The return of cultural property: legal foundations, political challenges and current trends

Posted in Geopolitics, conflicts and heritage, Ethnologies (Vol. 39, No. 1) in 2017.

Introduction

According to Professor Pierre-Laurent Frier^[1], cultural heritage covers all the traces of human activities that a society considers essential for its identity and collective memory and that it wishes to preserve in order to transmit them to future generations. French heritage law is based on civil law concepts and more particularly on the concept of property. Under article 1^Er of the Heritage Code, adopted in 2004, “heritage means all assets, real or mobile, belonging to public or private property, which are of historical, artistic, aesthetic, aesthetic, scientific or technical interest”.

Unavailability, inalienability and imprescriptibility are all legal techniques aimed at protecting, but also at controlling the circulation of certain goods that are distinguished by their artistic or historical value. Heritage law has greatly influenced the legal condition and status of cultural property. Whether public or private property, cultural property is a movable asset that can circulate on a territory and cross borders.

Victims of covetousness, cultural goods have been and are still the subject of innumerable, more or less violent appropriations, becoming therefore the subject of claims and actions for restitution by those who consider themselves the real owners. Questioning the phenomenon of the return of cultural goods implies agreeing on the very definition of this type of property. The concept of property in civil law refers to anything that can be appropriated. Although cultural property can be seen as a movable object subject to the right of ownership, there is however no unitary definition of it. The cultural object is characterized by the legal instrument used and the material in question; its value may be archaeological, artistic, scientific, technical, religious, secular or even historical.

In the wake of the Second World War, the 1954 Hague Convention for the “Protection of Cultural Property in the Event of Armed Conflict” defined cultural property as being centered around the notions of movable and immovable property having “great importance for the cultural heritage of peoples”. The subject of property law is thus linked to human law. Cultural property is considered to be a container of meaning, it is the memory and the imprint of the culture from which it comes. The preamble to the Hague Convention recognizes the importance of cultural property by affirming a universal vision of art according to which “attacks on cultural property, to some peoples that they belong, constitute attacks on the cultural heritage of all mankind, since each people contributes to world culture”.

Protection and return of cultural goods: the evolution of the international legal framework

The emergence of the need for special protection: ethical and legal issues

The need for the particular protection of cultural goods has come about through the development of various legal texts of international, European and national scope, most often drawn up at the end of an armed conflict. Since ancient times, the seizure of works of art has been the main factor in the circulation of cultural goods. Seventy years before Christ, Cicero was already pleading in favor of the protection of heritage and the return of works of art plundered from the province of Sicily by Verrès, Roman governor accused of abuse of power, embezzlement and theft of works of art^[2]. Armed conflicts are one of the main sources of destruction of heritage and cultural property. It is therefore quite natural that the legal organization for the return of looted works of art was developed within the framework of the law of war.

Tracing the history of plunder would be like retracing the history of mankind. All wars, all conquests, all revolutions result in looting and the plunder of cultural goods. The recent conflicts in Afghanistan, Iraq, Libya and Syria and the destruction of sites and major cultural objects, such as the giant Buddhas of Bamiyan in 2001 or the ancient city of Palmyra by the Islamic State since the start of the war in Syria in 2011, since the start of the war in Syria in 2011, demonstrate the relevance of the issue of the protection of works in time of war and the persistence of the problem of trafficking in cultural goods. as an international policy issue.

From the end of the 19th century^E century, international law focused on developing rules to prohibit war taking as well as non-binding recommendations to respond to claims for cultural objects following a conflict. For example, the provisions of the Hague Regulations of 1899 and 1907, the Hague Convention of 1907, and the “Roerich Pact” adopted in 1935, underline the emergence of genuine protection of cultural property through the military approach and the law of war. War, now more often referred to as an “armed conflict”, is defined as a conflictual relationship that is resolved through an armed struggle, in order to defend a territory or a right, to conquer or to make an idea triumph. The looting and plunder of cultural goods in time of war are closely linked to the idea of territorial or religious conquest, or even the annihilation of a people and their ideas.

The massive destruction and looting carried out during the Second World War led the international community, under the impetus of the Allies who defeated Nazism, to deepen legal thinking, begun after the fall of Napoleon Bonaparte, around the protection of heritage and the return of goods displaced during the conflict. The return of cultural property is a complex subject where diverse and often opposing interests and actors intertwine, raising numerous historical, economic, geopolitical and political questions.

The legal approach to the return of stolen or illicitly exported cultural objects highlights the difficulties resulting from a combination of national laws that all approach the concept of ownership and the reclamation of assets differently.

The return of cultural goods is a major legal and ethical issue in international relations. Thus, among its multiple geopolitical consequences, colonialism has presided over numerous movements of objects. In this respect, the announcement by President Emmanuel Macron, on November 28, 2017 at the University of Ouagadougou, of his desire to meet the conditions for temporary or permanent returns of African heritage in Africa within five years, opens a new path for debate. The time elapsed since the plunder, real or supposed, was a fundamental element in understanding the phenomenon of renditions and the question was raised as to whether a period should be established after which any request for restitution would become impossible when prescription, a fundamental principle of law, suddenly seemed ineffective in the face of certain claims? The weaknesses of the law in dealing with the issue of the return of cultural property are numerous and the great challenge of our century is to develop applicable alternative solutions for the resolution of conflicts, centered around the ownership and location of cultural property.

