New Developments in The Restitution of Cultural PR

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New Developments in the Restitution of Cultural Property:

Alternative Means of Dispute Resolution
Article in International Journal of Cultural Property · February 2010

DOI: 10.1017/S0940739110000044
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International Journal of Cultural Property (2010) 17:1–31. Printed in the USA.
Copyright © 2010 International Cultural Property Society
doi:10.1017/S0940739110000044
New Developments in the Restitution

of Cultural Property: Alternative Means
of Dispute Resolution
Marie Cornu*
Marc-André Renold**
Abstract: Alternative methods of dispute resolution are an important resource

in matters of cultural heritage in addressing the return, restitution, and
repatriation of cultural property. The purpose of this article is to analyze the
situations in which such methods might be preferred to the classical judicial
means and to examine the problems that might arise.
The article is in two parts. The first part describes the actors as well as the
current methods used for the restitution and return of cultural property. The
second part explores the types of property that lend themselves to alternative
dispute resolution techniques and lists the—often original—substantive
solutions that have been used in practice.
Alternative methods of dispute resolution enable consideration of nonlegal
factors, which might be emotional considerations or a sense of “moral
obligation,” and this can help the parties find a path to consensus.
1. Introduction
1. The circumstances in which the issue of restitution of cultural property arises

vary considerably. The various causes of dispossession may be trafficking (theft or
unauthorized export), wartime plunder, or appropriation or trades between deal-
ers in times of colonization or occupation. The handing back of property to the
original possessor or owner is known variously as restitution, return, and repatria-
*French National Centre for Scientific Research (CNRS)

* *University of Geneva, Art-Law Centre
ACKNOWLEDGEMENT: This article has been published in French the Journal du Droit Inter-
national (Clunet), No. 2/2009 (April-May-June 2009), pp. 493–533. The authors wish to thank
UNESCO for its kind help for the translation into English.
1
2 MARIE CORNU AND MARC-ANDRÉ RENOLD
tion. Although there is not always a clear distinction in the texts 1 between these
terminological variations, it is clear that the various forms of dispossession are
treated differently in law, with some covered by private law instruments and oth-
ers by public law.2
2. The term restitution is currently mostly used for property pillaged in times
of war or for stolen property. According to Kowalski, it always denotes an unlaw-
ful situation.3 The term return is preferred for property displaced for the benefit
of the colonial power and restored to its country of origin, and also for cases of
unlawful export. In the context of colonization, the issue of unlawfulness does not
arise if the dispossession was in compliance with the national and international
laws in force at the time. In such cases, the handing back of property tends to be
based on the need to return irreplaceable cultural heritage to those who created
it.4 With unlawful exports, the property is returned to the state of origin without
the question of ownership arising.5 In both these situations, return depends more
on the notion of territory, while restitution in the technical sense presupposes that
there is an identified recipient. As far as repatriation is concerned, this refers to a
specific form of restitution whose destination can vary: either to the country where
the cultural property belongs or to the ethnic group that owns it. The term is
most often used in the context of claims by indigenous peoples.
3. Subject to that, points of convergence can be seen where there are no legal
means of claiming restitution, either because of the passage of time or because
there has been no unlawful act. It can also happen that, once outside a state’s ter-
ritory, there may be limits to the protection afforded to a disputed item of prop-
erty under public law, even where international conventions apply, as these are
sometimes unenforceable. Nigeria’s claim to the Nok statuettes, based on the
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Im-
port, Export and Transfer of Ownership of Cultural Property, signed in Paris in
1970,6 was rejected by the French courts simply because that convention, ratified
by France in 1997, was not directly applicable and no implementing legislation
had been enacted.7
4. Besides the differences observed in the way the law treats restitution, the search
for alternative forms of resolution of the various types of dispossession reveals
some common features. The aim of the Intergovernmental Committee for Pro-
moting the Return of Cultural Property to Its Countries of Origin or Its Restitu-
tion in Case of Unlawful Appropriation, established by UNESCO in 1978, is to
seek “ways and means of facilitating bilateral negotiations for the restitution or
return of cultural property to its countries of origin.” 8 Its scope is therefore ex-
tremely wide, covering thefts as well as removals during colonization 9.
5. More often than not, “voluntary” restitution occurs in situations where there
do not appear to be any available legal means of convincing or compelling a party
to make restitution. Thus, when France agreed to enter into negotiations with Ni-
geria on the subject of the Sokoto and Nok statuettes unlawfully exported from
Nigeria and acquired by the French state in 1999, it did so as a gesture of good-
ALTERNATIVE MEANS OF DISPUTE RESOLUTION 3
will,10 and the agreement that was reached acknowledges Nigeria’s ownership of
the objects, which remain on deposit with the Quai Branly Museum for 25 years,
renewable by joint agreement.11 The lack of legal recourse is one of the working
hypotheses here, but not the only one: This article will also address techniques for
avoiding formal legal proceedings.
6. Alternative means of settling conflicts of interest in the ownership of cul-
tural property, which coexist with the traditional tools (such as bilateral or multi-
lateral treaties), take many forms: unilateral decisions or agreements that may
involve various forms of intermediary (namely, mediation, conciliation, or arbi-
tration). In the last few decades, these consensual arrangements have become in-
creasingly popular, both in terms of form and substance, in line with changing
sensitivities regarding the restitution of cultural property. The idea that there is a
moral duty to make restitution of, or pay compensation for, highly valuable or
significant cultural heritage items is strongly gaining ground, especially when the
dispossession dates back to a period of colonial domination. Furthermore, de-
mands of communities are increasing, and the collective rights of indigenous peo-
ples are more and more being recognized. As rightly stated by Pomian, “what lies
behind the renewed interest in cultural property restitution over the past decades
is merely an attempt to compensate for the past, which touches on outstanding
historical issues, such as European colonization, the Second World War, and dis-
crimination against indigenous peoples.” 12 Indigenous heritage claims and the re-
surgence of the issue of looting have somewhat revived the process of restitution,13
resulting in the appearance of complex arrangements. It may prove useful to ex-
plore the various remedies both as to the practices and methods they use (I) and
the substantive solutions they offer (II).
II. New Developments in Practices and Methods
7. Following the UNESCO General Conference held in Paris in 1978,14 the Inter-
governmental Committee for Promoting the Return of Cultural Property to Its
Countries of Origin or Its Restitution in Case of Unlawful Appropriation was es-
tablished 15 and immediately began work on seeking interstate solutions in spe-
cific cases of restitution or return.16 More recently, it was suggested that the
committee’s terms of reference be extended to offer mediation and conciliation to
the member states.17
8. Other organizations, such as the International Council of Museums (ICOM),18
the International Law Association (ILA)19 and the Institut de Droit International
have become involved in issues of return or restitution by formulating recommen-
dations or resolutions. Mention should also be made of the work done under the
auspices of the United Nations, particularly the Declaration on the Rights of In-
digenous Peoples.20 The proliferation of forums in which issues of restitution are
discussed has undoubtedly encouraged the development of practices and meth-
ods in this field. Changes in the institutional context affect not only the dynamics
of claims and the capacity of the claimants but also the terms on which returns or
restitution can be arranged.
A. The Protagonists
9. The restitution of cultural property has always been primarily an affair of state,
and of disputes between states,21 with each protagonist claiming sovereignty or own-
ership over cultural property of major significance. It is essentially from this angle
that the issue is addressed in the 1970 UNESCO Convention,22 as in the European
Directive on the restitution of cultural property adopted in 1993 to provide a frame-
work for the return of unlawfully exported national treasures.23 A new develop-
ment has been the emergence of other actors entitled to claim ownership of certain
assets: States are not always the only parties. The question now is whether the new
actors have standing to make claims based on their own heritage interests.
1. The Actors Are Many and Varied
10. Two features may be distinguished in the involvement of new actors in resti-
tution claims. First, in addition to states, there are now other public and private
law entities, regional or territorial government authorities, and even museums.
Second and more specifically, many claims are now being made by indigenous
communities demanding the return of their heritage in the collective interest.
a. Multiple holders and claimants
11. Many cases of restitution of cultural property involve entities other than
states. Museums, for example, are behind many restitutions, as borne out by nu-
merous examples given in the journal Museum and the active role played by ICOM.
Indeed, the ICOM Code of Ethics contains a number of recommendations that
encourage the return of such property.24 Some national professional organiza-
tions have also adopted ethical rules on the subject.25 Recent examples of restitu-
tion of cultural property by museums include the restitution agreements concluded
between several museums in the United States and Italy in 2006 and 2007.26
12. The consolidation of the cultural competences of actors other than nation-
states has further widened the circle of holders or claimants in a position to lay
claim to heritage on which their identity rests. This is demonstrated by the exam-
ple of the final settlement of a dispute between the two Swiss cantons of Saint-
Gall and Zurich over items of public cultural property that had been in Zurich’s
possession since 1712. One of the points in the 2006 mediation agreement was
recognition of the importance of the manuscripts to the canton’s identity.27 An-
other case involves two French local districts (communes), both claiming paint-
ings depicting Saint Guilhaume that had been dispersed during the Revolution
and later recovered and redistributed, in disregard of the original possessor. One
commune thus finds itself in possession of a painting that not only used to hang
in the monastery of Gellone in the neighboring town of Saint-Guilhem-le-Désert
but also depicts the main episodes in the life of its founding father. Here, too, the
link between heritage claims and identity-based attachment is evident.28 The town
of Saint-Guilhem-le-Désert has been attempting to recover the paintings since the
mid-nineteenth century, arguing that its ownership is well known. Its claims have
been repeatedly reactivated, so far unsuccessfully.
13. Finally, voluntary restitution may also be made by private individuals, art
dealers, and collectors in possession of important cultural property stolen from
public collections. The altarpiece of Vétheuil, an item of religious heritage stolen
from a church, was later given back to France by the holder, a professional antique
dealer. He had originally put the object up for sale but, with strong encourage-
ment from his profession, eventually decided simply to make restitution.29 In the
other case, a bronze Roman hand held by a collector in Basel was spontaneously
handed back to the Turkish authorities.30 In both cases, the emblematic nature of
the objects and the fact that they formed part of the national heritage may have
influenced the decision. With the Turkish hand, another factor may have played a
part. Switzerland and Turkey are negotiating an agreement on the import and re-
turn of cultural property as part of measures to combat trafficking, which might
encourage such initiatives where no binding obligation exists. However, this does
not always happen.31
b. Indigenous peoples: New subjects of collective rights

