1The purpose and missions of ex situ collections have become a subject of intense discussion, in a cultural context seeking to redefine the role and nature of museums, and also as part of negotiations taking place within the framework of the Nagoya Protocol. Critics have questioned the pertinence and even the legitimacy of ex situ collections, challenging the right of institutions to retain and claim ownership of such artefacts, while also examining the use and utilisation1 of this property and its associated knowledge, particularly for cultural property of a natural, ethnological or anthropological nature (Aubertin & Nivart, 2017). Could the legal model proposed by the Nagoya Protocol, with its emphasis on key stages and ad hoc tools to regulate access and benefit-sharing, constitute an alternative response to calls for the restitution of cultural property currently held by museums? Museums and institutions in possession of ex situ collections need to rethink the way they work, placing greater emphasis on their embrace of otherness, the universalism which has historically been part of their DNA. Are we heading towards a thorough overhaul of the Western museum model and, by extension, the very existence of ex situ collections?

Has the museum model run its course?

2Why have these tensions crystallised around the museum as an institution? We might propose a few simple explanations. Museums have historically been spaces devoted to material artefacts. The institutionalisation of the museum is a cultural marker of European nations, a symbol of westernisation and industrialisation and a harbinger of the cultural and scientific model centred upon the collection. If we consider the entire operational sequence which constitutes the life cycle of artefacts – from their collection, purchase or other form of acquisition through to their usage – the museum is the only lasting structural system dedicated to both conserving and promoting the value of objects. The artefacts preserved in collections and museums are a form of testimony, they are archives… always meaningful, always polysemic (see Chap. 2). This cultural model, sometimes denounced as the result of asymmetric power relations derived from the prevailing Eurocentrism of the 19^th century, still remains largely unchallenged. While the forms taken by museums have become more diverse, the concept of a facility devoted to the permanent conservation of physical traces of the living world and human creation remains a unique model. The lack of an institutional alternative could be one factor feeding into current challenges to the de facto hegemony of the museum model.

3Reflections on the future of ex situ collections and museum holdings are partly rooted in the contemporary debate over updating our definition of what constitutes a museum, as witnessed by recent discussions with ICOM (the International Council of Museums). The current definition is as follows: “A museum is a non-profit, permanent institution in the service of society and its development, open to the public, which acquires, conserves, researches, communicates and exhibits the tangible and intangible heritage of humanity and its environment for the purposes of education, study and enjoyment.” This definition has changed little since 1947, and applies to the international museum community as a whole.

4During the ICOM General Assembly held in Japan in 2019, a proposed new definition was the subject of impassioned debate: “Museums are democratising, inclusive and polyphonic spaces for critical dialogue about the pasts and the futures. Acknowledging and addressing the conflicts and challenges of the present, they hold artefacts and specimens in trust for society, safeguard diverse memories for future generations and guarantee equal rights and equal access to heritage for all people. Museums are not for profit. They are participatory and transparent, and work in active partnership with and for diverse communities to collect, preserve, research, interpret, exhibit, and enhance understandings of the world, aiming to contribute to human dignity and social justice, global equality and planetary well-being.”

5This proposal seems to reflect a determination to incorporate the notion of communities (a concept which has no legal validity in French law), along with an explicit injunction to consider demands for restitution in the light of armed conflicts associated with colonialism. This somewhat confused proposal (ICOM France, 2020; Girard, 2019; OCIM, 2019) reflects the increasing divergence of opinions on what a museum should be, torn between a universalist vision, considering humanity in all its cultural diversity, and a community-driven vision which prefers to highlight our specificities. This proposed definition represents a challenge to the notions of universalism and encyclopaedism previously developed and defended by so many museums (particularly long-established institutions). In this view, all visions and all points of view would be welcomed into the museum fold; a museum of natural history might thus expand its remit to discuss creationist theories.

6But this inevitably raises questions of legitimacy: the legitimacy to hold items, the legitimacy to address certain issues. Such tensions underlie many of the controversies surrounding artefacts held in museum collections.

7These debates lead us to pose a further question: is the Nagoya Protocol, in some respects, an indication of the future which awaits the restitution of cultural property? There is a certain amount of shared context here, with questions over the conservation and utilisation of the property and knowledge earmarked for protection, and the role of the institutions performing these functions. How can the Nagoya Protocol help us to think differently about demands for restitution?

