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Marie-Sophie de Clippele (in press)

Human remains in the legal shadows – Issues of status, regime and repatriation

Anthropologica et Præhistorica, 134:1-21.

To whom do human remains in museums belong? Are they objects that can be owned by the museum or does an impression of the deceased still remain on the skeleton, and do they only belong to the family, community or country of origin to where they should go back? The law is ill-equipped to answer these questions, caught between the categories of object and person. Human remains do not constitute a person, insofar as legal personality ceases with death, but at the same time they cannot be reduced to a simple thing, in so much as they are imprinted with the deceased person. This paper argues that, according to present law,human remains can be considered special property worthy of respect, giving substance to their sacredness. Therefore, the paper also recommends to integrate the special nature of human remains more clearly into Belgian civil law. Moreover, the legal regime for human remains is blurred and this paper argues that human remains should be clarified as out-of-commerce, or at least that they should not circulate for profit (sale…). Concerning the treatment of human remains by cultural heritage law, specific provisions should be added to insist on the special treatment of human remains in museum collections. Finally, an international or national framework for the repatriation of human remains which originate from abroad is still lacking. This paper proposes an inclusive heritage justice model for the repatriation of human remains in the realm of transitional justice.
human remains, restitution, repatriation, ownership, dignity, object, person
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Dr. Anne Hauzeur
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ISSN 1377-5723 (printed version)
 



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