Restitution vs. Repatriation: Definitions and Distinct Uses in the Context of Cultural Property

INTRODUCTION

Restitution and repatriation, in the context of cultural property, refer to the processes or events of returning cultural assets to their country, community, or individual of origin. In most cases, the returned cultural property has been taken as a result of illicit trafficking (or looting), colonialism, or other unequal power relations. Restitution or repatriation of cultural property takes place on legal or ethical grounds. The legal basis is usually established state ownership or private rightful ownership of the cultural property, as well as export restrictions. This means that the cultural property in question was acquired illegally (e.g. through illegal excavations or theft) or exported from the country of origin without an export certificate or other government permission.

On the other hand, ethical reasons are often related to the historical circumstances of the acquisition and export of the object. Ethical considerations tend to concern objects that are important to community identity or sacred objects, for which there may be no clear legal grounds for return. Sometimes, the return of cultural property is pursued on both legal and ethical grounds, or via alternative dispute resolution methods.

In academic literature, the terms restitution and repatriation are often used interchangeably and without a consistent system, with each author employing their own definition. This article attempts to explore the complex field of restitution, repatriation, and return of cultural property from an archaeologist’s perspective.

A COMPARATIVE ANALYSIS OF VOCABULARY DEFINITIONS

To begin with, we can analyse these two terms from a linguistic point of view. In The Oxford English Dictionary (referred to as OED in the further text) restitution is defined as ”the action of restoring or giving back something to its proper owner, or of making reparation to a person for loss or injury previously inflicted…”. On the other hand, the term repatriation is defined as ”the return or restoration of a person to his or her native country; an instance of this”. The Cambridge Dictionary gives the following definition of restitution ”the return of objects that were stolen or lost” or ”payment made for damage or loss”. It also provides a wider definition of repatriation than the OED: ”the act of sending or bringing someone, or sometimes money or other property, back to the country that he, she, or it came from”.

Comparing the two definitions of restitution, we can see that both recognise restitution as the restoration of ownership. Furthermore, both definitions see restitution as a corrective measure or action, as reparation and financial compensation are mentioned as corrective acts. We can also see some important differences in the definitions of the word restitution in the OED and the Cambridge Dictionary. The OED definition uses the words “restoring” and “reparations” in its definition, which also adds a symbolic component to the definition. On this basis, it could be interpreted that the OED definition sets the scope of restitution on the legal claims and also on moral justice, thus ethical claims for restitution. However, the Cambridge Dictionary definition of restitution only uses the word “return” and financial compensation. This seems to refer more to the legal, administrative and logistical process or event rather than the symbolic elements of the OED definition.

It is a little more difficult to compare the two definitions of repatriation, as the OED definition seems to regard repatriation only as the return of people to their native country. In comparison, the Cambridge Dictionary extends the scope to include also the return of property to its country of origin. The OED definition uses the word ‘restore’, which means that it also gives a symbolic (ethical) dimension to the repatriation. However, the Cambridge Dictionary definition uses the word “return”, which, like the definition of restitution, may indicate that repatriation is only seen as a legal or logistical process. It is also worth noting that, compared to definitions of restitution, both definitions of repatriation see this action or process as the return of something to the country of origin. This could indicate that both definitions consider repatriation as taking place between governments of countries. The OED definition of restitution sees this process or action as the return of something to its rightful owner, which may be broader, such as countries, local communities, families and individuals.

INTERNATIONAL LEGAL DEFINITIONS

In the second part of this article, I will analyse the relevant international legal documents that are relevant in the field of restitution and repatriation of cultural property. I will examine which term they use and how they use it. I will also look for possible definitions of these two terms in these legal documents. I have chosen to analyse the use of restitution and repatriation in international legal documents because they often provide definitions or standardized interpretations that guide their use in the international legal framework governing restitution and repatriation.

Starting with international legal documents produced by UNESCO, I analysed the use of the terms in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (also known as the Hague Convention) and in the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. It is clear that the UNESCO legal framework has the most diverse use of the terms related to the restitution and repatriation. The Hague Convention uses the terms ‘return’ and ‘repatriation’. Return is used in the context of the return of the cultural property from so-called ‘depositary State’ (third country, not involved in the armed conflict), where the cultural property was stored for security reasons, during the armed conflict in between countries. Article 37 of the Hague Convention, uses the term ‘repatriation’ in the legal context of return of cultural property looted during the armed conflict. In contrast, the UNESCO 1970 Convention uses the term ‘restitution’ (Article 13b). Restitution is used as the restoration of illicitly exported cultural property to its rightful owner. The same Convention also uses the term ‘return’. The process of ‘return’ begins at the request of the country of origin and should be made through diplomatic offices. It appears to refer to the return of cultural property illegally imported into the State Party after the entry into force of this Convention in both States concerned. ‘Return’ is often used in the combination with ‘recovery’, which from the context of its use indicates to refer a legal and procedural process of recovering requested objects.

