REPATRIATION OF CULTURAL PROPERTY

LYNDEL V. PROTTt

I. INTRODUCTION
Repatriation is not a new issue in international law. Arguments against
the deprivation of South American indigenous populations of their
property were developed by Francisco de Vitoria in the sixteenth
century. However the modern context of the issue does show some
substantially new and important aspects.
The first important point to note is that, when talking about the
return of cultural property to indigenous peoples, there are two quite
different legal situations. Because cultures are not co-extensive with
nations, claims for repatriation to autochtonous peoples may be con-
tained within one legal system, and thus become matters of internal or
national law, or they may be claims against another state, and thus
become matters of international law. The moral and cultural issues may
be the same, but the legal context is quite different.
Claims for the return of cultural property to indigenous peoples are
now receiving serious attention of a kind not really given between the
heyday of colonialism and the i 96os. This has happened for two reasons:
First, the advance of anthropological thinking, which has insisted on the
respect of diverse cultures and the important values which each have to
contribute to the human tradition; and second, the development of
human rights philosophies which have given these peoples a basis of
claim legitimate even in legal systems which have hitherto denied their
rights to their own cultural materials.
In both legal contexts this has led to important developments. During
the i96os, at the major period of decolonization in international law,
claims were made for the return of cultural property as part of the
decolonization process. These claims met with only limited success but
have left behind some important procedural openings. Later, during the
198Os and 199os, claims of indigenous peoples within national legal
systems, especially in Australia, Canada, New Zealand and the United
t Dr.Juris (Tubingen), Lic. sp&c. en Dr. Int. (Brussels), BA., LL.B. (Sydney). Chief, International
Standards Section, Division of Physical Heritage, UNESCO, Paris and Professor of Cultural
Heritage Law, University of Sydney (on leave).
© Lyndel V. Prott, I995.
 U.B.C. LAW REVIEW 1995

States, have met with more success. Since the cultural and moral issues
are the same, this has inspired new movement in international law,
issuing in particular from the indigenous populations movement within
the context of the United Nations. It is important therefore to assess the
present status of claims for repatriation in international law.
Here I have to differ with Professor Nafziger, who said that the
principle of repatriation was no longer in doubt, and that the questions
were now rather "What," "When" and "How." Although these issues
have been debated for many years in a number of English-speaking
countries (in particular in Australia, Canada, New Zealand and the
United States) and the discussion has now moved on to discuss solu-
tions, this is not true of Europe where the discussion of the particular
interests of indigenous peoples has hardly begun and the principle is
far from accepted. This became very evident in negotiations within
UNIDROIT (the International Institute for the Unification of Private
Law) for a new international treaty on the return of cultural property.
The Greek delegation proposed a preferential period of limitation
(seventy-five years) for objects stolen from ecclesiastical and public
collections (as opposed to thirty years for all other claims). The Aus-
tralian delegate proposed that this preferential treatment be extended to
the sacred and secret objects of indigenous peoples. Most European
delegations expressed alarm at this proposal; they were not clear what
the concept of "indigenous peoples" included and they wanted, in
particular, to know whether there were any in Europe. UNESCO has
made it clear that it could not accept a provision that would discriminate
against the cultural objects of indigenous peoples.

II. HISTORY
During the i96os and 1970S the emergence of new states from old
colonies and trust territories led to discussions within the United
Nations as to the fate of cultural property which had been taken by the
colonizing states and was now located in those countries. Although
there were substantial precedents concerning the succession of states
that were in favour of the claims being made, e.g. the return to Hungary
after its independence of important cultural property held in Austria,
these precedents were not applied in the case of the decolonized states.
During negotiations for the UNESCO Convention on the Means ofPro-
hibitingand Preventing the IllicitImport, Export and Transfer of Owner-
ship of CulturalProperty 1970, radically opposing views were expressed
on the issue and the Convention was made non-retroactive.'
I For more detailed discussion of the historical issues, see P. J. O'Keefe & L. V. Prott, Law andthe
Cultural Heritage,vol. llI;'Movement (London: Butterworths, 1989) 802-26.
1995 REPATRIATION OF CULTURAL PROPERTY

