Law Library Stacks

Back to Repatriation of Historic Human Remains

The UK has a large number of institutions that collectively possess a vast array of human remains. The majority of these remains originated in the UK; however, a considerable amount are from indigenous peoples overseas and were collected under suspect circumstances during the growth of the British Empire. Legislation was recently enacted to provide certain institutions with the ability to return these remains to their legitimate ancestors, and as a result a number of remains have been returned. These returns have not been without issues, however.

I.    Introduction

Many institutions in the United Kingdom[1] possess a variety of cultural items and human remains from countries around the globe. The vast collections stem from centuries of exploration and the growth of the British Empire through colonization.[2] Collecting cultural items and human remains from other countries has been documented at least as far back as the fifteenth century.[3] For the period after the fifteenth century these items, collected locally, were used to study differences in human populations and the origin of the human species, with items from overseas being brought back only if they were “rare or unusual specimens … for their curiosity value as well as for research.”[4]

The nineteenth century marked an increase in the acquisition of human remains from various countries, predominantly those under colonial control. These were acquired for scientific purposes, to study evolution and the origin of the human species, as well as in response to “a desire to preserve mementos of what were believed to be vanishing races.”[5] These remains were acquired from a variety of sources, including transfers from foreign museums and trade with indigenous peoples. Some remains were acquired without consent from the indigenous population in colonial times when there was an uneven balance of power, and frequently:

in circumstances which were unethical even by the standards of the time, including duress, deceit, unlawful removal and, very occasionally, murder. Colonised peoples were often unable to prevent the removal of human remains because of the dynamics of power in colonial situations. Collecting practices were adopted which would have met with both criminal punishment and moral outrage had they been applied to the bodies and graves of white citizens.[6]

There has been no formal survey of the number of human remains held by institutions across the UK, and no widespread informal survey.[7] A government group, funded by Re:source, the Council for Museums, Archives and Libraries, surveyed 148 institutions on their holdings of human remains to “map the broad scope of human remains held in English [institutions].”[8] The results of the survey indicate that the majority of human remains held in institutions across England originate from the UK.[9] Of the 146 institutions that responded to the survey, sixty responded that they held human remains from overseas from the period 1500-1947.[10] Thirteen of these have received between them thirty-three requests for the repatriation of human remains, with twenty-seven of these requests originating from Australasian communities, and five from communities in the United States. Three of the institutions surveyed (the British Museum, the Natural History Museum, and the Royal College of Surgeons) received twenty of the thirty-three requests.[11] During the time frame of the survey, seven of the requests resulted in the repatriation of remains, five decisions were pending, thirteen of the requests were refused on the basis “that they were prohibited by legislation, and eight were refused for other reasons, two specifically citing scientific evidence.” [12] The survey reported that evidence indicated to them that a total of ten institutions in England have returned or agreed to return human remains.[13]

Back to Top

II.    Legislation

Prior to the early twenty-first century, indigenous communities that claimed rights to human remains in UK museums faced numerous legal difficulties – from the fact that certain national museums could not dispose of objects within their collections where such disposal would be detrimental to the interests of students,[14]to the fact that under principles of English law, the concept of property, and thus the right of ownership, does not exist in relation to human remains, unless they have been altered or treated “through the application of skill.”[15] This has been noted as presenting “legal difficulties in practice,” as it is difficult for claimants or the museums themselves to assert rights of ownership over the remains.[16] Indeed, it has been noted that “the legal traps and voids encountered in a claim for human remains are more formidable, because of the no-property rule and the fact that culturally different concepts are at work between claimant and respondent.”[17]

In light of these legal issues and the continued attempts from indigenous peoples to have the remains of their ancestors returned, most notably from Australia, in 2000 the Prime Ministers of the United Kingdom and Australia met and made a “Joint Declaration to increase efforts to repatriate human remains to Australian indigenous communities, wherever possible and appropriate.”[18] As a result of the signing of this Joint Declaration, the UK Minister for the Arts established a Working Group on Human Remains to review the current status of human remains within the collections of publicly-funded Museums and Galleries and consider legislative change in this area.[19]The Working Group considered challenges posed by legislation to the return of remains, the potential use of legislation to return human remains, such as through the Human Rights Act 1998, as well as reportedly the possibility of introducing legislation to make the return of remains compulsory.[20]

