Promoting the use of Mediation inResolution of disputes over theOwnership of objects in Museum
Collections: Statement by the Presidentof ICOM Alissandra Cummins

For many years the International Council of Museums (ICOM) has insisted that museums
and their staff must take great care to ensure that additions to their collections arealways both legal and ethical. Since the adoption of the 1970 ICOM Recommendation on
the Ethics of Acquisitions museums have been advised that “there must be a full, clear
and satisfactory documentation in relation to the origin of any object to be acquired”.
The ICOM Code of professional ethics, the new version of which is entitled the ICOM Codeof Ethics for Museums (ICOM, 2006), first adopted in 1986 and binding as a condition ofmembership in ICOM, strengthened this provision. ICOM now requires acquisitions(including gifts and loans) to be supported by positive evidence of legal ownership andtitle. Equally, museums must take all reasonable steps to ensure that their previous
history does not include illegal acquisition (including e.g. unauthorised excavation orcollection) or transfer (e.g. smuggling) contrary to the laws of the country of origin orof any intermediate country through which they have transited.
However, it is a fact that even museums following these principles and rules mostcarefully, with regard to their collections, can face claims for the return of objects orwhole collections from individuals, organisations (such as places of worship or othermuseums), or from governments, on the grounds that the museum holding the object is
not the legal owner of it. It may, for example, be argued that a former generation ofstaff and trustees had applied less strict acquisition rules to those applicable today, orthat the true facts about the earlier history and provenance of an object were either not
known to, or perhaps even deliberately concealed or falsified, by a former owner ordealer. There is a lot of evidence of such problems in relation to works of art and otherobjects allegedly acquired by confiscation or forced sale from Holocaust victims andothers affected by war or occupation, and which have eventually found their way into
museums.
Increasingly, such ownership disputes seem to be ending up in long and extremelyexpensive legal actions. Apart from anything else, these can present serious difficulties
in terms of evidence, especially if the key events in the claimed theft, forced sale orconfiscation, illegal export or other wrongful act took place very many years previously,
and indeed the statutes of limitations of many countries may make it difficult or even
impossible to get access to the courts in relation to matters that happened perhaps many
decades ago.
Since at least its 1983 (London) General Conference, it has been the policy of ICOM toencourage the amicable resolution of disputes regarding the ownership of objects inmuseum collections that allegedly were stolen or illegally exported from the country oforigin, settling such disputes where possible through voluntary settlement procedures
rather than through lengthy and expensive litigation (or through political deals between
governments with little or no museum involvement).
ICOM’s Legal Affairs and Properties Committee, chaired by Professor Patrick Boylan(United Kingdom) has a wide-ranging membership of leading figures from both museums
and the law. It has been considering practical ways in which ICOM might revitalise theestablished policy of seeking voluntary settlements to such disputes, and to encourageand help equally both museums and those making claims against them to pursue more

informal mediation as an alternative to court actions. We have been greatly assisted inthis work by one of our members, Professor Marilyn Phelan, Paul Whitfield Horn,
Professor of Law at the Texas Tech University, and a leading international authority on
museum and cultural property law. Following initial drafts and discussions earlier in
2004, the Legal Affairs Committee co-sponsored a half-day session on the issues during
the ICOM General Conference held in Seoul, Republic of Korea, in October
2004. Following further consultations and revision, the Legal Affairs Committee’s
recommendations were adopted by the ICOM Executive Council at its December 2005
meeting.

The details of any particular effort at mediation will, as always in such cases, be a matterfor the parties to the dispute to agree between themselves. ICOM itself would not be aparty or otherwise involved either legally or financially. However, ICOM will be prepared
to offer both detailed guidance on procedures that the parties to a dispute might adopt,and also will, on request, propose to the parties the names of two or more independent
experts with relevant specialisations whom the parties might consider appointing as
mediators to advise on the merits of each side’s case. However, mediation - already wellestablished in many legal areas - is always voluntary, and if either or both of the parties
to a dispute reject it they can still seek a legal remedy through the courts.
The role of a person (or panel) appointed to facilitate a mediation will be to encourage
and assist the parties in reaching a settlement of their dispute, but the mediator(s) may
not compel or coerce the parties to enter into a settlement agreement. In particular amediator may not impose his or her own judgment on the issues for that of theparties. Unless the parties agree otherwise, all matters, including the conduct anddemeanor of the parties and their counsel during the settlement process, are confidential
and may not be disclosed to anyone other than the parties involved. Following theapproval of the new policy by the Executive Council, the Legal Affairs Committee will
shortly finalise the text of a guidance paper on the recommended procedure (in order toensure in particular that these cover the requirements and practices of the legal systemsof both common law (e.g. USA and Commonwealth) and civil law/Roman law countries.
I am very pleased to repeat and reinforce ICOM’s hope that disputes over the ownershipof objects in museum collections can, in many cases at least be resolved by private
negotiation, perhaps with the help of mediation as now proposed. I am sure that thisimportant development will be widely welcomed as potentially very practical help both formuseums and indeed for those seeking to make claims against them, especially people ofrelatively limited means who may not be able to even consider a potentially very
expensive international law suit. ICOM looks forward to being able to offer practicalassistance and advice on mediation as an alternative to court proceedings, in accordancewith the new policy.

Alissandra Cummins,President, International Council of Museums (ICOM)January 2006