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Madison Buck

Mrs. Kitamura

English 1010

9 December 2022

Ethical and Legal Factors Affecting the Custody of Artifacts

Museums serve a unique purpose for the public by collecting and preserving antiquities

of the past. Curating items both living and nonliving, these establishments serve as a way to

advance human knowledge. As such, these institutions provide collections on display all around

the world. With the main mission to educate through the exhibition of these artifacts, it is no

wonder that these places have been so quick to catch the attention of individuals. However, as

the world has progressed, so have these institutions. Museums now enter arrangements to share

both the authority and responsibility of the objects. In turn, it is their job to care for and return

these artifacts based on the provenance of them. Today, it is important to take into consideration

what exactly these collections are but also what they provide. Rather than focusing solely on the

educational purpose they provide, it is crucial to further research how these artifacts came about

and what course of action is taken when they are suddenly removed.

Controversy concerning the guardianship of antiquities stems from the issue of defining

who technically has the right to own these objects. Due to the suspicious acquisition of some

artifacts, the determination of a historical item's legality is not necessarily clear. Thus resulting in

the possession of looted or stolen artifacts. This in turn leads to the claim for returns from other

governments or individual groups. When this occurs, museums are forced to relinquish all rights

to the item. In this paper, I will be taking a closer look into articles that discuss the ethical and

legal factors affecting a museum's custody of artifacts. With several debates and arguments
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surrounding the topic, this review will examine two points: how these items are acquired as well

as what happens when groups ask for the return or transfer of them. Delving into these subjects

should provide a clearer understanding of what goes on behind the scenes of a museum along

with the impact these issues have on historical institutions as a whole.

Acquisition of Artifacts

With their contributions to the collection and preservation of previous historical objects,

museums serve a unique purpose of educating the public through the exhibition of these so-

called “antiquities''. These artifacts are generally either owned or borrowed by the museum and

then put on view for the world as a means to further advance the populace's knowledge.

However, in recent years, consideration of not only what a museum's collection serves to

provide, but as well as how the artifacts were acquired has begun a heated debate on the legality

of these objects.

The root of the argument begins with unethical acquisition. In some cases, the

circumstances under which an artifact was acquired are less than ideal, with possession resulting

from occurrences of thievery or simply even removal without consent from the owner. As Nicole

Daniels, a staff editor with The Learning Network states in her article, “Should Museums Return

Looted Artifacts to Their Countries of Origin” that,’. . . many were also procured with the threat

of violence, without consent and in ways that violated cultural traditions. Many were simply

stolen’”. In acquiring these cultural antiquities, there is a tendency for museums to fail in

determining the legal authenticity of these objects, however this does not necessarily apply to all

artifacts, with most more often than not being purchased or traded with permission from the

communities or governments affiliated. Herein lies the issue of determining an artifact's legality.
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As perhaps some of the most common instances of repossession, antiquities being stolen

from their origin countries during colonial rule or looted during times of war are simply a few of

the many contributing factors that increased the amount of stolen objects within museums.

Specifically, European colonial explorations around the 1500s can be traced back to being a

prominent starting point for the acquisition of these foreign objects. It wasn’t until the late 1800s

though when this trend really began to take off with the excavation of thousands of unknown

graves (Daniels Nicole). As this love for curiosities began to grow in the Western world, so did

the pilfering of artifacts; oftentimes leading many to resort to illegal extremities in order to

obtain these treasures.

With some objects simply being looted or taken as a sort of spoil of conquest, there are

many who argue that these practices are considered highly unethical. In agreeance with this idea,

Tehmina Goskar, a director and curator with over twenty years of experience in cultural, art, and

academic sectors along with being a member of the Museums Association, states in her recently

published article, “Ownership and Ethics in Public Museums”, ‘Spoliation during WW2 and

other 20th-century conflicts have also brought claims against museums who have inadvertently

or knowingly bought or otherwise acquired objects, specimens, art and antiquities that were

stolen, confiscated or looted, such as carried out by the Nazis against Jews and others in the

1940s’”. In obtaining these culturally significant artifacts, there can be an issue in determining

their provenance. While they may technically belong to the museum after being acquired, the

ownership history and arrival of its first appearance in a museum is still a prominent issue, even

decades later.

In an attempt to counteract this legality issue, some museums are creating regulations

specifically in order to determine the legitimacy of obtainment. For example, author Lonnie G.
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Bunch, the Smithsonian’s 14’th Secretary and founding director of the National Museum of

African American History and Culture states in reference to the new policy recently introduced

at the Smithsonian in his article, “Why the Smithsonian Adopted a New Policy on Ethical

Collecting”, that, ‘The new policy authorizes our museums to enter arrangements to share

authority, expertise and responsibility for [an] objects’ care and return certain objects based on

how and under what circumstances they were acquired’”. This in a sense holds the museum

accountable to decide the legitimacy and legality of an artifact while providing a course of action

on how to proceed when a suspected object may have suspicious provenance.