The government acted upon these recommendations and, under the Human Tissue Act 2004, enabled nine national museums[21] to de-accession human remains from their collections where the museums believe it appropriate to do so, and where the remains are from a person reasonably believed to have died less than one thousand years prior to the effective date of the2 Act.[22] Previously, these national museums were not able to dispose of objects “vested in them and comprised in their collections, except where they [were] duplicates or … unfit to be retained, and [could] be disposed of without detriment to the interests of students.”[23] The government has noted that it is not aware of other institutions being subject to a statutory bar on de-accessioning human remains, unless otherwise through individual constitutional documents. It encourages any museums that have restrictions on the ability to de-accession human remains to remove them.[24]

The Human Tissue Act 2004 also serves to prohibit the removal, storage, or retention of human remains for certain activities, including research and public display, without the consent of the individual from whom the tissue is taken.[25] However, the requirement for consent does not extend to existing holdings, imported remains, and those older than 100 years; thus the majority of the remains of indigenous peoples held in museums across the UK fall outside the purview of the Act.[26]

Other legislation that may affect the display of human remains of indigenous peoples in the UK is the Tribunals, Courts and Enforcement Act 2007. This Act provides a certain measure of protection from seizure by the courts for objects that are on loan from overseas in museums in the UK when certain conditions are met.[27]

Guidance on the de-accessioning of human remains also notes that the UK’s Human Rights Act 1998, which incorporated the European Convention on Human Rights into its national legislation, may provide some exercisable rights for individuals affected by the retention of human remains in the UK.[28]

Back to Top

IV.    Guidance on Repatriation of Human Remains

The Department for Media, Culture and Sport has produced non-statutory guidance on the implementation of the provisions of the Human Tissue Act 2004 relating to the return of human remains. The aim of the guidance is to:

[ensure] that the future treatment of indigenous remains in museums balances the need to respect the culture and wishes of indigenous communities with the need for scientific research, and that decisions in response to requests for return are made equitably and transparently.[29]

When making decisions regarding the de-accession of human remains, museums are required to take into account ethical principles provided for in the guidance. These principles are:

  • Non-maleficence – doing no harm...;
  • Respect for diversity of belief – respect for diverse religious, spiritual and cultural beliefs and attitudes to remains; tolerance...;
  • Respect for the value of science – respect for the scientific value of human remains and for the benefits that scientific inquiry may produce for humanity...;
  • Solidarity – furthering humanity through co-operation and consensus in relation to human remains...;
  • Beneficence – doing good, providing benefits to individuals, communities or the public in general..... [30]

Pursuant to the guidance, museums determine whether to repatriate human remains on a case-by-case basis, considering who the requestors are, as well as:

the cultural and religious values of the interested individuals or communities and the strength of their relationship to the remains in question; cultural, spiritual and religious significance of the remains; [the age of the remains,] [the status of the remains within the museum,] the scientific, educational and historical importance of the material, [and how the remains were originally removed and acquired].  Also to be taken into account are the quality of treatment of the remains, both now and in the past in their current location and their care if returned [the policy of the country of origin with regards to the human remains as well as any precedents].[31]

The guidance notes that the majority of claims for the repatriation of remains will be for those between one hundred and three hundred years old, which “corresponds most closely to the period when expansion took place by European powers with its subsequent effect on Indigenous peoples.”[32] The guidance further notes that:

archaeological and historical study has shown that it is very difficult to demonstrate clear genealogical, cultural or ethnic continuity far into the past, although there are exceptions to this. For these reasons it is considered that claims are unlikely to be successful for any remains over 300 years old, and are unlikely to be considered for remains over 500 years old, except where a very close and continuous geographical, religious, spiritual and cultural link can be demonstrated.[33]

Back to Top

V.    Implementation

The vast majority of claims for the repatriation of human remains originate “from North America, Australasia and the Pacific, despite the fact that many remains in English collections are from other regions [such as Egypt].”[34] While the Human Tissue Act 2004 provided certain institutions with the power to allow the return of human remains, it did not establish a central body charged with decision making and the return of human remains, and the ultimate decision rests with the institution holding the remains. As noted above, the Department for Media, Culture and Sport has produced guidance on the care and return of human remains but this guidance remains non-statutory.

