According to the 2018 report “Restitution of African Cultural Heritage. Toward a New Relational Ethics” by Senegalese academic and writer Felwine Sarr and French art historian Bénédicte Savoy, almost the entirety of the material heritage of sub-Saharan Africa is located outside the African continent.[1] A large number of these art objects were brought to Europe during the colonial era and are since then located in European museums. The debate about the restitution of colonial looted art has been slow and controversial and has been going on since the 1960s, when the first African states gained independence.[2] The question arises as to whether there are ways and means to legally enforce the existing claims for restitution of colonial looted art.
Legal regime on return of cultural property
Most national legal systems do not provide for special treatment of cultural property, making a claim for restitution most often void due to the statute of limitations or acquisition in good faith.[3]
However, this is different for international law. The normative expression of cultural property was introduced by the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.[4] Nowadays, the issue of restitution of cultural property is the subject of several international treaties with worldwide scope and is also a component of soft law conventions adopted by UNESCO in recent decades. Important international instruments for the protection of cultural property include the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970[5] and the UNIDROIT Convention on stolen or illegally exported cultural objects[6] of June 24, 1995. While the return and restitution of cultural property is central to these codified legal frameworks, it is questionable whether the conventions are applicable to colonial looted art. In general, the application of the Conventions is limited in that they have no binding effect for periods prior to their entry into force. Due to the lack of retroactivity, the measures and provisions of the Conventions are only effective for the State concerned after its ratification.[7]
This circumstance can be attributed to Article 28 of the Vienna Convention on the Law of treaties.[8] Under its Article 28, treaties may have retroactive effect only with the express consent of the contracting parties. In the absence of this agreement, the contract cannot be applied to past events.[9]
Art theft during the colonial period took place before the aforementioned conventions were introduced. Therefore, the regulations cannot be applied to the restitution of looted cultural property from the colonial period.
Thus, there is no international legal framework through which claims for restitution of colonial looted art can be enforced.
Moral regime on return of cultural property
To assist UNESCO Member States in dealing with cases that do not fall within the scope of the 1970 Convention 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) was established in 1978.[10] The ICPRCP is involved in the management, planning and implementation of UNESCO programs for the recovery of cultural property, the creation of public awareness, and the promotion of cultural exchange. Furthermore, it deals with the search for ways and means to promote bilateral negotiations for restitution and repatriation of cultural property to countries of origin.[11]
The process of filing claims before the ICPRCP can be very complex. Often, essential information required for the procedure is missing, as it is in many cases inaccessible. Further, because of their merely advisory authority, states are not required to bring a case before it, hence they are not obligated to follow the recommendations made. This circumstance is reflected in practice as the ICPRCP has so far dealt with only 8 cases, and no solution has been found in any of them.[12]
Therefore, moral instruments can only make a limited contribution to restitution.
Practice nowadays regarding restitution
In the absence of sufficient legal and moral instruments, the question arises as to how restitution is carried out today. Since there are no uniform regulations, the return of colonial looted art is handled differently in each European country.
In order to enforce restitution, long negotiations are usually necessary, which can last for years. These negotiations usually only refer to individual pieces that are judged on a case-by-case basis.
National legal peculiarities, such as France’s general rule of “inalienability” of objects forming part of state property, or the British Museums Act of 1963, which prohibits the museums from permanently removing objects from its collections, complicate negotiations.[13]
Conclusion
Overall, it must be noted that there is a lack of legal instruments for art restitution from European museums to states and local communities on the African continent, that could be invoked by the applicant to enable restitution.
As a result, restitution can only be enforced on the basis of morality, which often involves long negotiations with many different stakeholders from the fields of history, culture and politics.
[1] Felwine Sarr and Benedicte Savoy, Zurückgeben Über die Restitution afrikanischer Kulturgüter (Matthes & Seitz 2019) 17
[2] Benedicte Savoy, Afrikas Kampf um seine Kunst. Geschichte einer postkolonialen Niederlage (C.H. Beck) 7
[3] Christina Schaffrath, Die Rückführung unrechtmäßig nach Deutschland verbrachten Kulturguts an den Ursprungsstaat (Peter Lang 2007) 101
[4] Franceso Francioni, ‘Cultural Heritage’ Max Planck Encyclopaedias of international law (2020) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1392?rskey=0xSZXe&result=1&prd=OPIL> accessed 9 June 2022
[5] Convention on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (UNESCO 1970 Convention)
[6] UNIDROIT Convention on stolen or illegally exported cultural objects (adopted 24 June 1995, entered into force 1 July 1998) 2421 UNTS 457 (UNIDROIT)
[7] Elsbeth Wiederkehr Schuler, Kulturgüterschutz- Freier Kunstmarkt Zwei internationale Konventionen: Unidroit und UNESCO 70 (Schulthess Juristische Medien AG 2000) 11-12, 34
[8] Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331
[9] Andreas Giogallis, ‘Restitution of Colonial Cultural Objects’ (Cambridge International Law Journal, 31 May 2021) <http://cilj.co.uk/2021/05/31/restitution-of-colonial-cultural-objects-a-glimpse-from-an-international-law-approach/> accessed 16 June 2022
[10] Francioni Francioni and Ana Filipa Vrdoljak, The Oxford Handbook of International Cultural Heritage Law (Oxford University Press 2020) 727
[11] Alper Tasdelen, ‘Das völkerrechtliche Regime der Kulturrückführung’ in Stefan Groth, Regina Bendix, and Achim Spiller (eds), Kultur als Eigentum Instrumente, Querschnitte und Fallstudie (Göttingen University Press 2015) 233
[12] Alessandro Chechi, The Settlement of Cultural Heritage Disputes (Oxford University Press 2014) 103
[13] Times Newspaper, ‘British Museum under pressure after Smithsonian returns Benin bronze to Nigeria’ (The Times, 9 March 2022) <https://www.thetimes.co.uk/article/british-museum- faces-pressure-as-smithsonian-returns-benin-bronzes-to-nigeria-5d3qbjmhb> accessed 20 June 2022; The Guardian, ‘French museums face a cultural change over restitution of colonial objects’ (The Guardian, 3 November 2014) <https://www.theguardian.com/world/2014/nov/03/france-museums-restitution-colonial- objects> accessed 20 June 2022