14. The rights of indigenous peoples, long ignored by international law, were
enshrined for the first time in the Indigenous and Tribal Populations Convention
(ILO Convention No. 107 of 1957),32 which was amended in 1989 and renamed
the Indigenous and Tribal Peoples Convention (No. 169).33 Both conventions focus
on nondiscrimination and the self-determination of territorial rights.34 Concern
about culture, which was not mentioned in the first version of the convention, is
expressed in the 1989 text, although it is approached from a particular perspec-
tive.35 In a section entitled “Land,” governments undertake to “respect the special
importance for the cultures and spiritual values” of this bond with the land.36
15. These rights now more generally include cultural and intellectual property
rights, as clearly stated in the resolution adopted by the United Nations General
Assembly on September 13, 2007.37 The initial premise is in the 1993 Mataatua
Declaration adopted at the International Conference on the Cultural and Intellec-
tual Property Rights of Indigenous Peoples 38 and the 1994 Draft Declaration on
the Rights of Indigenous Peoples.39 These concerns, initially enshrined in texts on
the protection of basic rights, then took on a life of their own to inform cultural
property law. They appear in the texts and other documents produced by UNESCO,
Unidroit, and the Council of Europe.
16. The 1970 Convention thus provides, still in fairly vague terms, that a state’s
cultural heritage includes “cultural property created by the individual or collective
genius of nationals of the State concerned.” 40 References to the rights of commu-
nities are spelled out more clearly in the new generation of cultural conventions
such as the Convention for the Safeguarding of the Intangible Cultural Heritage 41
and the Convention on the Protection and Promotion of the Diversity of Cultural
Expressions.42 These two instruments are nonetheless silent on the restitution of
tangible heritage, unlike the Unidroit Convention on Stolen or Illegally Exported
Cultural Objects, which specifically refers to “a claim for restitution of a sacred or
communally important cultural object belonging to and used by a tribal or indig-
enous community in a Contracting State as part of that community’s traditional
or ritual use” 43 and also to their return if the export “significantly impairs” its
interest.44
17. The indigenous people–heritage nexus, a notion in which various sources
intersect,45 has given rise to a new concept as found in the Council of Europe
Framework Convention on the Value of Cultural Heritage for Society, namely, the
heritage community, which denotes the multiple nature of ownership of cultural
heritage. The community consists of “people who value specific aspects of cul-
tural heritage which they wish, within the framework of public action, to sustain
and transmit to future generations.” 46
18. Indigenous peoples are the new subjects of rights and of some domestic
laws. Several states have adopted texts that recognize the rights of their indigenous
communities; the United States, especially, has passed a famous act, the Native
American Graves Protection and Repatriation Act (NAGPRA), adopted in Novem-
ber 1990, establishing the right of Native Americans to repatriate a number of
cultural objects and, in particular, the right to recover sacred objects and human
remains, and requiring museums to make an inventory of them. Although the
title of the act refers to graves and their contents, the scope of application of the
instrument seems to cover sacred objects in general.47
19. On the basis of these texts, indigenous peoples may autonomously exercise
rights over their heritage. This raises the question of the nature and intensity of
those rights, which vary from one instrument to another, and the determination
of what cultural property is covered. There are two distinct sets of prerogatives,
both linked to the recognition of a form of moral right.48 Under the United Na-
tions resolution, indigenous peoples are empowered to control the use of cultural
property and to “manifest, practise, develop and teach their spiritual and religious
traditions, customs and ceremonies,” which implies access to the objects that sup-
port those practices.49 The text thus introduces an original mechanism in estab-
lishing a right of usage, but restitution is not obligatory in this case.50 This possibility
is mentioned in Article 11, which requires states to grant “redress through effec-
tive mechanisms, which may include restitution, developed in conjunction with
indigenous peoples, with respect to their cultural, intellectual, religious and spir-
itual property taken,” irrespective of whether the dispossession was lawful or not.51
Respect for these rights may logically be secured through exchanges and negotia-
tion, as alternatives to restitution. The solution is more radical with regard to human
remains, as the text imposes a right of repatriation, formulated in more rigorous
terms.52
20. Of course, the binding force of this instrument and the extent of the state’s
duty to return items are open to debate as it is merely a resolution. The attention
given to this new generation of collective cultural rights nonetheless strengthens
their legitimacy, even in legal systems under which rights may not form the basis
of an action for restitution, and likewise encourages voluntary arrangements. It is
as if a moral obligation of restitution was gradually being established.
21. There are several possible explanations for the recent developments in claims
for restitution, and in the terms on which it is granted. Above all, new sovereign-
ties are emerging and becoming established, in which heritage values are being
constituted or reconstituted in a search for identity that then triggers the process
of restitution. This is the constitutive function of heritage, and it is here that new
developments are occurring. However, possessors also sometimes wish to make
restitution of property for ethical or political reasons. The case of the Maori head
in the Museum of Rouen is particularly illustrative of the changing sensitivity in
the way such issues are approached. The head, which had become part of the
Museum’s collections during the trade boom of the late nineteenth century, had
been donated by a collector. The City of Rouen, which owned the collections, de-
cided to return the head. It is interesting to read the record of the debate on the
matter in the Municipal Council: “in making this restitution, the City of Rouen
intends to perform an ethical act. This symbolic act is an expression of due re-
spect for the beliefs of a people who refuse to allow their culture and identity to
die. This head is moreover sacred in the eyes of Maori tribes and will therefore
return to its land of origin for burial in accordance with ancestral rites.” 53 As ex-
plained below, this decision was then challenged successfully in the French courts
by the French Ministry of Culture.54
22. It could also be said that, in general and despite some resistance, heritage
claims are obviously strengthened by the protection of basic rights,55 as is clearly
apparent from recent texts on cultural heritage that have initiated changes in the
way it is protected. Until recently, these texts laid greater emphasis on the preser-
vation of objects or places, but they now concentrate increasingly on the rights of
people and communities in such matters.
2. The Capacity of Entities to Initiate the Process of Restitution
23. The growing number of actors involved in these processes of return or resti-
tution raises the question of the capacity to give back or receive. Who has the duty
to make restitution, and to whom can a displaced object be returned? There is no
one single answer.
24. In terms of the possessors, the power to dispose of the property generally
lies with the owner. The statutes of some museums grant them complete freedom
to make restitution. Under the agreements concluded between the Italian govern-
ment and the Metropolitan Museum of Art in New York or the Museum of Fine
Arts in Boston, these institutions have themselves contracted with the Italian gov-
ernment. Another case in point is the Australian Museum, whose statutes afford it
considerable freedom to manage its collections, thereby enabling it to effect res-

titutions without being obliged to request authorization and to sign contracts with
other museums directly without having to go through diplomatic channels.56 As
this facilitates the restitution process, it is tempting to regard it as a good solution.
However, is it always good for curators to decide whether or not items should be
returned?
25. When the objects in question are designated as belonging to the national
heritage, there is more at stake than the power of an owner over an object, even a
public owner. Collective heritage entails a different form of ownership that affects
freedom to dispose freely of such property. Transfer of ownership may require
official authorization and is sometimes simply prohibited. The solution is derived
from several sources: public property law or, in some cases, a special law of cul-
tural property. Prohibition on disposal weighs as a major factor. The “prohibition
on disposal” objection is often invoked in response to a claim for restitution,57
and its meaning can vary.
26. In the English system, the rules on the inalienability of public property dif-
fer according to the property and the collections in question. Crown property may
not be alienated, which is similar to the concept of the public domain (domani-
alité publique) in French law. Outside this restricted circle, the rule of inalienabil-
ity can also be derived from museum statutes. National museums are individually
governed by laws that impose the principle of inalienability with respect of col-
lections that they hold on behalf of the nation. “De-accessioning” is prohibited,
save in exceptional cases. National museums may dispose of, donate, or sell the
objects in their collections if one of the following conditions is fulfilled: where
they have a duplicate or the object is a document printed after 1850, of which the
museum has a photocopy; the object has become inappropriate for the collection
and may be sold without detriment to the interests of researchers or the public; or
the object has become unfit, for example, due to deterioration.58 The British Mu-
seum,59 the Tate Gallery,60 and the National Gallery are all national museums.61
The statutes of other museums may also impose the inalienability of collections,
but unlike the statutes of national museums, this is optional rather than obligatory.
27. Conversely, there is nothing to prevent museums (even national museums)
from agreeing to long-term loans. This solution was adopted in the case of the
Benvento Missal (a twelfth-century manuscript) 62 and has also been considered
in relation to the Elgin Marbles. It would be for the Board of Trustees of the Brit-
ish Museum to make such a decision, without government interference.63
28. In other cases, special laws may override the prohibition on disposal. Under
Article 47 of the 2004 Human Tissue Act, nine national museums have been au-
thorized to “transfer from their collection any human remains which they reason-
ably believe to be remains of a person who died less than one thousand years
before the day on which this section comes into force if it appears to them to be
appropriate to do so for any reason,” provided that the requesting party provides
proof of a continuous link.64
29. The inalienability of collections has been used as an argument in several

