Ethical Principles for the Management and Restitution of Colonial Collections in Belgium (June 2021)

Executive Summary

For the past two years an independent Group of Experts has been studying the historical, legal and political aspects of the presence of colonial collections in Belgium. The members of this group all have a special interest, be it academically, professionally, or otherwise, in the topic of colonial collections. The study has resulted in the following observations and suggestions:

FEDERAL POLICY

The members of this group recommend the implementation of a federal policy that facilitates a critical investigation of the colonial past. This would be an important next step in line with existing government efforts. We intend for these guidelines to form part of a basis upon which such policy can be formulated.

The group supports the federal government’s decision of July 2020 to create a Special Parliamentary Commission to investigate the Belgian colonial past. According to DOC 55 1462/001, this commission shall investigate the role of 'the Belgian State, the Belgian authorities and non-state actors (such as the monarchy, the Church, the operators of colonial economies, ...)' and the structural impact on the peoples and societies of the Democratic Republic of Congo, Rwanda and Burundi during the colonial era (1885-1962).

OVERVIEW OF COLONIAL COLLECTIONS

There is an urgent need for a comprehensive overview of all colonial collections in Belgium, both in public institutions and private hands.

Most of these collections have their origin in Belgian colonies, although not exclusively so. The term ‘collecting’ is deceptively neutral. It covers a wide range of practices through which objects were removed, some of which were physically violent, and all of which took place in contexts of significant structural inequality.

PROVENANCE RESEARCH

The members of this group plead for: (1) extensive provenance research in cultural institutions; (2) funding for this type of research; and, (3) more research cooperation with the communities and countries of origin (which includes diaspora communities).

Closely linked with an overview of colonial collections in Belgium is the need for a new type of provenance research. Existing practices of provenance research often do not look further than the circulation of the objects in the global north, concentrating on their previous owners and their publication and exhibition history. The group recommends broadening the scope of this type of research to include not only the context of origin, but also the circumstances in which objects left their communities of production and use.

The members of this group recommend the creation of an independent provenance research institute to supplement known provenance information and to enable potential restitution requests, in close collaboration with institutions holding collections and with communities and countries of origin.

RESTITUTION REQUESTS

Despite the importance of provenance research, we recognise its limitations in providing answers about the history of colonial collections. We therefore recommend multiple possibilities for restitution that do not solely rely on this type of research. Additional pathways should allow for restitution based upon ethical arguments.

Through a proactive and open communication about colonial collections, museums and collection holders can facilitate restitution requests. Each request should be treated with an equal level of sensitivity and diligence. Claimant parties can include nation states, regional or cultural groups, and individual or cultural descendants of makers or owners. The members of this group also argue that museums and other heritage institutions cannot limit what can be requested for return nor act as arbiters for what communities of origin should value. Dialogue and cooperation on an equal basis are crucial to this process.

NEED FOR A NEW LEGAL FRAMEWORK

Despite common impressions, there currently exists no absolute legal impediment to the return of colonial collections which are in the public domain, although in practice it remains difficult.

The existing international, European and national legislation and rules for the protection of cultural heritage in general and in times of war do not apply retroactively, and offer no support in reclaiming dubiously acquired collections. We therefore believe new legislation is needed that facilitates restitution practices.

Therefore, the members of this group support the draft bill “on the return to their country of origin of cultural goods acquired in a context of colonialism and which are in public collections on Belgian territory”, prepared by legal experts Marie-Sophie de Clippele en Bert Demarsin.

DISPLAY PRACTICES AND COLLECTION MANAGEMENT

The members of this group believe that the development of new and more inclusive forms of display and of ethical and transparent management should be an integral part of dealing with Belgium’s colonial collections. This includes new labelling practices with deepened provenance, inclusive and critical displays, and self-reflexive approaches to the histories of colonialism and racism.

Equality can be strengthened through collaboration in research and exhibition making with communities and countries of origin, but these practices should be executed with careful attention to a context of structural power imbalances.

Human remains are rightly seen as ethically problematic for display to the public. The focus should be on their provenance and repatriation.

RESTITUTION, RECONCILIATION AND REPARATION

Colonial contexts were marked by the domination of one party over the other and were fundamentally extractive. This severely reduced or nullified individual and group agency within the dominated party in moments where objects changed hands. Colonial collections were gathered in such contexts of deep structural inequality and must be critically examined. This injustice cannot be undone by acts of restitution alone, since these do not mitigate the impact of the cultural and societal damage caused by the removal of some of these objects. In other words, restitution is part of a wider reconciliation and reparation process.

1. Introduction

The aim of this report is to reconcile the legal, practical and ethical concerns of the ongoing discussions on the decolonisation of the cultural sector and the debates surrounding restitution. The ambition is to formulate a set of guidelines that can be used and adapted by policymakers and governments. Its objective is to also provide the museum and heritage sector, as well as other owners of collections, with a concise overview of the legal framework surrounding restitution and a set of concrete guidelines for the management and display of sensitive heritage collections. We consider this document to be a useful step in a societal and cultural process of reckoning with Belgium’s - and Europe’s at large - colonial past. It is part of a longer and broader conversation, however, and it is our hope it will lead to a rich and fruitful debate.

The point of departure for the team that has worked on these guidelines is to make practical suggestions for inclusively and sensitively managing colonial collections, including offering practical legal and ethical pathways for making real (physical) restitution possible. We understand restitution to be the return of contested heritage in the form of objects and collections. In our perception restitution encompasses the process of coming to terms with the damages done by the initial removal of these, which has led to communities of origin being cut off and unable to benefit from their own cultural heritage.

This report is based on the combined professional and academic experience and knowledge of the participants in our team. We have taken into account the relevant literature and existing guidelines mentioned below, in addition to interviews with museum professionals, heritage specialists and other stakeholders.

This group does not seek to claim or dominate the debate about restitution, but believes it important to show that many in the heritage and museum sector in Belgium consider the debate as a valid one, and see the urgent need for a new approach to the dealing with colonial collections. Hence, we wish to formulate a contribution a larger conversation, and hope to continue working towards a politics of restitution in conversation and collaboration with others. We strongly believe in the need for a wider discussion, with the involvement of the broader society in general, and diaspora and other communities and countries of origin specifically. Equitable, honest, and real solutions in this debate cannot be achieved without such a process.

While this document is focused on the management and restitution of colonial collections, this is but one element in a broader need for the decolonisation of Belgian cultural and academic institutions. It is embedded in a wider set of problems plaguing many of these institutions in Belgium, one of which is the lack of diversity and inclusivity- which is also reflected in the composition of our group. A real decolonization of the museum and heritage landscape -which includes several colonial institutions- will need to go beyond restitution and will require introspection and an openness to change.

The initiative for these guidelines came in the wake of renewed public debates about the restitution of colonial collections and several initiatives in neighbouring countries that establish frameworks in response to these discussions. The most well-known is the French report Restituer le Patrimoine africain: vers une nouvelle éthique relationnelle, completed by Felwine Sarr and Bénédicte Savoy in 2018 upon the request of the French president Emmanuel Macron. The German Museum Association (Deutscher Museumsbund) produced Leitfaden zum Umgang mit Sammlungsgut aus kolonialen Kontexten, a set of practical guidelines including a detailed overview of historical colonial contexts. This document was first published in 2018, and has been revised in response to public feedback in 2019 and again in 2021. While the German document is intended for all colonial collections in Germany, the Dutch document Return of Cultural Objects: Principles and Process was adopted by the Nationaal Museum van Wereldculturen (NMVW) in 2019 and was applicable only to the collections of the NMVW. In 2020, the Dutch Council for Culture published an advisory report Koloniale collecties en erkenning van onrecht: advies over de omgang met koloniale collecties van Adviescommissie Nationaal Beleidskader Koloniale Collecties, Raad voor Cultuur. The advice was written at the request of the minister for Culture. Early in 2021, the Dutch cabinet adopted most suggestions from the report. In the UK, Return of the Icons. Key issues and recommendations around the restitution of stolen African artifacts was published in June 2020 by AFFORD (African Foundation for Development), a UK based diaspora initiative. It contains an articulation of key issues and ethical arguments, as well as suggested pathways for the return of objects. In Belgium, the organisation Bamko-Cran maintains a dossier on the subject of musées coloniaux et “restitution” des trésors Africains. The participants in our group were struck by the slow response to and engagement with the current debates by political, professional and academic circles in Belgium, and therefore engaged in the production of this report. We do so individually or as representatives of the institutions we are employed by. The urgent need for these guidelines was first emphasised in an open letter, published in Le Soir and De Standaard on 17/10/2018.

Points of departure

Colonial acts of object displacement cannot simply be undone by acts of restitution, since these do not mitigate the impact of the cultural and societal damage caused by the disappearance of some of these objects. Yet it can be a point of departure for the creation of what Sarr and Savoy have called ‘a new relational ethics’. We need to be cognisant, however, of the fact that various forms of collaboration and reparation are needed to achieve the latter.

Throughout history, colonialism (see 1.1 for a detailed description) has taken on different shapes and been subject to change. Certain dissimilarities notwithstanding, all colonial contexts were fundamentally marked by the domination of one party over the other. This severely reduced or nullified individual and group agency within the dominated party in moments where objects changed hands. All colonial era collections were gathered in such contexts of deep structural inequality and must be critically examined.

Principles

Transparency both in terms of processes and accessibility of information is crucial.

Stakeholders in these conversations go beyond states and include diverse communities of origin as well as individuals.

Equality is the starting point for renewed collaboration and relations among heritage institutions and between heritage institutions and communities of origin.

We advocate for:

A dual approach that is proactive (reaching out of Belgian institutions and collection holders) and reactive (receptive to requests initiated abroad).

A phased approach in which objects and collections with suspected or known problematic provenance and human remains are prioritised.

A multi-pronged approach in which we recognise the value of provenance research while pointing to its limitations in uncovering the origin of collections (see more in section on provenance research). Hence, we also recognise the need for alternative pathways to restitution, return and exchange.

In what follows we will first provide some background on what colonial collections are, and on the history and origins of colonial collections in Belgium. The main body of the text first considers the existing national and international legal and regulatory frameworks, and argues for a new approach. We then explore the process of restitution from a practical perspective, considering ‘who’, ‘how’ and ‘what’ are involved in equitable restitution practices. We devote specific attention to the role of accessible inventories and the possibilities and limitations of provenance research. Finally, the ethical management and display of colonial and other sensitive heritage is considered. The main body of the text ends with a general conclusion that lays out the guiding principles for the restitution of colonial collections.

What is a colonial collection?

This report is concerned with the collections that came out of European global expansion, hence not with collections originating from conquest histories within Europe. While this expansion started in the 15th century, our main (although not exclusive) focus will be on the European imperialism of the 19th and 20th centuries. This phase saw the rise of ethnographic museums in the global north, whose non-European collections are often at the centre of current debates. But colonial collections can also be found in natural history museums, fine art museums, army museums, university collections, research collections in hospitals, and history museums, to name only a few. Several are public property today, others, such as missionary collections, are in private hands, only some of which are accessible to the public.

Our primary focus in this report is on collections and objects whose presence is the result of direct colonial relationships, those between Belgium and Central Africa and those between other European powers and their empire. We also include those that come from other colonial contexts, shaped by the global colonial order of European imperialism that extends beyond formal colonisation, yet are marked by colonial ideologies and structural inequality. These include periods of conquest that pre-date official empire (such as pre-1885 Central Africa) and histories of acquisition that are the result of settler colonialism. For example, while the United States of America was not a colony during the 20th century, the gathering of indigenous objects happened in a colonial (settler) context. There are also post-colonial situations that mirror the extractivism and inequality of active colonialism. Objects acquired or removed in such contexts also fall within the scope of this document. In many cases, political independence did not automatically terminate structures of economic and cultural colonialism.

Colonial collections can include cultural and archaeological objects, human remains, natural and mineral objects, and archives. Some of these categories carry their own particular legal implications related to their context of removal, the intentionality of their collection and their relation to local populations.

In the case of cultural collections, the word ‘object’ must be seen in its broadest sense, since maps, propaganda materials, photographs and documents also acted as tools of colonialism recording unequal structures, reinforcing oppression and silencing voices. These collections can thus include objects of European manufacture that project the discourses of colonial rule and the racist ideologies that supported it.

While most current conversations about restitution revolve around museum objects, the restitution of colonial archives is also increasingly the subject of debate. Colonial archives are held publicly (in the case of government archives, for example) as well as privately. State and government archives, both national and local, are considered key institutions for modern nation-states, and important tools for both historians and government entities. As such, their significance is both symbolic and practical. Archive restitution can happen digitally or physically. Most existing examples involve a digital sharing of archives, either in the form of a return of digital data or as increased online accessibility. Rwanda has initiated a process for the digital return of its colonial archives from Belgium, this can hopefully serve as a model for future archive restitution projects.

In the case of specimen collections and other materials belonging to the category of natural history, it is important to consider their cultural relationships, contents, provenance and current use. Though natural history collections are not specifically noted in this document, many of them equally contain material that fits within a context of colonial extraction and a practice of racialised categorisation (see Das and Lowe in recommended reading). Although we recognise the need to address this wide variety of collections, this report focuses mainly on cultural objects and human remains.

1.2 Colonial collections in Belgium: origins

This section aims to give a general introduction to how objects in colonial collections are gathered and how they arrived in Belgium. Special attention will be devoted to collections of Central African objects and remains, since they compose the most pressing collections in our country today in terms of restitution and reconciliation. We will start by giving an overview of who was involved in obtaining these objects, before considering what types of objects are found in these collections and how the collections at public institutions were formed.

Objects and remains in both private and public colonial era collections in Belgium were collected by a wide variety of people, some of whom were Belgian, but also many who were not. The term ‘collecting’ is deceptively neutral and covers a wide range of practices through which objects were removed, some of which were physically violent, others that can be qualified as forms of exchange, but took place in contexts of significant structural inequality. While it is important to realise that transactions are not always clear-cut and that the identities of those involved are not purely binary, we cannot deny or elide the fundamentally problematic context present in these encounters.

