in Attorney-General v The British Museum [2005] EWHC 1089 (Ch) is particularly instructive on this point.
This engages the issue of stolen or looted antiquities, which has gained currency in recent years. At the time BMA 1963 was drafted, the propriety of exhibiting such items was evidently not at the forefront of lawmakers’ minds. To use the language of Professor Flessas of the LSE: ‘No one was really thinking about repatriation at that time.’ As such, it is important that the Act be construed as a product of its time: a relic of post-war Britain that may not reflect the realities of the social fabric of the 21st-century.
The second issue – the limitation imposed by s 5(1)(b) – is similarly problematic. The 1850 ‘cut-off date’ is, at least in our eyes, arbitrary. It effectively precludes the disposal of swathes of objects acquired more than 173 years ago. Accordingly, much of the Museum’s collection is by default placed beyond the reach of deaccession. This makes sense in the context of 1963: plainly at that point in time Parliament did not foresee that the Museum’s right to retain objects in its collection may be morally challenged.
So how could – or should – the Museum begin to navigate complex issues of deaccession and repatriation in view of shifting public opinion and a restrictive statutory regime?
HA 2009 creates a power – to be exercised by certain British institutions including the Museum – to return property looted by the Nazis during 1933-1945 to Holocaust victims and their families. As such, HA 2009 establishes an exception to the BMA’s general position on disposal and permits the return of certain objects. What can the Act teach us – by way of analogous reasoning – about the repatriation of objects acquired unlawfully generally?
There is no doubt that HA 2009 was a response to exceptional circumstances. During the atrocities of the Holocaust, the Nazi regime deprived the Jewish community of its fundamental rights, including ownership rights over land and property. As such, the Act was passed decades later to deliver justice for the victims of these abhorrent policies and return what assets could be traced. Critical to our discussion is the point that HA 2009, having entered into force 50 years on from the horrors of the Holocaust, permitted the retroactive restoration of assets to the victims of pillage. Could that set a precedent for legislative amendments to BMA 1963 which would see the repatriation of cultural assets, the acquisition of which is deemed to clash with modern-day British values?
While this retroactivity could provide a basis for a paradigm shift, HA 2009 clearly has its own historical context which gave rise to its focussed legislative agenda. The statute provides a basis for restoring assets whose acquisition dates from a particular period (1933-1945). Likewise, it is concerned with restoration to a clearly defined group of persons. This is qualitatively different from the case of the Museum, whose collections represent decades – if not centuries – worth of acquisitions from various cultures and civilisations. As such, there are no obvious descendant groups to whom the items could be restored, for which reason the mandate to repatriate is usually associated with States as opposed to individuals or communities. Accordingly, we anticipate that any legislative attempts to pave the way for large-scale deaccession and repatriation would require careful drafting to obviate inevitable issues relating to the scope of application and interpretation later down the line.
CA 2022 is a wide-sweeping statute, encompassing several matters relevant to the operation of the charitable sector. But recently tabled amendments propose an interesting step-change in relation to repatriation specifically. These amendments could constitute a loophole, permitting Museum trustees to repatriate cultural assets where morally obliged to do so – providing that express provision is granted by either the Charity Commission, the Courts or the Attorney-General. We should tread with caution, however; the amendments were due to be implemented in October but have been delayed – or some may say, filibustered – for further consideration.
Sections 15 and 16 of the CA 2022 contain the critical changes. Respectively, they establish a limited power for charity trustees to repatriate objects where there is a moral obligation to do so, as well as an attendant power of the Commission to authorise repatriation. While the language of ‘moral obligation’ in s 15(3)(c) has been received with appreciation in many quarters, the term lacks definition and relies upon additional conditions which are roundly restrictive. For example, s 15(3)(a) effectively bars the repatriation of objects valued at more than £20,000. This is plainly too low a threshold, essentially precluding the repatriation of major contested artworks such as the Parthenon Marbles and Benin Bronzes. Are these amendments mere lip-service to the shift in public discourses surrounding the spoils of empire?
The issues at stake are not purely legal. The question of repatriating assets obtained through illegal and tainted measures engages political, diplomatic and sentimental concerns. It will evidently require a governmental appetite to seriously progress. Although there may well be routes to securing limited deaccession in the current framework, our survey has found the law to be inconsistent and atavistic in its treatment of cultural assets and major institutions operating in this field. While the Museum has positioned itself as the guardian of the shared heritage of mankind, it is only now – in the wake of the theft of up to 2,000 assets – that that narrative has begun to unravel.
Deaccession, repatriation and the British Museum thefts. By Fahrid Chishty and Natalia Ameen
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