In 1973 the United Nations General Assembly passed the first of a

series of resolutions on the subject. Resolution 3187 (XXVIII), entitled
"Restitution of works of art to countries victims of expropriation,"
referred in its preamble to the Declaration on the Grantingof Indepen-
dence to Colonial Countries and Peoples (UNGA 151 4 (XV)), and de-
plored "the wholesale removal, virtually without payment, of objets d'art
from one country to another, frequently as a result of colonial or foreign
occupation" and stated that "the restitution of such works would make
good the serious damage suffered by countries as a result of such
removal."
In response to these developments the General Conference of
UNESCO in 1974 passed a resolution inviting the director-general to
contribute to the work of restitution. A meeting of experts convened by
UNESCO in Venice in 1976 located some of the key points of dissen-
sion: whether there should be limits in space and in time for claims of
restitution; what cultural property should be covered; how to define the
conditions under which the objects concerned left their countries of
origin; whether their present legal status is relevant and so on. The
committee recommended a campaign to2educate the public to under-
stand the need for restitution or return.
In 1978 the director-general of UNESCO issued a Pleafor the Return
ofan IrreplaceableCulturalHeritageto those who CreatedIt. The terms of
this appeal are so important to the debate that the text is given in full in
Appendix 3. While the text calls "for the return of at least the art
treasures which best represent their culture, which they feel are the most
vital and whose absence causes them the greatest anguish," it is impor-
tant to note what it did not do. It did not, for example, call for the
emptying of the great museums in the wealthy countries (a misrepresen-
tation often made). It did not ignore the integration of certain objects
into the cultural traditions of other countries. It talked of sharing and of
exchanges.

III. THE INTERGOVERNMENTAL COMMITTEE FOR

PROMOTING THE RETURN OF CULTURAL PROPERTY
The General Conference of UNESCO established 3 in 1978 the Inter-
governmental Committee for Promoting the Return of Cultural Prop-
erty to its Countries of Origin or its Restitution in case of Illicit
Appropriation. The statutes of this committee are attached in Appendix

2 UNESCO Doc. SHC-7 6/CONF. 615/3, Final Report of the Committee of Experts to Study the
Question of the Restitution of Works of Art, Venice, 29 March-2 April 1976.
3 Resolution 417.6/5 (1978).
 U.B.C. LAW REVIEW

4. The committee met for the first time in 1981 and its eighth session will
take place at UNESCO Headquarters in Paris from 24-27 May 1994.
In view of the vigour of the debate in the United Nations General
Assembly in the context of decolonization, it is astonishing that none of
the claims so far received have emerged from this context. There have
been six claims: Greece against the United Kingdom (the Parthenon
"Elgin" marbles); two by Turkey against the Democratic Republic of
Germany (cuneiform tablets and a sphinx from Boguskoy); Jordan
against the United States (half of a Nabbatean sculptured panel); Iran
against Belgium (antiquities from the Necropolis of Khorvin) and
Ecuador against Italy (hundreds of pre-Columbian artifacts). Two are
still outstanding (the Parthenon marbles; the sphinx); two were litigated
in the state of location (Italy, where Ecuador's claims succeeded and
Belgium, where Iran's claim is still in litigation) and two were settled
(Jordan, Turkey). Iraq sought to make a claim but the papers had to be
returned because the state concerned was no longer a member of the
committee. Although certain other cases have been brought to the
attention of the committee, it has not been asked to intervene, or has
been unable to (e.g. because the state of location was not a member of
UNESCO or because the location was not known).
All of these cases concerned antiquities. None of them concerned the
return to an indigenous people, as "indigenous people" is currently
understood, although the claim of Ecuador probably is closest to it (the
pre-Columbian artifacts concerned had been collected over a period of
twenty years from various sources).
All of the twelve states sponsoring the first UNGA Resolution were
African, but not one African state has ever brought a case to the
committee. Zambia has expressed its interest in the return of the Broken
Hill skull from the United Kingdom, but as the United Kingdom is no
longer a member of UNESCO, the committee is not able to accept a
claim. Although the absence of the United Kingdom from the scheme is
a defect for many states who have cultural property of importance in
that country (Nigeria's wish for the return of the Benin bronzes is well
known and Myanmar has expressly desired the return of statues of its
kings and queens), there are other UNESCO member museums in
Europe with important holdings of indigenous material.