cases in which French museums are or have been involved. These include human
remains (Saartjie Baartman [called the Hottentot Venus] and also a Maori head)
and sovereign archives.65 It was argued that the objects belonged to the public
domain and were therefore inalienable. The argument can, however, be overrid-
den, as it is in many systems. Inalienability of the public domain is not a consti-
tutional principle. The inalienability rule has to do with the public utility of the
item, a special determination usually the result of a court decision, and binding
even on the head of state, who may not dispose freely of such property as a gift to
another state, for example. It may, however, be challenged, if necessary, by a public
authority. The scope of the public domain, an operational regime that protects
the public interest,66 is relative, especially when the inclusion of an object is un-
justified, per se or in the light of other interests. The reversibility of the designated
status of public property is a rule common to many states. This reasoning could
have been used in the case of the Hottentot Venus. The object could have been
de-accessioned pursuant to an administrative decision. Owing to the strong feel-
ings aroused by the restitution, a law was adopted that carried the weight of legal
authority.67 In some cases, however, prohibition on disposal is absolute. Items in
French collections that may not be de-accessioned include objects donated or
bequeathed—which reassures benefactors—and public property acquired by pub-
lic bodies other than the state with state assistance in the form of public financial
support.68 Such irreversibility is open to serious question when the objects in-
volved are part of another heritage. Nevertheless, it precludes any hope of resti-
tution under the law as it stands.
30. Under Swiss law, property forming part of the government-owned heritage
is not explicitly stated to be inalienable. However, it seems that the principle of
inalienability could apply to cultural property belonging to the government-
owned heritage and, more specifically, to cultural property listed in the Federal
inventory of the Confederation (Article 3 of the Federal Act on the International
Transfer of Cultural Property [LTBC] of June 20, 2003).69 As in the French sys-
tem, government-owned heritage in Switzerland is based on the notion of classi-
fication. As a result, objects that are no longer classified as being of public use or
those of disputed importance (the criterion for inclusion in the federal inventory)
may be de-classified under the same procedure as is used for their classification.70
31. As to the status of cultural property included in the cantonal inventories in
accordance with Article 4 of the LTBC, the rules vary because cantons may declare
that certain objects are inalienable and their listing is indefeasible. Systems other
than those based on inalienability also exist, such as alienation subject to autho-
rization (as in the Canton of Fribourg for protected movable property belonging
to legal entities under public or canon law).71
32. Provision for free disposal by the owner does not always work to the ad-
vantage of the restitution process, as individual owners may oppose it, and the
public authority or the state is powerless to force their hand. Some commentators
foresee difficulties arising regarding the “ownership of objects, collections, or doc-

uments located in museums belonging to federal states or provinces having the
final decision in the field of education and culture” 72 or when such property is
held by foundations or private individuals. A state that wishes to return property
will not always be able to overcome the owners’ opposition. This may be the case,
for example, with property listed in the inventories of the Swiss cantons, over which
the confederation has no right, or property listed in the inventories of the Ger-
man Länder.73
33. The parallel issue of capacity to receive property also arises. In responding
to claims by indigenous peoples or other communities, can restitution be made
directly to the claimants? A claim to ownership should not present problems when
the holder of the right can be recognized as a natural or legal person in private or
public law. A commune, region, or museum is entitled to recover possession of an
object once its ownership has been established. The issue is more complex when
the claimant is a community. There is still no legal recognition of collective own-
ership. In practice, such claims and restitutions are usually made through the state.74
The Hottentot Venus, ancestor of the Khoisan community, was returned to
South Africa after the South African Ambassador made an official request to
France on October 26, 2000.75 The City of Rouen took steps to return the Maori
head to New Zealand.76 Initially, Vaimaca Peru, a cacique from the Charruas eth-
nic group of Uruguay, could not be handed back because the Uruguayan Govern-
ment did not make an official request to France.77 By contrast, in 2006 Sweden
returned a totem that had been displayed at the National Museum of Ethnogra-
phy in Stockholm, the first object to be returned directly to a Canadian indig-
enous group.78
B. The Techniques Used
34. The traditional tools of interstate relations are still used for the restitution of
cultural property. Historically, the end of armed conflicts has often heralded the
restitution of cultural property as required by peace treaties.79 One example is the
agreement concluded by the French Republic and the Federal Republic of Ger-
many on the transfer of material, objects, and documents to form a museum col-
lection for the Allied Museum in Berlin.80 In more recent times, Italy and Libya
agreed to the restitution by the former to the latter of many objects removed dur-
ing the colonial period.81 Other techniques are used alongside these older proce-
dures, sometimes in novel ways. Restitution is either unilateral (based on laws or
administrative rulings) or bilateral (negotiated with or without mediation or re-
ferred to arbitration).
1. Adoption of Special Laws or Unilateral Decisions
35. A law was passed to regulate the exchange of works between France and Spain
in 1941 82 and again in 1956 for the restitution of a set of Japanese items by the
Guimet Museum. According to the single article of that law, the French Minister
of National Education was authorized to surrender to the Japanese Government,
on a permanent and inalienable basis, approximately 60 objects from Japan (such
as pottery, sculptures, bronzes, and items made of jade and other precious stones)
for the National Museum in Tokyo.83
36. In the case of public property, in most cases there is no need to enact a law
to initiate the restitution process. An administrative ruling suffices to secure re-
moval of the objects from collections. Once they are no longer designated as being
of public utility, their public domain status and the resulting restrictions on their
disposal no longer apply. The objects may therefore be surrendered. The proce-
dure is legally valid but is not always easy to implement, especially when vehe-
mently opposed by the administration and the directors of the collections. The
latter mainly fear that a precedent will be set for property considered almost sac-
rosanct: the nation’s heritage. From that standpoint, recourse to a formal legal
process makes sense, as it highlights the exceptional nature of restitution. France
handed the Hottentot Venus back to South Africa in unprecedented circum-
stances involving the adoption of a single-article French law 84 authorizing the res-
titution. Because of the background of the case—Saartjie Baartman, to use her
real name, was taken from South Africa around 1810, died in France in 1816, and
her skeleton was displayed in the Musée de l’Homme until 1976 85 —an excep-
tional legal solution was the preferred option. Moreover, recourse to legislation
took on a special significance here. First, the case concerned human remains, which
are not simply a cultural object like any other.86 Second, this method relieved the
government of the responsibility of making a decision on restitution. In this case,
it provided a way of overcoming its reluctance.87 The question now is whether the
same solution could be used to extricate France from the embarrassing case of the
Maori head or the Korean manuscripts held by the Bibliothèque Nationale.88 There
are indeed serious doubts as to whether it is the role of legislation to resolve spe-
cific cases. But this method obviates the need to debate the merits of heritage claims
and to strike a balance between two competing interests, when, as is most often
the case, there are admittedly legitimate arguments on both sides.
37. In some cases, however, only a law can end the deadlock caused by inalien-
ability. The status of British collections has already been mentioned. In view of
the de-accessioning criteria and in the absence of any justifying grounds, a law
was necessary to authorize the removal of human remains from public collections.89
38. With regard to unilateral restitution initiatives, the decision taken by the
municipality of Geneva in the dispute on the Cazenoves frescoes is an interesting
one. This dispute, well known to experts in private international law, concerned a
claim to frescoes removed from a chapel in Roussillon and subsequently acquired
by the Art and History Museum in Geneva. The claimants lost the case in the
French courts, on the grounds of lack of territorial jurisdiction (ratione loci ).90
Reluctant to initiate proceedings in the Swiss courts, they decided to negotiate.
Initially, the municipality of the City of Geneva, which has responsibility for the
Art and History Museum, agreed with the French authorities to grant a long-term
loan.91 A few years later, the loan was unilaterally transformed into a donation by
a decision of the Administrative Council of March 19, 2003,92 which has prompted
questions about the legitimacy of the de-accessioning decision by the Administra-
tive Council of the City of Geneva.
39. It was also by unilateral decision that Italy made restitution of a sculpture
that had been de-accessioned from the public domain.93 The decision to return
the Venus of Cyrene from the museum in Rome to Libya was strongly criticized
but has been upheld by the Italian courts on the grounds of the primacy of cus-
tomary international law.94
2. Negotiated Processes
40. Private agreements can be reached after a—sometimes relatively lengthy—
process of negotiation between the parties. One interesting example is the nego-
tiation that enabled the Republic of Italy to sign agreements with the Boston
Museum of Fine Arts, the Metropolitan Museum of Art of New York, and the J.
Paul Getty Museum in California. None of the agreements, apart from the one
signed with the Metropolitan Museum of Art,95 has been published, although
the broad terms have obviously been revealed, in particular through press re-
leases.96 What is interesting is the bilateral nature of the agreements: the Amer-
ican museums agreed to make restitution of objects of dubious provenance that
might have been obtained from illegal excavations, but they did so in exchange
for promises made by the Italian authorities entailing a commitment to allow
international loans of similar works, some of which are specifically listed in the
agreement.
41. Another type of agreement is one that follows mediation. Mediation is
immensely popular at the moment and has been expressly supported by many
bodies, including ICOM 97 and the Intergovernmental Committee for Promoting
the Return of Cultural Property to Its Countries of Origin or Its Restitution in
Case of Unlawful Appropriation.98 Although it is difficult to ascertain how
many successful mediations there have been, primarily because the resulting
agreements are often confidential, some are made public, especially when state
entities are involved. One noteworthy example is the mediation agreement be-
tween the cantons of Saint-Gall and Zurich: the dispute between the two Swiss
cantons had existed since the religious wars in the early eighteenth century.99 On
the basis of a provision in the Federal Constitution of 1999, the two cantons
called on the confederation to act as mediator, and an agreement was signed in
April 2006. Although the ownership of the cultural objects in question (mainly
ancient manuscripts) was granted to the Canton of Zurich, several other ele-
ments were decided in favor of Saint-Gall, such as the long-term loan (27 years
renewable) of the manuscripts and the production of an exact replica of Prince-
Abbot Bernhard Muller’s cosmographical globe at the expense of the Canton of
Zurich.100
42. Negotiation can sometimes be used as a way of avoiding formal legal pro-
ceedings, as for example with out-of-court settlements, some of which are ratified
by a court.101
43. Mediation was, quite unusually, suggested by an English judge to avoid the
length and excessive expense of a trial when an Aboriginal community in Tasma-
nia claimed human remains from an English museum. The judge invited each of
the parties to appoint a mediator, and the two mediators succeeded in persuading
the parties to reach an agreement permitting restitution in exchange for access to
specific scientific data.102
44. Although the Intergovernmental Committee has mentioned the possibility
of conciliation as an alternative method of dispute resolution,103 this technique
does not appear to have been used to date.
3. Arbitral Awards
45. Arbitration is another alternative method used, albeit rarely, in disputes over
cultural property.104 Article 8, paragraph 2, of the UNIDROIT Convention on Sto-
len or Illegally Exported Cultural Objects provides that “the parties may agree to
submit the dispute . . . to arbitration.” The main example is the arbitration be-
tween Maria Altmann and the Republic of Austria: In an award handed down on
January, 15 2006, an arbitral tribunal recognized Altmann, the sole descendent of
Adèle Bloch-Bauer, as the owner of five paintings by Klimt acquired by Adèle Bloch-
Bauer and subsequently looted from her husband during the Nazi period in Aus-
tria.105 Much has been written about this dispute, which began in the courts of
the United States, culminating in a ruling by the U.S. Supreme Court that a pri-
vate individual could bring an action against a foreign state for looting in breach
of public international law.106 It was after that court ruling that the parties agreed
to arbitrate. What is less well known is that a second arbitral award was handed
down a few months later by the same arbitral tribunal, rejecting a claim to a sixth
Klimt painting whose ownership history, after purchase by Adèle Bloch-Bauer, had
been different from that of the other five.107
46. There is, as we have seen, a growth in use of alternative methods for the
resolution of disputes over cultural property, involving a variety of actors and pro-
cedures. We will now turn our attention to the content and aims of these tools, as
well as the often novel solutions they offer.
III. NEW SUBSTANTIVE DEVELOPMENTS
47. As has been seen, the current context of restitution is changing. The question
now is whether these new developments also affect the objects of restitution, that
is, the way in which contractual relations are formed between claimants and hold-
ers. On the first of these, the main idea to emerge is that the items in question are
generally sacred or highly symbolic objects. As to the different arrangements made

