Mediating Cultural Property Disputes

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I set out below an essay – Mediation of Cultural Property Disputes’, which I wrote and submitted for the post-graduate Diploma in Art Law course at the Institute of Art & Law in London (Diploma in Art Law | Institute of Art and Law (ial.uk.com)). The Diploma was awarded on 13 December 2023. I also set out the following supplementary material:

  • Table – ‘Ethical Principles.’
  • Table – ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Restitution.’
  • Table – ‘Tools & Precedents.’

Essay – ‘Mediation of Cultural Property Disputes’

Introduction

Cultural property disputes are multifaceted, legally complex, often involve multiple stakeholders[i], and can be multi-jurisdictional.

The handing back of property to the original possessor or owner is known variously as restitution, return, and repatriation …  are treated differently in law, with some covered by private law instruments and others by public law. … [Points] of convergence can be seen where there are no legal means of claiming restitution, either because the passage of time or because there has been no unlawful act. It can also happen that, once outside the state territory, there may be limits to the protection afforded to a disputed item of property under public law, even where international conventions apply, as these are sometimes unenforceable..’ (Cornu & Renold’ pp. 1-2).’

The result is limbo.

A further legal impediment, is that museum trustees cannot voluntarily dispose of artefacts in a museum’s collection, whatever the merits of a moral/ethical case for repatriation, unless the disposal is lawful. ‘Although the law is not blind to moral claims, trustees and those who control charitable institutions can only satisfy such claims within the framework of the law..’ (‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’ by The Hon. Sir Anthony Mason AC KBE, Art Antiquity And Law, Vol VIII, Issue 1, March 2003, page 3).

Mediation can result in a break-through, because it enables ‘parties in dispute’ to become ‘collaborators’ in a process of exploring the existence of terms of a deal, whereby a ‘third-way’ can be jointly-developed, which is sufficient, i.e. ‘enough’ to satisfy their primary needs, resulting in a ‘convergence’ of interests, trust, goodwill, and a mutually acceptable agreement about ‘what is the right thing to do.’

In this essay, I seek to answer the following questions within the context of non-institutional mediation of a cultural property dispute:

  • What is Mediation.
  • What are the benefits.
  • How does the process work – i.e. what are the key terms of the ‘Mediation Agreement’.
  • What are the challenges for a Mediator.
  • Where is the deal-making zone (‘DMZ’).
  • What is the Mediator’s methodology.

Mediation

‘Although life can only be understood backwards, it must be lived forwards’.[ii] Litigation is a backwards looking process, at the end of which a Judge must make a binary choice between competing narratives. Mediation is a forward-looking process in which the participants (‘P’s’) work out their own solution through a process of engagement. Therefore, the first challenge for a mediator (‘M’) is to understand what each P wants, needs, prioritizes, and why. This requires empathy and affirmation. The second is to facilitate engagement. Some might add that an ancillary challenge for M is to understand the facts – the narrative, and it is often helpful if each P provide M with a statement of facts/’Position Paper’.

In essence, mediation is a forward-looking conversation. The role of M is to manage the process and ensure that it is conducted in accordance with the terms of the ‘Mediation Agreement’. The mediator must also:

  • Create an environment in which adversarial parties in a confrontational dispute can come out of their ‘positional’ trenches and walk towards the centre of the multifaceted problem which divides them.[iii]
  • Empower adversarial parties to a dispute to become collaborators in a creative and bespoke problem-solving exercise, and eventually, to walk side by side in jointly exploring and developing a practical solution of their own design which takes into account: the facts presented in their respective position papers; the documentary evidence in an agreed bundle of documents; legal merits (and there may be none); reputational risks; the time value of money; and e.g. the political benefits[iv] of ‘doing a deal’ now, instead of incurring further costs and wasting time by resuming trench warfare in public.

This requires counter-intuitive thinking and behaviour, and the outcome can be a ‘paradigm shift’ which results in a creative solution that a court/arbitration tribunal does not have the jurisdiction and power to  impose. It therefore also requires an ‘ethical’ rather than a ‘forensic’ legal mind-set, and some imagination. The challenge for a mediator is to persuade each participant to identify (in strict confidence) what is actually at stake, i.e. to drill down to what each participant’s individual objectives, needs and priorities are, and to understand why.

While it is not the function of a mediator to speak truth to power, a mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the P‘s can jointly agree upon a ‘methodology’, i.e. a ‘road map’ for convergence and consensus. This requires acceptance by each P that there is a better way of resolving their dispute through collaboration, rather than confrontation.

Orthodox mediator strategy is to move the P’s from considering their positions to considering their interests, and ultimately their needs. There is no magic formula. Each M will have their own style and approach. Mediators expect the unexpected, and progress at mediation is rarely linear. Achieving settlement at mediation requires momentum, which in turn requires flexibility, so, while it has a ‘beginning’, a ‘middle’ and an ‘end’, the process does not always take place in that order, and in practice, M’s do not adhere to a rigid structure/agenda. In other words, mediation is always improvised to an extent. However, for the purposes of analysis and discussion, in my opinion, a well-constructed Mediation typically involves seven distinct phases which can overlap:

  • Preparation.
  • Exploration.
  • Exchange of further information.
  • Formulation of proposals.
  • Negotiation.
  • Adjustments to narrow the gap.
  • Agreement of terms in principle followed by the drafting and execution of a binding Settlement Agreement.