1.2.1 Collections linked to Belgian colonies

The first objects from sub-Saharan Africa appeared in Europe during the 16th and 17th centuries, as a result of European trade with West African kingdoms. Ending up in the cabinets of curiosities of European princes, the elite and clergy, these included diplomatic gifts such as finely woven mats and cushions from the kingdom of Kongo (at the mouth of the Congo River). This attests to European interest in the material culture of Central Africa in the pre-colonial period. Nevertheless, cultural objects from the region predominantly reached Belgium from the last quarter of the 19th century onwards. The trajectories these objects took are closely linked to the conquest, occupation and colonisation of the immense Central African region, 80 times the size of Belgium.

Not only cultural objects but also human remains were ‘collected’ by soldiers, merchants, missionaries, colonial officials, scientists, and later by tourists. Collecting occurred on their own initiative as well as at the behest of private individuals, or European and North American scientific and cultural institutions. The term 'collecting' therefore encompasses a variety of practices that were intertwined with the oppression and violence of colonisation. The motivations for collecting were very diverse, ranging from personal to military, professional, political, economic or religious (see Corbey in recommended reading). To these collectors, the Congolese objects that they had acquired took on new roles: from trophies and souvenirs to research objects and propaganda material for colonial exhibitions and museums.

Military Men and Colonial Employees

One of the first groups to engage in collecting were military and other representatives of King Leopold II, who were not all Belgians. They collected both on their own initiative and by order of the sovereign and Congo Free State. Some pieces were acquired through purchase, as barter items or donations; several other artefacts, as well as human remains, were taken in the form of war booty.

As the colonial state grew, so did the number of representatives and employees of the colonial state and colonial companies. This meant ‘collection practices’ expanded. One example of this is the confiscation of objects in the context of judicial proceedings, in the case of objects associated with organisations or movements deemed to be dangerous by the colonial state, for example.

Missionaries

In colonial times, mass conversion of the Congolese population to Christianity was an important objective for missionaries. Their attitude towards Congolese culture and religion differed across time and from one individual to another. Several priests, monks and nuns came into conflict with spiritual healers and Congolese chiefs. A well-known example are the nineteenth-century pyres used to destroy 'corrupting' and 'pagan' ritual objects. This kind of drastic behaviour was not universal. Some missionaries wanted to deepen their understanding of Congolese culture and languages to further Christianisation. For this reason, they collected art and ritual objects, with or without the permission or cooperation of Congolese communities. Here too, objects were undoubtedly removed by force and under pressure.

As a result of Christianisation, Congolese communities disposed of certain objects themselves, sold them to colonials or took them to mission posts. The resulting collections were sometimes exhibited locally. Others ended up at congregations in Europe and at mission exhibitions in Belgium. There, the Congolese objects were used to bring attention to and assemble funds for missionary work. More and more missionaries also developed a scientific interest in Congolese cultures, which led to a more focused and informed collecting practice.

Scientists and Researchers

Besides colonial officials and missionaries, scientists ranging from archaeologists to agricultural engineers were also actively involved in the displacement of Congolese objects. At the beginning of the 20th century, Belgian and European as well as American ethnographic and natural history museums set up long-term expeditions in the Belgian colony. The earliest collecting missions, held at the end of the nineteenth century, were closely linked to military campaigns. Others were linked to the economic exploitation of the area. For example, the Hungarian ethnographer Emil Torday, who in 1907 assembled collections for the British Museum in London, worked for the Compagnie du Kasai. Von Mecklenburg's expedition (1907-1909) collected for the Ethnologisches Museum in Berlin. The Congo expedition of Lang and Chapin (1909-1915) supplied collections for the American Museum of Natural History in New York. Ethnographic expeditions organised by the Belgian colonial Museum of Congo (founded in 1898) were limited. Joseph Maes, head of the ethnographic department of the museum from 1910 to 1946, only went to Congo once. The expedition of Armand Hutereau (a former soldier) from 1911 to 1913 was organised by the Ministry of Colonies. The ethnographic collections that he brought together are now in Tervuren. In the 1950s ethnographic research took on a more systematic character, with long term stays sponsored by IWOCA (Instituut voor Wetenschappelijk Onderzoek in centraal-Afrika, see Petridis in recommended reading).

Medical Professionals

Medical professionals (doctors and nurses) were often relied upon by professional colleagues to physically analyse local populations, in part through the active collection and examination of human remains. For example, when Charles Lemaire took human remains with him to Belgium during his second expedition in Congo in 1895, he was accompanied by doctor Bourguignon to recuperate the skulls and bones from human bodies. This practice continued into the 1930s and 1940s when medical centres in Belgian Congo were responsible for sending remains in the form of bones and tissues preserved in formaldehyde to the Musée du Congo.

Art Dealers

Around the turn of the century, the field of activity of commercial art dealers was limited to Europe and North America. Early dealers in Congolese cultural objects often did not travel to Congo, but worked with African intermediaries or traded objects that were already in Europe. It was not until the 1950s that Belgian dealers began travelling to Central Africa to collect 'merchandise'. The legality of most dealer transactions from this period cannot be clearly established – as is the case for all categories of 'collectors'. The questionability or illegitimacy of many of these transactions is partly due to the lack of a legal framework and unfair purchase prices.

Motivations

What was collected often depended on who was collecting, although generalisations are very risky. Missionaries were generally interested in objects from the religious and spiritual sphere, while the military were often more concerned with weapons and trophies. The more spectacular or 'eccentric' sculptural objects that deviated from the Western aesthetic canon were highly sought after by art collectors. These somewhat haphazard forms of 'collecting' determined the distorted view of Congolese cultures in Europe and North America. Many collectors, for example, systematically disregarded objects made by women, like certain ceramics or textiles.

A Growing Market

Due to the growth of the Belgian administration and companies during the interwar period, the number of colonial employees (civil servants, white-collar workers, engineers, doctors, etc. and their families) increased, as did tourism. This created a growing market for art forms and handicrafts specially made for sale to foreigners. Some of these objects were made by Congolese youths under the supervision of religious leaders at the mission schools. They include all kinds of decorative objects in ivory and ebony, small paintings of rural scenes, textiles, etc. Several mission posts earned income from the sale of such objects. The local economy also responded to the demand for 'authentic' art: objects that showed no influence from European cultures and were supposedly intended for local use. Some Congolese artists created for both the local and European market, which shows that 'authenticity' is a complex concept.

The existence of an active market directed at colonisers is often proposed as an argument against the repatriation of certain colonial collections. However, it is important to consider the conditions in which these markets were established. They were formed not only by local need but also responded directly to the unequal networks of power and capital established by colonialism. We should therefore not underestimate the role that the economic condition of poverty played in the sale of objects and heirlooms.

Blind Spots

In general, we know relatively little about the specific circumstances in which objects were taken from Congo. There are exceptions where we do have detailed information, such as the war loot taken by late-19th century colonisers Emile Storms, Oscar Michaux, and Alexandre Delcommune, who kept track of their exploits in diaries and reports, or objects included in early-20th century missionary Leo Bittremieux's notes. Even in later so-called scientific expeditions, the participants focused on the hasty gathering of material (in the belief that artistic traditions were dying out) rather than on careful documentation. These gaps, however, speak volumes. Many objects that circulated in the art trade are also problematic because early dealers made little or no record of the names of intermediaries.

Because of the poor and biased information in colonial archives, we also know little about the role that Africans played in the collecting process and the acquisition of information. Congolese contacts provided indispensable expertise, translations and networks. In the case of the missionaries, these were often converts who lived or worked at the mission post; they helped maintain contacts with the surrounding communities. In the case of military and/or scientific expeditions, they were, for example, guides and translators. We know very little about them, but it is clear that these individuals were crucial links. They were embedded in a complex and sprawling power structure, which does not make it any easier to judge the nature of the acquisition process.

Despite the diverse motivations of collectors and the growing trade in objects by Congolese themselves, it cannot be denied that these transfers took place in a framework of unequal power relations. These include the political, social and economic structural inequalities of colonialism, and their effects on interpersonal relationships.

1.2.2 Other colonial collections in Belgium

Collections in Belgium heralding from other areas of Africa, as well as the Americas, Asia, and Oceania are generally the result of economic concessions, scientific expeditions, missionary activities, political gifting or material bought from (inter)national art dealers. In these cases, Belgium was not directly involved in the colonisation efforts in these nations, but still benefited from the unequal relationships constructed by other global powers. Belgian colonisation could only exist within a network of oppression and it is always important to understand collections in Belgium within a system of global exchanges and power dynamics in which the realms of politics, culture and economics intersect.

Even before the independence of Belgium as a state, individuals coming from the regions that constitute present-day Belgium were drawn to areas being colonised by neighbouring powers. These individuals were often enticed through economic means as they were provided with land and resources in exchange for supporting the colonisers in their attempts to retain or expand political and economic control, as was the case for Flemish landowners in the Danish West Indies. Alongside these early ventures, individuals were also engaged in organised enterprises and trade companies, such as the Dutch East India Company, that were instrumental in formal and informal colonisation efforts across the globe. For the individuals themselves, these initiatives created pathways for amassing wealth, but these investments also provided opportunities for collecting.

By the time Belgium had become an independent nation, this trend of simultaneous investment and collecting continued. This is evident in a very direct way through the collections of prominent industrialists like Edouard Empain (1852-1929) and Raoul Warocqué (1870-1917) who contributed to Belgian interests abroad. The origins of some of the collections they assembled, such as Egypt and China, fall outside of Belgian colonial boundaries. Nevertheless, the large-scale economic concessions that Belgians obtained from local governments in areas like Heliopolis and Tianjin must be considered when assessing the provenance of these collections.

Besides the impact of industrialists and investors, the collections created by missionaries, explorers and scientists funded by Belgian institutions and working in countries colonised or annexed by major powers should be subject to provenance studies and ethical scrutiny. Funding for these missions regularly came with requirements to bring back material to enrich the galleries of Belgian museums in order to provide sufficient return on the nation’s investment. This was particularly the case for archaeological excavations and anthropological expeditions that were directly associated with museums and collecting institutions through both staff and funding. Such arrangements were formalised in the first archaeological missions funded by the Fonds National de Recherche Scientifique and can be seen in the arrangements made for material to be brought back to Belgium from expeditions to Easter Island and Apamea in the 1930s (see Halleux and Xhayet in recommended reading). These requirements were of course in addition to the advances in scientific knowledge and international prestige that these projects created.

As was the case across many European powers, Belgian agents benefited from antiquities laws set up by European powers to serve their own national interests or in some cases a lack of concrete legislation. With their unique access to distant sites, archaeologists, anthropologists and art historians often took on an additional role as museum curators, art dealers and advisors to collectors. Archival records show their active participation in the antiquities market and the distribution of excavated finds, deploying their expertise in the interest of national institutions.

Though these various collections were not procured through direct colonisation, they form part of a wider extractive legacy and thus must be critically considered within our museal practices.

2. Legal Framework

The Conventions and legal norms described below detail the most relevant national and international instruments related to the protection of cultural heritage. This incomplete legal framework, at least with regard to colonial heritage, can pave the way for creating a new legal framework that the Belgian state – and its heritage institutions – might meaningfully use to tackle both the historic misappropriation and/or pillage of cultural heritage and the contemporary trade in illicit antiquities.

The legal framework is often invoked in debates on the return, restitution and/or repatriation of cultural goods, usually to denounce its inappropriateness or even inadequacy or, on the contrary, to use it as a bulwark against restitution by brandishing inflexible rules, sometimes with a political purpose, in order to prevent any return.

Indeed, despite this plethora of legal and regulatory instruments, there are few that can address the problem of the return of colonial collections. The main obstacle is the time limit of these legal rules: most of the texts were adopted after objects of foreign origin were taken into possession in Belgium and do not apply retroactively. In other words, although these international, European and national texts constitute an important and interesting framework in the debate on the return of cultural goods, they are unlikely to apply in many cases (2.1).

However, some other regulatory instruments are interesting in the legal context, even though they are not legally binding (2.2).

Given these legal challenges, the adoption of a specific legal framework based on the moral duty to return colonial heritage and on the fundamental right to cultural heritage is desirable (2.3).

2.1 Existing legal instruments

This Section provides a brief overview of the most important existing legal instruments with regard to cultural heritage, while at the same time showing this framework remains incomplete in order to tackle the specific situation of colonial heritage.

There is a wide range of legislation at the international level:

to protect cultural heritage in times of war:
- Convention (II) with respect to the Laws and Customs of War on Land, signed in The Hague on 29/07/1899
- Convention (IV) with respect to the Laws and Customs of War on Land, signed in The Hague on 18/10/1907
- Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed in The Hague on 14/05/1954 (with Additional Protocol I (1954) and II (1999))
to combat the illicit trafficking of cultural goods:
- UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, signed in Paris on 14/11/1970
- UNIDROIT Convention on stolen or illegally exported cultural goods, signed in Rome on 24/06/1995

And at European level:

to promote the return or restitution of cultural goods:
- Directive 2014/60/EU of the European Parliament and of the Council of 15/05/2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012¹
to control the import and export of cultural goods:
- Council Regulation (EC) No 116/2009 of 18/12/2008 on the export of cultural goods²
- Regulation (EU) 2019/880 of the European Parliament and of the Council of 17/04/2019 on the introduction and the import of cultural goods

The diversity of these texts has led to a degree of fragmentation and thus to the difficulty of applying the appropriate legal instruments to the treatment and return of cultural objects.

One of the main difficulties lies in the fact that legal provisions do not apply retroactively, that is, only to cases of illicit trafficking or illegal acquisition of cultural objects which take place after the entry into force of the relevant international, European or national instruments in the Belgian legal order. The table below shows the various relevant legal texts and their entry into force. An international, European or national text enters into force after it has been published (sometimes right after publication, sometimes a few days, weeks, months after). To be published and to enter into force an international text first has to be ratified; the international convention only becomes legally binding when the country ratifies it (and not when it only signs it). Some texts also need to be transposed into national law in order to be directly applicable (and can therefore be directly invoked by citizens).

