Adrian Ellis, a director of AEA consulting , a firm that advises cultural organisations such as museums on policy decisions, has written in the Art Newspaper about restitution claims & museums.
He suggests that the amount of restitution claims coming to light at the moment are undermining the public’s trust in museums. Part of the problem is the way in which institutions have generally tended to try & judge these claims on a purely legal (rather than a moral) basis.
The Art Newspaper 
Vol. XIV, No. 163
Restitution claims and the media By Adrian Ellis
Museum inaction is undermining public trust
Restitution claims make great newspaper copy, as can be seen in the recent media frenzy over the Getty’s restitution of antiquities to Italy (see p.4). They are innately adversarial as they bring colourful criminal acts to light, or bring to the surface deep – rooted clashes of cultures – sometimes both. They also cast museums in a harsher light than does routine press coverage, most of which is “soft” in character and hooked onto an event under the control of the museum press team: donations, openings, expansion plans, acquisitions and so forth. Restitution stories by contrast originate almost invariably with the claimant, not the museum. When press coverage is more than purely factual, it tends to cast the claimant as the underdog and the museum as either evasive or dismissive and, in either case, grudging and reactive.
Restitution claims are growing in both number and sophistication, and will continue to do so as public opinion and the courts adopt more expansive definitions of historic responsibility and guilt; as they grant reparation rights to communities as well as to individuals; and as individuals, communities and nations assert those rights with increasing vigour.
As the claims grow, and the newspaper column inches, restitution represents a threat to the perceived legitimacy of the museum sector
As the claims grow, and with them the column inches, restitution represents a threat to the perceived legitimacy of museums – that is to the degree to which museums are construed as deserving public trust, support and, ultimately, funding. This is quite unrelated to the merits of any individual restitution claim; it is about the “residue” left in people’s minds from half-digested or scanned newsprint, and from the relative silence of museums on restitution issues compared with claimants. Restitution is, therefore, an issue that has implications for museums that extend well beyond the individual claims, serious though they are. The ability to address the political fallout from the restitution debate in a compelling and decisive way is a major challenge facing the museum boards and directors. The growth of provenance research, the building of publicly-accessible databases, and defensive legal work undertaken by museums are all fuelled by these realities. Yet for the most part museums’ public stance remains reactive and the damage to their public standing is insidious.
The difficulty that museums have in rectifying the misunderstandings surrounding individual restitution claims is partly because the territory is truly complex and partly because of the near impossibility of reaching a common collective stance. The widely divergent origins of individual claims, their differing legal status in different jurisdictions, and the diverse implications of national and international legislation and agreements for specific museums and their holdings all render a substantive common position well nigh impossible. (The Bizot Group’s 2002 Declaration on the importance and value of universal museums, and the U.S Association of Art Museum Directors’ 2004 statement on unprovenanced antiquities acquisitions are two examples of such failed attempts: the united front in both cases had little applicability to the “hard cases” that claim the attention to the press.)
There are, very broadly, four classes of claims, all of which have a differential impact on different types of museums.
First, there are those relating to the circumstances in which museum collections were assembled in the 18th, 19th and early 20th centuries. The claims lack much by way of legal purchase, but have enormous moral and political force, as the contested objects often have symbolic resonance (for example, the Parthenon Marbles). Those museums that can articulate a strong moral or intellectual case for their holdings – rather than depending on a reactive legal defence – and that can engage collaboratively with the communities from which claims may come will fare best. Those that do not – and whose approach to claims consists primarily of a legal defence – will lose the battle for public sympathy and, in the aftermath, be forced to accede to political demands, regardless of the weak legal standing of those claims. Public (mainly European) museums are more vulnerable than private (largely US) museums because the status of their holdings can be altered by legislation as and when political and public opinion reaches a tipping point.
A second set of claims relates to appropriations made during periods of war and civil unrest (Russia’s holdings of German works or Taiwan’s holdings of treasures removed from mainland China and, above all, claims related to Holocaust victims). The moral case for retaining these works is so weak that over time international public opinion will eventually scour even the darkest basements, even where there is not a watertight legal case. The compelling advance of Holocaust-related claims has led the way, and other classes of claims are to follow.
Third are claims concerning historic ethnographic materials that relate to peoples such as Native Americans and Australian Aborigines. These too are likely to succeed, not least because of the low monetary value of contested holdings and the political and moral forces behind such claims, especially regarding human remains. This is one area, if anything, that museums are occasionally ahead of the claimants; nine British museums have just been granted legal powers to deaccession human remains (see p.18). Finally, there is a set of claims relating to contemporary looting (as in Italy and China). These represent the most exposed flank for museums because the standards to which museums are held to account have risen rapidly in recent decades, and those museums (namely, the richer and more powerful institutions) that had the wherewithal and will to collect vigorously over the past quarter century are inevitably the ones that are most discomforted by their own past.
The extent to which museums have taken an active, empathetic approach to restitution claims varies tremendously. In general museums have tended to address specific claims on a case-by-case basis, usually approaching them from a legal rather than moral perspective. This strategy, in so far as a strategy exists, is an ineffective method of addressing the growing stream of claims and the corrosive public perceptions to which they give rise. Given the improbability of a common approach, individual institutions will increasingly need to take it upon themselves to take a longer-term approach that acknowledges the reality of competing and overlapping rights and obligations, as well as principles by which to navigate and broker them. This approach needs to have a strong moral grounding, as well as legal, prudential and scholarly foundations, and to be communicated clearly in advance of any specific claim, if public support for museums is not to be eroded by the drip, drip, drip, of unsympathetic media coverage.
The writer is a regular contributor to The Art Newspaper and a director of AEA Consulting