On the Mediation Day, the mediator’s role is to listen and help the participants to have a conversation – whatever the outcome. While to an extent, the mediation of a cultural property dispute by a mediator who has specialist knowledge of art and cultural property law will irresistibly, and therefore inevitably in my opinion, engage both a facilitative and an evaluative style, the mediator does not possess all the facts, and unlike a judge has not heard all of the evidence, therefore, it is not M’s function to express an opinion about law and merits. For the same reasons M may ask P‘tell me more’, because in order to help the P’s jointly develop their own methodology for resolving the dispute, M needs to grasp the issues in dispute, and drill down into each P’s position and underlying reasons. Until M has engaged in this conversation with each P he cannot ask laser-focussed reality testing questions, i.e. by playing Devil’s Advocate, about the issues in dispute. Therefore, M should be in no hurry, and must not place himself under false pressure. Likewise in order to steer the P’s toward a methodology that yields a solution (i.e. a joint framework of principles that can be applied to solve the problem), M must allow each P the space and time in which to develop their own thinking and ideas. This works well in the mediation of cultural property disputes, because the process is protracted and rarely completed in the course of one day.[v]

The mediator is not the author of the participants’ journey/adventure, because they will write the ending. Since the P’s do not know where the mediation is going to end up, M does not know where it can lead. Therefore, at the start of the  conversation, the demeanour of M should be one of polite curiosity. M can and should summarise without expressing a judgment and may ask thought provoking questions, but he must be seen to be neutral – which is why body language is important. Mediation is the art of the possible, and like Indiana Jones in ‘Raiders of the Lost Ark’, a mediator should enter the cave with all the wariness of an explorer, because he/she does not know what dangers lie ahead. While M is not likely to encounter a hail of poisoned darts, if he/she agitates P, M could make the dispute worse – which in mediation is a cardinal sin! That is why M should not be in any hurry and needs to tread step by step with great care.

Benefits

‘The issue of cultural property, in general, is an immensely charged area of both legal and political discussions. … Hence, when disputes focus on cultural objects, cultural property is transformed into a hotly contested area because legal claims of ownership are infused with politically and emotionally charged interests.’ (Gegas, pp.133 & 144). Mediation can take the heat out of the contest because it is non-adversarial dialogue. The P’s focus is on ‘doing’ a deal and not on ‘going to war’. Mediation creates a safe and confidential space in which a private conversation can take place behind closed doors about how to do a deal by closing the gap between each P’s position.

Through consensus-building, mediation can result in a creative solution that no judge or arbitrator can impose. ‘[M]ediation empowers parties to look beyond their original claims to the interests that underlie them. … [M]ediation asks disputants to identify their real motivations and to cooperate to come to mutually beneficial agreements which address each disputant- stakeholder’s most critical interests. This practice is the essence of consensus building.. … [M]ediation facilitates positive future interactions between parties. Because mediation is non-adversarial and encourages creative problem-solving, parties can come to agreements which cooperatively preserve their relationships and lay the groundwork for the resolution of future disputes.’ (Mealey, p. 192).

Generically, the benefits of mediation also include: the P’s remain in control of the process and of  the decision-making – and can end the process at any time; flexibility; costs; and the ability to conduct the process in stages with P’s located in different time zones, using Zoom or TEAMS; and enforcement of any agreement under the Singapore Convention.[vi]

The Mediation Agreement

The P’s can either instruct a panel mediator through a one-stop shop mediation provider, i.e. ICOM and WIPO[vii] or they can jointly agree upon the appointment of a mediator, or a panel of co-mediators.

As a matter of contract, the Mediation Agreement ensures that:

  • The process is confidential.
  • When the mediator meets a participant (P1) in a private session, he will not repeat anything said to him to another participant (P2), unless M has been expressly authorised to do so by P1.
  • The ‘without-prejudice’ rule applies to and protects all communications between everyone taking part or present at the mediation. Therefore, what is said in the mediation stays in the mediation and cannot be used or referred to in any legal proceedings or open communication after the mediation has ended.
  • Each participant undertakes to act in good faith.
  • Each participant confirms that they have full authority to negotiate and agree terms of settlement.
  • Each participant confirms that they are available for the planned duration of the mediation.
  • The process is voluntary, and a participant may end the process at any time if it is not working for them.
  • No agreement as to the terms of any settlement reached during the mediation will be legally binding unless and until terms have been reduced to writing and signed, and therefore, that nothing is agreed, until everything is agreed.
  • If an agreement is reached between the participants, terms of agreement will be prepared in writing and signed by them, or by their legal representatives on their behalf.
  • It is understood that the mediator will not provide any legal advice, and that before making any decision, participants are free to take advice from their own professional advisers at any time.
  • It is understood that the mediator will not be involved in drafting any settlement offer, memorandum of understanding (MOU), settlement agreement.