It is by focusing on the legal, ethical and geopolitical aspects that underlie the return of cultural property that we can highlight the particularity and complexity of the subject and draw up an inventory of it.

Armed conflicts at the origin of an awareness of the need to protect cultural heritage

The massive dispossession of works of art, the plunder and the displacement of cultural heritage have long been a traditional aspect of warfare. The genesis of the protection of cultural heritage is rooted in military rules and the international law of armed conflicts. While conflicts between States have never ceased to exist, the belligerent countries were quick to impose rules aimed at limiting violence and protecting the fundamental rights of the human person. The law of war refers to the customary laws that enemy peoples agree upon during a conflict. Its principles, traditionally called “laws and customs of war” or “law of nations”, were codified in the form of conventions beginning at the end of the 19th century.^E century^[3].

The international law on the return of cultural property was forged through these various texts. The first legal trace, concerning the return of objects plundered during an armed conflict, dates from 1648 as part of the signing of the Treaties of Westphalia which put an end to the Thirty and Eighty Years' Wars. The peace treaty signed between France and the Holy Empire contains provisions organizing the return of goods, documents and archives seized from persons. The first large-scale restitution was imposed on France by the Treaty of Vienna in 1815. The claim of antiquities, spoils of Napoleonic conquests in order to create a universal museum, prompted Napoleon's victors to force France to return certain works to their country of origin. The Napoleonic conquests were, in fact, the scene of a systematic plunder of works of art as territorial conquests progressed. Between 1792 and 1799, thousands of paintings and other cultural goods became the property of the French State. The history of Napoleonic plunder illustrates the difficulties associated with the return of works of art. The idea of a return was affirmed under the Consulate and then under the Empire, whose political objective was to appease people's minds. According to Ferdinand Boyer, the Treaty of Vienna was the occasion for arbitration concerning works that should return to their country of origin and those that should remain in the Louvre, the work being sometimes seen as an indispensable masterpiece to the collections that the State had gathered for the instruction of the Nation.

It is interesting to note that this idea is found in our contemporary law through the particular status attributed to “national treasures”. The idea of protecting cultural heritage is not exclusive to Europe. In 1863 in the United States, the Lieber Code for the Government of Armies of the United States in the Field^[4] condemns the practice of plunder and the devastation of religion, the arts and sciences and provides for individual criminal responsibility for violations of provisions, up to and including the death penalty. In 1880, inspired by the American example, the English wrote the Oxford Handbook of the Laws of War on Earth, which constitutes the most important doctrinal contribution in this field and endorses the protection of cultural property on an international scale. It contains the prohibition of looting and destroying public or private property except “there is an urgent need for war”.

It was the Hague Conventions of 1899 and 1907 that marked the emergence of a genuine international law of war laws and customs.

According to article 27 of the Regulations annexed to Convention IV of 1907, “in sieges and bombardments, all necessary measures must be taken to spare, as far as possible, buildings devoted to worship, the arts, sciences [...] provided that they are not used at the same time for military purposes”. However, their scope of application is limited to the contracting parties and to a particular situation. It was not until the signing of the Treaty of Versailles in 1919, at the end of the First World War, that the return of cultural objects was considered more precisely. Article 238 of the Treaty constitutes a general clause for the return of objects and provides that Germany will make the return “in cash of the cash taken, seized or sequestered as well as the return of animals, objects of all kinds and values removed, seized or sequestered, in cases where it is possible to identify them on the territory of Germany or on that of its allies”.

The idea that cultural goods “constitute the heritage of people's cultures” emerged for the first time on 15 April 1935 when the Governing Council of the Pan American Union adopted the “Roerich Pact” (named after the Russian painter Nicholas Roerich who initiated it).

This international treaty aims to protect artistic and scientific institutions and historic monuments in times of war. It was ratified by ten countries and signed by eleven states on the American continent.^[5]. It is still in effect. In the words of its preamble, it is concluded so that “the heritage of culture is respected and protected in times of war and peace.” While it marks a major advance in the law of rendition, the Covenant nevertheless focuses on the protection of immovable property and protects movable cultural property only if it is housed in buildings listed in the treaty as “historic monuments, museums, institutions dedicated to science, the arts, education and culture”. The nuance is important. Indeed, the distinction made between real estate and movable heritage is indicative of a particular conception of cultural heritage. The place acquired by cultural heritage in the various texts from 1648 to the dawn of the Second World War is restricted. While countries develop rules for the protection of cultural heritage under the law of war, such heritage seems to be considered exclusively as the property of States. However, this perception of heritage will change in the face of the atrocities committed during the Second World War.