Legal instrument	Entry into force in Belgium	Transposition (if applicable)
The Hague Convention 1899	1899
The Hague Convention 1907	1907
The Hague Convention 1954 + Protocol I	16 December 1960
Additional Protocol II The Hague Convention 1954 (1999)	13 October 2010
Additional Protocols to the Geneva Conventions of 1949 (1977)	20 November 1986
Unesco Convention 1970	30 June 2009	(not yet)
Unidroit Convention 1995	/	/
Directive 2014/EU/60	1 January 1993³	Law of 28 October 1996
Regulation EU 116/2009	1 January 1993⁴	/
Regulation EU 2019/880	28 December 2020 (partially)	/
Article 90 Code PIL	1 October 2004	/

Apart from the Hague Conventions on armed conflict, the application of which also appears complicated (but not impossible) in the case of colonial conquests, most colonial collections were acquired before the legal instruments came into force in Belgium and therefore cannot benefit from the rules laid down in the various texts. For example, Article 90 of the Belgian International Code of Private Law is quite original in the international legal landscape, as it allows a claimant to choose to invoke the law of the State of origin in the case of stolen cultural objects, thus recognising the application of foreign public law, but this only applies to thefts of cultural objects that took place after the entry into force of the Code, i.e. on 01/10/2004.

Only the most relevant international conventions are briefly explained below. For a more detailed overview of the Belgian legal framework, please refer to an upcoming report to be published by the Académie royale de Belgique (with Yasmina Zian) on the treatment and return of extra-European collections.

2.1.1 The UNESCO Convention of 14/11/1970 and its incomplete transposition in Belgium

As a pioneer in the fight against illegal trade in cultural goods in times of peace, the UNESCO Convention is built around three pillars: prevention, restitution and international cooperation.

It applies to movable cultural objects, which are divided into several major categories and defined by a given State as belonging to its heritage, which testifies to a special legal relationship between the State and the cultural object (see Articles 1 and 4). In addition, the Convention applies only between Contracting States and not between States which have not ratified it. Finally, its temporal application specifies that the Convention does not have retroactive effect; it applies only to cases after its entry into force, in the legal order of each State Party (Article 21).

In other words, the Convention would apply in Belgium only from 30/06/2009 and not from its international entry into force on 24/04/1972. It is driven by a dual objective. On the one hand, it aims to encourage each State to protect its national cultural heritage, in particular by drawing up an inventory and by measures to control exports and imports, and on the other hand, it aims to reduce illegal international trade by advocating greater cooperation between States. It is also interesting to note that the restitution provided for in the Convention is exclusively diplomatic and not judicial, which demonstrates the inseparable nature between policy and the Convention.

Belgium only ratified the treaty on 31/03/2009 (entry into force on 30/06/2009), although this is not so late compared to some neighbouring countries.

As the treaty is not directly applicable, Belgium still has to take certain legal measures to transpose its obligations. The lack of direct effect is indeed one of the weaknesses of the Convention, which only creates rights and obligations for States and not subjective rights that can be invoked by individuals, thus limiting the possibility of coercion against the State. However, the influence of the Convention - even before its final ratification - is noticeable in that it has prompted the federal communities and, more recently, the Brussels-Capital Region, to adopt measures to protect their movable cultural heritage, albeit belatedly in relation to neighbouring countries. The Convention has also helped to mitigate Belgium's bad reputation as a hub for the illegal trade in cultural goods.

Although the three communities and the Brussels-Capital Region had already adopted transposition measures that generally protect movable cultural goods, a structural instrument was still needed to coordinate and harmonise cooperation between the various entities in order to achieve a coherent policy for combating the illegal trade in cultural goods. To this end, an advisory committee consisting of the competent entities (Communities, Regions and the Federal State) established a platform "Import, Export and Return of Cultural Goods" by decree of 16/01/2009. This platform contributed greatly to the preparation of a draft law transposing the Convention in 2012, which is however still pending, although it should have been adopted by the federal government in 2015.

2.1.2 The Unidroit Convention of 24/06/1995 and the refusal of Belgian ratification

The Convention on stolen or illegally exported cultural goods, signed in Rome on 24/06/1995, is resolutely innovative in that it aims in particular to strike a balance between the collective interest of protecting the cultural heritage and the prerogatives of the bona fide buyer (buyer in good faith, i.e. when convinced to be the holder of a righteous title, and thereby be the righteous owner of the object).

The Convention applies to movable cultural goods, divided into the same categories as the 1970 UNESCO Convention. However, unlike the UNESCO Convention, which leaves it up to each Member State to designate the objects it considers to be cultural objects, the Unidroit Convention applies to all objects belonging to one of the categories of cultural objects, without there being any designation of a State. Since the Unidroit Convention is directly applicable, State Parties accept its definition.

Like the UNESCO Convention, the Unidroit Convention makes a distinction between stolen and illegally exported cultural objects.

Stolen Cultural Goods

In the case of stolen cultural objects, the Contracting State in which the object is located is obliged to return the stolen object, irrespective of where it was stolen (even in the territory of a non-Member State), subject to the rules and time limits laid down in Article 3 (automatic return and fair compensation to the diligent bona fide possessor, time limit of 50 years or more in absolute terms and 3 years in relative terms).

Illegally Exported Cultural Objects

In the case of illegally exported objects, the Contracting State in which the object is located is obliged to return it when requested by the State of origin, provided that both the State from which the object was removed and the State in which it entered illegally are parties to the Convention in accordance with Article 5 (non-automatic return and fair compensation to the possessor acting in good faith, period of 50 years in absolute terms and 3 years in relative terms).

The Convention does not have retroactive effect (Article 10), but specifies that it does not legitimise any facts prior to its adoption.

In 2012, the question was raised whether Belgium should ratify the Unidroit Convention by means of a study entitled "Opportunity and consequences of Belgium's ratification of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects". The study concluded that "it is not clear from this study whether or not Belgium absolutely must accede to the UNIDROIT Convention". The temperate conclusion is that the UNIDROIT Convention distorts civil property rights to a greater extent than the UNESCO Convention, which nullifies the principle of the bona fide prescription of the possessor of a cultural object in any situation involving a cultural object. Therefore, on 25 June 2014, the Permanent Consultative Platform on the Import, Export and Return of Cultural Property issued the opinion that, before considering the ratification of the Unidroit Convention, priority should be given to the implementation of the 1970 UNESCO Convention and the transposition of Directive 2014/60/EU of 15/05/2014. However, in its report on the theft of works of art of 15/06/2018, the Belgian Senate encourages the reconsideration of the ratification of this instrument, without however referring to the 2012 study, as it considers it one of the most successful instruments for the implementation of a coherent restitution policy.

Indeed, the ratification of the 1995 Unidroit Convention should be encouraged insofar as it contributes to an efficient and effective policy to combat the illicit trade in cultural goods and, consequently, to the processing and return of collections from outside Europe.

It would be useful for cooperation agreements to be concluded between the Federal State and the competent federated entities during this ratification, as well as during the transposition of the UNESCO Convention.

Moreover, with regard to the criminal policy to be pursued in the fight against illicit trafficking, it is useful to refer to the Senate report of June 2018 on the theft of works of art, which already contains a series of very relevant recommendations. Moreover, the European Union has adopted the 5th EU Directive 2018/843 of 30/05/2018 on the fight against money laundering, which was transposed into Belgian legislation on 20/07/2020 and which, among other things, subjects art dealers to anti-money laundering obligations when selling antiques, art and cultural goods of more than EUR 10,000.

Finally, the adoption of these measures also anticipates that the issue of the reversal of the burden of proof, which confirms the introduction of the concept of due diligence and therefore the reversal of the presumption of good faith, will be called into question at the judicial level.

Both Conventions, the UNESCO 1970 and the UNIDROIT 1995 Conventions aim to fight against illicit trafficking of cultural goods in general (not in wartime, other Conventions are applicable then, see intro of chapter 2, but not discussed here). They are useful international legal tools, but they are mostly inapplicable for thinking about the return of Belgian colonial collections. Indeed, the UNESCO 1970 Convention has been ratified but not yet transposed into law and the UNIDROIT 1995 Convention has not yet been ratified by Belgium. Because of this missing legal framework, Belgian civil law applies as default, which strongly favours the actual possessor/owner.

2.1.3 Belgian civil law applies as default and consolidates the possessor

One can only note that the former colonial powers did not rush to take specific measures to fill the absence of legal rules applying before the entry into force of the existing legal framework, i.e. legal rules that might apply for cultural objects acquired in the colonial context (mostly in the 19th and early 20th century).

These former colonial powers took refuge behind the principle of intertemporality of the law, according to which: "a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled". Since some colonial takings were considered legal at the time, the title thus acquired should not be questioned, the statute of limitations has moreover long since elapsed. It is sufficient to rely on common civil law to consolidate the possessor's rights.

According to Belgian civil law, which favours the free movement of goods, the rights of the possessor are privileged over those of the original owner. The possessor thus acquires title either because he acquired the property from the owner (normal situation) or because he acquired it from someone other than the owner, often a precarious holder (non-domino acquisition), but if he believes in good faith that he acquired it from the owner (bona fide possessor).

It is therefore most often the case that Belgian collectors, both public and private, have title to the colonial objects in their possession. This makes it much more difficult for dispossessed original owners to make any legal claim for their return. However simple the logic of the statute of limitations may be, it is nonetheless ruthless.

Regulatory instruments of soft law

Other instruments are also interesting in the context of the legal framework, although they are less/not legally binding and therefore considered ‘soft law.’ Three of the instruments cited in this section (Abuja Declaration 1993, Charter for African Cultural Renaissance 2006, and NAGPRA 1990) are not applicable in Belgium but are nonetheless useful for understanding the broader context surrounding restitution, and help building a new legal framework. The UNESCO Committee, while not an instrument as such, has developed interesting case law that is relevant to the issues addressed in these guidelines.

2.2.1 The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP), 1978

The Committee was established in 1978 as a permanent body and assists in bilateral negotiations related to the return of cultural goods. It acts as an advisory body and a body responsible for facilitating bilateral negotiations; it has no legal power to decide on the cases involved. A promising thought behind the ICPRCP was that it should alleviate the absence of a retroactivity clause in the 1970 UNESCO Convention. But it never worked like that.

A famous case was that of Sri Lanka, which, after thorough research, submitted a claim for the return of objects in public collections in several European countries in 1980 (UNESCO ICPRCP, CC 79/CONF.206/COL.10). In Belgium, the Royal Museum of Art and History was asked to return a knife with a blade bearing precious stones (E.O. 2007) and a carved ivory handle of a Buddhist monk’s fan (E.O. 2009). In 1983, the ICPRCP however ruled that Sri Lanka should handle these claims at a bilateral level. The Brussels museum did not undertake any action, after which the demand vanished. This also occurred between Sri Lanka and other European countries.

It is unlikely that the ICPRCP will play a large role in return-claims on colonial collections. Instead it will help to better protect heritage through awareness campaigns using film, videos and publications; rules of mediation and conciliation on conflicts related to cultural property; a model export certificate for cultural objects; a database of national cultural heritage legislations; a restitution cases database project; measures to fight trafficking on the internet; and a code of ethics for traders of cultural property.

Regardless of whether they are party to the Convention or not, a state which has lost cultural property of fundamental importance and which requests its restitution or return, in cases not covered by international conventions, may appeal to this Committee. It is responsible for:

facilitating bilateral negotiations for the restitution or return of cultural property to the countries of origin;
the promotion of multilateral and bilateral cooperation for the restitution and return;
the encouragement of research and studies for the establishment of coherent programs for the constitution of representative collections in countries whose cultural heritage has been dispersed;
the stimulation of a public information campaign on the real nature, extent, and scope of the problem of the restitution or return of cultural property to its countries of origin;
guiding the design and implementation of UNESCO's programme of activities in the field of the restitution or return of cultural property to its countries of origin;
encouraging the establishment or strengthening of museums or other institutions for the conservation of cultural property and the training of the necessary scientific and technical personnel;
promoting exchanges of cultural property in accordance with the Recommendation on the International Exchange of Cultural property;
and reporting on its activities to the General Conference of UNESCO at each ordinary session.

2.2.2 Washington Principles on Nazi-looted art, 1998

On 03/12/1998, representatives of 44 governments convened in Washington DC to endorse a set of principles designed to help the heirs of Jewish collectors recover their families’ Nazi-looted art. Eleven non-binding principles were listed to assist in resolving issues relating to Nazi-confiscated art.

Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.
Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.
In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.
Every effort should be made to publicise art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
Efforts should be made to establish a central registry of such information.
Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.
If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognising this may vary according to the facts and circumstances surrounding a specific case.
If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.
Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.
Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.

There are similarities and differences between Nazi-confiscated art works and colonial loot. While both are the result of historical injustice, colonial collections cover a much longer swath of time and provenance information is often harder to come by. This has serious repercussions for the evidence available to claimants.

Even though they are not legally binding, the Washington Principles were impactful, prompting states to take measures for the recovery of Nazi confiscated art works. The Principles set up an important framework, also relevant for dealing with colonial loot, as they require a proactive role of possessors, call for understanding with regard to the problems with evidence, and put forward the importance of just and fair solutions to complicated claims.

2.2.3 ICOM Code of Ethics, 2004

The ICOM (International Council of Museums) Code of Ethics for Museums sets minimum professional standards and encourages the recognition of values shared by the international museum community. This reference tool provides guidance and is presented as a series of principles supported by guidelines detailing expected professional practice. It was drafted in a cross-cutting manner and conceived as an instrument of professional self-control. ICOM members must accept and comply with the Code’s rules.

The ICOM Code of Ethics for Museums addresses diverse museum-related topics such as acquisition procedures, compliance with legislation, management of resources, security, and returns. The Code also advocates strong principles playing a key role in the fight against illicit traffic, for instance concerning due diligence and provenance. After being first adopted in 1986, and revised in 2004, the Code has been translated into 38 languages. However, following the 25th General Conference in Kyoto in 2019, a review of the Code is in process, where the issue of colonial heritage might be more taken into consideration. Also relevant is the 2013 Code of Ethics for Natural History Museums, given the presence of colonial collections in these museums.