Consequently, in practice, a mediation cannot proceed unless and until a Mediation Agreement has been signed.

Mediator Challenges

At the epicentre of the restitution dialogue is a struggle between two competing theories under International Cultural Heritage Law.

Theory Authority
1.   Cultural nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin.

 

 

 

 

 

UNESCO Convention 1970, Article 2 and the Preamble.[viii]

 

 

 

 

 

 

 

2.   Cultural internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention – “the cultural heritage of all mankind.”’

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Preamble of the Hague Convention 1954.[ix]

 

 

UNESCO Convention 1970, Article 4.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Therefore, the first challenge for M is to find a way of reconciling these conflicting and competing views, in a way that satisfies and meets each P’s underlying interests and needs.

Deal Making Zone (‘DMZ’)

In my opinion, the settlement of a cultural property dispute invariably involves a trade-off  between ten inter-connected variables along a spectrum of needs, resources, priorities, and ‘Red-line’ dealmaker/breaker imperatives, i.e. each P’s BATNA[x]. The DMZ exists in the space between two interacting parallel dynamics which may converge in the consciousness of each P:

Relative Gains v. Relative Losses [‘P.1 – P.2’].

Common Ground [‘CG’].

Relative Gains v. Relative Losses:

(i)         Legal rights.

(ii)        Possession/ownership..

(iii)       Recognition, Reputation & Credibility.

Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes:

(iv)       Saving costs.

(v)        Saving time.

(vi)       Saving energy.

(vii)      Avoiding further stress and anxiety.

(viii)     Avoiding publicity.

(ix)       Avoiding the creation of a legal precedent.

(x)        Building a relationship and goodwill.

 

I posit that the gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2. That is the DMZ. Visually this can be represented as follows:

 

Pre- Convergence

P.1 ————————————————————————————–P.2

                                               

 

CG?

 

Convergence

P.1 ————-P.2

          CG

I further posit that in a cultural property dispute, CG lies at the centre of a series of interlocking circles labelled:

  • P1 Wants/Needs/Priorities.
  • P2 Wants/Needs/Priorities.
  • Law.
  • Ethics.
  • International Relations.
  • Politics.

The alchemy in the mediation of a cultural property dispute is to discover what lies in the centre, i.e.  in that small space where these circles all overlap with each other (the ‘Hub’), because that is common ground.

The Hub is also the zone in which a ‘Black Swan’ may exist. ‘Black Swans are events or pieces of knowledge that sit outside our regular expectations and therefore cannot be predicted.. … There are those things we know … Those are known knowns. There are those things we are certain that exist that we don’t know. … Those are known unknowns and they are like poker wild cards; you know they’re out there but you don’t know who has them. The most important are those things we don’t know that we don’t know, pieces of information we’ve never imagined that would be game changing if uncovered.. … These unknown unknowns are Black Swans.  … Finding and acting on Black Swans mandates a shift in your mindset. It takes negotiation from being a one-dimensional move counter move game of checkers to a three-dimensional game that is more emotional, adaptive, intuitive … and truly effective.’[xi]

A mediator needs to be aware of this concept and the importance of looking not only for what the P’s ‘don’t know’, but also for what the P’s ‘don’t know that they don’t know’.

Methodology

Mediation is the art of knowing how, when and why to ask questions which can bring about a ‘cognitive shift’ in each P’s thinking and behavior, i.e. a ‘paradigm shift’ about what they perceive to be at stake and the value of settling. Metaphorically, ‘questions’ are the ‘steering-wheel’ whereby M can navigate a ‘difficult conversation’ with each P in order to bring closure by helping each P to sort out their dispute for and by themselves.[xii]

While each P is locked in confrontation, i.e., is in ‘adversarial mode’, e.g.  ‘This belongs to us’ v. ‘It belongs in a museum of mankind’, the challenge for M is to bring about a ‘paradigm shift’[xiii].

In order to discover and enter a potential DMZ, each P must be willing to settle, and set aside ad hominem attacks. M will acknowledge at the start of the mediation day that because the P’s have agreed to participate in the process in ‘good faith’, M is confident that ‘a deal can be done.’[xiv] Discovering the existence of common ground requires ‘realism’ and ‘courage’, because it is only natural that each P will to some extent, harbor a fear of the unknown or a fear of ‘losing’.[xv] M can help each P fully embrace the deal-making ethos of mediation, by explaining that in order to discover the existence of common ground, they need to share their thinking with M on a confidential basis so that M is clear about their approach, i.e. about what they want and how they think they are going to get it. This is also an opportunity to use M as a sounding board. There may have been a ‘misperception’ by e.g., P.1 about why P.2 is insisting upon a particular condition of settlement. In which case P.2 can authorize M to clarify the point in a private session with P2. and to relay in broad terms where there is flexibility in overcoming the roadblock, i.e., how a mutually satisfactory solution could  be agreed and implemented. If both P’s are willing to confide in M by sharing their settlement range at the start, then M can assist each P to frame proposals and make offers that reflect each P’s perception of reality. That is how common ground is discovered. First, however, each P needs to come down to earth.