for restitution, experience shows that the instruments used vary considerably.
A. The Nature of the Property Claimed
48. Our analysis here is based primarily on cultural property forming part of a
state’s heritage, these being the items of the highest importance whether they are
in public or private hands. Looked at from this standpoint, claims mainly relate to
items considered to be inseparable from the country to which they belonged.108
The Intergovernmental Committee for Promoting the Return of Cultural Prop-
erty to Its Countries of Origin or Its Restitution in Case of Unlawful Appropria-
tion chooses to focus its efforts on objects in this category. Claims may relate to
objects with “a fundamental significance from the point of view of the spiritual
values and cultural heritage of the people of a Member State” that were lost “as a
result of colonial or foreign occupation or as a result of unlawful appropriation.”
Their symbolic, sacred, or religious value or importance to the state of origin should,
in principle, command respect. The difficulty is nonetheless twofold: not only of
expressing the original connection but also of identifying it. Does that link take
precedence over all others? In reality, the equation is more complex. Relatively
speaking, other interests, too, have a claim to legitimacy by virtue of the universal
notion of heritage and the dissemination of cultural plurality, or the need to pro-
tect the heritage of mankind.109 Many museum collections have been established
on the basis of this notion. The first questions to be resolved are whether or not
the acquisition was lawful, and what effect this has on the principle of restitution
or return.
1. The Issue of Unlawfulness
49. In practice, distinctions must be drawn depending on the period when a party
took possession. The lawfulness criterion is obviously decisive in the case of ob-
jects procured recently, through trafficking, illegal export, or theft. In such situa-
tions, the law does not always permit restitution, for a variety of reasons such as
the territoriality of criminal enforcement and the consolidation of rights by a pos-
sessor in good faith. Where no such means of compulsion exist, it is precisely that
sense of unlawfulness that prompts states to make voluntary restitution or other
arrangements intended to recognize the rights of the country of origin. In recent
cases of theft or unlawful export, restitution has been more likely where the prop-
erty in question is highly valued by the state. In such cases, not only is the burden
of illegality more keenly felt, but also insufficient time has passed to lend legiti-
macy to any cultural link other than to the country of origin.
50. As to France’s acquisition of three Nok and Sokoto objects from Nigeria for
the Quai Branly Museum, appropriation is not unlawful under French law if the
possessor has acted in good faith. Export of those statues was, however, prohibited
in Nigeria, and they were on the ICOM Red List of stolen objects. It was this two-
fold consideration—that those objects had been trafficked and that they were of
major importance—that led to the signing of an agreement recognizing Nigeria’s
ownership while granting a renewable long-term loan (25 years) of the objects to
France. The defence of good faith could have been raised to make such an ar-
rangement unnecessary, but it seems that in the circumstances, a negotiated solu-
tion was called for.
51. Where earlier dispossessions are concerned, the question arises in different
terms. If the test used were whether the dispossession was unlawful, any principle
of restitution could easily be defeated. In most situations, either it was not unlaw-
ful under the law applicable at the time, or any wrongfulness has been purged by
time. Besides the fact that it may not always be possible to ascertain and evaluate
the circumstances in which a dispossession occurred, it sometimes took place with
the consent of the states or communities concerned. This was the case with the
nineteenth century trade in Maori heads. Thus, a discussion centered on unlaw-
fulness usually leads nowhere.110
52. Should we now revisit situations considered as scandalous and reassess their
validity in the light of present-day laws or even ethical principles? A number of
cases of restitution in France are colored by this spirit of repentance. The exercise
is clearly a difficult one, with the obvious dangers and uncertainties involved in
rejudging the past. Admittedly, periods of colonization did result in the displace-
ment of cultural property, and this substantive loss has been harmful to some states.
Would it not be preferable, however, to concentrate on the damage done to dis-
possessed states, rather than on the “fault,” by focusing on the breaking of the link
with the state of origin and its consequences? This is the dominant approach un-
derlying the reference to the vital nature of these tokens of cultural identity 111
and, in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Ob-
jects, to the significant impairment of sacred cultural property of collective im-
portance.112 The question whether the act was lawful or unlawful becomes a
secondary issue. This factor might, to a greater or lesser degree, influence the will-
ingness to make restitution. However, it should never be a precondition of resti-
tution, as this would provide a means of avoiding restitution in cases where it had
not been established that the operation was unlawful. The United Nations Decla-
ration on the Rights of Indigenous Peoples follows this logic when it acknowl-
edges a right of repatriation for cultural, intellectual, religious, and spiritual objects
taken with or without the consent of the populations concerned.113
2. The Ownership Connection
53. It remains to be determined which property is vital to and inseparable from
the countries or communities that produced it, and in what way it is connected
with the state considered to have a greater right to possess it. The notion of coun-
try of origin or provenance is not always clear-cut. Formally speaking, the country
of origin of an object is the country that designates the object as part of its cul-
tural heritage, by distinguishing it in some way, for example, by classifying it as a
national treasure or including it in an ad hoc record. This is the definition adopted

in Council Directive 93/7/EEC of March 15,1993, on the return of cultural ob-
jects unlawfully removed from the territory of a member state.114 However, states
do not always identify the cultural property that they consider important, hence
the difficulty encountered in applying this criterion. In addition, this approach is
unworkable when ownership is disputed and several states claim an eminent right
to the same object.
54. The notion of state of origin can also be defined in terms of the genuine
link between a community and a cultural object, rather than merely from a for-
mal standpoint.115 In the resolution of the Institut de Droit International, the
country of origin of a work of art “means the country with which the property
concerned is most closely linked from the cultural point of view.” 116 Here again,
though, this classification raises awkward questions: ties of adoption may also be
very strong. The prolonged possession, conservation, and long-term incorpora-
tion of an object as part of a heritage create a sense of ownership. This principle
has been recognized in international instruments including the 1970 Convention
on the Means of Prohibiting and Preventing the Unlawful Import, Export, and
Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Conven-
tion on Stolen or Illegally Exported Cultural Objects. The European Court of
Human Rights also recently recalled this principle in the Beyeler case.117 As Prott
observed, some states may consider important objects originally from other coun-
tries with which their population has close cultural ties as forming part of their
own heritage.118 Which links must therefore be considered to be closer? Those of
the original country? The adoptive homeland? Or both (by treating objects as
binational)? Although this reasoning must be selective and confined to the most
important objects, even in these cases it is not easy to determine the link of
ownership. It may be useful to examine some actual examples of restitution. Cul-
tural property returned to its territory of origin or the subject of agreements
(exchanges, loans, etc.) tends to come from public collections, archaeological ex-
cavations, archives, and other cultural items intimately linked to the history of
states, or to be sacred items and human remains. The latter two categories are
often mentioned in texts relating to the cultural heritage of indigenous peo-
ples.119 It may be useful to explore in greater depth the nature of their link to
one state or another.
55. As far as archives or manuscripts are concerned, some can be considered to
be so closely linked to the history of a state or community that they should nat-
urally be held in that state or community. For example, the manuscripts of the
Icelandic sagas are medieval documents compiled by a scholar and then bequeathed
to the University of Copenhagen in 1730 and returned in 1965 by Denmark to
Iceland, which had become a sovereign state in 1918. Another example is the very
early map of North America (undoubtedly one of the first) handed back to the
United States by Germany.120 It could also be argued that the Korean archives taken
by force at the end of the nineteenth century by the French fleet in retaliation for
the massacre of missionary priests might be returned to their country of origin, as

