The changing landscape of restitution

The changing landscape of restitution 

Legal, moral and practical challenges facing schools, colleges and universities holding cultural artefacts

The restitution of cultural objects has become one of the most contested and fast‑moving areas of the charity sector. Institutions which have amassed artefacts over time (including items with potentially problematic histories) are increasingly being confronted with questions about the provenance of objects in their collections, the legitimacy of historic acquisitions, and whether – and how – contested works might be returned.

This article explores the legal and practical landscape of restitution from two complementary perspectives: first, the position of UK educational institutions that operate as charities (irrespective of whether or not they are exempt from registration with the Charity Commission); and second, the legal basis on which source countries and other claimants may seek the return of cultural property through the courts. Throughout, one theme emerges clearly: restitution is rarely straightforward, and every case turns on its own facts, legal framework and moral context.

Restitution: a charity law perspective

Many of the UK’s universities, colleges and independent schools are charities, whether or not they are formally registered with the Charity Commission. This has a profound impact on their ability to restitute objects held by them.

The starting point for any charity considering restitution is its charitable purposes. Trustees may only exercise their powers in furtherance of those purposes, or for actions that are incidental to them. For education providers, those purposes typically centre on the advancement of education. Permanently transferring an object out of their possession will likely not directly advance that aim.

In addition to general charity law principles, trustees must examine not only their charitable objects, but also the specific legal arrangements which may govern individual artefacts. Items may, for example, be held on special trusts which can significantly limit what can lawfully be done.

Ex gratia transfers and their limits in the education sector

One potential route available to educational institutions with charitable status, where trustees consider themselves under a strong moral obligation to transfer assets, but lack the legal power to do so, is the ex gratia regime under charity law. In essence, this regime allows trustees to seek authorisation from the Charity Commission to make a transfer that is not in the charity’s best interests, but which the trustees can reasonably be regarded as being under a moral obligation to make. 

The ex gratia regime was updated in November 2025, following the commencement of relevant provisions of the Charities Act 2022.   The updated Charity Commission guidance makes clear that trustees must now apply an objective test as to whether a moral obligation exists, replacing the former subjective approach where the trustees simply had to feel an obligation themselves.  In addition, Charity Commission consent is no longer required for small ex gratia payments or transfers (with a value of up to £20,000, depending on the size of the charity).  

Special statutory regimes

Some categories of objects are subject to bespoke restitution frameworks. The Holocaust (Return of Cultural Objects) Act 2009, for example, allows certain institutions to return Nazi‑looted art following a recommendation by the Spoliation Advisory Panel and approval by the Secretary of State. Human remains and associated materials form another special category, with many institutions adopting dedicated policies reflecting both legal obligations and ethical considerations.

The key message for charities is that restitution is highly case‑specific. What is legally possible depends on the nature of the institution, the governing framework of the object, and the route by which restitution is pursued. Moral imperatives may be compelling, but they do not automatically translate into legal powers.

Claims by source states: the legal landscape

This issue may arise for your school, college or university where a claim is brought against it. 

International instruments such as the 1970 UNESCO Convention reflect a broad international commitment to preventing the illicit trade in cultural property and encouraging cooperation between states, but they do not create directly enforceable rights in domestic courts.

In England and Wales, claims are typically brought in conversion, requiring the claimant to assert that it holds title to the object or an immediate right to possession. Crucially, English courts will not enforce foreign penal or public laws, which has long posed difficulties for restitution claims based on export controls or forfeiture regimes.

Key case law

The leading authorities demonstrate how finely balanced these cases can be.

In Attorney General of New Zealand v Ortiz, New Zealand failed to recover a culturally significant carving because, under its own legislation, title did not vest in the state unless the object had been seized by local authorities – something that never occurred. By contrast, in Iran v Barakat Galleries, the Court of Appeal carefully analysed Iranian legislation and concluded that ownership of antiquities excavated in Iran vested in the state as a matter of property law, notwithstanding the presence of penal elements. That decision remains good law and underpins many modern claims.

More recent cases, particularly in the United States, illustrate additional hurdles. In a high‑profile claim by Turkey concerning an Anatolian artefact offered for sale at auction, the claim ultimately failed because Turkey could not prove that the object was still within its territory at the date when national ownership laws came into force. The court also accepted a defence of 'laches' (the passage of time), based on the object having been openly displayed for decades without challenge.

Evidential and limitation challenges

These cases highlight recurring difficulties for claimants:

• proving the existence and effect of national ownership laws at the relevant time;
• reconstructing provenance and chains of custody over centuries or millennia; and
• overcoming limitation periods, particularly in the UK, where title can be extinguished if claims are not brought within six years of dispossession, subject to limited exceptions.

As a result, even where the moral case for restitution is strong, the legal path may be uncertain or blocked altogether.

Beyond litigation: moral obligations and alternative solutions

Given these obstacles, negotiated solutions, mediation and other forms of alternative dispute resolution are often preferable. They allow parties to reach outcomes that courts may be unable to impose, including shared custody, long‑term loans, contextualisation, or public acknowledgment of an object’s history.  For example, auction houses now routinely facilitate settlements that resolve ownership disputes before sale, particularly in cases involving Nazi‑era losses.

Conclusion

Restitution is not a single legal problem with a single solution. It sits at the intersection of property law, public law, charity law, international instruments and evolving moral standards. Advisers must grapple with legal constraints, evidential uncertainty and powerful ethical considerations.

What is clear is that restitution debates are not going away. As scrutiny of collections intensifies, institutions will need to engage proactively, thoughtfully and – above all – with a clear understanding of both what the law permits and what conscience may demand.