Conclusion

In my opinion, advancing a theory of international law gets you nowhere in the resolution of a cultural property dispute, because: it is positional; it polarises; and it results in deadlock. A breakthrough can occur in mediation. For this to happen, at some point in a successful mediation, a ‘paradigm shift’ occurs in each ‘P’s perceptions, thinking and feelings, which opens the door to creative ‘out of the box’ thinking through collaborative problem-solving,  resulting in the abandonment of what prior to that moment, were rigidly held and fiercely fought over positions.

In my opinion, the ‘tipping’ point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute, is at the intersection of:

  • ‘Practical Ethics’, i.e. ‘doing the right thing’; with
  • the exercise by museum trustees of their legal powers in accordance with their legal duties.

At which point, ‘conscience’, ‘morality’, and ‘ethics’, collide with law, and can become fused in ‘equity’.  In Mediation the possibilities are only limited by the imagination of the participants and their legal representatives[xvi]. Whilst not infinite, ‘doable’ deals that ‘are enough’ are possible. That is the magic of mediation.

Bibliography

  • Abbott, Kenneth W. et al ‘The concept of legalisation’, 54 Int’l Org 401 (2000). (‘Abbott’).
  • Bryne-Sutton, Quentin ‘Arbitration and Mediation in Art-Related Disputes’, Arbitration International, Volume 14 Number 4, 1998, p.447. (‘Bryne-Sutton’).
  • Chechi, Alessandro The Settlement of International Cultural Heritage Disputes (2014), Oxford University Press (‘Chechi’).
  • Cornu, Marie & Marc-Andre Renold ‘New developments in the restitution of cultural property: alternative means of dispute resolution’, 17 Intnl J. Cultural Prop.1 (2010). (‘Cornu & Renold’).
  • Eckblad, Ariel In Pursuit of Fairness: Renegotiating Embedded Norms and Reimagining Interest-Based Negotiation, Harvard Negotiation Law Review, Vol 26:1 Fall 2020, 1-29. (‘Eckblad’).
  • Falkoff, Stacey ‘Mutually beneficial repatriation agreements: returning cultural patrimony, perpetuating the illicit antiquities market’, 16 J.L. & Pol’y 265 (2007). (‘Falkoff).
  • Fisher, Roger ‘Coping with conflict: what kind of theory might help?’ , 67 Notre Dame L.Rev. 1335 (1992).(‘Fisher’).
  • Francioni, Francesco and Ana Filipa Vrdoljak, editors (2020) Oxford Handbook of International Cultural Heritage Law, Oxford University Press (‘OHICHL’).
  • Gegas, Evangelos I. ‘International arbitration and the resolution of cultural property disputes: navigating the stormy waters surrounding cultural property’, 13 Ohio, St J. on Disp Resol 129 (1997). (‘Gegas’).
  • Gerstenblith, Patty The fiduciary duties of museum trustees, Columbia Journal of Art And The Law (1983), Vol 8: 175-206. (‘Gerstenblith’).
  • Hoffman, David, & Helen Winter Follow the Science: Proven Strategies for Reducing Unconscious Bias, Harvard negotiation Law Review, Vol.28.1, Fall 2022, 1-63. (‘Hoffman & Winter’).
  • Lavi, Dafna ‘Can the Leopard change his spots?! Reflections on the collaborative law revolution and collaborated advocacy’, 13 Cardozo J. Conflict Resol, 61 (2011). (‘Lavi)].
  • Linveh, Yair Overcoming the Loss Aversion Obstacle in Negotiation, Harvard negotiation Law Review, Vol.25:187, Spring 2020, 187-212. (‘Linveh’).
  • Mealy, Nate ‘Mediation’s Potential Role in International Cultural Property Disputes’, 26 Ohio St.J. on Disp Resol, 169 (2011).
  • Mnookin, Robert H. & Lewis Kornhauser ‘Bargaining in the shadow of the law: the case of divorce’, , 88 Yale L.J. 950 (1979).(‘Mnookin & Kornhauser’).
  • Murdoch J. ‘Attribution and the claim to objectivity’, Intnl J. Cultural Prop (1993) 2(2) pp 319-334. (‘Murdoch’).
  • Shehade, Maria, Kalliopi, Fouseki & Katherine Walker Tubb Editorial: Alternative Dispute Resolution in Cultural Property Disputes: Merging Theory and Practice, International Journal of Cultural Property, (2016) 23: 243-355. (‘Shehade, Fouseki & Tubb’).
  • Stamatoudi, Irini ‘Mediation and cultural diplomacy’, 61 Museum Int’l 116 (2009). (‘Stamatoudi’).
  • Strother, Grant ‘Resolving Cultural Property Disputes in the Shadow of the Law’, Harvard Negotiation Law Review, 2014, Vol19:335.(‘Strother’).
  • Voss, Chris (2016) Never Split The Difference – Negotiating as if your life depended on it, rh Business Books. (‘Voss’).
  • Wilson, Martin (2022) Art Law And The Business Of Art, Edward Elgar Publishing. (‘Wilson’).

