Introduction: The Case of D’Artagnan
In March 2026, an archaeological discovery shook the city of Maastricht in the south of the Netherlands and made international headlines: the mortal remains of D’Artagnan, the famous musketeer, might have been found in a local church. D’Artagnan, made famous by Alexandre Dumas’ novels and 150 years’ worth of adaptations, was modelled after Charles de Batz de Castelmore d’Artagnan, a French nobleman who served as captain of Louis XIV’s Musketeers of the Guard. He died during the Siege of Maastricht in 1673 and is assumed to have been buried on-site. Recent restoration works in the St Peter and Paul Church revealed a 17th century grave under the floor tiles close to the altar where an individual had been buried with a French coin and a musket ball.
The discovery sent shockwaves through Maastricht and beyond. The remains were sent to labs in Germany and the Netherlands for DNA and anatomical analysis, the excavating archaeologist was arrested for refusing to hand over the bones to the police, and the local press discussed whether France might consider trading D’Artagnan’s remains (if confirmed) for the mosasaurus fossil that French troops had looted from Maastricht during the Revolutionary Wars and which is still on exhibition in Paris.
This case, despite all its oddities, is representative of many controversies about the appropriate handling of human remains, especially concerning their repatriation. Oftentimes, competing legal definitions collide. Are they a museum exhibit, scientific objects or ancestral remains? Do they form an anatomical specimen, or a body being denied its dignified resting place? The law intervenes in these debates as an arbiter of meaning—and faces considerable challenges.
Human remains as cultural property
One approach is to consider human remains within the legal framework that governs the restitution of cultural property. The 1970 UNESCO Convention does not expressly mention human remains in Article 1, which defines the scope of the Convention. Theoretically, certain human remains could fall within the categories covering “Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest (lit. a)”, “products of archaeological excavations” (lit. c) or even “objects of ethnological interest (lit. f)”. That said, UNESCO has been reluctant to categorise human remains as cultural property, noting that “most indigenous communities do not accept that human remains can be regarded as property” in its 2015 Operational Guidelines. This position is not exclusive to Indigenous groups; it is a common position that the human subject should not be treated as an object, as a chattel to be bought and sold on the open market. As a result, human remains are often considered a particularly sensitive material in practice even when the law classifies them as “ordinary” cultural objects. This possible inclusion of human remains within the 1970 UNESCO Convention framework also applies in Switzerland, whose Cultural Property Transfer Act (CPTA) defines the term “cultural property” in direct reference to the definition of the Convention (Art. 2 para. 1 CPTA). Moreover, some of the Bilateral Agreements between Switzerland and countries such as Peru and Egypt cover certain human remains, such as skulls and mummified bodies, as cultural property in their appendices (see Annex II of each agreement).
As a consequence, these human remains are subject to the provisions of the CPTA and a state of origin could, in principle, rely on them to request their repatriation—under the restrictive conditions of Article 9 CPTA. In practice, several such ceremonies have been held for remains from Swiss museums’ collections—most likely fostered through diplomatic discussions rather than legal claims. Nonetheless, at the time of writing, the Federal Office of Culture, acting as the responsible entity for the implementation of the 1970 UNESCO Convention, has not yet published guidelines specifically addressing cases of repatriation involving human remains and providing guidance to professionals dealing with such cases. Producing such a document might be in order since Swiss museums and other institutions hold at least 4,175 items of human remains, often long forgotten and discovered by mistake sometimes under improper storage conditions. Both Swiss institutions and claimant states and communities would benefit from a clear and transparent framework to address the question of human remains as a special and sensitive category. After all, even if they are not formally defined as cultural property by the concerned state and communities of origin, they might still be the subject of restitution claims on a similar rationale.
Another pathway for the restitution of human remains, understood as cultural property, is the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP), established to provide a forum for conciliation, negotiation, and mediation for states, regardless of whether they have ratified the 1970 UNESCO Convention. Currently, this body tries to facilitate negotiations between Zambia and the United Kingdom concerning the Kabwe skull, also known as Broken Hill skull. A British mining company removed the skull of a Homo heidelbergensis from what was then Northern Rhodesia (present-day Zambia) in 1921. In 2024, six years after the case was first submitted to the ICPRCP, Zambian diplomats started to emphasize that the 300,000-year-old skull was a profoundly significant ancestor with spiritual and cultural importance, and that it belongs in Zambia rather than the Natural History Museum in London. This decision to consider the Broken Hill skull as an ancestor rather than a cultural object, understandable as it is, seems at odds with Zambia’s commitment to seek the involvement of the ICPRCP as a body whose competence is exclusively limited to cultural property. That, in turn, begs the question as to what other pathways, if any, are available for governments and communities who reject a cultural property framing of human remains.
Human remains as ancestral remains
The most comprehensive instrument that foresees the restitution of human remains in relation to communities of origin is the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Its Article 11 affirms Indigenous peoples’ right to preserve their cultural heritage, while Article 12 specifically calls on states to “enable the access and/or repatriation of ceremonial objects and human remains”. Through these provisions, the Declaration recognizes the sovereignty of communities of origin in determining what human remains mean to them. Manifestations of this recognition are present in contemporary reports and national legislation.
For instance, the 1990 Native American Graves Protection and Repatriation Act (NAGPRA) establishes a comprehensive framework for the return of cultural objects and human remains to Indigenous communities in the USA. NAGPRA is based on the principle of the relevant group’s free and informed consent to authorize the exhibition, access to, or research on, Native American human remains and cultural items. The Act is also monitored by a dedicated Review Committee whose members are appointed by the Secretary of the Interior from nominations from representants of the communities as well as museal and scientific organizations. In 2025, it was reported that institutions within the US repatriated more than 10,300 Native American remains to their respective communities in 2024.