they are genuine sovereign archives, founding documents that are essential to an
understanding of present-day Korea.121 The link in this situation is not only cul-
tural but also political and organic.
56. In practice, it seems to have long been acknowledged that archives must be
handed back, not only in the light of their historical value but also and above all
because of their sovereign import and their role in the administration of territo-
ries.122 From this perspective, archives are not in the same category as other cul-
tural property. Their restitution is, however, not always an easy matter, particularly
in cases of state succession.123
57. Many sacred or ceremonial objects have also been the subject of restitu-
tion. Examples are the totem pole returned by Sweden to indigenous peoples in
Canada and the Vanuatu drum handed back to its country of origin by the Aus-
tralian Museum. Some museum directors think that the U.S. act, NAGPRA,124
despite being silent on this specific point, requires restitution of fundamental
pieces that should never have left their place of origin. This would apply, for
example, of totem poles or emblematic objects. By contrast, the American
Museum for Natural History has refused to hand back a meteorite, denying any
link to the claimant community.125 This position is debatable, in that the link of
origin is simply the value attributed to an object by a community or collectivity.
It might also be open to the objection that the piece is of primordial scientific
importance.
58. Among the objects of sacred or symbolic value, human remains undoubt-
edly deserve a category of their own, denoting links to the dead and to the earth.
In such cases, it is difficult to argue against the formation of a cultural link. Dis-
cussions are ongoing, for example, on requests for the restitution of Maori heads
held in several large museum collections. Generalizations about human remains
should be avoided, however, not only because they take many forms 126 but also
because their status changes over time. The decision by the Michael C. Carlos Mu-
seum of Emory University of Atlanta to return the mummy of Ramses I was mo-
tivated less by respect for the dead than by its historical connection and by the
desire to return the mummy to its place of origin.127 And yet on another level,
museums’ bone collections have become the subject of scientific and documen-
tary study, designated as “natural biological materials.” 128 Arguably, there is scarcely
anything sacred in these fragments that have long ceased to be human. Some claims
show, however, that the issue is not that simple. In the dispute between the Ab-
original community of Tasmania and the British Natural History Museum con-
cerning human remains claimed by the former, the Museum had intended to
conserve the remains in order to take DNA samples as material of scientific inter-
est for future use.129
59. The foundational dimension is also extremely relevant for objects found in
archaeological excavations, also known as “soil archives,” which are essential not
only to an understanding of states and their history but also to their construction
and foundations. Given the cultural and political considerations at stake, these are
particularly sensitive items.130
60. Last, with regard to elements removed from monuments, the link of origin
is clearly strengthened by the natural attachment of the detached part to its orig-
inal support. It was probably on this basis that the U.S. Appeals Court ordered the
restitution of the mosaics of the Autocephalous Church,131 as there was no dis-
pute over state ownership in that case, in which an unscrupulous gallery director
had acquired the mosaics under dubious conditions. Italy’s restitution of the obelisk
to Ethiopia was no doubt similarly motivated to ensure reconstitution of and re-
spect for the natural attachment. The Elgin Marbles case, however, shows how
difficult this solution is to implement.
61. The greatest problem lies in the fact that, in certain cases, both links are
legitimate, and it is therefore not easy to rule out one in favor of the other. The
idea of dual nationality, of a form of collective cultural ownership of property, is
a solution that surely deserves more detailed exploration. Dispute resolution is
certainly moving toward the recognition, and therefore reconciliation, of the le-
gitimate interests of both sides. Arguments are no longer couched solely in terms
of restitution and dispossession. This new perspective has definitely been influen-
tial in the emergence of alternative solutions other than restitution, which are viewed
in some quarters as geared more toward rights of enjoyment and use than rights
of ownership.
B. Methods of Restitution
62. In current practice, the variety of restitution solutions is impressive. Negoti-

ated agreements offer sometimes complex solutions, and there is also a tendency
to “uncouple” ownership from possession. Although some solutions focus on res-
titution or an arrangement based on it, others provide an alternative to restitution
subject to certain conditions. Joint solutions are also starting to appear. Further-
more, several specific solutions can be adopted cumulatively in one specific case,
as, for example, in the mediation by the Swiss Confederation in the dispute be-
tween the cantons of Saint-Gall and Zurich over ancient manuscripts, which re-
sulted in the simultaneous adoption of restitution, the recognition of the special
cultural importance of objects that were not handed back, a long-term loan, a
donation, and the production of a replica of one of the cultural objects in ques-
tion, all as part of the settlement.
63. Generally speaking, there seems to be a move toward settlements that are
not formally expressed in terms of victory and defeat, but rather acknowledge the
existence of legitimate interests on both sides. The stage of recognizing dual na-
tionality or a form of collective ownership has not yet been reached,132 but it is
clear that reconciliation of interests is becoming the solution increasingly pre-
ferred by all concerned.
64. The following is suggested as an initial categorization of possible solutions:
1 Restitution (simple restitution or for consideration)

65. This option appears to be the simplest: the claimant convinces the other party
of the need to make restitution of the cultural property in question (where the
claim is one of ownership) or return it (in the case of unlawful export). A typical
case is the restitution of the five Klimt paintings ordered by the arbitral tribunal
in Austria in the Altmann case.133 Another example is the simple restitution of the
Maori head by the City of Rouen,134 although that decision was subsequently
annulled.135
66. Restitution may also be associated with consideration. Thus the Aksum
Obelisk was handed back to Ethiopia by Italy, which also bore all the transport,
reconstruction, and restoration costs.136
2. Conditional Restitution
67. Closely akin to simple restitution, sometimes restitution is subject to condi-
tions, which resembles the case of donations with obligations or conditions at-
tached. One example concerning human remains is the restitution by the British
Natural History Museum to an Aboriginal community in Tasmania, pursuant to a
2007 mediation, of the remains of 13 Aborigines on condition that some DNA
samples handed back along with the remains of the bodies would not be buried
with them but would be preserved for future scientific use that would require the
consent of the Aborigine community.137
3. Restitution Accompanied by Cultural Cooperation Measures
68. Nowadays, restitution can take place in the broader framework of coopera-
tion between the parties involved. One example is the agreement by the Metro-
politan Museum of Art in New York to hand back the famous Euphronios Krater,
accompanied by a series of cooperation measures between the museum and the
Italian authorities. Under the agreement of February 21, 2006, the Italian author-
ities undertook, in exchange for the restitution, to make available to the museum
as of January 15, 2008, “cultural assets of equal beauty and historical and cultural
significance to that of the Euphronios Krater” via four-year international loans.138
The agreement goes on to list in detail the 12 specific objects that were to be lent,
with inventory numbers. The museum furthermore undertook to make other res-
titutions and the Italian authorities promised other loans, particularly of archae-
ological objects found during missions financed by the Museum (Article 7). The
term of the agreement is long, since it is stated to remain in force for 40 years.139
69. The agreements signed by Italy with the Boston Museum of Fine Arts
(2006),140 the Getty Institute (2007),141 Princeton University (2007)142 and Cleve-
land Museum of Art (2008)143 contained similar provisions.
70. Quite surprisingly, the agreements contained no choice of law clause. This
means that the parties have not explicitly chosen the law applicable to their con-
tractual relations and that this must therefore be determined by interpretation.
Given that these are rather sophisticated international agreements, the lack of such
a clause may appear unusual. As the Italian state’s claims are based on its public
law, it is hard to see Italy agreeing to the application to those claims of a law other
than its own. The American museums were probably much more in favor of the
agreements being governed by the law of the United States. The result was there-
fore a deliberate silence, probably indicating failure to agree on this point.
71. As to disputes that might arise out of the performance of these agreements,
all of them provide for International Chamber of Commerce arbitration in Paris
with three arbitrators. This provision, too, is noteworthy: Despite the lack of any
direct link between the agreements and international trade, disputes are referred
to a center specializing in the settlement of commercial disputes.144
72. It is also of interest that the parties wanted their agreements to be regis-
tered by the UNESCO Secretariat, but UNESCO refused, which in our opinion is
regrettable While such refusal might be understandable, probably on the grounds
that the agreements had not been concluded between two states, their registration
would have been very useful to the international community in allowing dissem-
ination of the general principles of the agreements, though not of their specific
content, as they all contain confidentiality clauses. Furthermore, as the first gen-
eration of such agreements, it would have been desirable for UNESCO to be as-
sociated with the example set by them.
4. Formal Recognition of the Importance to Cultural Identity
73. Where there is no simple or conditional restitution, agreements resulting from
negotiation, mediation, or arbitration sometimes provide for formal recognition
of the objects’ importance to the cultural identity of one of the parties. In the
mediation by the Swiss Confederation in the dispute between the cantons of Saint-
Gall and Zurich over ancient manuscripts, the objects that were not handed back
to Saint-Gall were nonetheless explicitly recognized by Zurich as being of great
value to the identity of the Canton of Saint-Gall.145
74. Such recognition can be more than merely symbolic: In some cases, the
museums that retain the cultural assets in question nonetheless agree that they
may be used for ritual purposes by the community of origin.146
5. Loans (long-term, temporary and others)
75. Long-term loans are a common option in this field. When no simple or con-
ditional restitution is envisaged, the parties quite often agree to the loan of assets
whose restitution was requested. Conversely, restitution may be agreed in ex-
change for a loan to the party from whom they are claimed.
76. An example of the first situation is the mediation by the Swiss Confedera-
tion in the dispute between the cantons of Saint-Gall and Zurich: Zurich’s own-
ership was recognized, but the manuscripts were lent to Saint-Gall by Zurich for a
potentially unlimited period.147
77. An example of the second type of long-term loan is the February 2002 agree-
ment between France and Nigeria on the Nok and Sokoto statuettes, providing for
the recognition of Nigeria’s ownership of the objects in exchange for the grant of
a renewable 25-year loan to the Quai Branly Museum. Curiously enough, the press
release appears to interpret the loan as a form of compensation to France for its
good faith, as the objects were made available free of charge.148
78. Temporary loans are arranged when simple restitution, even where desir-
able, cannot be granted for technical reasons. For example, where the United
Kingdom Spoliation Advisory Panel recommends that a national museum make
restitution of property, such restitution would require an amendment to the law,
which could be a lengthy process. As noted earlier, the Benvento Missal, handed
back by the British National Library, was such a case.149
79. With regard to these loans, there is much discussion about the issue of res-
titution guarantees: Restitution proceedings could be brought against the benefi-
ciary of the loan, and the state of origin might be minded to request some form of
guarantee to avoid finding itself in such a situation.150
6. Donations
80. Restitution can also take the form of a donation, sometimes after consider-
able time. In the dispute over the Roman frescoes of Cazenoves (1984–1988),151
the Museum of Art and History of Geneva, whose ownership of the frescoes was
not challenged in court, had nonetheless initially agreed to lend the frescoes to
their commune of origin in France.152 The loan was then unilaterally transformed
into a donation by the City of Geneva.153
81. The party that has ownership of the assets can also make a donation. In the
mediation by the Swiss Confederation in the dispute between the cantons of Saint-
Gall and Zurich over ancient manuscripts, Zurich undertook to donate to Saint-
Gall a manuscript that was not one of those listed in the latter’s claim.
82. There are even cases of successive donations: In October 2008 an eye from
a statue of Amenhotep III was the subject of two almost simultaneous donations.
The eye was first donated by a collector/purchaser to the Antikenmuseum in Basel,
where it was being held, and it was at the same time donated by the museum to
the Egyptian state. The eye was thus reunited with the rest of the statue of Amen-
hotep III, which had been reconstituted by archaeologists.
83. That said, donation is not always the appropriate solution, as it presup-
poses that the donor is the rightful owner of the object, which the other party
often refuses to acknowledge.
7. Setting Up Special Ownership Regimes (joint ownership, trusts and
others)
84. The imaginative powers of lawyers know no bounds. In legal proceedings con-
cerning a Degas painting, “Landscape with Smokestacks,” looted by the Nazis and
subsequently purchased by a U.S. collector, the parties eventually agreed to the
following arrangement: the collector gave half of the painting to the Art Institute
of Chicago and the other half to the descendants of the family from which it had
been looted, with an option for the museum to purchase the second half of the
painting by paying half of the painting’s value based on a valuation agreed by
both parties. These were the terms of an out-of-court settlement reached by the
parties in August 1998.154
85. Another remarkable case is that of the Afghan cultural assets held for many
years in the Afghanistan Museum-in-Exile in Bubendorf, Switzerland, with a view
to safeguarding them and one day making restitution. This was a form of trustee-
ship that ended on the day UNESCO decided that the property in question could
be handed back.155
86. Last, original solutions have been suggested in this field based on the Anglo-
American trust and the Waqf in Islamic law.156
8. The Production of Replicas
87. The making of replicas cannot be deemed as equivalent to restitution. It is,
however, a technique that can be used as one element in the resolution of a res-
titution claim, forming part of arrangements that are sometimes complex.
88. This solution remains little used, despite being regarded as an interesting
option in this field. When the Swiss Confederation mediated between the cantons
of Saint-Gall and Zurich, one of the objects in dispute was a magnificent cosmo-
graphical globe by the Prince-Abbot Bernhard Müller dating from 1554. The par-
ties agreed that Zurich could keep the original globe, provided that it bore the
cost of producing an exact replica to be given to Saint-Gall. The production of the
replica was reported in detail by the local press and required considered technical
skill, as the original could not under any circumstances be dismantled.157
89. Other proposals have been made, some successfully: For example, an artist
offered to make a copy of Veronese’s “The Wedding Feast at Cana” (the famous
original of which is in the Louvre) and install it in the refectory of the monastery
on the Venetian island of San Giorgio Maggiore, where the original was located
before it was taken by Napoleon.
9. Withdrawal of the Claim for Restitution in Exchange for Financial
Compensation
90. This situation is fairly common, particularly when the claimant realizes that
the case is a difficult one and is more interested in financial compensation than in
the work itself. Several disputes over looted assets have ended in this way, a very
recent example being the case of Schoeps v. the Museum of Modern Art and the
Solomon R. Guggenheim Foundation (both in New York) concerning two Picasso
paintings that Schoeps claimed had been the subject of forced sales in Germany in
1934 by his ancestor the Berlin banker Paul von Mendelssohn-Bartholdy.158
10. Other Possible Solutions
91. Last, legal experts might devise many other solutions, open-endedness being
one of the major advantages of mediation. Three real-life examples are given next.
First, where neither the claimant nor the possessor is particularly interested in
keeping the item in question, they might agree to transfer ownership to a third
party, such as a museum. Second, states claiming ownership of property belong-
ing to their cultural heritage often decide to simply purchase the object on the
market, rather than engaging in lengthy and costly legal proceedings. In such cases,
the state may be said to be acquiring the object for the second time. Third, Egypt,
in particular, uses the “carrot and stick” technique to bring pressure to bear on
states wishing to carry out archaeological excavations on its territory: Permits have
been granted only to states that have acceded to Egyptian claims.159
IV. Conclusion
92. A comparative analysis of international practice shows, in our opinion, that

