Is the new framework legislation on the restitution of human remains a missed opportunity?

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“Aucune société n'abandonne ses morts sans précaution rituelle" (No society abandons its dead without ritual precautions)^[1] : it was in the light of this maxim that Ms. Rima Abdul-Malak, Minister of Culture, defended the bill on the restitution of human remains enacted on 26 December last year.

pious wish on the part of the government stands in sharp contrast to the legal and scientific shortcomings of France's deposit and restitution to Algeria, almost four years ago, of twenty-four skulls of Algerian resistance fighters killed by the French colonial army in 1850.

The choice of a renewable five-year loan and the failure to identify all the skulls returned^[2] revealed a government more concerned with its political timetable than with a constructive process for the restitution of human remains held in public collections.

The incomplete nature of that restitution^[3], both in its legal byzantinism and in its scientific deficiencies, has brought into sharp relief the increasingly obvious absence of any domestic legal framework governing the restitution of human remains^[4].

The complexity of cases involving human remains admittedly makes any attempt at systematic restitution difficult. The diversity of the remains at issue, the disparate circumstances of their acquisition, and the difficulties of identification are all practical impediments to a comprehensive approach to the restitution of human remains.

The diplomatic dimension of requests for the restitution of foreign human remains makes a paradigm shift all the more necessary, and the sacrosanct principle of the inalienability of public collections can no longer legitimately be invoked to defeat a restitution request.

The stance adopted by the public authorities remains shaped by an approach that treats human remains primarily as cultural objects (I), and the new law remains ambivalent as to the progress it claims to enshrine (II).

I. The law of 26 December 2023 as evidence of a public debate truncated by an outdated functional and legal approach

While the scientific and museological contribution of human remains is undeniable, since they are both ”témoin d’une histoire individuelle et un jalon dans l’évolution humaine” (a witness to an individual history and a milestone in human evolution)^[5], this functional approach predominates in public perception and tends to obscure what they are above all: the mortal remains of a human being belonging to a particular culture and community.

This ethnic or religious identity necessarily requires the consideration of the human rest in its dimension ”sentimental[e] et honorifique symbolique" (sentimental and symbolically honorific)^[6].

Yet in positive law, human remains continued to be treated as cultural objects.

The municipality of Rouen learned this at its cost when the city attempted, in 2007, to return to New Zealand a Māori head held by its natural history museum, without legislative intervention. The administrative courts, seised by the Minister of Culture, inevitably[7] annulled the deliberation of the Rouen City Council authorising the restitution.

As Senator Morin-Desailly has pointed out^[8], as rapporteur and principal initiator of the statute that enabled the declassification of Māori heads held in France’s museums^[9], the issue is also that of resolving a conflict of norms between the principle of the inalienability of public collections and that of human dignity, or at the very least the principle of the right to respect for the human body, as set out in the Civil Code^[10].

Concerived as a "rempart contre tout risque de réifaction de la personne [de son vivant" (bulwark against any risk of reification of the person [during their lifetime)^[11], the principle of dignity has in fact grounded the judicial prohibition of an exhibition of human bodies for commercial purposes^[12].

Once the Constitutional Council has recognised that principle as having constitutional value[13] should it not prevail over the principle of inalienability of the public domain, which is of merely legislative value^[14], so as to extend protection to the deceased and require facilitated deaccessioning of human remains. This is, incidentally, what the new law enshrines, while surrounding it with too many safeguards.

II. The law of December 26, 2023, a significant but incomplete step forward

The new law enshrined in the Heritage Code^[15] a derogation from the principle of inalienability for humain remains, which marks a major development.

Yet, no sooner is the principle stated than restitution is tightly constrained by a series of conditions:

• The standing to apply is limited to States “agissant au nom d'un groupe humain présent sur son territoire et dont la culture et les traditions restent actives” (acting on behalf of a human group present on their territory whose culture and traditions remain active);
• The remains concerned are those of persons who died after the year 1500;
• he circumstances in which the relevant remains were collected must have infringed the principle of the dignity of the human person, or their retention in the collections must contravene respect for the culture and traditions of the human group from which they originate.e;
• The purpose of the restitution is limited to funeral ends.

These conditions, which markedly narrow the scope of possible restitutions, call for several observations.

First, it must be noted that the legislature has not resolved the position of human remains originating from the Overseas Territories and Departments, even though this sensitive issue was known to parliamentarians^[16], in particular through the remains of several Kal’ina in French Guiana^[17], exhibited in Paris in human zoos at the end of the nineteenth century.

By limiting itself to requiring the government, within one year, to submit a report on these overseas claims, the legislature has effectively postponed for several more years the recognition of the principle of such restitutions.

Moreover, the law restricts standing to States alone, in line with the recommendations of the report delivered to the President of the Republic by Mr Jean-Luc Martinez^[18] and the report by F. Sarr and B. Savoy[19] both of which emphasised the need not to interfere in States’ internal policies.

Yet it is impossible to ignore the risks posed by a State that is little invested in restitution efforts, or by the existence of discriminated communities whose marginalisation could obstruct any prospect of restitution.

Non-institutional actors are, in practice, particularly active in seeking the restitution of human remains, as illustrated by the Ovaherero Genocide Foundation, which requested information and restitution in relation to human remains held in the collections of the University of Strasbourg, originating from a genocide committed in Namibia in 1904. In response, the academic community took up the issue and established a scientific committee to examine the request.

This cautious legislative choice does not dispel another major issue, namely the accessibility of human remains held in public collections, since how can one claim to pursue restitution when there is no record of what has disappeared?

This raises not only the question of the resources that will be made available to museums for the verification of holdings, authentication and related provenance research, but also the question of practical access to museum registers and inventories for potential claimants.

Making inventories of human remains available online may appear idealistic, but it would give real effect to the law’s provisions.

Such an initiative would align with the guiding principles stemming from the Washington Conference on art looted by the Nazis, which promote museum transparency concerning works of doubtful provenance.

Finally, the new law’s requirement that restitution be ”aux fins funéraires” (for funeral purposes) betrays a persistent and misplaced suspicion on the part of the French legislature towards requesting States.

Drawing on the example of the restitution of Malagasy remains, the historian Klara Boyer-Rossol has shown^[20] that the purpose of restitution is complex and reflects features specific to each culture.The legislature’s choice is therefore regrettable, and the fate of human remains should be determined by the communities to which they are returned once the request has been deemed legitimate.

In any event, what ex post control could the French State exercise, and what sanctions could it invoke in the absence of any provision to that effect?

Ultimately, this law marks a long-awaited qualification of the inalienability of public collections in order to facilitate the restitution of human remains. Yet it disappoints and leaves the impression that, for lack of ambition, the legislature has stopped halfway across the river.