[i] So, a wide range of interests and underlying dynamics are in play.

[ii] ‘Sending Them Home – Some Observations on the Relocation of Cultural Objects from UK Museum Collections’, by the late Professor Norman Palmer, Art Antiquity And Law, Vol 5, Issue 4, December 2000, page 353.

[iii]  Note that In the case of a Cultural Property disputes there is always a wider political dimension involved.

[iv]As recent MBRA’s [Mutually Beneficial Repatriation Agreements]  demonstrate, generosity can forge bonds between nations and foreign institutions and encourage future collaborations. One of the driving forces behind the MBRA reached between the Getty and Italy in 2006 was the Getty’s desire to establish a new working relationship with Italy. In some cases, MBRA’s may explicitly require parties to maintain a cooperative rapport with one another. For example, under the terms of the February 2006 MBRA between the Met and Italy, the Met must respect the negotiated return dates for the objects in the Morgantina Collection and the Euphronious Krater, while Italy will be obliged to follow through on its promise to provide the museum with long-term loans. Moreover, in a more general sense, repatriation can be seen as an expression of respect, potentially leading to improved international relations between the source nation and the nation in which the object is located.’ (Falkoff, p277).

[v] An exception was the mediation of the Tasmanian Aboriginal Centre claim against the Natural History Museum in London for the return of human remains mentioned below, was concluded in three days, see: 17 Tasmanian Human Remains – Tasmanian Aboriginal Centre and Natural History Museum London — Centre du droit de l’art (unige.ch).

[vi] The SCM ostensibly provides “a framework to allow for the recognition and enforcement of international commercial settlement agreements reached via mediation. It enables a party which has mediated their dispute to enforce the resulting cross-border mediated agreement in any country that is Party to the Convention without needing to commence an action for breach of contract”. (Speech by the Parliamentary Under Secretary of State for Justice Lord Bellamy KC on 2nd March 2023 to the House of Lords).

[vii] ‘Art and Cultural Heritage Mediation An alternative litigation resolution method adapted to art and cultural heritage fields Press conference: 12 July, 2011 in Paris.’: 110701_DP_Mediation_EN.pdf (icom.museum).

ICOM mediation contain s a default mechanism if the P’s cannot agree upon whom to appoint:-

Request

In the case of a cultural property dispute (return, restitution, acquisition, loan, deposit or intellectual property rights issues), the claimant can submit the dispute to mediation by sending a request to the ICOM Secretariat. The ICOM Secretariat analyses the case in order to ascertain that the dispute falls within the intended scope of the mediation procedure in thirty (30) days. All eligible requests are sent to the WIPO Arbitration and Mediation Center for the mediation to commence and the WIPO Center administers the process, the commencement of the mediation starts at this stage.

Instruction

The parties have seven (7) days from the commencement of mediation to agree on the person of the mediator. If the parties fail to reach an agreement within that period, the mediator is appointed according to the ICOM-WIPO Mediators Rules. Conduct of Mediation The parties and the mediator establish a timetable for the mediation and decide whether they communicate documents and datas. The parties send a statement summarizing their interest and contentions to the mediator before they meet. A first meeting is set up. Then, the mediator offers a solution, which can be accepted or not. If so, other meetings are organised until an agreement is reached.’

[viii] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (‘UNESCO 1970’).

[ix] Convention for the Protection of Cultural Property in the Event of Armed Conflict (‘Hague Convention 1954’).

[x] Best alternative to a negotiated solution.

[xi] Never Split The Difference – Negotiating as if your life depended on it’, by Chris Voss (2016), rh Business Books, page 216.

[xii]  For a detailed discussion of mediation skills see paragraphs 14-042 to 14-101 of ‘Brown & Marriot’s ADR Principles And Practice’, by  Shirley Shipman, Ben Waters, and William Wood KC (2018), Sweet & Maxwell, which lists:

  • Listening.
  • Observing non-verbal communications.
  • Helping parties to hear.
  • Questioning.
  • Summarising.
  • Acknowledging.
  • Mutualizing.
  • Using language effectively and reframing.
  • Use of metaphor.
  • Normalizing.
  • Managing conflicts and the expression of emotions.
  • Lateral thinking.
  • Understanding triangulation and avoiding alliances.
  • Encouraging a problem-solving mode.
  • Being silent.
  • Constructive facilitation.

[xiii] In order to bring about a ‘paradigm shift’ M needs to ask questions designed to uncover information that specifically creates new insights for the P’s. For a full discussion of the technique, see ‘The Mediator’s Toolkit – Formulating and Asking Questions for Successful Outcomes’, by Gerry O’Sullivan (2018), new society Publishers. These questions ‘help to identify any inner conflict or inconsistencies within a party, to safely teasing out alternative perspectives. They identify the core of a problem and facilitate the creation of a future without the problems of the past.’ (Page 8 of the Book).