there are genuinely new developments in the restitution of cultural property, both
in terms of the methods used—alternative means of dispute resolution—and the
solutions proposed, with a great variety and diversity of types of restitution. Prac-
tice in this field seems to be driven by new ethical principles governing the for-
mation of public and private collections. Cultural property is no longer acquired
in the same way now as in the past, because standards and requirements have
changed considerably. Interestingly, the new ethical approach seems to be having
an influence even in more sensitive cases, where the passage of time and changes
in what is perceived as unlawful make it more difficult to find appropriate solutions.
93. While it is probably premature to speak of the formation of an inter-
national custom making some form of return or restitution of cultural property
mandatory, we can, however, observe a practice emerging coupled with a sense of
obligation, based on precisely those ethical considerations that come close to the
opinio necessitatis, the condition required for a custom to come into being. In
the area of cultural property, as in many others, ethical considerations precede the
formation of a rule of law.160
ENDNOTES
1. For example, Council Directive 93/7/EEC of 15 March 1993 (Official Journal L 074 27.3.1993
p. 74) is called the European Directive on the return of cultural objects unlawfully removed from the
territory of a member state, but deals only with the return to the state of origin.
2. For a comparative study of the various forms of recourse, see the joint research study by
Cornu, Protection de la Propriété Culturelle. The study describes the systems of China, France, the
United Kingdom, and Switzerland.
3. On terminological issues, see the following two works by Kowalski, “Types of Claims” and
“Restitution of Works of Art,” p. 17.
4. According to the Director-General of UNESCO, in a plea was made in 1978 for member states
of the organization to conclude agreements to return such property.
5. The Directive on the return of cultural objects, cited above, thus provides for their return,
leaving the question of ownership to be settled by the legislation of the state of origin.
6. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property of November 14, 1970.
7. The Federal Republic of Nigeria v. Alain de Montbrison, Paris Court of Appeal, judgment of
April 5, 2004, upheld by the Court of Cassation, judgment of September 20, 2006, J.-M. Schmitt,
Journal des Arts, No. 256, 30 March–12 April 2007, p. 27.
8. Article 4, paragraph 1, of the statutes of the Intergovernmental Committee for Promoting the
Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Unlawful Ap-
propriation of November 28, 1978.
9. For a recent overview of thinking on restitution, see Prott, Witnesses to History.
10. This refers to the expression à bien plaire, used in Switzerland to describe fulfilment of a
natural obligation.
11. See the press release issued by the French Ministry of Culture on February 13, 2002. From
this point of view, the term “restitution” should be used somewhat reservedly, as it merely changes
the legal characterization of the situation, not the facts themselves. The objects remain in France but
are now there simply on loan.
12. Pomian, Memory and Universality.
13. The issue of looting has grown in importance in the last decade following the adoption of
principles at the Washington Conference on December 3, 1998 (see www.lootedartcommission.com/
Washington-principles). The text is reproduced in numerous commentaries. See, e.g., Palmer, Mu-
seums, especially p. 278. Many other declarations, resolutions, and other texts have subsequently
been adopted by international organizations, be they institutions such as UNESCO or the Council
of Europe, professional bodies such as the International Council of Museums (ICOM) and the Amer-
ican Association of Museums (AAM), or states adopting legislation on the matter.
14. Set up by 20 C4/Resolution 7.6/5, Records of the General Conference, 20th session, Paris,
October 24–November 28, 1978, p. 97.
15. See footnote 8 above for statute.
16. The committee’s work is covered in detail in its information kit “Promote the return or the
restitution of cultural property: Committee—Fund—UNESCO Conventions,” which can be found
on the UNESCO web site: http://unesdoc.unesco.org/images/0013/001394/139407eb.pdf.
17. Working document for discussion on a strategy to facilitate the restitution of stolen or un-
lawfully exported cultural property, Thirteenth Session, UNESCO, Paris, February 7–10, 2005,
CLT-2005/CONF.202/4.
18. The International Council of Museums is an international nongovernmental organization of
museums and museum professionals for the protection of heritage and collections.
19. The International Law Association has a committee on matters relating to the protection of
cultural heritage.
20. As to this, see below.
21. See Perrot, De la Restitution.
22. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property, November 14, 1970.
23. Council Directive 93/7/EEC of March 15, 1993, cited above.
24. The ICOM Code of Ethics for Museums can be found on the organization’s web site: www.
icom.org.
25. In particular, the American Association of Museums (AAM).
26. See, for example, the agreement between the Metropolitan Museum of Art of New York and
Italy, dated February 21, 2006, annexed hereto.
27. Agreement dated April 27, 2006 between the Canton of Saint-Gall and the Canton of Zurich,
with the Swiss Confederation as mediator. For the content of this agreement, see below, paragraph 43.
28. On this case, see the following two articles by Jérôme Carrière in the newspaper Le midi libre,
“L’Église de Vendémian Veut Garder ses Tableaux” (July 29, 2005, p. 6) and “Le Tableau Restauré
Revient à l’Abbaye de Gellone” (July 24, 2005).
29. The dealer had purchased the piece for Y33,000 and intended to sell it for Y170,000. See Le
Monde, November 11–12, 2007.
30. The object was included in the Interpol database of stolen works of art. See the press release
of the Swiss Federal Office of Culture, dated October 9, 2007: http://www.news.admin.ch/message/
index.html?lang⫽fr&msg-id⫽15062.
31. For example, Mr. Silvio Berlusconi holds a seventeenth-century clock, stolen from the Châ-
teau de Bouges in France, which belongs to the French National Historical Monuments and Sites
Commission, a unique object he refuses to hand back, claiming good faith. See N. Herzberg, “Au
musée des oeuvres volées,” Le Monde, August 2, 2008.
32. Indigenous and Tribal Populations Convention (No. 107), entered into force on June 2, 1959.
33. Indigenous and Tribal Peoples Convention (No. 169), entered into force on September 5, 1991.
34. On the recognition of indigenous peoples as subjects of international law and the emergence
of a law distinct from minorities law, see Rouland, Le droit des minorités, 348 and 391.
35. References to the notion of cultural rights became common as from the 1980s (see Rouland,
Le droit des minorités, 461).
36. The 1957 Convention refers only to the legitimacy of the communities’ individual or collec-
tive ownership rights over these lands and the possible limits thereto.
37. United Nations Declaration on the Rights of Indigenous Peoples, October 2, 2007, Resolution
A/RES/61/295.
38. First International Conference on the Cultural and Intellectual Property Rights of Indigenous
Peoples, Whakatana, 12 to 18 June 1993, Aotearoa, New Zealand.
39. Draft Declaration on the Rights of Indigenous Peoples of 1994, E/CN.4/SUB.2/1994/2/
Add.1(1994).
40. Article 4(a) of the 1970 UNESCO Convention, cited above.
41. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, October 17,
2003.
42. UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expres-
sions, October 20, 2005.
43. Article 3, paragraph 8, of the UNIDROIT Convention on Stolen or Illegally Exported Cul-
tural Objects of June 24, 1995.
44. Article 5, paragraph 3(d), of the UNIDROIT Convention on Stolen or Illegally Exported Cul-
tural Objects of June 24, 1995.
45. Human rights and cultural heritage law.
46. Article 2 (b) of the Council of Europe Framework Convention on the Value of Cultural Her-
itage for Society of October 27, 2005. Although indigenous communities are not explicitly men-
tioned, they are clearly included in the definition. Failure to mention indigenous peoples specifically
and the emphasis laid on the heritage issue may have been intended to reassure states that were less
open-minded about community demands.
47. See, as to the system overall, Baptiste Cornillier, master’s degree dissertation on cultural her-
itage law, Faculté Jean Monnet, Sceaux, Université Paris XI, 2008; Stephen Kinzer, “Homecoming for
the Totem Poles,” UNESCO Courier, April 2001, http://www.unesco.org/courier/2001_04/uk/
doss23.htm.
48. The “moral right to the recovery of vital tokens of cultural identity, removed in the context of
colonialism” is mentioned in a UNESCO text as an argument for countries demanding restitution,
UNESCO, Paris, September 20, 1985, CLT-85/WS/41.
49. Article 1, paragraph 1, of the United Nations Declaration on the Rights of Indigenous Peoples
(Resolution A/RES/61/295).
50. Contrary to the provisions of the 1994 Draft Declaration on the Rights of Indigenous Peo-
ples, Article 12 of which concludes by referring to “the right to the restitution of cultural, intellec-
tual, religious and spiritual property. . . .”
51. The text states that the property may have been taken “without their free, prior and informed
consent or in violation of their laws, traditions and customs.”
52. Article 12, paragraph 1, in fine, of the United Nations Declaration on the Rights of Indig-
enous Peoples (Resolution A/RES/61/295).
53. Municipal Council, City of Rouen, session of October 19, 2007.
54. See below, paragraph 66.