ICOM promotes and advocates its Code during training sessions organised all over the world, including practical case studies, to help museum professionals apply its values and principles. A Standing Committee on Ethics (ETHCOM) is dedicated to handling museums’ ethical issues that are brought to its attention.

Chapter 6 of the code covers collaboration with the communities from which collections originate, as well as those they serve. Concerning the origin of collections it says:

Museums should promote the sharing of knowledge, documentation and collections with museums and cultural organisations in the countries and communities of origin. (6.1. Cooperation);
Museums should be prepared to initiate dialogue for the return of cultural property to a country or people of origin. This should be undertaken in an impartial manner, based on scientific, professional and humanitarian principles as well as applicable local, national and international legislation, in preference to action at a governmental or political level. (6.2. Return of Cultural Property);
When a country or people of origin seeks the restitution of an object or specimen that can be demonstrated to have been exported or otherwise transferred in violation of the principles of international and national conventions, and shown to be part of that country’s or people’s cultural or natural heritage, the museum concerned should, if legally free to do so, take prompt and responsible steps to cooperate in its return. (6.3. Restitution of Cultural Property);
Museums should abstain from purchasing or acquiring cultural objects from an occupied territory and respect fully all laws and conventions that regulate the import, export and transfer of cultural or natural materials (6.4. Cultural Objects from an Occupied Country).

2.2.4 United Nations Declaration on the Rights of Indigenous Peoples, 2007

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13/09/2007. Today the Declaration is the most comprehensive international instrument on the rights of indigenous peoples, even though it remains soft law. It however establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.

Article 11 speaks of the possibility of restitution to enable indigenous peoples to experience their rights to culture:

Indigenous peoples have the right to practise and revitalise their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12 speaks of the right to access and/or repatriation of ceremonial objects and human remains:

Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 28 speaks of a right to compensation for illicit acquired goods:

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

The effects of UNDRIP on indigenous groups’ prospects for retrieving human remains and funerary objects are not always easy to measure. But the broad acceptance of the declaration has changed the atmosphere in favour of indigenous groups. At least as important, though, are the legal measures and support-programs in settler-colonies such as the USA, Canada, Australia, New Zealand and South Africa that help indigenous peoples in these countries to repatriate what was removed. They are for example supporting the Maori in New Zealand in their quest to retrieve two tattooed Maori heads in the Royal Museum for Art and History in Brussels.

The approach of these indigenous peoples, including their increasingly stronger organisations, can help inspire guidelines and practices for the restitution of colonial collections.

In 2020, a report was published on these matters: “Repatriation of ceremonial objects, human remains and intangible cultural heritage under the United Nations Declaration on the Rights of Indigenous Peoples” (https://undocs.org/A/HRC/45/35).

2.2.5 Abuja Proclamation, 1993

The Abuja Proclamation refers to the first Pan-African Conference on Reparations held in Abuja, Nigeria, 27-29/04/1993. It deals with issues of reparations in relation to the damage done to Africa and its diaspora by enslavement, colonisation, and neo-colonialism. It states that damage sustained by the African peoples is not a "thing of the past” but is manifest in the damaged lives of contemporary Africans. The Proclamation calls for those in possession of looted and stolen artefacts and other treasures to restore them to their rightful African owners.

2.2.6 Charter for African Cultural Renaissance, 2006

The Charter for African Cultural Renaissance is a tool developed to empower African Member States to promote Pan-Africanism, cultural renewal and identity as well as strengthen their national policies and other cultural instruments which will in turn contribute to the achievement of the continents' socio-economic and cultural integration, build sustainable peace and the fight against poverty.

The Charter was endorsed by the first African Union Conference of Ministers of Culture held in Nairobi 10-14/12/2005 and adopted by the 6th ordinary session of the African Union Assembly that was held in Khartoum, Sudan on 24/01/2006.

Specifically, Articles 26, 27 and 28 deal with the Protection of African cultural heritage.

Article 26: African States should take steps to put an end to the pillage and illicit traffic of African cultural property and ensure that such cultural property is returned to their countries of origin.

Article 27: African States should take the necessary measures to ensure that archives and other historical records which have been illicitly removed from Africa are returned to African Governments in order that they may have complete archives concerning the history of their country.

Article 28: The concerned African States shall commit themselves to provide appropriate physical and environmental conditions to safeguard and protect returned archives and historical records.

2.2.7 NAGPRA, 1990

The Native American Graves Protection and Repatriation Act (NAGPRA), was passed on 16/11/1990, to resolve the situation of Native American cultural items and human remains under the control of Federal agencies and institutions that receive Federal funding, as well as the ownership or control of cultural items and human remains discovered on Federal or tribal lands after 16/11/1990. The statute and regulations outline the rights and responsibilities of lineal descendants, Indian tribes (to include Alaska Native villages), Native Hawaiian organisations, Federal agencies, and museums under the Act, and provide procedures for complying with NAGPRA. Depending on the category of cultural item in question and its cultural affiliation, NAGPRA provides lineal descendants (regardless of whether or not they are Native American), Indian tribes, and Native Hawaiian organisations (NHOs) with a process for transfer to them of cultural items.

NAGPRA has resulted in a substantial number of repatriations of human remains and ritual objects. In the USA, legislation is being prepared that helps First Nations to claim from possessors abroad.

At the same time, much remains to be done. Some First Nations have equipped themselves better than others for submitting claims. Some museums in the USA are more willing to consider repatriations than others. Although NAGPRA has moved the burden of proof to museums, many museums complain about lack of personnel and funds to do decent provenance research. First Nations complain that too often the onus is placed on them to provide documentation of their rights to sacred objects held in museums.

The legal or regulatory tools described here are part of a broader framework than the existing legal structures discussed in 2.1. In this section, the instruments are either institutional (ICPRCP); soft law, i.e. legally non-binding (Washington Principles, ICOM Code of Ethics, UNDRIP); or are not applicable in Belgium (Abuja Declaration, Charter for African Cultural Renaissance, NAGPRA). They are relevant however, since they offer a helpful set of measures to further the discussions about the restitution of colonial collections and they pave the way for the recognition of a human right to cultural heritage and the elaboration of a specific legal framework for the return of colonial collections.

2.3 Towards a New Legal Framework

Although the existing legal framework is not favorable to the original owners of the objects in colonial collections, there are opportunities for change. Indeed, the law should try to be in tune with the social and ethical issues of its time, reflecting the demands for equity and reconciliation with the past that are increasingly resonating within society. A moral duty to return the colonial heritage is emerging, inviting us to go beyond the limitations of the existing legal framework in order to make an ethical responsibility heard in law.

This has already been the case when the principles of acquisitive prescription and acquisition in good faith (bona fide) were circumvented in order to be able to return works of art or other property looted during the Second World War, in particular through the elaboration by 44 countries of the Principles of the Washington Conference on Nazi Stolen Works of Art, 1998 (see 2.2.2 .). Similarly, the European rules against illicit trafficking contain measures obliging the purchaser to prove due diligence, thus overturning the presumption of good faith.

More fundamentally, the moral duty to return cultural heritage would rest on the recognition of the right of people (individuals and groups) to cultural heritage (2.3.1). The right to cultural heritage and the moral duty to return colonial heritage call for a specific legal framework in order to better process the return of colonial collections to their country of origin (2.3.2).

2.3.1 Human rights and cultural heritage: the recognition of a fundamental right to cultural heritage opens the debate on the return of collections

In addition to the panel of international rules applicable to the protection of heritage in times of war (human rights law) and the fight against illicit trafficking in cultural goods, and the European rules governing the import and export of cultural goods outside the EU and their return within the EU, there is also the fundamental rights dimension of the protection of cultural heritage.

After all, the right to cultural heritage has developed slowly both at an international and European level. Although 'heritage rights' have long been absent from the sources of international human rights law, they arose in the context of the recognition of cultural identities and the special context of minorities and indigenous peoples, and have recently been enshrined as a fundamental right in the form of a 'right to cultural heritage'. This fundamental right to heritage is considered part of cultural rights, the second generation of human rights claims.

The right to cultural heritage was explicitly recognised for the first time in the ICOMOS Stockholm Declaration of 11/09/1998 as part of human rights, but the latter does not contain any binding measures. It was not until 2005 that the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (the Faro Convention) confirmed the fundamental right to cultural heritage. The Faro Convention changed the way we think about the protection of heritage in many respects, including the definition of heritage and the heritage community. The Convention also clearly states the right to cultural heritage: “Everyone, alone or in community with others, has the right to take advantage of cultural heritage and to contribute to its enrichment”. It attaches to this the responsibility of all individuals to respect the cultural heritage of others, their own and Europe's common heritage. Moreover, the holder is everyone who exercises his or her right, individually or collectively.

The influence of human rights is clearly perceptible. It is about “putting the individual and human values at the heart of a broad and transversal concept of cultural heritage”. It is no longer just a question of cultural heritage law, but also of the right to cultural heritage as an “inherent right to participate in cultural life”.

The right to cultural heritage is furthermore laid down in Article 23, 4° of the Belgian Constitution, which guarantees "the right to a healthy environment", as well as in Article 23, 5° of the Constitution, which lays down "the right to cultural development".

The return of colonial cultural property to its country of origin not only responds to an ethical requirement of reconciliation, but also constitutes a fundamental legal issue, insofar as this return allows access by the people and communities of origin to their heritage.

2.3.2 A specific legal framework

The inclusion of cultural goods in the public domain is often erroneously considered to be an obstacle to restitution. Despite popular perception, it is sufficient for the public owner to decide, without the need for a law, to remove the cultural object from the public domain, to enter it into the private domain and to dispose of it freely, particularly with a view to returning it to its country of origin. Because public collections in the public domain can be decommissioned by their owner, voluntary return can always take place in compliance with the rules on the decommissioning of objects in the public domain.

With the adoption of the new Civil Code, article 3.45 attempted for the first time to define the public domain: 'Public property belongs to the private domain, unless it is assigned to the public domain’. According to a functional definition established by case law and doctrine, the property intended for the use of all or assigned to the public service belongs to the public domain.

The entrustment of an asset for the use of all or as part of a public service must, in general, be explicit, since it means that the asset is subject to a special legal regime designed to ensure the public use of the asset in question or to ensure its entrustment to a public service for which it is specially equipped. Moreover, in order to be operational, it must be implemented through concrete acts of access to the public domain.

The allocation criterion effectively puts the power of decision in the hands of the administration that owns the property. It only decides unilaterally, by means of an administrative act, which goods will or will not enter the public domain. The same prerogative applies to the decision to withdraw public property from the public domain, take it out of the public domain and give it back to the trade, free to be disposed of.

At the same time, it is clear that the public domain is a relative barrier to the return of cultural goods. It is sufficient that the public owner himself decides, without the need for a law, to take the cultural object out of the public domain, to enter the private domain and to dispose of it freely, especially with a view to returning it to its country of origin. The cultural goods exhibited in the federal museums are therefore part of the federal public domain and fall under the competence of the federal authorities to decide on their possible disuse with a view to their return. The same applies to the collections of the Flemish or French-speaking Community, which can therefore decide to return part of them if necessary. Moreover, the decision to dispose of certain objects from collections of cultural goods that are part of the municipal public domain, such as those of the MAS in Antwerp or the Museum of Ixelles, lies with the municipal owner.

In other words, the call for a legal framework, often referred to as a sine qua non for starting a restitution procedure, is more of an excuse than a real legal reason. However, this call is not otherwise in vain. When it is said that the decision to dismantle the property depends solely on the owner of the property in the public domain, and should therefore not go through Parliament, this does not mean that it does not seem desirable and necessary to legislate in situations of this kind.

Therefore, following the recognition of a moral duty to return colonial heritage and regarding the fundamental right to cultural heritage, it seems interesting to provide a specific legal framework for the return of colonial objects located on Belgian territory which do not fall within the temporal scope of national, European or international rules. Such a legal framework would provide more clarity and predictability for a possible return procedure. It will also provide a reassuring framework for the public owner not to place all the responsibility for such a decision on him/her. In this respect, the recognition of an individual and collective right to cultural heritage would add a fundamental dimension to the context of the return of collections, based on the dignity of each member of society, including heritage communities.

An academically-driven proposal for such a legal framework is in process of being published before the summer of 2021, in French and in Dutch, by Marie-Sophie de Clippele and Bert Demarsin.⁵ The legal framework is aimed at resolving cases through a well-regulated diplomatic procedure, by the establishment of bilateral agreements. The aim is to enable the competent public authority to return cultural property if necessary, following a request to this effect by a foreign State, possibly initiated by a request from communities of origin (albeit with an official support) or proactively by the Belgian public authority. The conclusion of a bilateral agreement allows a flexible approach, specific to each case (an agreement limited to a simple restitution or a large-scale agreement, including a series of measures for cultural exchanges and mutual enrichment, with a view to establishing a new ethic of relations between equal partners with regard to this colonial heritage) and seems to respond to the desire to think about return in a more global way.

The proposed text deals with public collections linked to the colonial context. This limitation to public movable heritage is justified by considerations relating to the respect of private property, as protected by Article 16 of the Constitution and Article 1 of the First Additional Protocol of the European Convention on Human Rights. However, it would be interesting to consider the question of private movable cultural property in the light of the procedures laid down for the spoliation of private Jewish property during the Second World War. Furthermore, the question of human remains in this field of application deserves specific attention.

In order to make the text as operational as possible throughout the territory, it would also be advisable to conclude a cooperation agreement between the competent entities (Federal State, Communities and Brussels-Capital Region for movable heritage, or even the Regions in the case of related competences). In this respect, the administrative platform "Import, Export and Restitution of Cultural Property" set up on the occasion of the ratification of the 1970 UNESCO Convention could serve as a support.