The lack of a central body responsible for administering the return of human remains has resulted in there being no formal figures in the UK on how many human remains have been returned. In January 2009, the Department for Media, Culture and Sport responded to a freedom of information request about aboriginal remains in the UK. The response did not provide up-to- date figures, and pointed to the information in the Report of the Working Group on Human Remains, published in 2003, and the figures which are noted in this report, above.[35]

While the ultimate decision as to whether to return human remains rests with the institution holding them, there is diplomatic pressure exerted on these institutions to return remains, as well as conflicting pressure from the scientific community for them to retain certain remains for their scientific and anthropological value and concerns that the remains will be destroyed upon their return. The Natural History Museum, which has one of the largest collections of human remains in the UK, established an independent Human Remains Advisory Panel  in  2006  to  assess  the  merits  of  each  request  and  report  to  the  Museum’s  Board  of Trustees.[36] In one instance, acting on recommendations from this panel, the Museum agreed to return the human remains from “17 Tasmanian Aboriginal people to an appropriate custodian nominated by the Australian Government, following a short period of data collection.”[37] The data  collection  period  was,  due  to  the  “uniqueness  of  the  information  contained  in  the remains,”[38] an attempt to balance “the interests of the community group and those of science, [by undertaking] certain specified data collection processes to collect information which might be preserved for future research.”[39] The Tasmanian Aboriginal Council (TAC) did not agree to the decision and, in the first case brought against a decision by a museum to return human remains since the implementation of section 47 of the Human Tissue Act 2004, went to the High Court to seek judicial review of the Museum’s decision, obtaining an injunction against the Natural History Museum to prevent it from conducting tests on the remains. The claim was ultimately resolved through mediation, where it was “agreed that the remains would return to Tasmania, with some of the material to be preserved under the joint control of both the TAC and the museum pending further discussions over the feasibility of data collection and testing on them.”[40]

Overall, the guidance provided by the government on the return of human remains and the actions of the Natural History Museum show that the decision whether or not to return human remains is a fine balancing act that is influenced by the cultural beliefs of the indigenous communities, the benefits that the remains can bring to science, and diplomatic pressures.

Back to Top

Prepared by Clare Feikert
Senior Foreign Law Specialist
July 2009
 


[1] Due to the availability of information and differences in laws across the UK, notably in Scotland, this report especially emphasizes England.

[2] Department for Media, Culture and Sports, Care of Historic Human Remains: A Consultation on the Report of the Working Group on Human Remains (hereafter Working Group Consultation), 2003, ¶ 4.1, available at http://www.culture.gov.uk/images/consultations/HistoricHuman.pdf.

[3] Id.

[4] Id.

[5] Id. ¶ 4.2.

[6] Id. ¶ 4.3.

[7] JANE WEEKS & VALERIE BOTT, SCOPING SURVEY OF HISTORIC HUMAN REMAINS IN ENGLISH MUSEUMS UNDERTAKEN ON BEHALF OF THE MINISTERIAL WORKING GROUP ON HUMAN REMAINS (Feb. 2003), available at http://www.cep.culture.gov.uk/images/publications/ScopingSurveyWGHR.pdf.

[8] Id. ¶ 1.2.

[9] Id.

[10] I0d.

[11] Id.

[12] Id.

[13] Id.

[14] See, e.g., § 5(1)(c) of the British Museum Act 1963, c. 24.

[15] Department for Culture, Media and Sport, Guidance for the Care of Human Remains in Museums, 2005, at 12, available at http://www.culture.gov.uk/images/publications/GuidanceHumanRemains11Oct.pdf. The origins of this law have been noted as being “obscure in origin, and subject to important exceptions, the general rule has twice been upheld by the Court of Appeal over the past seven years and must be taken as established.” Department for Media, Culture and Sports, The Report of the Working Group on Human Remains, 2007, App. 2, available at http://www.culture.gov.uk/images/publications/Appendix_2_human.pdf, referring to Dobson v. North Tyneside Health Authority [1996] 4 All ER 474 (CA), and R v. Kelly and another [1998] 3 All ER 741 (CA).

[16] Guidance for the Care of Human Remains in Museums, 2005, supra note 15.  This report also provides a summary of US legislation in App. 10, at http://www.culture.gov.uk/images/publications/Appendix_10_human.pdf.