8The Nagoya Protocol deals with benefits derived from the utilisation of genetic resources. It is thus closely connected with biotechnological developments which are changing our understanding of the items held in natural history collections, with the emergence of a new field of research which has been dubbed “museomics” (Raven & Miller, 2020). What was once viewed as an ordinary sample has now become a trove of genetic data, whose analysis could potentially yield commercial opportunities. The implementation of the Nagoya Protocol and the negotiation of benefit-sharing arrangements with “providers” could inform negotiations over the future, and thus the status, of physical artefacts containing genetic resources or associated traditional knowledge.

9In the post-Nagoya context, materials collected and conserved in museums are in need of a clear legal status. Provider countries often refuse to transfer ownership of such materials. The legal framework which applies in such cases is the “deposit” model. The French Civil Code defines a deposit as an arrangement whereby an institution receives an item or asset belonging to a third party, with a responsibility to look after it for a certain period of time and subsequently return it. Exchanges between museums have functioned on this basis since the early 19^th century, especially for the purpose of distributing and allocating collections across the country. Experiments with applying the deposit system to materials for which provider countries wish to retain ownership, while also monitoring uses, have not been convincing. Museums find themselves entangled in all sorts of clauses and conditions, juggling deposit arrangements and Nagoya contracts.

10So the implementation of the Nagoya Protocol provides an opportunity to explore alternative approaches to allocating and managing materials, moving away from 19^th century categories which are neither pertinent nor effective for 21^stcentury materials.

11A new field of legal possibilities is beginning to open up, but these possibilities need to be scrutinised and weighed against the advantages and stakes associated with publicly-owned collections that are not bound by any time limit.

Towards a convergence of the international regulations

12Parallels have already been drawn between conventions designed to protect cultural heritage and conventions for the protection of the environment and biodiversity. Perhaps the most convincing of these comparisons is that between the Convention on International Trade in Endangered Species of Wild Fauna and Flora (known as the Washington Convention or CITES), which applies to natural history and ethnological collections, and the 1970 UNESCO Convention2 on the illicit trade in cultural property, which specifically references the archaeological and artistic collections of museums. Both of these texts have at their heart a commitment to combatting trafficking, by means of a system of authorisations governing the circulation of the resources or property in question. These two international conventions date from the same period: the UNESCO text was signed in 1970, and the CITES agreement in 1973. Questions of legal circulation and the illicit crossing of borders are also of central importance to both mechanisms, specifically the restriction of trade in endangered species and the fight against the trafficking of cultural property. A similar chronological concordance can be observed in the subsequent texts which have extended and expanded these conventions: the Convention on Biological Diversity, signed in 1992, and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

13Now is perhaps the time to attempt a new approach – not comparative, but systemic – to both the Nagoya Protocol and the demands for restitution addressed to museums, calling into question the very concept of ex situ conservation of artefacts. The Convention on Biological Diversity, the Nagoya Protocol and EU regulation 511/2014 all acknowledge the long-term genetic resources and associated traditional knowledge embodied in artefacts of material culture, such as herbaria or domesticated animals. The Bagleyand-Perron-Welch report (2020), commissioned by the CBD secretariat, proposes extending Article 10 of the Nagoya Protocol, establishing a global and multilateral mechanism for benefit-sharing, to ex situ collections considered to constitute cross-border collections.

14This Article proposes a framework for managing genetic resources and associated traditional knowledge, for which the PIC and MAT (prior informed consent and mutually-agreed terms – See Chap. 3) mechanism is not suitable. One example would be resources or knowledge found in multiple countries and also present in collections outside of their countries of origin. During COP15, this notion of cross-border resources was redeployed to refer to resources and knowledge kept in the northern hemisphere, arguing that they have thus been removed not only from their regions of origin, but also from the countries in which they were collected, having been taken beyond the borders of the “provider.” This clash of contexts and positions serves to illustrate one of the political dimensions underlying these negotiations; it reaffirms the challenge to the existence of collections previously described as ex situ and now frequently referred to as cross-border, raising doubts about access conditions and unauthorised removal of property, actions theoretically in contravention of the Nagoya Protocol or the CBD.