3. Requests for Restitution

Institutions holding colonial collections have a large role to play in responding to past and present contexts of structural inequality. The processes of reconciliation required must be broad in order to mitigate the impact of the cultural and societal damage caused by colonial ideologies and actions. One part of this, is the need for such institutions to commit to addressing requests for restitution in a transparent, sensitive and timely fashion. This section considers several examples of how restitution debates and claims with regard to colonial collections have emerged in Belgium in the past (3.1) before providing recommendations for how institutions can support more equitable approaches in the future (3.2).

This section of the guidelines does not attempt to provide a single pathway for restitution, but rather provides the necessary tools, information, and approaches to create a more welcoming environment for discussions around restitution to take place, one that avoids an unequal distribution of authority on one hand and burden of proof on the other.

3.1 History of Restitution Debates and Demands

New Zealand’s request for Maori remains:

A request for the repatriation of Toi Moko, tattooed Maori heads, landed at the Arts & History Museum in Brussels in 2008. This request was part of an official repatriation campaign started in 2003 by New Zealand, in which three partners collaborated: the government, the Te Papa museum and the Maori and Moriori communities. By the end of 2020, more than 600 ancestral remains had been returned, including Toi Moko. Of these, 420 came from abroad. Since the Museum of Arts and History is a federal scientific institution, a decision about this request has to be made at the federal level. As of yet, Belgium has not officially responded to the request.

Congo-Belgian debates:

At least one example is known of Congolese asking for the return of objects right after they were looted, namely in the case of the statue of Ne Kuko from the Boma region, violently removed by Alexandre Delcommune in 1878. Current local leadership has also demonstrated a clear desire for its return (see Couttenier in recommended reading).

Already during Congolese independence in 1960, there was a demand for the return of the collections of the museum in Tervuren. The comparison was made with economic resources: if their return was to ensure economic sovereignty, then the transfer of the collections of the Tervuren museum could help the new nation achieve cultural sovereignty. The museum building itself was also under discussion; after all, it had been built with income from the colony. While the issue disappeared into the background during the turmoil of the early 1960s, it became topical again with the 1967 exhibition Art of the Congo, assembled from the Tervuren collection, which toured a number of prestigious North American museums. The Belgian ability to still represent Congolese cultures internationally was a thorn in the side of the Congolese leadership, which was now in the hands of Mobutu. The demand for the return of the two hundred objects from the exhibition therefore quickly followed. Many years of back and forth ensued, during which Belgium and Zaire collaborated on the creation of the Institute for National Museums in Kinshasa. More became possible after Zaire moved away from the term "restitution" and reconciled itself to a "gift" of objects in 1976, the description preferred by the Belgians. Between 1976 and 1982 a return of 114 objects from the reserves of the museum in Tervuren (which contain about 125,000 objects) to the museum in Kinshasa was agreed upon. Needless to say, a 'gift' of pieces has a very different meaning than a 'restitution' or return. 'Restitution' refers to guilt: the rectification of a past mistake. 'Gift' on the other hand, emphasises the generosity and non-committal nature of the donor and carries the expectation of a thank you. The transfer thus took on a fundamentally different meaning. It was implied that Tervuren did not return a contested heritage, but that Kinshasa should be grateful for the 114 pieces that Belgium voluntarily returned and as part of an intercultural collaboration (see Mumbembele; Van Beurden; Wastiau in recommended reading). This history illustrates the importance of language, and the importance of the word 'restitution' rather than return or repatriation, in today's debates in Belgium.

Archives Congo:

Belgium removed significant parts of archives from Congo on the eve of independence, with the intent of returning the administrative portion of these archives (as opposed to the ‘sovereignty records,’ which are concerned with major decision-making processes by the government) once a proper triage had been completed and proper care was available in Kinshasa. There was a concern some of the records would be used to support Congolese financial claims against Belgium or cause problems for some commercial companies. This return never took place (see Piret in recommended reading).

Archives Rwanda:

A recent request by the CEO of the Rwandan Mining, Petroleum and Gas Board for the digital repatriation of the relevant geological and mining archives kept at the RMCA was completed with the financial support of Belgian development aid.
A second agreement with Rwanda with regard to a large-scale digital repatriation project (2019–2023) of colonial archives is currently underway, upon the request of Rwandan authorities. These include archives held at the Rijksarchief, the archives of the Ministry of Foreign Affairs and the Tervuren museum. Project financing comes from Belgian development aid, the AfricaMuseum, and Rwanda.

3.2 Restitution: Who, what and how? Some guidelines.

Who?

All communities of origin should have the agency to initiate requests for restitution. This implies that claimant parties can include nation states, regional or cultural groups and individual descendants of makers or owners.

It is important to note that the community of origin does not necessarily coincide with a country of origin. Borders and groups shift over time and there are instances where multiple nation states have indicated legal claims over the same object, for example in the case of Benin and Nigeria. In addition to this, there are cases where individuals or groups have strong claims to collections independent of any request that might be made by a state authority. In the case of collections obtained through settler colonialism, these claims can even occur within the boundaries of a nation state (see van Beurden, Adams and Catteeuw in recommended reading). This adds a layer of complexity as communities are not always recognised as distinct legal entities within existing heritage conventions. In these cases, individuals could be designated as a representative for the group within the legal context, but this opens the process up to potential competing claims.

These challenges indicate why it is so important that restitution is not seen as a singular event in which the museum acts as the arbiter of authenticity, but rather part of a wider process of decolonisation that includes a proactive communication about collection contents, a cultivation of long-term relationships with communities and a broader development of legal frameworks that account for the agency of various communities and provide a clearer pathway for settling disputes.

What?

By definition objects that belong to colonial collections were gathered in a context of deep structural inequality, limiting the possibilities for individual and group agency in the moments where objects changed hands. In the present day, the legacy of colonial encounters continues to define the terms under which ownership of collections can be transferred between former coloniser and formerly colonised. In order to work towards decolonisation, heritage institutions must be willing to relinquish the gains they made owing to these unequal relationships.

In order to avoid creating a framework that maintains the centrality of the former coloniser as the holder of authority and power, it is necessary that heritage institutions engage in open conversations with communities and countries of origin about the latter’s priorities for restitution.

While these conversations might lead an institution to proactively work on the repatriation of certain collections, this does not imply that other collections cannot also be subject to claims. Museums cannot act as arbiters for what communities of origin should value and thus cannot lay down limits to what can be requested for repatriation. As indicated in Section 1, the types of collections that could be subject to repatriation vary in their manufacture, function and context of removal. Each claim should be treated with an equal level of sensitivity and diligence.

The case of human remains deserves particular attention. The rehumanisation of these remains enables the establishment of the connections and dialogue with communities of origin, descendants, and source countries. Both are essential parts of the repatriation process (see Rassool in recommended reading).

How?

Provenance pathway: Via provenance research and an adapted legal framework (see Section 2 for a detailed legal proposal). Our working definition of provenance in this context is broad. Historical research often cannot provide a “smoking gun” with regard to the removal of objects but has to rely on circumstantial information based on a combination of sources in order to determine a reasonable assumption of origin (see more in Section 4.2).
Ethical or practical pathway: Returns can be requested or suggested based on ethical or practical arguments if, apart from general circumstantial information, the specific provenance cannot be determined. These might include the specific symbolic value or memory of a collection or object, the fact that they might complete or fill blind spots in existing collections, their potential impact in local educational projects or exhibitions, the absence of a specific type of object in its communities of origin, etc.

Both pathways should be subject to a dual approach, one that is both proactive (reaching out of Belgian institutions and collection holders) and reactive (receptive to requests initiated abroad).

A proactive approach to communication and data sharing around colonial collections is essential to redressing the disproportionate burden of proof that the restitution process lies on the side of the claimant. Forums for discussion should be developed through the encouragement of co-creative projects and open communication with communities of origin. These kinds of partnerships build trust and understanding and should be built into the mission of cultural institutions, implying that sufficient resources should be attributed to such initiatives.

As stated in Section 4 below, provenance research can further help institutions identify acquisitions that result from direct episodes of violence and coercion committed against colonised groups. In these cases, heritage institutions have the means to directly contact communities of origin to initiate discussions. In addition to this, institutions should ensure access to inventories and provenance data, thus providing communities of origin with the resources needed to initiate restitution requests.

Heritage institutions should also have strategies in place to quickly respond to claims for restitution when they occur outside of existing collaborations and discussions.

Requests for information about sensitive objects and collections should be prioritised by the institutions concerned to ensure a timely response. These institutions should clearly lay out to the interested party the administrative and possible legal steps involved in the process. Institutions with sizeable collections should ideally have a clear system and designated person or department for these communications, who would coordinate requests for information of restitution, and could provide claimants with a roadmap to follow. Their efforts would be supported by the creation of a transnational independent and interdisciplinary provenance research institute as recommended below.

Besides physical return, other forms of recognition and reparation can be decided upon in equitable conversations between parties. For example, a transfer of title of ownership takes place, but the object remains in place in return for a loan fee for display, reproduction, etc.

We recommend the process of restitution proceed via:

An independent advisory commission for restitution and provenance requests. The membership of such a commission should be inclusive and composed of Belgian and non-Belgian museum representatives, academics, and representatives from communities of origin.
An independent and interdisciplinary provenance research institute with a transnational membership. The institute would function as a central information point for inquiries surrounding colonial collections, provenance information and restitution procedures. The creation of such an institute can help alleviate the workload, budgetary and time restraints of individual institutions, while also helping communities of origin in tangible ways by creating more favourable conditions for claims.

With privately held collections voluntary return is possible if the object is not subject to the 'top art' exception (see Section 2); if it is, then a legal process is necessary. Cases with no resolution can be referred to ICOM-WIPO Art and Cultural Heritage Mediation.

For a discussion of the legal proceedings surrounding restitution and the proposed legislative framework developed by Marie-Sophie de Clippele and Bert Demarsin (see Section 2).

3.3 Recent Official and Scientific Belgian Projects and Resolutions

Senaat ‘Proposition de résolution concernant l’optimisation de la coopération entre l’autorité fédérale et les entités fédérées en matière de biens culturels et patrimoniaux africains’, (February 2019).

This proposition asks for the creation of an interfederal working group to follow up with the creation and digitisation of an inventory of colonial collections by museums, encourage provenance research and concrete measures and cooperation initiatives with regard to the return of cultural property to Africa.

Assemblée de la Commission Communautaire Française ‘Résolution concernant la restitution de restes humaines et bien culturels issues de la période colonial’, (March 2019).
This also asks for the creation of an expert committee at the federal and community levels, to engage with the colonial past and the spread (or lack thereof) of knowledge about that past, as well as the question of restitution. The resolution also underlines the need for a centralised inventory of colonial objects and human remains, a clearer understanding or definition of what “bien mal aquis” means, the development of pathways and forms of restitution and other forms of decolonisation.

Résolution Parlement de la Région BXL relative au bien culturels et patrimoniaux africains et la restitution des restes humains (April 2019).
This resolution is concerned with the collections and human remains in the Brussels territory. It asks, among others, for the creation of an interdisciplinary working group and an international conference on the subject and calls for coordinated initiatives around colonial archives as well as action at the European level. The resolution recognises the need for the fast return of human remains, and a better general understanding of and reckoning with the colonial past. (See Zian in recommended readings.)

Guidelines Royal Museum for Central Africa (January 2020)
The RMCA developed a document with its current position with regard to restitution in which it recognizes “qu'il n'est pas normal qu'une partie aussi importante du patrimoine culturel africain se trouve en Occident, alors que les pays d'origine en sont en fait les propriétaires moraux. Le MRAC reconnaît également que ses collections ont été en partie acquises au cours de la période coloniale dans le contexte d’une politique d’inégalité légale.” It refers to the federal Minister of Wetenschapsbeleid and the parliament as the only authorities capable of authorizing a return of objects. In the case of a formal request for restitution (from a state), the MRAC will study the acquisition history of the object(s) in question.

Restitution-related scientific projects

HOME: Human Remains Origin(s) Multidisciplinary Evaluation (Semal, Couttenier, de Broux, Delvaux Desmyter, Louryan) (BRAIN 2.0 programme, Belgian Science Policy Office financing) (2020-2024).
This inter-disciplinary project was created in response to the lack of knowledge about human remains in collections at a number of Belgian scientific institutions, a portion of which is of Rwandan, Burundian or Congolese origin and was removed during the colonial period. The project was funded by the BRAIN 2.0 Pillar 2 ‘Heritage Science’ which focuses on provenance research. The historical, legal, ethical and other contexts of the human remains will be studied, as well as any existing repatriation requests. Case studies will be developed focusing on different collections, and an inventory of human remains in Belgium will be assembled. The final aim of the project is to advise on how to best manage the diverse collections of human remains in Belgium, including how to respond to existing and future repatriation requests. Coordinated by the Royal Belgian Institute of Natural Sciences (RBINS), other participants include the Royal Museums of Art and History (RMAH), the Royal Museum of Central Africa (RMCA), the Nationaal Instituut voor Criminalistiek en Criminologie (NICC), the Université Saint-Louis and the Université Libre de Bruxelles (ULB). RMCA’s involvement with this project includes a close collaboration with Congolese partners in the investigation of several case studies where research in communities will play a significant role in uncovering the history of the removal of remains from Congo, and will help clarify how communities of origin (when these can be established) think about repatriation. One of the participants in this project, the ULB (where the colloquium «De l’ombre à la lumière – Pour une politique de gestion des collections coloniales de restes humains dans les universités» was held in 2019) already has an agreement with the University in Lubumbashi for the return of a number of human remains from their collections, to take place at a future date.

AFRISURGE: Transformative Heritage: Politics, Peacebuilding and Digital Restitution of Cultural Heritage in contemporary Northeastern DR Congo. (Vanhee, Van Bockhaven, Titeca) (BRAIN 2.0 programme, Belgian Science Policy financing) (2020-2024).
This project is concerned with the study of customary and ritual authority in NE Congo. This includes an investigation of the role of the historical loss of ritual objects and ancestral knowledge (due to colonial collecting as well as more recent conflicts) in local understandings of ongoing crisis. Like the other BRAIN-be 2.0 project mentioned above, the “Transformative Heritage” project includes a significant collaborative aspect with Congolese scientific institutions, as well as local communities.