55. The dispute over the return of human remains to an Aborigine community in Tasmania by
the British Natural History Museum was apparently resolved only when the Aborigines invoked their
human rights. The dispute had been ongoing for a very long period and was resolved in 2007 through
mediation (see Julia May, “British Museum Hands over Aboriginal Remains,” The Age, 28 April 2007).
See Prott, Witnesses to History, 401.
56. For an example of a restitution on the Museum’s initiative, see Specht, “The Australian Mu-
seum,” 30.
57. The rule of inalienability was advanced in the objection raised by the museum, with the sup-
port of the British Government, in response to a request from Zambia concerning the Broken Hill
skull. See Mulongo, “Retour et restitution.”
58. On the inability to dispose of museum collections in the United Kingdom, see Vigneron, “Rap-
port National—Grande-Bretagne,” 281, The author states that these criteria are general and apply to
all national museums. However, the provisions relating to each museum must be consulted to as-
certain the exact extent of the directors’ powers.
59. British Museum Act, 1963.
60. National Gallery and Tate Gallery Act, 1954 (repealed on September 1, 1992).
61. National Gallery and Tate Gallery Act.
62. It was considered that this manuscript, looted during the Second World War and acquired by
the British Library in good faith, should be given back to the Italian monastery of Benvento (deci-
sion of the Spoilation Advisory Panel in 2005). As restitution was not possible, it was handed over in
the form of a long-term loan.
63. See Report on the activities (2002–2003) and the twelfth session of the Intergovernmental
Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Resti-
tution in Case of Unlawful Appropriation, UNESCO, 32 C/REP/15, June 27, 2003.
64. Vigneron, “Rapport National—Grande-Bretagne,” p. 282.
65. On the subject of Korean archives held by the Bibliothèque nationale de France (French Na-
tional Library) since the late nineteenth century and the principle of inalienability, see D. Bétard,
interview with Jacques Sallois, former director of the Museums of France, “Les Collections ne Sont
Pas une Monnaie d’Échange,” Journal des Arts, No. 269, November 16–29, 2007, p. 17.
66. Gaudemet, Traité de droit administratif, 32.
67. On the issue of restitution techniques, see below.
68. Article L 451–7 of the French Heritage Code. This is precisely what prevented the restitution
of the Maori head by the City of Rouen, which owned the collections as a “Musée de France.” The
head had been donated to the museum at the end of the nineteenth century.
69. Gabus and Renold, Commentaire LTBC ad art. 3 LTBC, N 7 ff.
70. Commentaire LTBC ad art. 3 N 14 ss.
71. Article 19 of the cantonal law of Fribourg of November 7, 1991 on the protection of cultural
property.
72. Ganslmayr, “Return and Restitution,” 13.
73. See Ganslmayr, “Return and Restitution,” 13. The author adds that it is precisely in these cases
that alternative solutions such as loans or exchanges can prove useful.
74. The issue arises in similar terms in litigation. In the Ortiz case (Attorney-General of New Zea-
land v. Ortiz and others, House of Lords, 1983, 2 ALL ER 93), the request was made by the state of
New Zealand rather than the Maori tribe concerned to avoid difficulty in determining the owner-
ship or interest of one or other community with regard to the item. As to this, and more generally
on the issue of claims for restitution made by entities other than the state, see the commentary by
Muir Watt, “La Revendication Internationale,” 20. In that case the problem did not arise, but the
author describes more delicate situations, such as when the cultural object itself has a certain per-
sonification in the country of origin and is presented as requesting its own restitution through a
spokesperson.
75. See footnote 65.
76. See paragraph 31 above.
77. The restitution took place in July 2002.