15Indeed, ex situ collections comprise cultural property and genetic resources collected or acquired in historical or more recent contexts, involving the crossing of borders (to remove artefacts from the provider countries and bring them to Europe, for example). These objects are thus located and conserved outside their country of origin or native area. Seen from this perspective, ex situ collections could be likened to cross-border resources, a concept originally introduced for resources and knowledge found in multiple countries. This would represent a major change, moving from a bilateral mechanism involving negotiations between countries to a global mechanism whereby benefits are paid into a joint fund. Article 10 of the Protocol has never been activated, and thus remains hypothetical, but the mechanism of a joint global fund is currently at the centre of negotiations over digital sequence information within the CBD context, as well as discussions on how to regulate access to maritime resources in international waters (see Chap. 16). The concept of a joint fund allows us to appreciate the international complexity of these issues. Bagleyand & Perron-Welch (2020) nonetheless note the possibility that countries from which resources were collected in the past might assert their rights, availing themselves of contemporary regulations introducing a principle of retroactivity. The idea of retroactively applying contemporary regulations to historical collections established over two hundred years ago is problematic, as it would involve a posteriori judgements on collection contexts, motivations and conditions formulated by countries “of origin” or “providers” determined to assert some form of natural right over their cultural property.

A future equivalent of the Nagoya Protocol for cultural property?

16There are parallels to be drawn between the fight against piracy and the fight against illicit transfers of cultural property. We might even argue that applying the Nagoya Protocol to ex situ collections would represent a pioneering move, situated at the vanguard of new thinking on the rights attached to heritage artefacts, which will ultimately have wide-ranging consequences for all museum collections. The access and benefit-sharing procedure (ABS) appears to present a future model for the management of public cultural property, in a global context being reshaped by a greater willingness to engage with north-south rebalancing efforts and benefit-sharing. Does the PIC and MAT model introduced by the Nagoya Protocol hint at the future of contractualisation for cultural property?

17As noted above, the fact that most such collections have historically been formed and kept in the Global North, thus keeping genetic resources ex situ, is mentioned in the text of both the Convention and the Protocol, and was one of the key factors which led to the adoption of EU Regulation 511/2014. A number of authors have picked up on these developments, including Thomas Burelli (2012): “This dual obligation [facilitating access to genetic resources and the sharing of benefits derived from their use] arose from the observation, formulated around the time that the Convention [on biological diversity] was signed, that biodiversity resources were predominantly located in the Global South, where the financial resources required for their conservation were in short supply, while access requests came predominantly from the North, from States with greater financial means.” Might we not make a very similar argument with regard to cultural property?

Traceability and due diligence

18The first point of convergence between the fight against biopiracy and the fight against trafficking of cultural property actually concerns two key aspects: the increasingly rigorous standards of traceability and the obligation of due diligence, including compliance checks (for example, checks to be conducted on genetic resources during the research commissioning or commercial launch phase of commercial development).

19With regard to traceability, for cultural property in particular, public institutions are now under obligation to determine the provenance of all items. There are strict moral and political norms in place obliging institutions to trace the history of artefacts in order to ensure that they have not been illegally acquired or exported without authorisation from their country of origin. This represents a significant administrative burden for the holders of public collections, primarily museums. Public institutions cannot consider themselves exempt from these obligations (Chastanier, 2013). In reality, however, this new “behavioural standard” is still struggling to impose itself in the art market. As for the “new relational ethics” recommended by the Sarr-Savoy report (2018), it would imply a total inversion of the burden of proof, applicable retroactively. In an address to the University of Ouagadougou in November 2017, French President Emmanuel Macron opened a new chapter in the debate over the restitution of cultural property, particularly items originating in sub-Saharan Africa, when he declared his intention that “within five years, procedures should be in place for the temporary or definitive restitution of African heritage to Africa.” To this end he commissioned a study from academics Bénédicte Savoy and Felwine Sarr, who reported back in November 2018. One of the primary recommendations made in their report concerned the “rapid, definitive and unconditional restitution of heritage items to the African continent.” The report also approaches the contexts in which items were collected (and collections constituted) from this same perspective, taking the view that the conservation of African cultural property in French museums is the result of forceful appropriations, or else that such artefacts can be “presumed to have been acquired in inequitable conditions,” rendering them automatically eligible for restitution.

20Doubts over provenance and superficial diligence are now grounds for public protests, or even the withdrawal of items from auctions. Gaps in the life story of an artefact can put its pedigree in doubt. For objects held in public collections, this may lead to calls for restitution at a time when the moral dimensions of exchanges are becoming increasingly prominent (ICOM France, 2019). As for property containing genetic resources and/or associated traditional knowledge, the Nagoya Protocol requires users to obtain prior, informed consent and to establish contractually-binding benefit-sharing arrangements. It also provides a degree of legal security, specifying which documents are to be obtained from whom and defining the necessary due diligence. It differs in this respect from the texts pertaining to the trafficking of cultural property, where these matters are much less clearly defined.