[xiv] Note also the ‘Pygmalion’, or ‘Rosenthal’ effectThe psychological phenomenon in which high expectations lead to improved performance and conversely, low expectations, lead to failure. In other words, if the P’s genuinely want to settle and achieve a settlement agreement on the day, then their expectations influence the chances of a deal being done, so the chances of settlement will increase if the P’s come to the table with hope and positive expectations of what can be achieved in the time available. The ‘Dunning Krueger’ effect is somewhat the opposite.

[xv] For a discussion of psychological barriers including ‘Loss Aversion’ and ‘Unconscious Bias’, see Hoffman & Winter, pp.28&44; Eckblad, p.3; and Linveh, pp.1-2.

[xvi]The imaginative powers of lawyers know no bounds. … [A] remarkable case is that of the Afghan cultural assets held for many years in the Afghanistan Museum in exile in Bubendorf, Switzerland, with a view to safeguarding them and one day making restitution. This was a form of trusteeship that ended on the day UNESCO decided that the property in question could be handed back.  [Another original solution] has been suggested in this field based on the Anglo-American trust and the  Waqf in Islamic law.’ (Cornu & Renold, pp.16-22).’

Supplementary Material – which did not form part of the essay:

Table – ‘Ethical Principles’

Respect for diverse religious, spiritual and cultural beliefs, and attitudes to cultural property – i.e. ‘tolerance’ and ‘respect’, demonstrates humility and modesty regarding one’s own opinions, and shows respect for individuals, cultures, groups and communities. This principle requires participants in Mediation, i.e. the decision-makers, to give consideration to the cultural and historical backgrounds, beliefs and values relevant to all parties concerned. Specifically, it would require a museum to recognize and respect that a community may place a particular cultural value on cultural property that is not shared by others. This may include an ancient ‘spiritual’/’mystical’ belief that a physical object, e.g. a stone, is imbued with ‘energy’ and some form of ‘power’, for which there is no ‘scientific’ evidence.

Ethical principles may provide a Mediator with tools for steering the P‘s toward recognition of common ground. However, the Mediator must not pre-label each P’s values, as that could result in loss of trust from the start. What the Mediator needs to do through careful questioning, is to get each P to talk about their values, so that in conversation with each other, they can recognise the existence of an overlapping framework of principles which can be used to develop a creative, practical and lawful solution which essentially satisfies their competing interests, ambitions, imperatives, and priorities.

Principle Precedent
Non-Maleficence – doing no harm

Non- Maleficence would require you to avoid doing harm wherever possible. This could include avoiding harm to an individual, a community or the general public. For example, not taking an action that would cause distress to a particular community.

DCMS – Guidance for the Care of Human Remains in Museums
Respect for diversity of belief – respect for diverse religious, spiritual and cultural beliefs and attitudes to cultural property – i.e. tolerance and respect

Respect for diversity of beliefs demonstrates humility and modesty regarding one’s own opinions, and shows respect for individuals, cultures, groups and communities. This principle requires decision-makers to give consideration to the cultural and historical backgrounds, beliefs and values relevant to all parties concerned. For example, it would require a museum to recognize and respect that a community may place a particular cultural value on cultural property that is not shared by others. 

Respect for the value of science – respect for the scientific value of certain forms of cultural property, e.g. human remains, and for the benefits that scientific enquiry may produce for humanity.

This principle holds that individuals and communities (past, present and future) benefit both personally and indirectly, through the benefits to their loved ones, descendants and communities, from the fruits of science.

Solidarity – furthering humanity through co-operation and consensus in relation to cultural property.

The principle of solidarity recognizes that we all have a shared humanity and an interest in furthering common goals and tolerating differences that respect fundamental human rights. Mutual respect, understanding and cooperation promote solidarity by fostering goodwill and a recognition of our shared humanity. This principle emphasizes the importance of rising above our differences to find common ground, co-operation and consensus. It would be reflected, for example by seeking to find a consensus in relation to competing claims over cultural property that all parties can accept.

 ‘Here the law must perform a very delicate balancing act in order to prevent any indignation suffered through the mistreatment of human remains and to satisfy the demands made by the pursuit for knowledge and advancement. The law cannot deny the educational value that can be gleaned from archaeological research, but also cannot dismiss the price paid by those who regard such activities as a gross invasion of their cultural and spiritual heritage.’ [‘Can dust remain dust – English law and indigenous human remains’, by Tristan R. Shek, Art Antiquity And Law, Vol 5, Issue 3, September 2000].

Beneficence – doing good, providing benefits to individuals, communities or the public in general.

Beneficence would dictate that your actions have good outcomes wherever possible. This could include advancing knowledge that is of benefit to humanity (for example, by using human remains for scientific research) or respecting the wishes of an individual (for example, by returning the remains of their relative for the burial).

