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The Changing Tide of Title to Cultural Heritage Objects in UK Museums

Published online by Cambridge University Press:  01 October 2015

Charlotte Woodhead
Charlotte Woodhead*
Affiliation:
Warwick Law School, UK; Email: c.c.woodhead@warwick.ac.uk
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Abstract:

UK museums are required to present themselves as the ethical guardians rather than simply the owners of their collections (Museums Association Code of Ethics principles 1.0 and 1.3). Museums which are members of the International Council of Museums are required, when acquiring objects for their collections, to ensure that they obtain valid title, rather than simply strict legal title, to the object (ICOM Code of Ethics, principle 2.2). This notion of valid title focuses on the relationship between the current possessor (the museum) and the object. However, one can also see the concept of claimants having moral claims to cultural heritage objects developing in the context of the notion of the “rightful owner” which is a term increasingly deployed to signify the person who has a valid moral, rather than legal, claim to the cultural heritage object (Seventh Report of the Culture Media and Sport Select Committee 1999-2000 [193]).

Since 2000 the UK has introduced mechanisms to resolve, in limited circumstances, moral claims to cultural objects of which their owners were dispossessed during the Nazi era. This paper analyses the way in which a concept of moral title can be seen to have developed in the context of the resolution of Nazi era claims by the UK’s Spoliation Advisory Panel. To this end the paper analyses: how far the moral entitlement is linked with the legal title to the object; and whether moral title arises from the morally abhorrent dispossession that befell the claimant or his ancestor or whether it results from the recommendation of the Spoliation Advisory Panel. It is argued that the development of the notion of moral title poses challenges for the future, but an understanding of its role may also inform the resolution of disputes involving cultural heritage objects outside the context of the Nazi era.

Type
Research Article
Information
International Journal of Cultural Property , Volume 22 , Issue 2-3 , August 2015 , pp. 229 - 257
Copyright
Copyright © International Cultural Property Society 2015 