21Another pivotal point which links efforts to combat the illicit trade of cultural property and the goals of the Nagoya Protocol is their shared emphasis on due diligence. Responsibility lies with those in possession of artefacts at a given moment in time, who suddenly find themselves accountable for the previous lives of all objects in their collections. They must be able to justify their presence, or else face accusations of theft or biopiracy. An obligation to verify legality (i.e. compliance with the law) exists in both contexts, certainly, but it lacks a formal framework in the context of cultural property. This is largely due to the fact that the convention on cultural property is still not sufficiently implemented by the States who have signed up to it. However, the recent European Directive on the restitution of cultural property3 provides new indications on how to determine whether or not persons in possession of cultural property in need of restitution have satisfied their due diligence obligations. Nevertheless, it is often difficult to know how far arbitration should go, particularly in cases where acquisitions have not actually been completed.

22It thus becomes necessary to remind ourselves of one of the fundamental attributes of artefacts held in public collections. Museum collections are not for sale, and thus cannot be illicitly traded (unless they are stolen), which guarantees their integrity and their conservation without concerns over their potential financial value. This allows us to focus on their polysemic nature. K. Pomian (1987) coined the term “semiophore” to describe this phenomenon: museum collections are bearers and vectors of all values and all meanings – scientific, cultural, social, religious etc. – and, simultaneously and paradoxically, are stripped of all meaning by the neutrality intrinsic to their conservation in public institutions.

The emergence of demands for restitution

23The second point of convergence concerns growing demands for more sharing, or even the reappropriation and/or transferral of ownership of artistic and cultural property, giving rise to the restitution debate, often with reference to indigenous peoples. These demands have become closely wrapped up with the issue of consent, which features prominently in both the Nagoya Protocol and the Sarr-Savoy report (2018) on the restitution of African cultural property. This report called upon the French government to return all items obtained during the colonial period, on the grounds that the consent of the peoples involved was inevitably compromised by asymmetrical power relations. These issues, which are common to both the Nagoya Protocol and the restitution controversy, continue to cause great consternation among curators and researchers who, and no value judgement is implied here, were not “formatted” to think in this manner. The professionals responsible for managing collections are not accustomed to thinking of artefacts and genetic resources as shared objects, having previously been assured that good conservation work, often over multiple centuries, was enough to put their legitimacy beyond question. These old assumptions are now beginning to evolve. Nonetheless, the conservation and scientific promotion of these artefacts have established certain rights and conferred legitimacy upon the institutions who have taken charge of them, sometimes avoiding their loss or destruction.

24In the meantime, we can observe a trend whereby the applicable international instruments have become progressively stricter:

• from CITES and the 1992 Convention on Biological Diversity to the Bonn Guidelines of 2002, culminating in 2010 with the Nagoya Protocol (implemented in October 2014) which introduced a binding international ABS system (access and benefit-sharing);
• for cultural property the rate of change has been gentler, progressing from the UNESCO convention of 1970 and UNIDROIT convention of 1995 to the 2015 operational directives in relation to the former and, in the near future, the strong possibility of a binding protocol to strengthen the UNESCO convention 50 years on. This new protocol might impose systematic conditions for restitution, stricter regulation of the art market with regard to the origin of objects offered for sale, and potentially even retroactive applicability to cases prior to the entry into force of the convention. This protocol will likely whip up considerable North-South tensions, between the Western countries in which most museums and collections are held, and the G77 nations who are becoming increasingly vocal in their demands for a new restitution protocol.

25The demand for automatic restitution and de facto retroactivity also raises the possibility of re-examining the history of collections, with all the legal insecurity this could create for historic transactions and cases which would normally be covered by the statute of limitations.

26Finally, there is perhaps a third point of convergence in the growing instrumentalisation of collections in diplomatic posturing, nationalist rhetoric and national policies, motivated by highly divergent interests.

Conclusion

27The present debate on the new definition of museums proposed by ICOM has inspired a broader questioning of their underlying cultural and institutional model, with calls to “decolonise” museum institutions attracting no small amount of controversy.

28If the Nagoya Protocol and its directives concerning procedure and standard documents are seen as precursors of the future evolution of the international legal framework governing the circulation of cultural property, then this evolution could have the positive effect of improving legal security by providing clearer and more detailed guidelines for traceability and due diligence. Nevertheless, while this new legal model may appear pertinent and effective when applied to new acquisitions, it is not compatible with historical collections without introducing a precedent of retroactivity which would cast doubt upon the operations and indeed the fundamental purpose of the institutions in which they reside.