IV. THE CONVENTION ON THE MEANS OF PROHIBITING

AND PREVENTING THE ILLICIT IMPORT, EXPORT AND
TRANSFER OF OWNERSHIP OF CULTURAL PROPERTY
In 1964 the UNESCO General Conference adopted the Recommenda-
tion on the Means of Prohibiting and Preventing the Illicit Export,
1995 REPATRIATION OF CULTURAL PROPERTY

Import and Transfer of Ownership of Cultural Property 1964. It has

always been clear, however, that the problem of illicit traffic could not
be solved without international collaboration. In 1970 the General
Conference adopted the Convention on the Means of Prohibitingand
Preventingthe IllicitImport, Export and Transfer ofOwnershipof Cultural
Property.There are currently 81 parties to this Convention (Appendix 5).
This Convention is not retrospective; it does not therefore apply to
many of the materials for which repatriation is being sought. It is,
however, an important mechanism for the return of goods in recent
illicit trade. Canada has returned a number of objects to Latin American
countries, although a prosecution concerning an object from Nigeria
failed when evidence was not provided by Nigeria as to the illegality of
the original export. The United States is also party to the Convention
and has used import controls on cultural property from a number of
countries, mainly in Latin America, although a similar ban has now
been imposed in respect of antiquities from Mali.
Unfortunately most of the important market states are not party to
the Convention. Dealers in the United Kingdom have established a
Code of Practice (Appendix 6) consistent with its principles, but this
does not, of course, entail return of the objects that they agree not to
handle. Switzerland is actively considering accession.

V. OTHER CURRENT DEVELOPMENTS

The twelve members of the European Union are now bound by the
European Directive and Regulation on the Return of Cultural Property
within that area. This has led to a rethinking of previously rigid attitudes
on this subject of return.
European States have also all been present at the negotiation for a
UNIDROIT Draft Convention on Stolen or Illegally Exported Cul-
tural Objects (Appendix 7). This has yet to be considered and adopted
by a fill diplomatic conference (probably early in 1995). This instru-
ment also, if adopted, will provide a substantial means of repatriation for
objects taken after it comes into force. Although some states would have
liked the text to be retrospective, others made it quite clear that they
were not prepared to contemplate an instrument which would apply to
objects that had already been expatriated.
The most substantial advance in this text is the strict limitation of the
protection of the so-called bonafide purchaser, a legal mechanism that
has facilitated the transit of illegally acquired objects without remedy to
the aggrieved individual or state, by the simple process of asking no
questions.
 U.B.C. LAW REVIEW 1995

Finally, the fifty-one states of the Commonwealth have adopted, at

Mauritius in November 1993, a scheme for the return of cultural
property among themselves. Great Britain expressed some reservations
about its application in a press release at the time of its adoption. It
remains to be seen whether that country fully implements it and at what
stage. This scheme also is not retrospective, but it would certainly assist
states like New Zealand, which failed to have important Maori carvings
returned after litigating as far as the House of Lords in I983.'

VI. THE PROTOCOL TO THE CONVENTION FOR THE

PROTECTION OF CULTURAL PROPERTY IN THE EVENT
OF ARMED CONFLICT (THE HAGUE CONVENTION)
1954
Another important but neglected mechanism for the return of cultural
objects to their countries of origin is the Protocol to the Convention for
the Protection of Cultural Property in the Event of Armed Conflict (the
Hague Convention) 1954. Eighty-five states are party to the Convention
and seventy-one to the Protocol (Appendix 5).
The Nazi pillaging of Europe during World War II persuaded the
Allied governments to put purchasers on notice, by issuing the Declara-
tion of London of 1943, that they would not be able to retain such goods:
The Governments of the Union of South Africa; the United States of
America; Australia; Belgium; Canada; China; the Czechoslovak Republic;
the United Kingdom of Great Britain and Northern Ireland; Greece;
India; Luxembourg; the Netherlands; New Zealand; Norway; Poland; the
Union of Soviet Socialist Republics; Yugoslavia; and the French National
Committee:
Hereby issue a formal warning to all concerned, and in particular to persons
in neutral countries, that they intend to do their utmost to defeat the
methods of dispossession practised by the Governments with which they are
at war against the countries and peoples who have been so wantonly
assaulted and despoiled.
Accordingly, the governments making this Declaration and the French
National Committee reserve all their rights to declare invalid any transfers
of, or dealings with, property, rights and interests of any description
whatsoever which are, or have been, situated in the territories which have
come under the occupation or control, direct or indirect, of the governments
with which they are at war, or which belong, or have belonged, to persons
(including juridical persons) resident in such territories. This warning