For the purposes of this report, the project’s plans for digital restitution are relevant. This element of the project departs from the “underlying premise that knowledge of one’s cultural history constitutes a cultural capital that is a source of self-esteem and contributes to societal commitment and cohesion”. It will thus “explore the transformative potential of efforts to reconnect historically dispossessed ‘source communities’ with their material cultural heritage. The digital restitution will be guided by object provenance research, by an assessment of existing digital infrastructures in the region, and by a thorough consultation with (local) stakeholders to determine what is desirable and feasible”.

Traitement et retour des collections extra-européennes (October 2020).
A report produced by Yasmina Zian (with contributions by Marie-Sophie de Clippele) on behalf of the Académie Royale de Belgique for the Fédération Wallonie Bruxelles, makes recommendations regarding the management and potential restitution of non-European objects in museum collections in FWB. Although not specifically focused on Central African objects and collections, this report lays out the current legal status, as well as the international regulations surrounding the collections of non-European art in Belgium. It emphasises the importance of transparency and public availability of inventories through digitisation projects and contains clear suggestions with regard to possible approaches to requests for restitution.

4. Accessibility of Information

This section focuses on the importance of the broad accessibility of information about colonial collections in the process of opening dialogues about their ethical management. The open sharing of data about collection contents and histories in a user-friendly format highlights the willingness of an institution to address past and present inequalities while providing individuals, communities and states with the information required to carry out independent research into material held by foreign institutions, and claim restitutions.

Ensuring access also implies doing the work to ensure the information is available in the first place, i.e. creating inventories (4.1) and undertaking provenance research (4.2). This requires that resources be set aside by funding bodies to encourage and enable such initiatives (4.3).

4.1 Access to Inventories

Shared inventories of collections are fundamental to more transparency in the ongoing debates. The current problems with inventories are threefold. First, no overview of colonial collections exists in Belgium at the time of writing this document. Second, on an institutional level, there is often a lack of public access to existing inventories of colonial heritage. Third, existing inventories are often incomplete.

The lack or unevenness of financing and structural support in the museums and heritage landscape in Belgium and most other European countries has caused some institutions to struggle with centralising, updating, and digitising their inventories. In the best cases access to inventories is provided through collection websites integrated in or linked to the institution website; such collection websites are mostly limited in their search possibilities and in their presentation, they often require a considerable level of computer literacy, and in practice they are often not fit for consultation by members of source communities.

While European standards do exist for recording cultural metadata (Dublin Core, CIDOC, Object ID and Spectrum for example), these identify minimum and potential categories but do not take into account the particular needs surrounding colonial collections. It would therefore be useful to have a standard for online inventories that supplements these minimum requirements with data fields that would be particularly valuable for provenance researchers (such aIs acquisition method). These could provide a guide for staff involved in both collection documentation and acquisition, while laying a basis for a shared inventory across institutions.

Some institutions have also expressed concerns about publicly sharing private information contained within acquisition documents. However, privacy laws such as the GDPR (General Data Protection Regulation) should not be seen as an impediment to opening inventories of colonial collections. There are ways to enable provenance research and sharing data while maintaining respect for individual privacy. Belgian museums and archives currently employ a range of interpretations of the GDPR when it comes to sharing information about objects and collections. Though this ‘privacy’ law applies to information about living persons it is brought up in discussions about colonial era acquisitions. This indicates a clear need for guidelines on how to apply this legislation in terms of access to information on publicly held collections.

New donations should always be accompanied by permission to release all provenance information. Permission should also be requested from donors whose collections were acquired prior to the entry into force of the GDPR (25/05/2018) in order to be transparent about their donations in public inventories. In cases where this permission is not given the lacuna can be flagged within the documentation. Access to the data would be for research purposes only, as per article 89 of the GDPR. Transparency and open access should be the guiding principles within the context of the application of GDPR legislation.

Heritage institutions need to make their collections databases available on their websites and include all known provenance and acquisition information, in addition to providing them as downloadable datasets, and no longer have or protect their monopoly on creating a public interface. In addition to textual data, museums are also encouraged to include visual materials contained in its inventories in these accessible datasets. In the interest of opening its inventories, fees for accessing such visual materials should be waived where museums hold the copyright. In cases where copyright is held by third parties, efforts could be made to renegotiate the terms of these copyrights. Ultimately, shared inventories, however incomplete, and shared knowledge about the past are central to collaboration and dialogue. Online collection presentation should be made available in user-friendly interfaces in order to be adapted to different levels of internet access and internet literacy. This should be done in collaboration with communities of origin recognising their right to request custodianship over digital heritage collections, not just physical ones.

A centralised platform for information with regard to colonial collections and restitution processes should be developed in Belgium along the German example. This would increase the accessibility of such information to a wide audience. It can also promote a transnational perspective in contributing to a community of practice of concerned actors that include museum professionals, heritage experts, academia, policy-makers, activists, communities both in countries of origin and the countries who still conserve this heritage.

This platform could be managed by the independent and interdisciplinary provenance research institute described above in Section 3. Besides collating information on existing colonial collections, the institute would also be able to guide the development of inventories of these collections across institutions. In this way, the institute could address the need for particular documentation standards for colonial collections and the need for support in navigating GDPR.

Finally, a word of caution. A singular focus on inventories runs the risk of reproducing their limitations as internally oriented scientific tools. The completion of inventories should not be used as an excuse or stand in the way of collaborative projects that focus on people, communities, and the itineraries of objects. In fact, working towards expanded inventories can be done in the context of such collaborations. In other words, inventories are instruments, not end goals.

4.2 Provenance Research: Limitations and Possibilities

Through provenance research, elements of the histories and trajectories of objects and human remains can be uncovered. ICOM’s museum Code of Ethics (2004) explicitly mentions the obligation to look into the provenance of collections and objects, and one could argue it is a crucial part of the scientific mission of the museum. Existing practices of provenance research often do not look further than the circulation of the objects in the Global North, with information on donors, previous owners, and the publication and exhibition history of objects. When considering the origin of objects obtained through the art market, comparative art historical analyses are similarly limited in scope, with consultation of communities and experts who identify with the suggested sites or regions of origin remaining rare. The previously long-standing practice of accepting suggestions of origins provided by donors and market actors on good faith rather than secure additional documentation or data, has also led to an insecure provenance being reinforced, further complicating matters.

Despite its importance, provenance research has been limited. This is because of financial, time, and personnel restraints, in addition to ongoing relations with and reliance on donors and their families.

While expanded provenance research offers possibilities, it also has limitations. In its current practice, it overwhelmingly relies on one type of source, namely colonial archives. These are not neutral sources of information. Most materials in colonial archives were produced by agents of colonial powers and relate either directly or indirectly to various aspects of the colonial project. There are some cases in which we learn about the removal of objects (in military journals, or missionary chronicles, for example) but this is not always the case. Even if objects were at some point connected to paper trails, many have become disconnected from the documentation that accompanied them as they moved through different hands and across different geographies.

One way to remedy the limitations of provenance research practices is to broaden the source base by incorporating oral sources of information as well as local sources from the contexts of origin of these objects. Another is to give greater weight to circumstantial or contextual evidence. Often sources do not provide a literal description of the removal of an object, but do allow, for example, to link an object to a location and timeframe of a military conflict, creating a general object itinerary that researchers can follow.

Effective provenance research requires an equitable collaboration with countries and communities of origin in which such research can be done in close partnership. Beyond relying solely on the sharing of inventories (see above), the process of provenance research should be inclusive. Given the costly and time-consuming nature of provenance research, one solution is to prioritise certain collections or time periods, decided upon in cooperation with countries and communities of origin.

For ethical and moral reasons, exhaustive provenance research should not be placed as a precondition for the repatriation of human remains dating from colonial relations or contexts, or for objects associated with burial sites. In these cases restitution should be an absolute priority with provenance research being seen as a potential additional resource for developing shared knowledge and solutions.

More than a pathway to restitution, the results of this provenance research should also become an established part of labelling and displaying practices (see Section 5). The limitations of provenance research, however, also indicate the need for alternative pathways to restitution (see Section 3).

4.3 Financing

The creation of accessible inventories, platforms of open communication and holistic provenance research initiatives is an urgent and necessary in the wider decolonisation efforts being undertaken within Belgium. As such it should be seen as a financing priority.

The governments of neighbouring countries have earmarked substantial funds, structurally as well as project based, for provenance research and cultural programmes addressing their colonial past. Federal and regional governments in Belgium should also reserve funding for provenance and other research related to restitution and colonial collections (for example by making it a funding priority for the next 5-10 years). This funding should be explicitly reserved for proposals that have teams with equitable representations of researchers from Belgium and the country of origin of objects. Heritage institutions should receive additional governmental support for completing and publicising inventories. This support should be calibrated to take into account the increased labour required to ensure that accessibility needs in different stakeholder communities are met.

The Belgian government, as well as inter-university and museum organisations should lobby on a European level for the provision of funding through the European framework for scientific research and cultural activities.

On an international level the Open Society Foundation has earmarked funds for restitution projects and research. Belgian foundations should be encouraged to follow this path and finance grants for inventory, research, and return practices.

5. Museum and Display Practices

This section provides ethical guidelines for the exhibiting of colonial collections. Exhibiting here includes but is not limited to the physical or virtual display of heritage objects, tangible and intangible. ‘Exhibiting’ is defined here as ”to present to view; to show publicly”. In addition to all forms of presentation or depiction of collection pieces, online databases, museum publications and communication also fall under this heading. By exhibiting the museum enables and facilitates access to its collection. The museum holds the responsibility for carrying out the task of exhibiting in a conscientious manner.

There is no single solution, but a few general recommendations can help shed light on how to appropriately approach colonial collections in an exhibition context.

5.1 Multi-dimensional and inclusive collection management and exhibition design

Contemporary exhibition design should strive to be inclusive and represent multiple perspectives.

Multiperspectivity can engender several equally acceptable ways of framing or interpreting an object. Providing a platform for the expression of feelings or memories about an object and its acquisition history can supplement or deepen understandings of the available factual information. Collaboration and co-curating with representatives of the communities and countries of origin concerned can contribute to the shaping and fine-tuning of the overall narrative of an exhibition or communication, or to the contextualisation of specific objects. Moreover, through such cooperation different but equally viable display options and preferences may manifest themselves.

It is paramount that all collaboration and dialogue with representatives of communities of origin is established on a fundamentally equal footing. Furthermore, it is advised that the parties involved discuss the nature, financing and duration of their collaborative project beforehand and be open about their respective capacities and limitations; this will help create clear and realistic expectations from the outset. That being said, long-term structural collaboration should be the ambition.

In addition to collaboration and co-curating with representatives from communities of origin, a multi- or interdisciplinary approach to wider interpretation practices potentially yields benefits. Museums can call on outside experts to help withdraw an object from a purely ethnographic or (art-)historical context, for example, to underline its multidimensional character.

The museum should be sensitive to potentially contradictory interpretations of objects. In some cases there can also be conflicts in display requirements. For example in cases where certain objects are kept inaccessible to women, uninitiated persons, or members of certain social groups in their contexts of origin and museums are asked to meet these requirements (see Kaus in recommended reading). In both cases it is advised that the parties involved search for a solution through close dialogue. It would be difficult to give a general recommendation as to how a satisfactory outcome can be reached. Exhibition narratives and display options are manifold, as are possible solutions. Departing from well-trodden paths and exploring unconventional presentation practices might prove useful (see recommended reading).

Museums should strive to provide not only their collaborators but also their visitors with a forum for dialogue, exchange, negotiation and discussion. This can take on different forms, from virtual forums to public panel discussions.

5.2 Contextualisation of objects

When dealing with colonial collections in an exhibition context, even more than usual, specific attention needs to be paid to the placement and labelling of the objects.

The juxtaposing of two or more objects can be interpreted as those pieces being associated in content or expressing a similar sentiment. This could potentially have undesired effects. This is the case when an ill-suited juxtaposition or classification trivialises or even legitimises the acquisition history of an object collected in a colonial context. An uninformed positioning of such objects can also make it appear as though the display justifies or supports discriminatory ideas and ideologies. Another possible unfavourable consequence is the minimisation of their importance and meaning. Consultation and collaboration with communities of origin during exhibition planning is important for avoiding these kinds of issues. This process should be central to exhibition making.

The opposite is also possible, where the juxtaposition of objects from colonial collections with other pieces has a positive outcome and helps to shed light on their multifaceted character. The same applies to their placement in an exhibition that does not explicitly or uniquely treat the controversies that surround them. The presentation of an object acquired under colonial rule should not necessarily be limited to an exhibition with said acquisition context as its main theme. However, the objects should always be accompanied by a text offering known provenance information.

Possible provenance lacunas do not necessarily exclude objects from display. However, it is important that institutions clearly indicate these gaps and the additional research required, so as not to create the impression of exhaustive provenance knowledge. As stated in the German Museums Association’s Guidelines for German Museums. Care of Collections from Colonial Contexts:

For further clarification of the provenance, the active involvement of the public may be helpful if visitors (online or in the exhibition) are given the opportunity to provide information.

When objects from colonial collections are put on display, not only known provenance details but also clarification of the colonial context in which they were acquired should be offered in an accompanying text.

5.3 Language

It goes without saying that words that are considered contested, such as discriminatory or racist terms, are to be avoided in all museum publications and exhibitions texts.

The NMVW’s Words Matter. An Unfinished Guide to Word Choices in the Cultural Sector offers useful alternatives for words that are considered contested. However, in exceptional cases contested terms could be mentioned in a self-referential manner, for example as an illustration of the extent to which discriminatory and racist mechanisms were embedded in colonial rule. It is also advised that they are preserved in quotations. Clarification can be added, for example in footnotes or between brackets.

Communities of origin should be referred to with the name they identify with and all efforts should be made to use or add the original names for objects.