Under International Law are Museums obliged to strive to be better collaborative custodians of world heritage? – The analytical starting point is does such a duty exist, and if it does what does it require? The arguments which support the existence of such a duty include:

  • Logic.
  • The author’s ‘Fiduciary Theory of Art’.
  • The philosophy of International Law.
Logic – The logical corollary of the proposition that a National Museum owes a duty to preserve art and cultural heritage treasures for the ‘benefit of all mankind’, is that such institutions also owe a wider duty to strive to be better ‘collaborative custodians’ of world heritage.
‘Fiduciary Theory of Art’ – The author’s thesis is that when art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns that is also CP, is also a custodian of the object [‘CPO’]. In which case, custodial duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’]. If P is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty.  The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments. It therefore follows, that a National Museum as the agency of a state, owes fiduciary duties in relation to CP.
The philosophy of International Law – Because cultural identity is considered to part of human dignity, it is linked to human rights, i.e. cultural heritage is of crucial importance to individuals and communities as part of their identity. Since cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life. … The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ (‘Mens Rea of Intentional Destruction of Cultural Heritage’, by Federico Lenzerini, Chapter 4 of the Oxford Handbook of International Cultural Heritage Law’ (2020), Oxford University Press, page 77).

There is also a relationship between the human environment, development and culture. The commentary to the preamble to the Draft International Covenant on Environment  and Development (5th edition, IUCN Switzerland 2015) states:

‘All civilisations spring from and are shaped by the quality of their surrounding natural elements [and that] the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia. … Art, literature and science cannot be understood, or even imagined, without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’

For further research – see the Art Law Centre – University of Geneva: Bienvenue sur ArThemis — Centre du droit de l’art (unige.ch)]

Table – ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable Principles of Restitution’

Inventory – Has a list and index been made of  the artefacts [‘A‘] which an institution e.g. a museum [‘M’] is holding that are being claimed?
When and how were the artefacts acquired? – i.e. how did they get there.
Why is M holding A – i.e. what is A doing in the possession of M? e.g. is A even on display, and if so then in what context (e.g. in a cabinet of ‘curiosities’ / ‘spoils of war’), and for what purpose (e.g. study and research)?
What connection does the Claimant [‘C’] have to  ‘A’ e.g. ancestral lineage i.e. because A is part of C’s living culture.
Why is possession of A of importance to C? e.g. to keep their culture alive, because they can only discover, decode and transmit the sacred and artistic/artisan knowledge manifest/recorded in or symbolically represented by A by visiting M (i.e. the foreign museum where the cultural objects are situated) – which may not be accessible. Note that in the case of a request for repatriation of human remains this may be based upon a belief that where human remains are disturbed and removed, the perpetual chain of reincarnation from the spirit wells of specific groups is disrupted, e.g. the Aborigine belief that, ‘The dead must be returned to Mother Earth where the spirit becomes one with the land and the people themselves.’ (June Lesley Fogarty Director of the Aboriginal Arts Unit) – see: Aboriginal Human Remains repatriated by Glasgow City Council (returningheritage.com).
How important is A to C? e.g. because A is part of C’s identity/genetic ‘cultural’ blueprint, and therefore A is of unique significance to C.
What is the cultural home of A? [‘H’] – which is linked to the concepts of:

·        a ‘Lex Originis’;

·        the ‘legitimacy’ of a place where A should be located (‘Patrie’ – i.e. the cultural ‘homeland’ of A);

·        the applicable law being that of – and what state law applies in default if the law of H is not a unified, i.e. recognised body of law in jurisprudence;

·        the sovereignty of indigenous peoples and their human rights; and

·        the concept of the creation for public display, i.e. in a museum/gallery, of a ‘unity of art.’

What legal framework applies to the making of a decision by M? i.e. a statute (e.g. the British Museum Act 1963), terms of governance contained in a trust deed, a state law e.g. Vatican Law.
What Code(s) of Ethics and Museum Guidance apply to M.
Is M under a wider moral/’best practice’/ and possibly ‘fiduciary duty’ under International Humanitarian Law, to strive to be a better ‘collaborative custodian’ of objects of cultural importance to an indigenous people? – This is linked to the potential for the participants in the Mediation [i.e. C and M] to both obtain valuable benefits, and to the prospect of a culturally rewarding future relationship.
Is M’s freedom to return A to C constrained by a legal prohibition against alienability? – i.e. does the ‘principle of inalienability’ apply to the making of a disposition of A by M?
Are there exceptions? – This is connected to the negotiation of an agreement to enter into arrangements which de facto return A to C, e.g. an indefinite loan of C to A. This is also connected to the imposition by M on C of conditions for returning A (e.g. public display), and to the blunt rebuke by C that, ‘what we do with sacred property you took from us after it has been returned, is frankly none of your business.’
What are M’s counter-arguments? – e.g. preservation, study, access, and that spreading the cultures and histories of the nations of the world, as represented by their art, engenders understanding, which is a platform for building/maintaining peaceful and mutually healthy/prosperous co-existence – i.e. that the dissemination and sharing of cultural information and artefacts is of benefit to all mankind, and therefore should be accessible to all mankind.
What larger ‘relationship’ issues are in play? e.g. righting a historical wrong through a process of Cultural Heritage Diplomacy involving truth and reconciliation – NB restitution is always part of a wider political dimension involving states.
So, what is the larger or ‘big’ picture/dimension to the claim/dispute?
What applications can be made by Trustees for guidance, directions and a ‘blessing’, i.e. to the Court/Charity Commissioners, so that they may exercise their powers in accordance with their duties, i.e. what legal and administrative tools are available to M to act lawfully in doing a deal?