4 Attorney-GeneralofNew Zealand v. Ortiz [1982], I Q.B. 349; [1982] 3 W.L.R. 571 (C.A.); [1983]
2 W.L.R. 8o9 (H.L.).
1995 REPATRIATION OF CULTURAL PROPERTY

applies whether such transfers or dealings have taken the form of open
looting or plunder, or of transactions apparently legal in form, even when
they purport to be voluntarily effected.
The Governments making this Declaration and the French National Com-
mittee solemnly record their solidarity in this matter.
This Declaration was implemented by legislation in the zones of
occupation of Germany, by the new federal German Republic itself
when it was established and by legislation in the neutral states of
Portugal, Sweden and Switzerland. No limitation of claims was ex-
pressed in the Declaration and an American writer commented that the
recovery programme of the United States (and the international ar-
rangements for its implementation):
provides for an appropriate continuation of the cultural restitution pro-
grams. For the first time in history, restitution may be expected to continue
for as long as works of art known to have been plundered during a war
continue to be rediscovered. 5
This comment is an interesting one in view of the plethora of
demands now emerging for the repatriation of objects displaced during
World War II that date from before the adoption of the Hague Conven-
tion and its Protocol.6 In the United Kingdom about four years ago, the
Netherlands government claimed a painting, part of a collection which
had found its way into Goering's collection and had disappeared after
the war. It arrived for sale in London and a court returned it to the
Netherlands government. A similar case in the United States was settled
about the same time.
Article 4(3) of the 1954 Convention reads:
The High Contracting Parties further undertake to prohibit, prevent and, if
necessary, put a stop to any form of theft, pillage or misappropriation of, and
any acts of vandalism directed against, cultural property. They shall refrain
from requisitioning movable cultural property situated in the territory of
another High Contracting Party.
Each High Contracting Party undertakes to prevent the exportation, from a
territory occupied by it during an armed conflict, of cultural property....

5 Hall, A. R. "The Recovery of Cultural Objects Dispersed During World War II" (95i)
Department of State Bulletin (United States) 337 at 339.
6 For a more detailed study of the Protocol see article by this author, "The Protocol to the
Convention for the Protection of CulturalProperty in the Event of Armed Conflict (The Hague
Convention) 1954" invited paper 6 HumanitidresVolkerrecht (Deutsches Rotes Kreuz/University
of Bochum, 1993) 191-94. A detailed commentary on the Protocol will appear as one section of a
general work on the Convention: J. Toman, Commentairesur la Convention de la Haye pourla
Protection des Biens culturels en cas de Conflit arm ( Paris: UNESCO, in press). An English
version is being prepared by UNESCO for publication in early 1995.
 U.B.C. LAW REVIEW 1995

This article provides an active duty to prevent removal from the

occupied territory. It does not, however, specify how this is to be done.
In the Convention on the Means of Prohibitingand Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property 1970,
contracting parties are obliged to impose export controls (Art. 6) and
import controls (Art. 7 (b)). While this Convention is basically con-
cerned with movement in peace time, Article iIof that Convention also
provides that export and transfer of ownership of cultural property
under compulsion arising directly or indirectly from the occupation of a
country by a foreign power is to be regarded as illicit.
Article 2 of the Protocol to the Hague Convention requires each state
party:
to take into its custody cultural property imported into its territory either
directly or indirectly from any occupied territory. This shall either be
effected automatically upon the importation of the property or, failing this,
at the request of the authorities of that territory.
Only one case is known where an occupying state prosecuted for
7
illegal export consistent with this article.
It is clear that illegally taken objects from occupied territories enter
the international market. While it is true that two of the big "art market"
states, the United Kingdom and the United States, are not party to
the Protocol, what about Germany and Switzerland, which are? In the
case of Germany, allegations have been made about the smuggling of
Cypriot antiquities from Northern Cyprus, an area occupied by Tur-
key (the so-called Turkish Republic of Cyprus not being recognized).
Switzerland was the known point of transfer (in the bond area of Geneva
airport) of the Kanakaria mosaics stolen from a church in Northern
Cyprus and subsequently returned after litigation in the United States.'
Objects from the museum of Vukovar were taken to Paris, but with-
drawn from exhibition and returned to Yugoslavia. Had Croatia offi-
cially invoked the help of the French authorities, it is difficult to see how
they could have refused to seize the objects in compliance with the
obligation under this article.
The Protocol also provides (Art. 3) that each party should return, at
the close of hostilities, to the competent authorities of the territory