The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects uses the terms ‘restitution’ and ‘return’. In my judgment, those two terms are used in the clearest legal context of all legal documents reviewed in this article. In the Article 1 of the Convention, restitution is applied to the stolen object. Stolen objects are defined as cultural objects that have been unlawfully excavated or lawfully excavated and unlawfully retained. On the other hand, ‘return’ applies to cultural objects that have been illegally exported from the Contracting State. Articles 3, 4 and 5 also set out the rules for the restitution and return procedures. Restitution requires a claim. In the legal context, I consider a claim to be a legal demand for the restitution of the stolen cultural object of an international character, which requires a proof of ownership and possibly also proof that the object was stolen. In most cases, the courts are involved and a private owner can claim restitution. However, return is requested. From the legal context of its use in the Convention, it can be seen that the request for the return is an intergovernmental legal procedure whereby a Contracting State requests the return of an illegally exported cultural object through the competent court of the other Contracting State. The process of return does not seem to require a dispute over ownership.

The issue of restitution, repatriation and return in the relevant legal framework of European Union is a little bit more chaotic. For the purposes of this argument, I have analysed EU Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State; EU Regulation 1332/2013 concerning restrictive measures in view of the situation in Syria and EU Regulation 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq. All of these legal documents mentioned use only the term ‘return’. From the very full name of the Directive 2014/60, we can associate the term ‘return’ with the return of cultural objects to the country of origin, from which they were illegally exported. This seems quite clear, but it is the use of the ‘return’ in the two regulations cited above that causes the confusion. In the EU Regulation 1332/2013, ‘return’ is used in the legal context of the return of illegally exported Syrian cultural objects to their legitimate owners. Compared to the use of the same term in the EU Directive 2014/60, there is a significant difference. From the legal context of Directive 2014/60, we can assume that the return is between the governments of EU member states, but Regulation 1332/2013 uses the term ‘legitimate owners’. This is a broader term that can include the State of Syria as the owner, or also private owners of cultural objects in Syria. Thus, the use of the same term in the EU legal framework can have a different scope. To further add to the confusion, Regulation 1210/2003 refers to the need to facilitate the return of goods belonging to the “Iraq’s cultural heritage“. In this context, it is unclear whether this return is between EU member states and Iraqi government institutions, or whether the term recognises various ownership rights, which could mean that cultural goods could also be returned to private owners in Iraq.

Finally, I analysed four legal documents adopted by the United Nations. Three of these are resolutions adopted by the Security Council and one by the General Assembly. The three relevant resolutions, adopted by the UN Security Council, only use the term ‘return’. They are UN Resolution 1483 (2003), Resolution 2199 (2015) and Resolution 2253 (2015). All of these three resolutions use the term ‘return’ in the same context. Resolution 1483 requires Member States to facilitate the return of cultural property illegally exported from Iraq after 6 August 1990. In addition to the return of illegally exported cultural property to Iraq, Resolutions 2199 and 2253 also include the return of cultural property to Syria of cultural property illegally exported from that country after 15 March 2011. The only difference noted is the potential difference in the different parties involved in the return process. In the Resolution 1483, Member States must return Iraqi cultural property to Iraqi institutions, suggesting an intergovernmental process. On the other hand, Resolutions 2199 and 2253 mandate the return to the Iraqi and Syrian people. In my view, it is unclear in these two examples whether this also means that the return is to take place between governments, or whether the term is broader and also means the return to private owners in these two countries. The General Assembly Resolution A/RES/76/16 entitled Return or restitution of cultural property to the countries of origin, uses the terms ‘return’ and ‘restitution’, but in my opinion it is very hard to determine the difference just by reading this resolution. Throughout the document they are always used as “return or restitution“, which means that there is a difference between them, but they are always used together in the context of the return or restitution of cultural property to the countries of origin, of trafficked cultural property, of cultural property that has spiritual, historical or cultural value, of stolen or illicitly exported cultural property and unlawfully removed cultural property. In my view, it is very difficult to determine which term is linked to any of the above legal context. There is only one occasion, when the term ‘return’ is used separately, in the context of the voluntary return of illicitly appropriated cultural property, but it is not clear, whether the term has the same meaning throughout the document.

RESTITUTION AND REPATRIATION: ACADEMIC AND INSTITUTIONAL DEFINITIONS AND INTERPRETATIONS

A comparative analysis shows that definitions of ‘restitution’ and ‘repatriation’ vary across different vocabularies. As a result, the scope of each term can change depending on the specific definition consulted. What’s more, these two terms are used inconsistently in the relevant international legal documents, with each institution or organisation prefering its own terminology when talking about the return of cultural property to their country of origin or to their rightful owner. There is also a lack of clear definitions of the terms ‘restitution’, ‘repatriation’ and ‘return’. This forces the reader of these documents to gather definitions from the legal context in which these terms are used. It raises the question of how people who are not the part of the legal field or trained in law can correctly interpret these contexts. In the third part of this article, using four open sources, I will analyse how scholars and various institutions navigate the chaotic world of definitions and uses of ‘restitution’ and ‘repatriation’ in their publications or work.