5.4 Staff awareness training

Museum staff members who often serve as a first point of contact for visitors or who are charged with communicating information on the collection should receive awareness training concerning possible sensitivities or controversies.

Museum staff responsible for conveying information and knowledge about colonial collections should receive rigorous awareness training on how to approach and communicate the contention surrounding these pieces.

To museum visitors, guards, guides and ticketing counter staff members are often a primary point of contact. It is important that they are made aware of how to appropriately respond to potential feedback from visitors arising from the display of colonial collections.

5.5 Removal from public display

The museum must address any requests for removal from public display of colonial collections with respect and sensitivity. This can result in the removal of an object or a reconsideration of how it is displayed.

Requests for the removal of objects from display should therefore be evaluated in close dialogue with concerned actors (representatives of states and communities, museum professionals and academia in source countries), keeping under consideration the importance of openness and transparency.

The current debates also invite museums to rethink object-oriented display practice with attention for the narratives and experiences of people behind contested objects. Encouraging interaction with displays allows diverging memories to emerge, thereby revealing a fuller contextualisation and narrative around objects and their histories (see Kirschenblatt-Gimblett and Frey; Shwatal in recommended reading).

5.6 Loans and external publications

As stated in Guidelines for German Museums:

In the case of exhibition-related loans [or the inclusion of their collection pieces in external publications], the museum, in addition to the general requirements, should examine whether the planned exhibition concept [or publication narrative] is ethical.

The responsibility of the museum is not limited to its own exhibitions and publications. display in the context of an own exhibition. This includes a critical examination of available provenance information, and possible consultation with communities of origin.

5.7 Human remains

Most museums have taken the decision to not display human remains, nor pictures of them, to a broader audience. The recommendations for the care of human remains written in 2013 by a ‘Human remains working group’ of the German Museums Association addressed by extension the need for clear regulation in considering human remains in colonial collections (see recommended reading). These are rightly seen as ethically problematic for display to the public. This most disconcerting part of colonial collections should thus be addressed with urgency when displayed and/or preserved in museums, with consideration for the different categories of human remains. These categories pertain to their physical integrity (e.g. unmodified or as a composite object) but are also conceptually defined in their intended function and public perception.

Museums should strive to identify human remains originating from colonial contexts. This should be followed by rigorous provenance research in close dialogue with and with respect for the bereaved communities and/or countries of origin. Institutional practices with regard to human remains collected in colonial contexts should not be limited to their management, for example through open access inventories. While inventories can serve as an instrument, they should not be considered the final objective of provenance research. Rather, discussions surrounding these collections should engage with the broader ethics and historical legacies of the ‘scientific’ racism that shaped these collections. The present scientific methods and values assigned to these collections should also be ethically evaluated from this critical perspective.

Conclusions and Final Recommendations

The conclusions and recommendations of this report are based on an analysis of existing legal instruments and other regulatory instruments, as well as a close study of current reports dealing with the issue of restitution of colonial collections at international, European and national levels as well as relevant Belgian projects.

CONCLUSIONS

This report started from the perspective that collections acquired in colonial contexts are mired in deep structural inequalities. They therefore require new and critical approaches to their history and present circumstances. The Belgian state and its heritage institutions should recognise both the misappropriation and/or pillage of cultural heritage from (post-)colonial contexts.

There is an urgent need for establishing guidelines for policymakers and governments in tune with the present social and ethical issues “putting the individual and human values at the heart of a broad and transversal concept of cultural heritage” (p32) recognising the individual and collective right to cultural heritage and reflecting the demands for equity, reparation and reconciliation with the past that are increasingly resonating within society.

We argue for an inclusive approach to colonial collections based on the principles of transparency and equality.

We recommend that Belgian heritage institutions with colonial collections and governments:

Take a proactive attitude by developing the necessary legal and institutional infrastructures.
Ensure all processes take into account the priorities of communities and countries of origin.
Establish open access inventories and proactively share archival and other data with communities and countries of origin.
Encourage and systematise collaborative provenance research yet recognise its limitations in providing definitive answers for the totality of colonial collections.
Develop an independent provenance research institute.
Develop multiple pathways for restitution that do not solely rely on provenance research.
Question existing display and collection management practices and develop new ones that embrace multiperspectivity and inclusion.

All these steps are mutually reinforcing.

In short, we envision these guidelines as building towards equitable and inclusive relations. Recognition of the wrongs of the colonial past, and the ways in which this past continues to shape relations between countries and communities is of paramount importance. This recognition is necessary for restitution to occur in a context of reconciliation and reparation.

RECOMMENDATIONS

The following recommendations are presented according to the main themes analysed in this report. They are followed by special recommendations to the Belgian Federal Entities and other relevant governmental bodies.

A. Thematic Recommendations

1. Access, Information Sharing and Provenance Research

Provenance research in equitable partnership with the communities of origin is an urgent requirement for heritage institutions. It calls for:

Access and Transparency:

Creating a publicly accessible and thoroughly inventoried overview of all colonial collections in Belgium;
Ensuring public online availability of information following a standard to be adopted for inventories of colonial collections;
Developing a centralised platform for information with regard to colonial collections and restitution processes;
Completing available inventories of colonial collections in Belgium;
Including all known provenance and acquisition information in inventories.

Provenance Research:

Developing research cooperation with the communities of origin;
Incorporating local sources from the contexts of origin of these objects, including oral sources;
Hiring specialised provenance researchers or including this field in the curator's job description;
Making collections databases of heritage institutions available online and off-site through downloadable datasets;
Encouraging proactive communication about collections with communities of origin through establishing forums for open discussion and long-term relationships;
Creating an independent and interdisciplinary provenance research institute with a transnational membership.

Funding for extensive provenance research (broadening the scope to the general context of origin) should be seen as a financing priority on a national level. This requires:

Calling funding bodies to encourage and enable provenance research;
Encouraging the Belgian federal entities, as well as inter-university and museum organisations to lobby on a European level for the provision of funding through the European framework for scientific research and cultural activities;
Encouraging Belgian foundations to finance grants for inventories, research, and restitution following the example of the Open Society Foundation;
Lobbying by heritage institutions to create more favourable legal conditions for provenance research within Belgium and more consistent support across the EU.

2. Restitution process

Engaging in restitution practices through pro- and reactive engagement with communities and countries of origin should be seen as part of a wider reparation and reconciliation process. Ensuring ethical restitution practices requires:

Treating each claim with an equal level of sensitivity and diligence;
Embracing a broad range of participants including nation states, regional or cultural groups and individual descendants of makers or owners not necessarily coinciding with a country of origin;
Thinking about return in a more global way;
Encouraging diplomatic engagement through the establishment of bilateral agreements;
Creating cooperation agreements between the competent entities (Federal State, Communities and Brussels-Capital Region for movable heritage, or even the Regions in the case of related competences);
Developing legal frameworks that account for the agency of various communities and provide a clearer pathway for settling disputes;
Establishing an independent advisory commission for restitution and provenance requests. The membership of such a commission should be inclusive and composed of Belgian and non-Belgian museum representatives, academics, and representatives from communities of origin.

3. Heritage display practices

There is an urgent need to rethink existing display and management strategies with regards to colonial collections. The development of new ethical practices involves:

Adopting an inclusive and multiperspective exhibition design practice;
Collaborating and co-curating with communities and countries of origin on an equal footing;
Striving for the establishment of long-term relationships with communities and countries of origin that go beyond single projects;
Communicating openly about resources available for collaborative initiatives and acknowledging the limitations set by partners;
Ensuring colonial collections are sufficiently and respectfully contextualised in both their placement and labelling;
Critically considering the language used across different exhibition media including on-site display, inventories, catalogues and marketing materials;
Raising awareness among the museum staff members regarding sensitive heritage;
Responding with openness to requests for removing sensitive heritage from public display.

B. Recommendations to the Federal Entities (as appropriate):

There is an urgent need for the Belgian government to:

Transpose into law the UNESCO Convention of 1970;
Ratify the 1995 UNIDROIT Convention;
Conclude cooperation agreements between the Federal State and the competent federated entities;
Adopt the measures recommended in the Senate report of June 2018 including the concept of due diligence and therefore the reversal of the presumption of good faith;
Develop a legal framework for the return of colonial heritage based on existing documents and the study undertaken by legal experts Marie-Sophie de Clippele and Bert Demarsin that account for the agency of various communities and provide a clearer pathway for settling disputes;
Find the appropriate financing for extensive provenance research and analysis of restitution claims by setting an independent advisory commission for restitution and provenance requests and supporting a central inventory and provenance institute.

Notes

This Directive replaces Council Directive 93/7/EEC of 15/03/1993 on the return of cultural objects unlawfully removed from the territory of a Member State, which entered into force on 01/01/1993.
This Regulation replaces Council Regulation (EEC) No 3911/92 of 09/12/1992 on the export of cultural goods, which entered into force on 01/01/1993.
See footnote 1
See footnote 2
M.-S. de Clippele and B. Demarsin, “Retourner le patrimoine colonial – proposition d’une lex specialis culturae”, Journal des tribunaux, to be published in 2021; B. Demarsin and M.-S. de Clippele, “Wetgeving voor de georganiseerde terugkeer van koloniaal erfgoed uit publieke collecties: een historische kans om geschiedenis te schrijven”, Nieuw juridisch Weekblad, to be published in 2021.

Colophon

The current version of this text was drafted by the co-authors:

Vincent Boele, Curator of Americas & Oceania Collections, MAS Museum Antwerp

Lies Busselen, Researcher on human remains in colonial collections - H.O.M.E., RMCA

Marie-Sophie de Clippele, PhD Law, Postdoctoral researcher F.R.S.-FNRS, Université Saint-Louis - Bruxelles

Els De Palmenaer, Curator of the Africa Collection, MAS Antwerp

Roselyne Francken, Curator of the Asia Collection, MAS Antwerp

Sarah Van Beurden, Associate Professor of History and African Studies, The Ohio State University

Annelies Van de Ven, PhD Archaeology, Postdoctoral researcher F.R.S.-FNRS, Université catholique de Louvain

Yasmina Zian, PhD History, Postdoctoral researcher, Université de Neuchâtel, Université Libre de Bruxelles

in collaboration with:

Leen Beyers, Curator and Head of Research, MAS Antwerp

Tara Chapman (HOME project), Royal Belgian Institute of Natural Sciences

Hugo DeBlock, Guest Professor of Anthropology, Department of Languages and Cultures, School of African Studies, Ghent University

Katrijn D’hamers (FARO, Flemish institution for cultural heritage)

Nicole Gesché-Koning, art historian and anthropologist, honorary professor Royal Art academy Brussels and ex-assistant at the Université libre de Bruxelles

Billy Kalonji, President of COMRAF (Comité de concertation entre le Musée de Tervuren et les Diasporas africaines), expert in cultural diversity and inclusion

Anne Wetsi Mpoma (Art historian, founder of Wetsi Art Gallery, ngo Nouveau Système Artistique)

Jos van Beurden, PhD Humanities, senior researcher colonial collections and restitution, Free University Amsterdam

Pauline van der Zee, UGent

Hein Vanhee, curator and researcher at the Royal Museum for Central Africa, Tervuren

in collaboration with ICOM Belgium (final editing). ICOM Belgium is not responsible for the content, but stimulates with its contribution the current discussion in Belgium about colonial heritage.

Brian Jones, web production

Coordination

Katrijn D’hamers (FARO, Flemish institution for cultural heritage)

Sarah Van Beurden, Associate Professor of History and African Studies, The Ohio State University

Glossary

Colonial collections include all cultural heritage acquired in a colonial context (see below). These collections, given their provenance and their contents, fall under the categories of historically and culturally sensitive heritage. In many places in the text the individual pieces that fall within these collections are referred to as objects, but collections should be considered more broadly, as indicated in Section 1.1 of the guidelines to include natural and archival materials obtained in the same contexts.
Colonial contexts, also known as colonial frameworks (see Sarr and Savoy in recommended reading), within the framework of collecting, denote all situations in which the transfer of material was characterised by deep structural inequality, and in many cases explicit actions of oppression and/or violence. They embody discriminatory ideologies, where those in power cultivate a self-image of superiority, as well as forced dependencies in which valuable assets are unequally divided among the involved parties. Colonial contexts go beyond relationships of formal colonisation both geographically and chronologically.
Communities of origin refers to a community of people and their descendants from whom objects in museum collections originate, who live inside or outside their shared country of origin or ancestry but maintain active connections with it. Under this umbrella we can also understand the groups elsewhere defined as countries of origins, source communities and the diaspora. Criticism has also been leveled at the term communities due to its connection to evolutionist conceptions of social organisation in formerly colonised areas, an ideation in which people are seen to live in small communities and States are not given equal recognition (see Opoku in recommended reading). This term necessarily constitutes a simplification of a series of social networks at different scales, from sovereign state to individual families, and made up of a heterogeneous pool of stakeholders, consisting of individuals with for example different socio-economic or religious backgrounds, that do not all categorise their relationship to collections in the same way.
Decolonisation can be defined as the process of combatting the ideologies and practices that formed the foundation of unequal colonial structures, and that today still lead to the unequal representation and treatment of formerly colonised communities.
Extractivism is an ideology that justifies and perpetuates the appropriation and exploitation of one community’s resources by another. It involves a process of commodification that can incorporate both natural and cultural resources. Through this practice of unequally distributing value, hierarchised structures of power are further entrenched.
The global north is a geopolitical construct that comprises countries that are perceived to hold an economic, technological and political advantage, many of which are located in the Northern Hemisphere. The term is complex and contested as it is linked to both statistically documented differences such as the placement of a country in the United Nations’ Human Development Index, but also cultural stereotypes and histories of dominance and oppression.
A heritage community consists of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations.
Heritage institutions are here understood to include museums, both public and private, but also other collection holding institutions such as universities, archives, foundations etc.
Restitution, return, recovery and repatriation are four words often used interchangeably, however, they have particular connotations (see Pro in recommended reading). Restitution is used to indicate a legal claim and process (though the exact terms of that process differ according to local law). Return and recovery are more general, with a focus on the ‘returning party’ in the case of the former and the ‘recovering party’ in the case of the latter. Repatriation is more commonly used for indigenous cultural objects, particularly sacred objects and human remains. This term implies rehumanisation (see Rassool in recommended readings).