7 In 1970, two antiquity dealers in EastJerusalem were prosecuted under the Jordanian Antiquities
Law No. 55 of1966, which remained in force in Judaea and Samaria, with exporting antiquities
into "foreign territory" (i.e. from Hebron, in Judaea, to East Jerusalem) without obtaining an
export licence. S. Berman, "Antiquities in Israel in a Maze of Controversy" (1987) 19 Case
Western Reserve J. Int'l L. 343 at 356.
8 Autocephalous Greek-Orthodox Church of Cyprus andthe Republic ofCyprusv. Goldberg &Feldman
Fine Arts, Inc. 717 F. Supp. 1374 (1989), aff'd 917 F.zd Z78.
1995 REPATRIATION OF CULTURAL PROPERTY

previously occupied, cultural property which is in its territory, if such

property has been exported in contravention of these principles.
This case has arisen. Both Iraq (since 1967) and Kuwait (since 1970)
are parties to the Protocol. The removal of large amounts of cultural
property, including almost the entire contents of the Kuwait National
Museum, to Baghdad is one of the better known incidents of the Gulf
conflict. The return of this material took place not by virtue of the
Protocol, which was in fact barely mentioned, but according to Resolu-
tion 666 (I99I) of the Security Council concerning the return of
property to Kuwait, which also included cultural property. Under the
supervision of the United Nations Return of Property Unit (UNROP),
property was handed over in Baghdad to representatives of Kuwait in
September and October 1991. However Kuwait has since stated that not
all the missing property has been returned. In so far as any remains in the
hands of the Iraqi authorities, there is still a duty under the Protocol to
return it.
After the conflict, Iraq made known that thousands of objects had
been stolen from its provincial museums during the period of the
military intervention and its immediate aftermath. Four volumes listing
this catalogued material have been drawn up by the Iraqi authorities and
deposited with UNESCO. Should any of this material be identified in
the international market, states party to the Protocol will have the legal
obligation to ensure that their obligations under the Protocol are not
infringed.
Toman notes that a proposal to place a zo year limitation on claims
under this Article was rejected at the Conference which adopted it. 9
Therefore claims under Article 3 are not prescribed in time.
Article 4 of the Protocol is a new development from the earlier
codifications, putting a duty on states that have failed to prevent illicit
exportation to pay an indemnity to the holders in good faith of cultural
property which has to be returned. No case seems to have arisen where
this article has been invoked. Its origin clearly lies in the Declaration of
London and the implementing legislation in Switzerland. While the
implementing rules in the three zones of occupation of the French,
British and United States forces provided for the return of cultural
property, overriding "the interest of other persons who had no knowl-
edge of the wrongful taking,""t the Swiss legislation (adopted under
some pressure from the Allies) provided that a good faith possessor had a
right to be repaid the purchase price from the person from whom it was

9 Study cited supra note x, commentary on Protocol, Art. 3.

10 Law No. 59 Restitution of Identifiable Property (United States zone of occupation) s. 3.75(2).
 U.B.C. LAW REVIEW 1995

acquired. However where a transferor in bad faith was insolvent or could

not be sued in Switzerland, the judge could allow the good faith acquirer
who had suffered damage "an equitable recompense at the cost of the
confederation."1 1 The Swiss government was held liable by the Swiss
Booty Chamber, which stated that compensation must, not could, be
awarded. The decree was repealed after two years. 12 However, in becom-
ing party to the Protocol, Switzerland and the other parties have agreed
to provide compensation in these circumstances.
The Hague Convention applies to conflicts "not of an international
character" (Art. i9). Although this phrase is not expressed in the
Protocol, it should be considered that the Protocol also applies to such
conflicts. This is relevant to situations like that present in Afghanistan,
where cultural property is being looted from museums and sites during
faction fighting.
In cases, therefore, where cultural material is taken during times of
conflict, there may be a procedure open for its repatriation under the
Protocol to the Hague Convention. It has to be noted, however, that
this, like the other legal instruments mentioned, applies prospectively.
European states cannot, therefore, argue on the basis of the Protocol for
the return of cultural objects which have been taken in conflicts long
past, except on the basis of other instruments. Their remedy, and those
of other countries, continues to be through bilateral negotiations or the
Intergovernmental Committee for Promoting the Return of Cultural
Property to its Countries of Origin or its Restitution in case of Illicit
Appropriation.
However where a holding state is a party to any of the instruments
described above, a claimant state or people can seek to argue that the
espousal of the principles of that instrument or instruments should be
extended to prior claims which have the same moral and cultural force
even if not covered by the existing legal instruments.