This is simply one of many examples of policies put in place to protect items of cultural

and international importance, however not everyone agrees with the effectiveness of these

regulations. Looking further into the preexisting policies currently in place, Mai Do, an

American Vietnamese activist and poet analyzes the UNESCO 1970 Convention on the Means

of Prevention and Prohibition of illegal transportation of antiquities in their article, “Why

Artifacts Belong in Museums”. The convention was set up as a means to protect and prevent the

illicit import and export of cultural property. Anything that fell under the line of scientific,

historical, religious, or artistically important was considered under protection. Formally

becoming effective in 1972, all members under the UN were expected to follow the new

regulation (Do Mai). Despite this, Do points out the lack of clarity regarding the acquisition of

artifacts as a whole. In turn, adding to the growing confusion of the transaction legalities of these

items.

As a whole, museums have had a large impact on the world by collecting and preserving

all different manners of artifacts. However the acquisition of these antiquities are beginning to be

questioned. With records of ownership used to determine authenticity showing that for perhaps
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more than a century, some collections have been amassed in ways that are considered unethical.

As a result, policies are beginning to be put in place in order to determine the legality of some of

these transactions with the hopes to preserve the original intention of museums.

Repatriation of Artifacts

As perhaps one of the most debated subjects when it comes to the legality of artifacts in

museums, the repatriation of antiquities seems to stem from the larger question; what historically

significant items does a museum technically have the right to own. With a lack of

documentation, the illegal acquisition of some artifacts has led to the push for museums to

relinquish their rights over certain objects and return them to their country of origin. In turn,

leading to a heated debate upon the ethicality behind the custody of these items.

Museums are rarely ever forced to return an artifact due to legalities, instead most will

willingly or even preemptively hand over suspicious items. As Caitlin S. Wunderlich, the

Museums Scholar’s editor and editor-in-chief of the volume The Museum Review, defines this

act of repatriation in her article, “Museum Sector Policy Deficit: Repatriation From United States

Museums” as the process of returning a cultures human remains or artifacts back to their nation

of origin. Through this, museums will give up control of an antiquity in their collection and in

turn waive their rights to determine the fate of the object.

Because many institutions refuse to promote the so-called “illegal trade”, the legality and

legitimacy of a transaction becomes an important factor to consider for many collectors. As such,

groups or individuals attempting to repatriate an artifact are required to put in an appeal

(Wunderlich S. Caitlin). This request gives the museum the ability to review whether the case to

return an artifact is reasonable or not. However, not everyone agrees with the effectiveness of

this system. Due to the process being less of a legal review and more of an ethical judgment,
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questions arise whether the claims for returns are even taken seriously. Instead arguing that most

museums do not take a proactive approach on examining the historically significant items within

their collections (Goskar Tehmina). In turn, taking away from the original intention of

repatriation as a whole. In some cases, museums are simply constrained by legal foundations. As

Goskar states in her article, “What has proved far more opaque is how claims for the repatriation

of items confiscated or taken or even dubiously (unethically) sold during the era of British and

European colonialism might be dealt with”. With institutions such as National and British

museums having little choice in the way to go about repatriating these artifacts. Consequently,

universal laws regarding the importation and exportation of items are not clearly defined leading

to multiple differing courses of action taken by these establishments.

Others argue that the importance of this action outweighs the flaws due to the cultural

significance behind the artifacts. Specifically in emphasizing how antiquities and human remains

act as a way to preserve the heritage and identity of certain cultures (Wunderlich S. Caitlin).

While similarly promoting the belief that these cultural properties are seen as a means to

contribute to a nation's growth. Rather than simply being a way to “make amends for the past”

some insist that repatriation can perhaps even serve as a way to heal scars passed down from

generation to generation. However, not all institutions see repatriation as a way to repair the

integrity of a nation. As author Kanish Tharoor, a senior editor at the foreign affairs and

presenter of the British Broadcasting Corporation (BBC) radio series Museum of Lost Objects

discusses in his article, “Museums and Looted Art: The Ethical Dilemma of Preserving World

Cultures” often times individuals will see this simply as a means for the elite to push their

political agendas. Consequently giving doubt to the morality of repatriation claims.