Bibliography + Recommended Reading

A broad and interdisciplinary literature exists on the ethics and practice of a more inclusive museology. The recommended reading here is directly relevant for the objectives and desired impact of this report, as well as some of the literature relevant to Congolese material culture.

Bibliography

Adviescommissie Nationaal Beleidskader Koloniale Collecties. Koloniale collecties en erkenning van onrecht: advies over de omgang met koloniale collecties van Adviescommissie Nationaal Beleidskader Koloniale Collecties, Raad voor Cultuur. Den Haag: Raad Voor Cultuur, 2020.
https://www.rijksoverheid.nl/documenten/rapporten/2020/10/07/koloniale-collecties-en-erkenning-van-onrecht
Asquith, Paul. Return of the Icons: Key issues and recommendations around the restitution of stolen African artifacts. London: AFFORD Institute, 2020.
https://www.afford-uk.org/wp-content/uploads/2020/06/RoIPolicyBriefFinal.pdf
BAMKO CRAN, “Dossier Musées Coloniaux et restitution des trésors africaines,” BAMKO, accessed 26/02/2021.
https://www.bamko.org/post-colonial
Corbey, Raymond. Tribal Art Traffic: A Chronicle of Taste, Trade and Desire in Colonial and Post-Colonial Times. Amsterdam: Royal Tropical Institute, 2000.
Council of Europe. Council of Europe Framework Convention on the Value of Cultural Heritage for Society, CETS No.199 (27/10/2005), available from https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/199
Council of Europe. Heritage and Beyond. Strasbourg: Council of Europe, 2009.
Couttenier, Maarten. “EO.0.0.7943,” BMGN—Low Countries Historical Review 133:2 (2018), pp. 91–104.
Das, Subhadra and Miranda Low. “Nature Read in Black and White: decolonial approaches to interpreting natural history collections,” Journal of Natural Science Collections 6 (2018), pp. 4–14.
De Standaard. “Congolese kunst voor de Congolezen,” De Standaard (18/10/2018).
https://www.standaard.be/cnt/dmf20181017_03852991
Deutscher Museumsbund (German Museums Association). Recommendations for the Care of Human Remains in Museums and Collections. Berlin: Deutscher Museumsbund, 2013.
https://www.museumsbund.de/wp-content/uploads/2017/04/2013-empfehlungen-zum-umgang-mit-menschl-ueberresten.pdf
Deutscher Museumsbund (German Museums Association). Leitfaden zum Umgang mit Sammlungsgut aus kolonialen Kontexten, 2nd ed. Berlin: Deutscher Museumsbund, 2021.
https://www.museumsbund.de/wp-content/uploads/2021/02/leitfaden-zum-umgang-mit-sammlungsgut-aus-kolonialen-kontexten-web.pdf
De Clippele, Marie-Sophie and Bert Demarsin, “Retourner le patrimoine colonial – proposition d’une lex specialis culturae”, Journal des tribunaux, 2021.
Halleux, Robert and Geneviève Xhayet. “D’Apamée à l’Île de Pâques: Les grands projets d’archéologie”. In: La liberté de chercher: histoire du Fonds national belge de la recherche scientifique. Liège: Éditions de l'Université de Liège, 2007.
ICOM. “Definition of a Museum,” in ICOM Statutes (09/06/2017).
https://icom.museum/wp-content/uploads/2018/07/2017_ICOM_Statutes_EN.pdf
ICOM. Code of Ethics for Museums. Paris: ICOM, 2004.
Kirschenblatt-Gimblett, Barbara and Bruno Frey. “The dematerialization of culture and the de-accessioning of museum collections”, Museum International, 54:4 (2002), pp. 58-63.
Kirschenblatt-Gimblett, Barbara. Destination Culture: Tourism, Museums, and Heritage. Berkeley: University of California Press, 1998.
Kaus, David. “The management of restricted Aboriginal objects by the National Museum of Australia,” reCollections 3:1 (2008), pp. 88–95.
Laely, Thomas, Marc Meyer, and Raphael Schwere. Museum Cooperation between Africa and Europe. A New Field for Museum Studies. Bielefeld: Transcript Verlag, 2018.
Le Soir. “Carte blanche: Le dialogue sur les trésors coloniaux doit l’emporter sur le paternalisme,” Le Soir (17/10/2018).
https://www.lesoir.be/185112/article/2018-10-17/carte-blanche-le-dialogue-sur-les-tresors-coloniaux-doit-lemporter-sur-le
Ministerie van OCW. Beleidsvisie collecties uit een koloniale context. Den Haag: Ministerie van OCW. 2021.
https://www.rijksoverheid.nl/documenten/kamerstukken/2021/01/29/rapport-beleidsvisie-collecties-uit-een-koloniale-context
Modest, Wayne and Robin Lelijveld. Words Matter: An Unfinished Guide to Word Choices in the Cultural Sector. Amsterdam: Nationaal Museum voor Wereldculturen, 2018.
Mumbembele Sanger, Placide. “Le restitution des biens culturels en situation (post)colonials au Congo,” Volkskunde 120:3 (2019), pp. 459–72.
Nationaal Museum van Wereldculturen. Return of Cultural Objects: Principles and Process. Amsterdam: Nationaal Museum van Wereldculturen, 2019.
https://www.volkenkunde.nl/sites/default/files/2019-05/Claims%20for%20Return%20of%20Cultural%20Objects%20NMVW%20Principles%20and%20Process.pdf
Opoku, Kwame. “Horniman Museum Preparing To Restitute Looted Benin Artefacts?,” Modern Ghana (16/04/202).
https://www.modernghana.com/news/1075272/horniman-museum-preparing-to-restitute-looted-beni.html
Petridis, Constantine. Frans M. Olbrechts 1899-1958: in Search of Art in Africa. Antwerp: Antwerp Ethnographic Museum, 2001.
Piret, Bérengère. “Reviving the Remains of Decolonization – the Belgian Colonial Archives in Brussels,” History in Africa 42 (2015), pp. 422–23.
Pro, Lyndel V. Witnesses to History – Documents and Writings on the Return of Cultural Objects. Paris: UNESCO Publishing, 2009.
Rassool, Ciyajb. “Re-storing the Skeletons of Empire: Return, Reburial and Rehumanisation in Southern Africa,” Journal of Southern African Studies 41:3 (2015), pp. 653-670.
Sarr, Felwine, and Bénédicte Savoy. Restituer le Patrimoine africain: vers une nouvelle éthique relationnelle. Paris: Philippe Rey, 2018.
http://restitutionreport2018.com/sarr_savoy_fr.pdf
Shwatal, Christoff. “Decolonizing ethnographic museums: Contemporary Art and the Welt museum,” Artpapers 2018, accessed 12/05/2020.
https://www.artpapers.org/decolonizing-the-ethnographic-museum/
van Beurden, Jos, Adams, Kathleen M., and Catteeuw, Paul. “Teruggave ontrafeld,” Volkskunde 120:3 (2019), pp. 305–323.
van Beurden, Jos. Ongemakkelijk erfgoed - Koloniale collecties en teruggave in de Lage Landen. Amsterdam: Walburg Pers, 2021.
Van Beurden, Sarah. “The Art of (Re)Possession: Heritage and the Politics of Congo’s Decolonization,” Journal of African History 56:1 (2015), pp. 143–64.
Van Beurden, Sarah. ”Heeft de Belgische kolonisator de Congolese 350 kunst geschapen, vernietigd of gestolen?”. In, Koloniaal Congo: Een geschiedenis in vragen. Brussel: Polis, 2020.
Wastiau, Boris. Congo, Tervuren: Aller, retour. Le transfert de pièces ethnographiques du Musée royal de l’Afrique centrale à l’Institut des Musées nationaux du Zaïre, 1976–1982. Tervuren: Royal Museum for Central Africa, 2000.
Zian, Yasmina. 'Belgian political discourse on restitution: contradictions and strategy', Tijdschrift over Cultuur en Criminaliteit, Den Haag, Boom, 2021, in print.

Additional Resources

Boast, Robin. “Neocolonial Collaboration: Museum as Contact Zone Revisited,” Museum Anthropology 35 (2011): pp.56-70.
Bruwier, Marie-Cécile et al. Franz Cumont et Mariemont : la correspondance adressée par Franz Cumont à Raoul Warocqué de 1901 à 1916. Morlanwelz: Musée royal de Mariemont, 2005.
Clément, Étienne. Countering Illicit Trafficking of Cultural Objects in South-East Asia: Capacity-building Guide and Methodologies. Paris: Unesco, 2019.
Clifford, James. Routes: Travel and Translation in the Late Twentieth Century. Cambridge, MA: Harvard University Press, 1997.
DCMS. Guidance for the Care of Human Remains in Museums. London: Department of Culture, Media and Sport, 2005.
De Meyer, Marleen et al. “Pyramids and Progress: Belgian Expansionism and the Making of Egyptology, 1830–1952”. In, Towards a History of Egyptology. Proceedings of the Egyptological Section of the 8th ESHS Conference. Münster: Zaphon, 2019.
Feigenbaum, Gail and Inge Jackson Reist. Provenance: An Alternate History of Art. Los Angeles: Getty Research Institute, 2013.
Förster, Larissa and Sarah Fründt (eds.). Human Remains in Museums and Collections: A Critical Engagement with the “Recommendations“ of the German Museums Association. Berlin: H-Soz-Kult, 2017.
https://www.hsozkult.de/debate/id/diskussionen-3909
Gaskell, Ian. “Museum display, an Algonquian bow, and the ship of Theseus.” In Cultural Histories of the Material World, edited by Peter N. Miller, 59-73. Ann Arbor: The University of Michigan Press, 2013.
Gazi, Andromache. “Exhibition Ethics - An Overview of Major Issues.” Journal of Conservation and Museum Studies 12:1 (2014).
https://www.jcms-journal.com/articles/10.5334/jcms.1021213/
Griswold, Sarah. “Locating Archaeological Expertise: Debating Antiquities Norms in the A Mandates, 1918-1926”. In: Experts et expertise dans les mandats de la société des nations. Paris: Presses de l’Inalco, 2020.
Hicks, Dan. The Brutish Museums. The Benin Bronzes, Colonial Violence and Cultural Restitution. London: Pluto Press, 2020.
International Provenance Research Colloquium. Vitalizing Memory: International Perspectives on Provenance Research. Washington, DC: American Association of Museums, 2005.
Legêne, Susan. “Tagging Borobudur: Heritage Education and the Colonial Past in Onsite and Online Museum Collections.” In Sensitive Pasts: Questioning Heritage in Education, edited by Carla van Boxtel, Maria Grever, Stephan Klein, 108-129. New York: Berghahn, 2016.
Lehrer, Erica. “Material Kin: “Communities of Implication” in Post-Colonial, Post-Holocaust Polish Ethnographic Collections.” In Across Anthropology: Troubling Colonial Legacies, Museums, and the Curatorial, edited by Margareta von Oswald and Jonas Tinius, 287-322. Leuven: Leuven University Press, 2020.
Macdonald, Sharon. “Collecting practices.” In A Companion to Museum Studies, edited by Sharon Macdonald, 81-97. Malden: Blackwell Publishing, 2006.
Museums and Galleries Commission. Restitution And Repatriation. Guidelines For Good Practice. London: Museums Association, 2000.
Museum Ethnographers Group. “Professional guidelines concerning the storage, display, interpretation and return of human remains in ethnographical collections in United Kingdom museums.” Journal Of Museum Ethnography 6 (1994), pp. 22–24.
O’Neill, Mark. “Essentialism, adaptation and justice: Towards a new epistemology of museums.” Museum Management and Curatorship 21:2 (2006), pp. 95–116.
Peers, Laura Lynn, and Alison Kay Brown. Museums and Source Communities: A Routledge Reader. London: Routledge, 2003.
Pratt, Mary Louise. Imperial Eyes: Travel Writing and Transculturation. London: Routledge, 1992.
Rassool, Ciraj and Martin Legassick. Skeletons in the Cupboard. Capetown: South African Museum, 2000.
Riggs, Christina. “Loose bodies: Reserve collections, curatorial reservations, and the ancient Egyptian dead.” In Museum Storage and Meaning: Tales from the Crypt, edited by Mirjam Brusius and Kavita Singh, 253-262. London: Routledge, 2018.
Savoy, Bénédicte. Afrikas Kampf um Seine Kunst. Geschichte einer Postkolonialen Niederlage. C.H. Beck, 2021.
Segers, Eef, and Nadia Nsayi. “Een gesprek met Nadia Nsayi Madjedjo, Curator Beeldvorming tijdens 100 x Congo (MAS),” Studio-i, accessed 05/05/2020.
https://studio-inclusie.nl/cases/een-gesprek-met-nadia-nsayi-madjedjo-curator-beeldvorming-tijdens-100-x-congo-mas/
Singh, Kavita. Museums, Heritage, Culture: Into the Conflict Zone. Amsterdam: Reinwardt Academy, 2015.
Spijksma, Judith and Ann-Sophie Lehmann. “Flattening hierarchies of display: the liberating and leveling powers of objects and materials.” Stedelijk Studies 5 (2017), pp. 1–18.
Stevenson, Alice. Scattered Finds. London: UCL Press, 2019.
Van Steen, Alexandra. “Roofkunst in het museum.” Museumpeil 42 (2014), p. 17.
Westermann, Mariët. “What’s on at the Rijks?.” In, Arts of Display, edited by H. Perry Chapman, Frits Scholten and Joanna Woodall, 22-53. Leiden: Brill, 2015.
Yeide, Nancy H., Amy Walsh and Konstantin Akinsha. The AAM Guide to Provenance Research. Washington, DC: American Association of Museums, 2001.