Australian legislation also provides for the protection and repatriation of ancestral remains. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 establishes a framework in case of the discovery of Aboriginal remains as well as their return within their communities of in accordance with Aboriginal traditions as detailed in Section 20 and 21. Additionally, many institutions such as museums and universities have published guidelines on the treatment and repatriation of ancestral remains. In 2011, the Australian government has released a Policy on Indigenous Repatriation and updated it in 2016. This policy highlights the interaction between human remains and culture, supporting the return of these items alongside broader efforts to sustain Indigenous visual arts, languages, and cultural activities. Furthermore, an Advisory Committee for Indigenous Repatriation acts as a centre of competence for questions around Indigenous repatriation. Its duties also include support for international repatriations.
These domestic legislations provide specific, bespoke solutions for the repatriation of human remains in the context of certain settler colonial states, often without embedding them within a generic cultural property framework. However, this legislation fails to provide a foundation for the transnational repatriation of human remains where national law does not apply extraterritorially. In such cases, it is the host state who needs to take action on a repatriation claim.
Human remains as the product of a crime
Criminal law might offer a viable path when neither the 1970 UNESCO Convention nor any other legislative framework apply—especially when the human remains in question have been removed from their original resting place.
In Switzerland, Art. 262 of the Swiss Criminal Code (Disturbance of the peace of the dead) criminalizes certain assaults against the body and resting place of the deceased. Many human remains within Swiss institutions were acquired decades or even centuries ago, with any criminal action based on the initial acquisition likely being time-barred. A potential pathway in such situations could be to conceptualize the undignified exhibition or storage as an ongoing violation of Article 262 that could still be prosecuted, but this interpretation remains to be judicially tested.
In the hypothesis human remains are discovered and the case is prosecuted in Switzerland, it might be possible to envision a restitution by the criminal prosecution authorities on the basis of Article 69 of the SCC (Forfeiture of dangerous objects) since human remains that are the product of a crime (e.g., theft) and kept within an institution or a museum even though the criminal offense is time-barred might be considered to be “constituting a future danger to […] morals or public order” (cf. Article 69 SCC). It is possible, though unsure, that the criminal prosecution authorities would then seize the object and proceed to repatriation, or decide that they are encompassed by the 1970 UNESCO Convention and transfer the human remains to the Federal Office of Culture for it to take care of the repatriation (cf. Article 27 Cultural Property Transfer Ordinance). Once again, the legal classification of human remains can become an obstacle to their repatriation.
Whilst the 1970 UNESCO Convention, due to its nature, can only foresee restitutions to states, a repatriation within Swiss criminal law could encompass more entities than states alone. It is, admittedly, not the principal application for which the abovementioned provisions were drafted but could directly empower the victims of the original wrongdoing, which could benefit the communities of origin whose voices are not always taken into account within the framework of international treaties and conventions.
Specific legislation for the restitution of human remains
France passed a law on the return of human remains held in public collections in 2023. This law enables the restitution of human remains from public collections that belong to individuals who are less than 500 years old, if their retention in the collection would disrespect the traditions and culture of the group with which the remains are affiliated. Importantly, such a deaccession is only permissible upon request by another government and for the exclusive purpose of burial. In our opinion, this poses two principal problems. First, the repatriation and restitution of human remains are often reclaimed by a community of origin, not necessarily by another state, which also causes discord within cultural property restitution claims. The 2023 law neither factors in the often-complex relationships between Indigenous groups and the states that were later founded on their lands nor provides guidance on proceedings when human remains are disputed between different entities as has been the case in other restitutions controversies of cultural property. Second, the limitation of repatriation for burials betrays a paternalistic approach towards communities of origin and enforces Western ideas of dignity after death on those communities instead of granting them full sovereignty in the treatment of their human remains.
Alternative pathways
In addition to the options presented, there are even more legal domains which might come into play regarding the restitution of human remains. International humanitarian law, for instance, contains an obligation of the parties to an armed conflict to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin (Customary IHL Rule 114). International human rights law, in particular the rights of minorities (e.g., under the Convention on the Elimination of Racial Discrimination), might provide compelling arguments for the return of human remains associated with a certain group. Consular law governs the repatriation of aliens’ remains to the country of their nationality. Finally, even norms from religious legal systems like Islamic law or the Jewish halakha might come to bear.
And then there is, of course, the pathway of alternative dispute resolution. In many controversies regarding the repatriation of human remains and cultural property, the path forward oftentimes consists of (diplomatic) negotiations rather than litigation. This way allows for parties to be heard and solutions to be taken outside of a judicial setting where the complex web of meanings that surround human remains has to be reduced into a zero-sum solution. The ambiguous nature of human remains challenges legal classification, which is why their repatriation is sometimes best negotiated in settings with a higher tolerance for ambiguity. For the emergence and development of such spaces, public discourse and information are crucial and may influence and help speed up repatriation proceedings and, in the form of guidelines or reports, help professionals to rectify and rethink practices with regard to human remains. Instead of becoming a legal confrontation, a repatriation request negotiated in a different forum can turn into a dialogue and, if done well, mark the beginning of new institutional relationships: on an equal footing, with mutual respect and learning, and built on the conscious rejection of those worldviews and practices that created the necessity for repatriation to begin with. Law has its part to play, but its struggle to accommodate the broad range of forms of appreciations for human remains should not impede quests for human dignity after death, the exercise of funerary customs, and sovereignty over ancestral remains.
There is space for positive-sum solutions; the repatriation of human remains does not have to result in a net loss for the returning institution. Instead, an attentive engagement with other cultural conceptions surrounding death and the treatment of the dead has the potential of prompting a reflection on how Global North institutions treat human remains: in museums, specific exhibitions, or when the remains of a French musketeer are discovered underneath a Dutch church.