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On the other hand, despite claims for the confiscation of antiquities from collections, the

original intention behind curating these historical items seems to additionally contribute to the

ethical dilemma. As Do emphasizes in their article, some museums argue that it is in a sense

their duty and responsibility to display the objects, regardless of their provenance. As such,

completely negating the idea of ownership and rather prioritizing the exhibitional purpose they

serve. Some even go as far as to imply that artifacts are far more suited to be held in these

institutions saying, “Once the artifacts are returned to the shrines that they belong to, they would

likely be stolen” (Mai Do). Essentially implying that these culturally important artifacts are far

safer in the hands of public and private establishments.

Agreeing with this idea, many fear the repercussions that could occur due to the

consistent repatriation of artifacts. Some going as far as to question whether the service of

museums as a whole will be necessary in the near future. According to Daniels, “Some art

dealers and curators have recently warned that this rapidly shifting landscape may, as the

German Broadcaster Deutche Welle put it, ‘eventually empty museums and galleries in Western

countries’”. Perhaps even thoroughly decimating museum and university collections in their

entirety. Others, highlighting that just returning human remains or cultural artifacts may set an

irreversible precedent (Wunderlich S. Caitlin). Similarly serving as a reinforcement of an idea

that would leave museums purposeless and as some fear, result in a loss of information of history

in itself.

With the provenance of an artifact determining the legality of its curatorship, in some

circumstances the item may be acquired from an unreliable source. When this occurs, some

governments or private organizations may ask for the repatriation, or the return of the antique.

Thus, sparking a debate as to whether or not the return of these items is ethical, or even
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beneficial. However, with claims mainly being delegated on ethicality rather than legality, many

question the effectiveness of this system.

Conclusion

As a whole, the curation and custody of artifacts is in themselves, a sort of gray area.

With the original intention of these places being the further enrichment of historical education, a

closer look into the legality and ethicality behind them provides a unique understanding of what

happens out of the view of the public. With issues starting from the very acquisition of these

items with some being spoils of war or even looted from culturally significant sites. Despite this,

not all artifacts are acquired in this way, a good majority of them come about in ways that are

ethically and legally appropriate. However, this does not matter much when the act of illegal

possession has already occurred. When this situation transpires, some governments or individual

institutions will put in appeals asking for the repatriation of these antiquities. Claims for items

are not always effective simply because the process of returning falls onto the museum to judge

them based solely on the ethicality, rather than legality issues that may have occurred.

This argument is highly important due to the implications it holds for the future of

historical education in itself. When a museum acquires an item of questionable provenance, there

is a chance that they are in possession of an artifact culturally significant to certain groups. In

turn, leading to the morality issues of which group should have rights to the object. Similarly, if a

majority of an establishment were to be repatriated the question arises of what would a museum's

purpose necessarily be, or even if there would be a need for one.

Further Inquiry

Something that was not discussed in this paper but is highly important to the argument is

the legality and ethicality of loaning. In some cases, a museum may temporarily be in possession
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of antiquities ranging from singular objects to entire collections. By sending and receiving loans,

an institution is able to study, or even provide educational research on specific historical

subjects. The reason that this is important is because as these objects are circulated from different

museums, there is no transfer of ownership.

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Works Cited

Bunch, Lonnie G. “Why the Smithsonian Adopted a New Policy on Ethical Collecting.”

Smithsonian.com, Smithsonian Institution, 1 June 2022,

https://www.smithsonianmag.com/smithsonian-institution/smithsonian-adopted-new-

policy-ethical-collecting-180980047/.

Daniels, Nicole. “Should Museums Return Looted Artifacts to Their Countries of

Origin?” The New York Times, The New York Times, 16 Oct. 2020,

https://www.nytimes.com/2020/10/16/learning/should-museums-return-looted-artifacts-

to-their-countries-of-origin.html.

Do, Mai. “Why Artifacts Belong in Museums.” Freely Magazine, 3 Apr. 2019,

https://freelymagazine.com/2019/04/03/why-artifacts-belong-in-museums/.

Goskar, Tehmina. “Ownership and Ethics in Public Museums.” Curatorial Research

Centre, 11 Nov. 2021, https://curatorialresearch.com/ethics/ownership-and-ethics-in-

public-museums/.

Tharoor, Kanish. “Museums and Looted Art: The Ethical Dilemma of Preserving World

Cultures.” The Guardian, Guardian News and Media, 29 June 2015,

https://www.theguardian.com/culture/2015/jun/29/museums-looting-art-artefacts-world-

culture.

Wunderlich, Caitlin S. “Museum Sector Policy Deficit: Repatriation from United States

Museums.” The Museum Scholar, Rogers Publishing Corporation, 20 Apr. 2021,

https://articles.themuseumscholar.org/2017/01/05/vol1no1wunderlich/.
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