The ‘tipping’ point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute – Extract from my essay – ‘Mediating Cultural Property Disputes’ (which I am currently writing). The working draft appears on the ‘Mediating Art & Music Disputes’ page at www.carlislam.co.uk.

Extract:

[The] ‘human dimension’ of cultural heritage – i.e. the special feelings that items of cultural heritage evoke in individuals and peoples because of their symbolic, emotional, religious, and historical qualities – can be overlooked in the course of the [judicial] adjudication process. This human dimension is at stake in all cases . … Indeed, cultural objects have no intrinsic value, in the sense that they cannot be defined solely by their physical characteristics. The values ascribed to them – be they historic, scientific, educational, aesthetic, or financial – depend on the meanings placed upon them by individuals and communities .  … Heritage’s value is therefore relational.’ (‘The Settlement of International Cultural Heritage Disputes’ by Alessandro Chechi, Oxford University Press (2014), pp. 1-.3. … In the Mediation of a Restitution claim, the first principle which needs to be grasped is that a museum or gallery cannot voluntarily dispose of its property, however compelling the moral demand, unless the disposal is lawful. ‘Although the law is not blind to moral claims, trustees and those who control charitable institutions can only satisfy such claims within the framework of the law. As charities depend for their continued existence on public support, on the recognition by the public of a moral obligation to donate to charity, they can ill afford to ignore the pressure of moral claims. … Charities should aim to occupy the moral high ground, otherwise their standing and reputation may be set at risk.’ (‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’ by The Hon. Sir Anthony Mason AC KBE, Art Antiquity And Law, Vol VIII, Issue 1, March 2003, page 3). As a general rule, trustees would be ill-advised to return a work of art unless they were able to look to the Attorney-General , the Court, or the Charity Commissioners, for approval. … The ‘tipping’ point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute, is at the intersection of: (i) ‘Practical Ethics’, i.e. ‘doing the right thing’; with (ii) the exercise by Museum Trustees’ of their legal powers in accordance with their legal duties. At which point ‘conscience’, ‘morality’, and ‘ethics’, collide with law and can become fused in equity. Is a new restitution paradigm emerging whereby in the exercise of their duties and powers, Trustees can resolve to de-accession an object in the Museums’ collection, by making an ex-gratia disposition of a trust asset under the Charities Act 2022, based upon the application of ‘Practical Ethics’ – i.e. because restitution is the right thing to do in the circumstances of the claim?