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References

BIBLIOGRAPHY

University of Aberdeen. 2000. “Procedure for Responding to Repatriation Requests.” Museums and Museum Studies Policies online,http://www.abdn.ac.uk/museums/documents/Museums_Repatriation_Procedure.pdf (accessed 10 August 2015).Google Scholar
Arvind, T. T. 2012. “Beyond ‘Right’ and ‘Duty’: Lundstedt’s Theory of Obligations.” In Rights and Private Law, edited by Nolan, Donal and Robertson, Andrew, 151–81. Oxford: Hart Publishing.Google Scholar
Battersby, G., and Preston, A. D.. 1972. “The Concepts of ‘Property,’ ‘Title’ and ‘Owner’ Used in the Sale of Goods Act 1893.” The Modern Law Review 35, no. 3: 268–88.CrossRefGoogle Scholar
Brown, Michael F. 2003. Who Owns Native Culture? Cambridge, MA: Harvard University Press.Google Scholar
Bureau of European and Eurasian Affairs. 1998. “Principles with respect to Nazi-Confiscated Art.” Fact Sheet, Washington Conference on Holocaust-Era Assets. US Department of State online, http://www.state.gov/p/eur/rt/hlcst/122038.htm (accessed 3 July 2015).Google Scholar
Campfens, Evelien. 2014. “Alternative Dispute Resolution in Restitution Claims and the ‘Binding Expert Opinion’ Procedure of the Dutch Restitutions Committee.” In Art, Cultural Heritage and the Market: Legal and Ethical Issues, edited by Vadi, V. and Schneider, H., 61–91. Heidelberg: Springer.CrossRefGoogle Scholar
Carey Miller, David L., Meyers, David W., and Cowe, Anne. 2001. “Restitution of Art and Cultural Objects: a Reassessment of the Role of Limitation.” Art Antiquity and Law 6, no. 1: 1–17.CrossRefGoogle Scholar
Cotler, Irwin. 1998. “The Holocaust, ‘Thefticide’ and Restitution: A Legal Perspective.” Cardozo Law Review 20, no. 2: 601–23.Google Scholar
Cuba, Stephanie. 1999. “Stop the Clock: The Case to Suspend the Statute of Limitations on Claims for Nazi-Looted Art.” Cardozo Arts & Entertainment Law Journal 17, no. 2: 447–89.Google Scholar
Curwen, Nick. 2006. “The Remedy in Conversion: Confusing Property and Obligation.” Legal Studies 26, no. 4: 570–83.CrossRefGoogle Scholar
Curtis, Neil. 2010. “Repatriation from Scottish Museums: Learning from NAGPRA.” Museum Anthropology 33, no. 2: 234–48.CrossRefGoogle Scholar
Department for Culture, Media and Sport (DCMS). 2006. “Restitution of Objects Spoliated in the Nazi-Era: A Consultation Document.” Museums, Libraries and Cultural Property, http://www.museumsassociation.org/download?id=234793 (accessed 10 August 2015).Google Scholar
Department for Culture, Media and Sport (DCMS). 2005. “Guidance for the Care of Human Remains in Museums.” Museums, Libraries and Cultural Property,http://webarchive.nationalarchives.gov.uk/+/http:/www.culture.gov.uk/images/publications/GuidanceHumanRemains11Oct.pdf (accessed 10 August 2015).Google Scholar
Feliciano, Hector. 2001. “The Great Cultural Robbery: The Plunder of Jewish-Owned Art.” In The Plunder of Jewish Property during the Holocaust, edited by Beker, A., 164–96. Houndmills: Palgrave.CrossRefGoogle Scholar
Fox, David. 2006. “Relativity of Title at Law and in Equity.” Cambridge Law Journal 65, no. 2: 330–65.CrossRefGoogle Scholar
Geismar, Haidy. 2008. “Cultural Property, Museums, and the Pacific: Reframing Debates.” International Journal of Cultural Property 15, no. 2: 109–22.CrossRefGoogle Scholar
Gillman, Derek. 2010. The Idea of Cultural Heritage. Revised ed. New York: Cambridge University Press.Google Scholar
Glass, Aaron. 2004. “Return to Sender: On the Politics of Cultural Property and the Proper Address of Art.” Journal of Material Culture 9, no. 2: 115–39.CrossRefGoogle Scholar
Goode, Roy, and McKendrick, Ewan. 2010. Goode on Commercial Law. 4th ed. London: Lexis Nexis.Google Scholar
Ho, HL. 1997. “Some Reflections on ‘Property’ and ‘Title’ in the Sale of Goods Act.” Cambridge Law Journal 56, no. 3: 571–98.CrossRefGoogle Scholar
Hohfeld, Wesley Newcomb. 1914. “Some Fundamental Legal Conceptions as Applied to Judicial Reasoning.” Yale Law Journal 23, no. 1: 16–59.CrossRefGoogle Scholar
International Council of Museums. 2006. ICOM Code of Ethics for Museums. Paris: International Council of Museums.Google Scholar
Jones, M., Dugdale, A., and Simpson, M.. 2014. Clerk & Lindsell on Torts. 21st ed. London: Sweet & Maxwell.Google Scholar
Kamm, F. M. 2002. “Rights.” In The Oxford Handbook of Jurisprudence and Philosophy of Law, edited by Coleman, Jules and Shapiro, Scott, 476–513. Oxford: OUP.Google Scholar
Lucy, William N. R., and Mitchell, Catherine. 1996. “Replacing Private Property: The Case for Stewardship.” Cambridge Law Journal 55, no. 3: 566–600.CrossRefGoogle Scholar
MacDonald, David B. 2003. “Daring to Compare: The Debate about a Maori ‘Holocaust’ in New Zealand.” Journal of Genocide Research 5, no. 3: 383–403.CrossRefGoogle Scholar
McFarlane, Ben. 2008. The Structure of Property Law. Oxford: Hart Publishing.Google Scholar
Marstine, Janet. 2011. “The Contingent Nature of the New Museum Ethics.” In The Routledge Companion to Museum Ethics, edited by Marstine, J., 3–25. London: Routledge.Google Scholar
Merrill, Thomas W., and Smith, Henry E.. 2007. “The Morality of Property.” William and Mary Law Review 48, no. 5: 1849–95.Google Scholar
McGee, Andrew. 2010. Limitation Periods. 6th ed. London: Sweet & Maxwell.Google Scholar
Museums Association. 2008. Code of Ethics for Museums. London: UK Museums Association.Google Scholar
Museums Association. 2004. “Ethical Guidelines 1 – Acquisition Guidance on the Ethics and Practicalities of Acquisition.” 2nd ed. Museums Association Policy online,http://www.museumsassociation.org/policy/guidelines (accessed 3 July 2015).Google Scholar