Table – ‘Tools & Precedents’

TOOL PRECEDENT
The ‘National importance’ test.

 

Constitution of Australia.
The ‘National importance’ test.

‘By the 19th century it is quite clear that the prerogative of treasure trove in England and in Ireland continue to be exercised on behalf of the Crown by the Government of Great Britain and Ireland but for a purpose wholly different from that which had been its historical origin. Its purpose now clearly was the retention by the state, for the common good, of antiquarian objects of interest and value, which formed part of the heritage of the People. … One of the most important national assets belonging to the People is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that [there] should be an ownership by the state of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.’ (Webb v. Ireland [1988] Irish Reports 353 (High Court), 373 (Supreme Court), per the Chief Justice at [383]).

Derynaflan Treasures.
Euphronious Krater.
Long term loan. Hebrew Manuscripts in the Vatican Archives.
In evaluating the request for repatriation on its merits Glasgow City Council eventually developed a strategy which consisted of five criteria:

(i) The status of those making the request i.e. their right to represent the community to which the object(s) originally belonged.

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

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

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

(v) The fate of the object(s) if returned.

The procedure agreed to process the request included:

(a) Briefing by an academic expert in the provenance and historical background of the objects in question.

(b) Consultation with the Council’s legal department – who advised that there was no obligation in law to return the objects in question and that the Council had the legal power to transfer ownership of the objects if it wished.

(c) Consultation with members of the museum community.

‘If museums represent our better selves, our humane values, then we have to admit to the possibility that there may be other values, which are more important than that of possession and preservation. Possession in itself cannot be an absolute value, taking precedence over all others. And if our values lead us to preserve an object because of what it tells us about the history of a particular human group, then it is inconsistent not to give that group the respect of at least taking their views seriously. The objects we preserve and the stories they tell reflect our values, what we stand for, how we wish to see ourselves, what we wish to bring with us into the future. A related argument here is that to give one object back creates a precedent and the floodgate will be opened up. The City Council has rejected this argument. It cannot be right to say, the case for returning this group of objects is just, but it cannot be done because future unjust cases may be encouraged. Values are above all a matter of choice, and for values to be real we must continually make the necessary choices. In Glasgow our vision of museums is not just as dusty storerooms but as places where urgent issues of personal and communal meaning and identity can be explored and renegotiated.’ (Mark O’Neill, Head of Arts and Museums for Glasgow City Council, who at the time was Head of Curatorial Services).

See also ‘Restitution and Repatriation: Guidelines for Good Practice’ published by the now defunct Museums and Galleries Commission in 2000 and Restitution and Repatriation: A Practical Guide for Museums in England | Arts Council England.

 

 

Lakota Ghost Dance Shirt.
Lewis Chess Pieces.
Lindisfarne Gospels.
Stone of Destiny.
Venus of Cyrene.
International recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities. Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2008](CA).
Split legal and beneficial ownership using a trust, i.e.

(i) Legal title to the PM is vested in both British Museum and Greek National Trustees.

(ii) The PM is beneficially owned by (a) Greece; and (b) Mankind.

‘trust’/’fiduciary’ custodial solution might for example involve the transfer of the PM to a bespoke trust created by statute for the benefit of: (i) the people of Greece; and (ii) mankind, involving the appointment of both BM and Greek T‘s, and the conferring of a power on the T‘s to deliver the PM to Greece for permanent display.

Outcome

  • Indivisible legal title to the PM is jointly held by: (i) the BM T‘s; and (ii) the Greek T‘s.
  • The PM is beneficially (i.e. actually owned) by: (i) the people of Greece; and (ii) Mankind (including the people of Great Britain).
  • The PM are delivered to Athens for permanent display.
  • There is no loan.
  • So, to an extent, this is a practical win/win solution for both the BM T‘s and Greece.

In order to create a valid trust there are technical drafting challenges to overcome, Some of these challenges may be overcome by: (i) skilful drafting; (ii) statute; and if necessary (iii) by choosing a governing law other than English Law, using e.g. a Guernsey Purpose Trust as a vehicle.

Parthenon Marbles [‘PM’] – i.e. a possible solution?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Joint exhibitions.  
Provision of a replica.  
Treaty of Tolentino. The fruits of war: how Napoleon’s looted art found its way home (theartnewspaper.com)

Legacy of Napoleon‘s artistic plunder on show in Rome (koreaherald.com)

UK Spoliations Committee.