Sophie Vigneron

This article analyses three cases of repatriation of human remains by French public museums in order to critically examine the difficulties in the changing institutional practice. It critically  ssesses the statutory and administrative processes that have been used to repatriate human remains and identifies the difficulties that have been and are mostly still encountered. Firstly, it evaluates the public/private conundrum of ownership of human remains in French law, which explains why Parliament had to intervene to facilitate the repatriation of remains in public museum collections, whereas a private society could repatriate the skulls of chief Ataï and his doctor to New Caledonia without legal difficulties. Secondly, it reviews the need for parliamentary intervention for the repatriation of the remains of Saartjie Baartman to South Africa and several Mokomokai to New Zealand. Finally, it criticizes the administrative deadlock that has prevented the development of a repatriation practice that could have b en established after the successful repatriation of the remains of Vamaica Peru to Uruguay. Unfortunately, the process has remained opaque and ineffective, owing to a variety of factors; in particular the ambiguity regarding the role of the Commission scientifique nationale des collections, which is set to be abolished and whose role will be undertaken by the Haut conseil des Musées de France, and a lack of political, financial, and structural support from the Ministry of Culture. Until these shortcomings are addressed and clear criteria for repatriation are drawn up, it is unlikely that France will develop a coherent, transparent, and effective process for the repatriation of human remains.

This article deals with the implementation of Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State in France. The implementing act was adopted in February 2015 with general consensus amongst members of Parliament that it was necessary to improve the protection of cultural heritage within Europe (loi n° 2015 – 195, 20 February 2015). By contrast, the relevant sections of the code that require implementing regulation, such as the use of the Internal Market Information System (“IMI”) have not yet been adopted. The 2015 Act amended the relevant sections of the Cultural Heritage Code to include the new dispositions of the 2014 Directive, mostly word by word. Those sections, in their original drafting, implemented the 1993 Directive on the return of cultural objects unlawfully removed from the territory of a Member State which was inspired by both the 1970 UNESCO and 1995 UNIDROIT Conventions. This article successively examines three questions with the aim to assess the impact of the 2014 Directive on the protection of cultural objects in France: 1) it analyses to what extent the implementation of the 2014 Directive has improved the protection of French cultural objects; 2) it presents cases of restitution by France to other State Members as well as to countries outside the European Union; 3) it assesses the wider impact of the 2014 Directive on French civil law and cultural heritage law, in particular, the fundamental change caused by the requirement of due diligence on the presumption of good faith in favour of a good faith purchaser.