Museums Association. 2014. “MA bars Northampton Museums Service for a Minimum of Five Years.” Museums Association News online, 1 October,http://www.museumsassociation.org/news/01102014-ma-bars-northampton (accessed 3 July 2015).Google Scholar
National Museums Directors’ Council (NMDC). 1998. “Statement of Principles and Proposed Actions on Spoliation of Works during the Holocaust and World War II Period.”London: National Museum Directors’ Conference.Google Scholar
National Museums Directors’ Council (NMDC). 2003a. “Too Much Stuff?—Disposal from Museums.”London: National Museum Directors’ Conference.Google Scholar
National Museums Directors’ Council (NMDC). 2003b. “Loans Between National and Non-national Museums: New Standards and Practical Guidelines.”London: National Museum Directors’ Conference.Google Scholar
Nozick, Robert. 1974. Anarchy, State, and Utopia. Oxford: Blackwell.Google Scholar
O’Donnell, Thérèse. 2011. “The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?” European Journal of International Law 22, no. 1: 49–80.CrossRefGoogle Scholar
Palmer, Norman. 2000. Museums and the Holocaust. Leicester: IAL Publishing.Google Scholar
Palmer, Norman. 2003. “Report of the Working Group on Human Remains,” http://webarchive.nationalarchives.gov.uk/20100113212249/http://www.culture.gov.uk/reference_library/publications/4553.aspx (accessed 10 August 2015).Google Scholar
Palmer, Norman. 2006. “Itinerant Art in the European Community: Loans, Collective Title, Shared Enjoyment and the Mystique of Museum Property: A Common Lawyer’s Perspective.” Art Antiquity and Law 11, no. 3: 275–89.Google Scholar
Palmer, Norman. 2007. “Spoliation and Holocaust-Related Cultural Objects: Legal and Ethical Models for the Resolution of Claims.” Art Antiquity and Law 12, no. 1: 1–16.Google Scholar
Palmer, Norman. 2010. “Responding to Conscience: The Holocaust (Return of Cultural Objects) Act 2009.” Art Antiquity and Law 15, no. 1: 87–91.Google Scholar
Paterson, Robert K. 2006. “Resolving Material Culture Disputes: Human Rights, Property Rights and Crimes against Humanity.” Willamette Journal of International Law and Dispute Resolution 14, no. 2: 155–74.Google Scholar
Prott, Lyndel V. 2009. “The History and Development of Return of Cultural Objects.” In Witnesses to History: A compendium of Documents and Writings on the Return of Cultural Objects, edited by Prott, Lyndel V., 2–18. Paris: UNESCO Publishing.Google Scholar
Radin, Margaret Jane. 1982. “Property and Personhood.” Stanford Law Review 34, no. 5: 957–1015.CrossRefGoogle Scholar
Redmond-Cooper, Ruth. 2000. “Limitation of Actions in Art and Antiquity Claims: Part II.” Art Antiquity and Law 5, no. 2: 185–206.Google Scholar
“Resolution 1205 of the Council of Europe.” Commission for Looted Art in Europe, http://www.lootedartcommission.com/council-of-europe (accessed 10 August 2015).Google Scholar
Robinson, Nehemiah. 1951. “War Damage Compensation and Restitution in Foreign Countries.” Law and Contemporary Problems 16, no. 3: 347–76.CrossRefGoogle Scholar
Scottish Law Commission. 2010. Discussion Paper on Prescription and Title to Moveable Property, Discussion Paper No. 144. Edinburgh: The Stationery Office.Google Scholar
Scovazzi, Tullio. 2011. “The Return of the Benev. VI29 Missal to the Chapter Library of Benevento from the British Library.” Art Antiquity and Law 16, no. 4: 285–95.Google Scholar
Select Committee on Culture, Media and Sport. 2000. “Cultural Property: Return and Illicit Trade.” Seventh Report, HC 371-I.Google Scholar
Select Committee on Culture, Media and Sport. 2004. “Cultural Objects: Developments since 2000.” First Report, HC 59.Google Scholar
Sheehan, Duncan. 2011. The Principles of Personal Property Law. Oxford: Hart Publishing.Google Scholar
Sher, George. 1981. “Ancient Wrongs and Modern Rights.” Philosophy & Public Affairs 10, no. 1: 3–17.Google Scholar
Simpson, Moira. 2009. “Museums and restorative justice: heritage, repatriation and cultural education.” Museums International 61, no. 1–2: 121–29.CrossRefGoogle Scholar
Smith, Stephan A. 2004. Contract Theory. Oxford: OUP.Google Scholar
Stevens, Robert. 2007. Torts and Rights. Oxford: OUP.CrossRefGoogle Scholar
Thompson, Janna. 2002. Taking Responsibility for the Past: Reparation and Historical Justice. Cambridge: Polity.Google Scholar
Vadi, V., and Schneider, H.. 2014. “Art, Cultural Heritage and the Market: Legal and Ethical Issues.” In Art, Cultural Heritage and the Market: Legal and Ethical Issues, edited by Vadi, V. and Schneider, H., 1–24. Heidelberg: Springer.CrossRefGoogle Scholar
Vrdoljak, Ana Filipa. 2008. “Reparations for Cultural Loss.” In Reparations for Indigenous Peoples: International and Comparative Law Perspectives, edited by Lenzerini, F., 197–228. Oxford: Oxford University Press.CrossRefGoogle Scholar
Woodhead, Charlotte. 2009. “Ownership, Possession, Title and Transfer: Human Remains in Museum Collections.” In Modern Studies in Property Law: Volume 5, edited by Dixon, M., 313–35. Oxford: Hart Publishing.Google Scholar
Woodhead, Charlotte. 2009. “Moral claims against museums.” The International Journal of the Inclusive Museum 2, no. 2: 1–12.CrossRefGoogle Scholar
Woodhead, Charlotte. 2013. “Nazi era spoliation: establishing procedural and substantive principles.” Art Antiquity and Law 18, no. 2: 167–92.Google Scholar
Woodhead, Charlotte 2014. “Redressing historic wrongs, returning objects to their rightful owners or laundering tainted objects? 21st century UK remedies for Nazi era injustices.” International Journal of Cultural Property 21, no. 2: 113–42.CrossRefGoogle Scholar