29The need to open up and adapt to alternative modes of ownership has inspired new conversations about the status of the assets held in public collections, principally in museums. The holders and financial backers of ex situ collections must now face up to some complex questions regarding the long-term care and conservation of artefacts, one of the founding missions of such collections in their capacity as facilities for the lasting conservation of material culture. To what extent will central government and territorial authorities, the main owners and financial backers of ex situ collections in France, continue to fund the conservation and promotion of artefacts of which they are merely users, managers, “tenants”? In concrete terms this funding translates into premises, personnel and technical and budgetary resources, all essential to the conservation and promotion of material artefacts. Moreover, such artefacts may be subject to constraints and charges restricting their use (preventing loans to third parties, for example, or forbidding the removal of samples for genetic studies), obliging potential users to enter into new negotiations with providers. If their rights over such assets and collections continue to shrink, will governments continue to finance the ex situ conservation of artefacts which they only partially control?

30Pressure from countries calling for redistribution of cultural heritage, and making demands for restitution, may serve to speed up adoption of a mechanism comparable with the Nagoya Protocol. However, with regard to cultural property, the countries behind such demands are primarily interested in full and final restitution, i.e. transferral of ownership rather than the sharing of benefits.

31Relatively little thought has been given to the nature of these benefits, with negotiations focusing instead on the ownership and possession of assets, both natural resources and cultural property. In parallel the implementation of the Protocol has largely focused on issues of access and the obstacles created by the new administrative and legal procedures with which researchers and research organisations must now comply. This polarisation over access has come at the expense of a real analysis of the potential benefits to be negotiated and delivered in a concerted and collaborative fashion, and particularly the positive consequences of transferral of ownership and the scientific study of assets. Adapting the spirit of the PIC and MAT system to requests for the restitution of cultural property could finally create an opportunity for dialogue, helping to refocus the debate surrounding benefit-sharing: benefits to all stakeholders of artefacts being held in museum collections, benefit and knowledge-sharing on the ecological, cultural and human biodiversity dimensions of conservation in collections, and even joint projects to facilitate the circulation of cultural property. Surely what is needed here is a collaborative rather than an oppositional approach, abandoning outdated postures and legal and conceptual frameworks based on possession, property and ownership.

References

32Aubertin C., Nivart A., 2017 – « Musée et collections sous le protocole de Nagoya ». In: Définir le musée du xxi^e siècle, ICOFOM: 133-137.

33Bagleyand M., Perron-Welch F., 2020 – Study to Identify Specific Cases of Genetic Resources 1 and Traditional Knowledge Associated with Genetic Resources that Occur in Transboundary Situations or for Which it is not Possible to Grant or Obtain Prior Informed Consent. Meeting of the Parties to the Nagoya Protocol, 42 p.

34Burelli T., 2012 – Faut-il se réjouir de la conclusion du protocole de Nagoya ? Revue juridique de l’environnement, 2012/1 (Volume 37): 45-61.

35Chastanier C., 2013 – Traçabilité des biens culturels : état de la question au ministère de la Culture et de la Communication. 2^e journée d’étude sur la déontologie, co-organisée par le Comité français de l’ICOM et le Service des musées de France. Lettre du Comité français de l’ICOM, 38: 5-10.

36Girard E., 2019 – Analyse de la provenance des termes utilisés. Contribution d’ICOM France à l’analyse des termes de la proposition de nouvelle définition du musée, 06.09.2019. https://www.icom-musees.fr/actualites/proposition-de-la-nouvelle-definition-du-musee

37ICOM France, 2020– Museums today and tomorrow ? Definitions, missions and ethics. Journée des comités ICOM, Muséum national d’Histoire naturelle de Paris.

38ICOM France, 2019 – Restituer ? Les musées parlent aux musées. Clés de lecture du rapport sur la « Restitution du patrimoine africain » remis par Felwine Sarr et Bénédicte Savoy au président de la République. 60 p.

39OCIM, 2019 – Vers une nouvelle définition du musée ? Dossier, La Lettre de l’OCIM, 186: 10-27.

40Pomian K., 1990 – « Musée et Patrimoine ». In Jeudy H. P. (dir.): Patrimoines en folie, Paris, Éditions de la Maison des sciences de l’homme/ministère de la Culture: 177-198.

41Sarr F., Savoy B., 2018 – Rapport sur la restitution du patrimoine culturel africain. Vers une nouvelle éthique relationnelle. Rapport remis au Président de la République, Emmanuel Macron, le 29 novembre 2018 (n° 2018-26), 240 p.

42Raven P. H., Miller S. E., 2020 – Here today, gone tomorrow. Science, 370 (6513): 149.