78. Restitution of the Hasila G’psgolox totem pole by Sweden to Canada (see below).
79. On the history of restitutions between states during the nineteenth and twentieth centuries,
see the above-cited works of Perrot, De la restitution.
80. Signed in Bonn on July 5, 1995, decree No. 95–989 of August 28, 1995, Official Journal no.
205, September 3, 1995, p. 13083.
81. The December 2000 agreements are analyzed in the procedure relating to the restitution of
the Venus of Cyrene to Libya by the Italian authorities, ruling by the regional administrative tribunal
of Latium of February 28, 2007, upheld by the Council of State on April 8, 2008.
82. Law of July 19, 1941, Official Journal, July 20, 1941. On the terms of the exchange, see Perrot,
De la Restitution, 192.
83. Law No. 56–631 of June 29, 1956, returning excavation objects belonging to the Guimet Mu-
seum to the National Museum in Tokyo, by way of exchange.
84. Law No. 2002–323 of March 6, 2002, on the restitution by France of the remains of Saartjie Baart-
man to South Africa (Official Journal No. 56 of March 7, 2002), Article 1: “From the date of entry into
force of this law, the remains of the person known as Saartjie Baartman shall cease to be part of the
collections of the public institution that is the national natural history museum. From the same date,
the administrative authority has two months to hand them over to the Republic of South Africa.”
85. See Fabrice Naudé-Langlois, “Après la Vénus Hottentote, à Qui le Tour ?” Le Figaro, February
22, 2002.
86. On the particular status of human remains, see Cornu, “Le Corps Humain.”
87. This method might be used for the case of the Maori head at the Museum of Rouen. A bill
has been put forward to overcome the legal difficulties relating to the restitution of part of the
museum’s collection (bill to authorize the restitution by France of Maori heads, registered with the
presidency of the Senate on February 22, 2008, consisting of one article based on the law of March
6, 2002, which reads as follows: “From the date of entry into force of this law, the Maori heads held
by the Museums of France shall cease to be part of their collections.”
88. On the issue of the Korean archives, see International Expert Meeting on the Return of Cul-
tural Property and the Fight against its Illicit Trafficking, meeting in Seoul, September 30–October
3, 2002, Proceedings, Korean National Commission for UNESCO, 2002.
89. See above.
90. Droz, Georges, Note sur “Fondation Abegg et Ville de Genève contre Anne Ribes et autres,”
Revue critique de droit international privé, 1989, p. 100 ff.
91. Contract signed on July 1, 1997. See also below.
92. Administrative Council Decision of March 26, 2003: “The Council decides to agree to trans-
form the loan into a donation from the City of Geneva to the Commune of Ile-sur-Tet of the two
works, which are hereby removed from the inventory of works of art belonging to the Art and His-
tory Museums.”
93. Italian judges coined a neologism to describe this operation: sdemanializzazione, which means
removal from the public domain.
94. Ruling of the administrative regional court of Latium, dated February 28, 2007, upheld by the
Council of State on April 8, 2008.
95. Agreement between the Metropolitan Museum of Art of New York and the Republic of Italy,
dated February 21, 2006, annexed hereto.
96. See below, paragraph 68.
97. See, for example, the statement made in January 2006 by the ICOM president, http://
icom.museum/statement_mediation_eng.html and the June 2005 report of the ICOM Legal Affairs
and Properties Committee, http://icom.museum/download/68/doc-eng.doc/2005LEG06-eng.pdf.
98. See, for example, the Draft Rules of Procedure on Mediation and Conciliation adopted at the
last Committee meeting in June 2007, http://unesdoc.unesco.org/images/0015/001509/150913e.pdf.
99. The publicly announced agreement is annexed hereto (although the German is the official
original). It is also available online: http://www.newsservice.admin.ch/NSBSubscriber/message/
attachments/2568.pdf.
100. This agreement could encourage others, such as in the dispute between the two French Com-
munes over the paintings of Saint Guilhem. Several attempts at negotiation have been made. The
Commune of Saint-Guilhem-Le-Désert, in particular, has proposed the return of other paintings in
exchange for the restitution.
101. See below for the case of settlements approved by a court in the United States.
102. See below.
103. Article 4–1 of the Statutes of the Intergovernmental Committee for Promoting the Return of
Cultural Property to Its Countries of Origin or Its Restitution in Case of Unlawful Appropriation
and its Draft Rules of Procedure on Mediation and Conciliation.
104. See Byrne-Sutton and Geisinger-Mariéthoz (Eds.), Resolution Mechanisms for Art-Related Dis-
putes (p. 115).
105. Maria V. Altmann, Francis Gutmann, Trevor Mantle, George Bentley v. the Republic of Austria,
arbitral award of January 15, 2006, http://bslaw.com/altmann/Klimt/award.pdf.
106. Republic of Austria et al. v. Maria V. Altmann, 541 U.S. 677 (2004). http://www.law.cornell.edu/
supct/html/03–13.ZO.html
107. Maria V. Altmann, Francis Gutmann, Trevor Mantle, George Bentley v. the Republic of Austria,
arbitral award of May 7, 2006, http://bslaw.com/altmann/Zuckerkandl/Decisions/decision.pdf.
108. Grounds cited in the 1815 treaty that imposed on France one of the first high-profile resti-
tutions, denying France the right to plunder works from other countries. On these periods in the
history of restitution, see Perrot, De la Restitution.
109. See the declaration by major museums defending the idea of the universal museum in the
face of contemporary movements for restitution: Declaration on the Importance and Value of Uni-
versal Museums, December 8, 2002, signed by 19 directors of major museums (see http://www.
eniar.org/news/repat50.html). On this point and on restitution more generally, see B. Müller, “Faut-Il
Restituer les Butins des Expéditions Coloniales,” Le Monde Diplomatique, July 2007, p. 20.
110. One example is the debate on the acquisition of the Elgin Marbles, or the pillaging of Ko-
rean archives.
111. In 1987, the United Nations recalled the arguments of claimant countries, in particular to
“recognize the moral right to the recovery of vital tokens of cultural identity, removed in the context
of colonialism.”
112. See especially Article 3, which refers to the idea of significant impairment and the notion of
significant cultural importance.
113. Article 11(2) of the resolution adopted by the United Nations General Assembly on October
2, 2007, the United Nations Declaration on the Rights of Indigenous Peoples, cited above.
114. Cited above.
115. On the various formal and real approaches, see Armbrüster, “La revendication,” 723.
116. Resolution of the Institut de Droit International, Basel session, 1991 (see above).
117. Beyeler v. Italy, European Court of Human Rights, judgment no. 33202/96 of January 5,
2000.
118. Prott, Commentaire relatif à la convention Unidroit, 46.
119. For examples of restitution, see Palmer, Museums and the 1987 United Nations report.
120. This map was included on an inventory of cultural property of national importance, items
comparable to national treasures within the meaning of Article 30 of the Treaty establishing the
European Community.
121. On the issue of the Korean archives, see International Expert Meeting on the Return on
Cultural Property and the Fight against its Illicit Trafficking, Proceedings of the Seoul meeting, Sep-
tember 30–October 3, 2002, Korean National Commission for UNESCO, 2002.
122. On the recognition of a specific international custom with regard to archives, see Manlio
Frigo, “Les Archives et Autres Biens Culturels, Quelle Spécificité,” lecture delivered at the Faculté
Jean Monnet, Sceaux, as part of the meeting “Quel Avenir pour les Archives en Europe? Enjeux Ju-
ridiques et Institutionnels,” December 2008 (proceedings to be published). On the distinction in the
restitution process based on the administrative function or cultural nature of archives, see Perrot,
De la restitution, 35.
123. On the international restitution of archives, see Ermisse, “L’actualité des contentieux” and
Kecskemeti, “L’histoire des contentieux.”
124. See above.
125. It was argued that the meteorite was part of the natural landscape, rather than a sacred
object. See the presentation by Ian Tattersall at the International Symposium “From anatomic col-
lections to objects of worship: conservation and exhibition of human remains in museums,” orga-
nized by the Quai Branly Museum on February 22–23, 2008 (see web site of the Quai Branly Museum).
126. See Marin, “Statut Des Restes Humains,” 337.
127. Lufkin, “Retour au Pays,” The Art Newspaper, no. 154, September 12/26, 2002.
128. Ruling of September 16, 2004, setting standards for the identification, inventory, classifica-
tion and processing of the movable property and scientific documentation taken from archaeolog-
ical excavations and diagnostics, Official Journal of France, September 28, 2004.
129. Case described by Palmer, UNESCO Conference, Seoul, November 26–28, 2008. On the re-
sulting agreement, see below.
130. See Négri, “Fouilles Archéologiques,” 325, and more generally Négri, L’édification.
131. United States Courts of Appeals, October 24, 1990, Autocephalous Greek Orthodox Church
of Cyprus and Republic of Cyprus v. Goldberg and Feldman Fine Arts Inc., and Peg Goldberg, note
by Muir Watt (cited above).
132. For an original proposal for cultural property management in the form of collective own-
ership, see the fine thesis by Maget, Collectionnisme public, 625.
133. Arbitral award of January 15, 2006 (see above).
134. Deliberation of the Municipal Council of the City of Rouen of October 19, 2007.
135. Judgment of December 27, 2007, of the Administrative Tribunal of Rouen No. 702737 an-
nulling the above-mentioned deliberation, upheld by the Administrative Court of Appeal of Douai,
judgment of July 24, 2008, Actualité Juridique—Droit Administratif (AJDA) of October 13, 2008,
Actualité Jurisprudentielle, p. 1896.
136. For further information on the obelisk, see the world heritage section of the UNESCO web
site, http://whc.unesco.org/en/news/456/.
137. M. Bailey, “Natural History Museum Returns Aboriginal Remains,” The Art Newspaper, Lon-
don no. 181, June 1, 2007, vol. 8(1), p. 1.
138. Article 4(1) of the above-cited agreement.
139. Article 8(1) of the agreement.
140. Press Release of September 28, 2006: “Museum of Fine Arts, Boston and Italian Ministry of
Culture Sign Agreement Marking New Era of Cultural Exchange” (www.mfa.org—press releases).
141. Press release of September 25, 2007: “Italian Ministry of Culture and the J. Paul Getty Sign
Agreement in Rome” (www.getty.edu/news/press/center/italy_getty_joint_statement_092507.html).
142. Press release of October 30, 2007: “Princeton University Art Museum and Italy Sign Agree-
ment Over Antiquities” (www.princeton.edu).
143. Elisabetta Povoledo, “Pact Will Relocate Artifacts to Italy From Cleveland,” New York Times,
November 20, 2008.
144. Potential disputes could also have been referred to the Arbitration and Mediation Centre of
the World Intellectual Property Organization (WIPO) or the UNESCO Intergovernmental Committee.
145. Article 2, paragraph 1, of the above-mentioned mediation agreement.
146. This is the case with the meteorite conserved by the American Museum for Natural History,
with which an indigenous tribe concluded an agreement requiring the meteorite to be available for
it to hold its ceremonies. For more detail, see Ian Tattersall’s submission to the International Sym-
posium “From Anatomic Collections to Objects of Worship: Conservation and Exhibition of Human
Remains in Museums,” organized by the Quai Branly Museum on February 22–23, 2008 (cited above).
147. Article 4 of the mediation agreement, cited above.
148. See the press release by the French Ministry of Culture of February 13, 2002.
149. See above.
150. See the Action Plan for the EU Promotion of Museum Collections’ Mobility and Loan Stan-
dards, Finland, 2006, p. 12.
151. Cited above.

152. Loan contract of July 1, 1997, between the Museum of Art and History of the City of Geneva
and the French state, represented by the Heritage Director of the Ministry of Culture.
153. Deliberation of the Municipal Council of 2003.
154. See Palmer, Museums, especially pp. 110–111.
155. See, e.g., Maget, Collectionnisme public, 577; see also “Guidelines for the Establishment and
Conduct of Safe Havens for Cultural Material,” International Law Association, Rio de Janeiro Con-
ference (2008), Cultural Heritage Law.
156. Maget, Collectionnisme public, 628.
157. There were several articles in the Swiss newspaper Tages Anzeiger on the production of the
replica globe in 2007 and 2008.
158. See the decision of the Federal Court of New York of February 2, 2009, ratifying the agree-
ment between the parties. The terms of the agreement remain confidential.
159. Maget, Collectionnisme public, 549.
160. On this aspect, see T. Scovazzi, Diviser, c’est Détruire, Principes Éthiques et Règles Ju-
ridiques Applicables au Retour des Biens Culturels, paper presented to the fifteenth session of the
Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of
Origin or Its Restitution in Case of Unlawful Appropriation, Paris, May 11–13, 2009.
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New Developments in the Restitution of Cultural Property:

Article in International Journal of Cultural Property · February 2010

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New Developments in the Restitution

Abstract: Alternative methods of dispute resolution are an important resource

1. The circumstances in which the issue of restitution of cultural property arises

*French National Centre for Scientific Research (CNRS)

II. New Developments in Practices and Methods

b. Indigenous peoples: New subjects of collective rights

considerable freedom to manage its collections, thereby enabling it to effect res-

29. The inalienability of collections has been used as an argument in several

foresee difficulties arising regarding the “ownership of objects, collections, or doc-

B. The Techniques Used

III. NEW SUBSTANTIVE DEVELOPMENTS

generally sacred or highly symbolic objects. As to the different arrangements made

A. The Nature of the Property Claimed

national treasure or including it in an ad hoc record. This is the definition adopted

the massacre of missionary priests might be returned to their country of origin, as

62. In current practice, the variety of restitution solutions is impressive. Negoti-

1 Restitution (simple restitution or for consideration)

92. A comparative analysis of international practice shows, in our opinion, that

54. See below, paragraph 66.

77. The restitution took place in July 2002.

151. Cited above.

Ermisse, G. “L’Actualité des Contentieux Archivistiques.” In Archives et Patrimoine, Collection Droit

Kecskemeti, C. “L’histoire des Contentieux Archivistiques.” In Archives et Patrimoine, Collection Droit

Kowalski, W. “Restitution of Works of Art.” RCADI 288, (2001): 9ff.

Maget, A. Collectionnisme public et conscience patrimoniale: Les collections d’antiquités égyptiennes en

Négri, V., “Fouilles Archéologiques et Questions de Religion.” In Le Patrimoine Religieux, Enjeux

Vigneron, S. “Rapport National—Grande-Bretagne.” In Protection de la Propriété Culturelle et Circu-

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