The first example is the publication of Piotr Bienkowski’s (2015) chapter A critique of museum restitution and repatriation practices in the book International Handbooks of Museum Studies: Museum Practice. In his chapter we can find an interesting idea that restitution and repatriation are a practical recognition of different values for something that can be held as property. At the beginning of the chapter, he uses the terms restitution and repatriation together, but also acknowledges that there is a difference between the two terms. For the purpose of his argument, he then defines these two terms. He dates the beginning of the legal concept of restitution to the 1960s, in the context of UNESCO discussions on combating the illicit trafficking in cultural property. Consequently, in his article he defines restitution as the return of an object to its original owner on the basis of property rights. This means that restitution takes place on a legal basis. On the other hand, he dates the beginning of the use of the concept of repatriation to the 1980s and 1990s in North America and Australasia in connection with the return of human remains and sacred objects to indigenous communities. He also points out that in the literature he has analysed, the term repatriation is used in cases where the claim for return is ethical rather than legal. Thus, he defines repatriation as the return of an object to the country of origin or sub-state group on the basis of ethical considerations.

Another example I analysed is the website of the GRASSI Museum of Ethnology in Leipzig. On their website they have a statement from the Saxon State Ethnographic Museums (SES). There they defined the terms ‘restitution’ and ‘repatriation’. It is clear that the institution views these two terms in the context of decolonisation. Restitution is defined as the return of objects to individuals, communities or institutions. From the perspective of ethnographic museums, this means the return of objects that are important to the identity of communities, sacred objects or other cultural objects. These objects have been acquired as a result of looting, colonialism or other unequal power relations. SES also provides a definition of repatriation from a museum perspective. For them, repatriation is the return of ancestral human remains to their communities of origin. They entered their collections as part of colonial collecting. Repatriation is also part of a process called rehumanisation, in which human remains are seen not as objects of research, but as people.

The third example also defines the two terms from a museum perspective. In this example the definitions are taken from the Collections Trust website, where the main source cited to provide definitions is Restitution and Repatriation: A Practical Guide for Museums in England, produced by Arts Council England in association with the Institute of Art and Law. Restitution is defined as the process of returning cultural objects to the individual or community of origin. Repatriation is defined as the process, by which cultural objects are returned to a nation or state at the request of a government.

Finally, I will present the most complex example. The article entitled Restitution versus Repatriation: Terminology and Concepts Matter (2023) presents an important issue in which the terms ‘restitution’ and ‘repatriation’ are defined from the perspective of African scholars, with Africa being one of the continents, which were the most plundered by the colonial powers, including cultural resources. Additionally, looting of cultural heritage sites is also currently widespread in Africa. The authors Ciraj Rasool and Victoria E. Gibbon, begin by defining the term ‘repatriation’. They consider repatriation as a legal, administrative and logistical issue. Repatriation means the return of heritage objects, artworks and human remains to their place of origin. The authors also stress that repatriation occurs across international and continental boundaries, particularly within the discourse of museums and governments. On the other hand, Rasool and Gibbon provide a very complex definition or interpretation of the term ‘restitution’. They point out that restitution has a deeper meaning than simply returning an object to its rightful owner. In the article, the restitution is seen as a long process of restorative justice, called ‘restitutionary work’. In addition to the return of the cultural object, the process of restitutionary work includes symbolic elements, such as repatriation, mourning, healing, honouring, recognition, closure and reconciliation. It also offers opportunities for a new future. Great importance is attached to provenance research, which is seen as reconnecting of cultural objects with their communities of origin. The whole process should lead to the de-museumisation, de-ethnographization and de-objectification of the cultural property in question. The authors also acknowledge that there is no model or template for carrying out restitutionary work, but that it must be handled on a case-by-case basis. The process involves governments, but also local actors, by which they probably mean affected local communities and various NGOs.

CONCLUSION

In this article, I have explored the complex field of definitions and uses of the terms ‘restitution’, ‘repatriation’ and also ‘return’. As it was already pointed out by the authors of the Restitution and Repatriation: A Practical Guide for Museums in England, that there is no strict legal definition of restitution and repatriation. Rather, researchers are forced to interpret these definitions in the context of their use in legal documents. In this article I have reviewed some international legal documents, produced by four international organisations. From the legal context of the use of the three terms cited above, I believe that restitution is associated with the restoration of cultural property to its rightful owner, from whom it was stolen, on the basis of property rights. On the other hand, return is most often used in the context of the return of cultural property to the country of origin, from which it was illegally exported. Finally, the term repatriation is rarely used in the documents that I analysed, so I cannot draw any conclusions. In the last part of this article, I analysed the use of restitution and repatriation in academic and institutional work. I presented four examples, each of which provided its own definition or interpretation of these two terms. The questions remain: are the explanations in legal documents unclear or insufficient for the complex issue of restitution, repatriation and return of the cultural property to its rightful owner or country of origin? And why are these terms not clearly defined in international legal instruments?

DISCLAIMER: This article is for educational purposes only and is not meant to provide legal advice. (ŽB).