[17] Department for Media, Culture and Sports, The Report of the Working Group on Human Remains, 2007, App. 2, available at http://www.culture.gov.uk/images/publications/Appendix_2_human.pdf.

[18] Guidance for the Care of Human Remains in Museums, 2005, supra note 15, at 5; Prime  Ministerial Number10.gov.uk, Joint Statement on Aboriginal Remains, July 2000, http://www.number10.gov.uk/Page2829.

[19] Guidance for the Care of Human Remains in Museums, 2005, supra note 15, at 5.

[20] Working Group Consultation, supra note 2; Guidance for the Care of Human Remains in Museums, 2005, supra note 15, App. 3; Kathy Marks, Britain to hand back remains of colonial-era Aborigines, INDEPENDENT (London), May 25, 2009, http://www.independent.co.uk/news/world/australasia/britain-to-hand-back-remains-of- colonialera-aborigines-652245.html.

[21] These museums are: The Royal Armouries, the British Museum, the Imperial War Museum, the Museum of London, the National Maritime Museum, the National Museums and Galleries on Merseyside, the Natural History Museum, the Science Museum, and the Victoria and Albert Museum.

[22] Human Tissue Act 2004, c. 30, § 47. Guidance has been published on this Act and is available in the Department for Culture, Media and Sport’s, Guidance for the Care of Human Remains in Museums, 2005, supra note 15.

[23] British Museum Act 1963, c. 24, § 5.

[24] Guidance for the Care of Human Remains in Museums, 2005, supra note 15.

[25] Human Tissue Act 2004, c. 30.

[26] Id. § 14; Department for Culture, Media and Sport, Cultural Property, Legislation – Cultural Property Advice, 2006.

[27] Tribunals, Courts and Enforcement Act 2007, c. 15, Part 6, available at http://www.opsi.gov.uk/ acts/acts2007/ ukpga_20070015_en_13#pt6.

[28] Detailed analysis of the potential application of the Human Rights Act 1998 with regards to human remains is provided in: Department for Media, Culture and Sports, The Report of the Working Group on Human Remains, 2007, App. 3, available at http://www.culture.gov.uk/images/publications/Appendix_3_human.pdf.

[29] Guidance for the Care of Human Remains in Museums, 2005, supra note 15.

[30] Id.

[31] Id. at 23 & Part 3.

[32] Id. at 27.

[33] Id.

[34] Working Group on Human Remains in Museum Collections, The Report of the Working Group on Human Remains, http://www.culture.gov.uk/images/publications/wghr_reportfeb07.pdf (last visited July 20, 2009).

[35] Department for Culture, Media and Sport, Freedom of information requests: archive 2009: Human Remains - Case 110667, 2009, http://www.culture.gov.uk/reference_library/foi_requests/5893.aspx.

[36] Press Release, Natural History Museum, Natural History Museum offers an alternative dispute resolution to the Tasmanian Aboriginal Centre (TAC) (2007), available at http://www.nhm.ac.uk/about-us/press-office/press- releases/2007/press_release_10853.html.  The panel is comprised of:

members … appointed by the Natural History Museum’s Board of Trustees. The panel was designed to have six members and two ex-officio members (a Trustee and a member of Museum staff) …. The remit of the panel is to provide independent advice to the Trustees on claims for return of human remains to countries of origin. It also considers issues, as raised by the Museum’s Director or Director of Science, relating to the Museum's activities in this area, which includes research, conservation and documentation. Account has been taken of Department for Culture Media and Sport guidance in developing this advisory structure. The decision on the advice to Trustees must be agreed by at least four independent panel members. The Trustee and staff member do not have decision-making powers as members of the panel.

[37] Id.

[38] Press Release, Farrer & Co., Farrer & Co advises the Natural History Museum in the settlement of Aboriginal Remains claim (May 25, 2007), available at     http://www.farrer.co.uk/Default.aspx?sID= 736&cID=33&ctID=43.

[39] Id.

[40] Natural History Museum hands over Aboriginal remains, CULTURE 24, Apr. 6, 2007, http://www.culture 24.org.uk/places+to+go/south+west/bristol/art47128.

Back to Top

Last Updated: 06/09/2015