VII. CONCLUSION
In processing claims for repatriation at the international level, there is, I
believe, a preferred way to proceed. Such issues are often highly emotive
and the process is not necessarily assisted by high-profile activity and
sensational press coverage. The first effort should be from museum to

11 Decree of 1o December 1945 concerning actions for the recovery of goods taken in occupied
territories during the war ("Booty Decree") (Switzerland).
12 For an extensive discussion of the Declaration of London, the position of the neutral countries
(Sweden, Switzerland and Portugal) and the aftermath, see L. V. Prott, & P. J. O'Keefe, Law
and the CulturalHeritage, vol. III; Movement (London: Butterworths, 1989) 8o5-is.
1995 REPATRIATION OF CULTURAL PROPERTY

museum (or group or unit or institution as appropriate). Many mu-

seums have anthropologists on staffwho are sympathetic to the claims of
members of other cultures and respectful of their needs. They may have
some work in persuading their colleagues. But if this process succeeds it
has long-term benefits because all the relevant museum staff will be
sensitized to the issue for the future.
If this approach does not work, then the next step can be taken
government to government. Again, quiet bilateral negotiations out of
the public eye may be advisable. Bilateral avenues of solution have to be
exhausted before the UNESCO Committee has competence to act.
Once the case is brought to the Committee it is inevitably public and
all sorts of issues other than purely cultural come to the fore. The public
discussion of the Parthenon marbles gives an illustration of this.
In respect of indigenous peoples, the mechanisms existing at present
in international law have not been exploited. Although several claims
have international dimensions, e.g. the claim by Australian Aboriginals
for the return of skeletal material from institutions in Europe, the
UNESCO Intergovernmental Committee, which is the only body with
a mandate to deal with claims for cultural objects taken during the
eighteenth and nineteenth centuries of colonial expansion and Euro-
pean settlement overseas, has not been asked to act. It remains to be seen
whether this body will be an important mechanism or whether changing
attitudes in holding countries will enable materials to be repatriated
without the need to invoke its help.

Postscript
The first day's proceedings included some powerful statements by
indigenous people about repatriation that had implications for the
application of law, specifically the law of colonizing peoples to override
that of the indigenous communities whose land they took. Pemina
Yellowbird described Native Americans as the survivors of a holocaust.
Lorrie Richardson pointed out that the radical decision of the Australian
High Court in Mabo v. Queensland,which undid 200 years of imported
land law in Australia to recognize indigenous rights of title, changed
nothing for the Meriem people, who had always known that the land
was theirs.
As a lawyer, I feel bound to say that the present European style legal
system was basically set up to ensure fairness and to deal with conflict in
a dynamic and disorderly society. It did so by way of rules, because in
general, those societies did not have the conflict resolution skills that
most traditional communities possess: these are skills that Westerners
 U.B.C. LAW REVIEW

are having to learn. So law has had a very positive role for those societies
for which it is the principle dispute-resolving mechanism.
But where this positive role went wrong was the failure of those using
this system to recognize other, different, systems of social control with
which they came into contact, thereby committing a historic and tragic
injustice. The importance of the Mabo decision is not, I think, for the
indigenous communities in Australia (although they may derive quite
practical benefits from it) but for the immigrant white population, the
descendants or beneficiaries of the perpetrators of the holocaust of
which Pemina Yellowbird spoke. To me, a white Australian, it is
enormously important that the highest court in the land has had the
humility to admit the savagery and the injustice of the dispossession of
the indigenous population of Australia by the colonizers, because until
that admission is made, reconciliation cannot begin.
This decision empowers beneficiaries of those imported rules of law
at last to develop them in such a way as to take account of, without
replacing, the equally legitimate social systems of the descendants of the
indigenous peoples who have been deprived of their birthright, and to
develop a law which, at last, can be seen as relevant to all Australians.
Law has a place in discussions of repatriation. It can provide means
and techniques for resolving disputes left over from the days of coloniza-
tion and their aftermath. It can make a potent statement of principle:
law, in a Western style society, is itself a very powerful moral argument.
If the law has in the past been used to block arguments based on a
different morality and a different social structure, it can now be used to
recognize and enforce them. Lawyers in this question are not techni-
cians; they should not be unthinkingly applying an outmoded morality
which has been crystallized in law, but should be examining the funda-
mental principles of that law in order to correct historic and present day
injustice.