Nazi plunder, a turning point in rendition law

As soon as they came to power, the Nazis developed an aggressive cultural policy, attacking on the one hand the art described as “degenerate”, and on the other hand, tending to enrich the personal collections of the Fuhrer and his close advisers. A double dynamic of destruction and appropriation is thus implemented. According to Éric Michaud^[6], under National Socialism, art was the “raison d'être” and the end of the regime and was the object of a national cult. All work is assimilated to artistic activity, an activity oriented towards the birth and development of a new man, the “Aryan Man”. It is through a total enslavement of the creative process that National Socialist ideology seeks to assert its superiority.^[7].

In Mein Kampf, written in 1925, Hitler outlines his vision of the cultural decadence of the German people and deplores “the unhealthy aberrations of alienated or depraved men, known since the turn of the century under the collective names of Cubism or Dadaism”. National Socialism thus affirms its desire to reduce to nothing the “putrefaction” that modern art would constitute.^[8]. A policy of purification followed which consisted in removing from museums all works qualified as degenerated by the regime. As for the plunder of French Jewish collections by the Nazis, they immediately began the signed armistice, in total contradiction with the principles laid down by the 1907 Hague Convention. As early as the end of June and during the first days of July 1940, the services of the Reich embassy in Paris established lists of Jewish collectors deprived of French nationality, in order to organize their apprehension. The plunder and plunder of cultural property belonging to Jews is organized in France under the authority of the Einsatzstab Reichsleiter Rosenberg (ERR)^[9] and it is estimated that around one hundred thousand works of art were transported to Germany between 1940 and 1944. Faced with the extent of the plunder perpetrated by the Nazis in the occupied countries, seventeen Allied countries signed a solemn declaration in London on 5 January 1943, intended to serve as the basis for organizing renditions as soon as the conflict ended.

At the end of the “London Solemn Declaration”^[10], the signatory states committed themselves to establishing a legal system designed to organize the invalidation of any transaction, whether in the form of confiscations, forced sales, forced donations, abandonments or thefts, including under the guise of legality, carried out on territory occupied by Reich troops. The adoption of this solemn declaration is a first step towards taking into account the protection of privately owned cultural property. Indeed, the despoliations of works of art by the Nazis were perpetrated against civilian populations and individuals were dispossessed simply because they belonged to a group.

Thus, through the prism of the protection of private property, the London Solemn Declaration condemned Germany's actions during the Second World War and its desire to annihilate the Jewish people. As of the London Declaration, cultural heritage is no longer considered only as a state-owned entity, but also covers a multitude of privately owned cultural objects. The end of the Second World War raised the question of the return of goods in general, but also of cultural goods in particular, plundered under the Third Reich. The Conferences of 9 and 21 December 1945 on reparations imposed on Germany provided that a plundered cultural object, if it cannot be returned, should as far as possible be replaced by an equivalent object. In fact, the general rule for items whose loss was documented but could not be identified was cash compensation.

The Hague Convention for “the Protection of Cultural Property in the Event of Armed Conflict”, adopted under the aegis of UNESCO on 14 May 1954 in the wake of the Second World War, is the first international instrument with a universal aim oriented exclusively to the protection of cultural heritage. It provides for preventive measures that contribute to the awareness of all States to the destruction of cultural heritage during armed conflicts and proposes the implementation of specific protection measures.

International cooperation in a context not linked to conflicts

The UNESCO Convention on “Measures to be taken to prohibit and prevent the illicit export, import and transfer of ownership of cultural property” (signed on November 14, 1970 in Paris), is the first international convention not related to the law of war aimed at the protection of cultural goods. It is an instrument of cooperation between States, which it encourages them to adopt legislation devoted to the protection of cultural heritage, to the control of the entry of cultural goods from other countries and, more generally, to the fight against trafficking in cultural goods.

It is the most successful legal instrument in the fight against international trafficking in cultural goods. Its purpose is in particular to lay the foundations for judicial cooperation between States in order to facilitate the return of illicitly exported cultural objects and to put an end to illicit excavations.

It provides for the control of exports of cultural goods included in a detailed list and the institution of an export certificate. Adopted in Rome on 24 June 1995, the UNIDROIT Convention on “Stolen or Illegally Exported Cultural Objects” fights the illegal trade in cultural goods by establishing a minimum body of legal rules common to States parties, in order to promote the preservation and protection of cultural heritage. This Convention is intended to be directly applicable as soon as ratified by the signatory States, but many States have not yet ratified it^[11].

Paradoxically, although they are the expression of an international reflection on the return of cultural property, the effectiveness of international legal instruments is moderate. Since some States refuse to sign or ratify them, the international conventions put in place to combat the plunder and destruction of cultural property often prove powerless to achieve the goals they have set for themselves. A set of non-mandatory rules of law, the Soft Laws occupy an important place in return law. Faced with the difficulties of applying international Conventions, these Soft Laws provide appropriate responses without, however, imposing any legally sanctioned obligation. The most convincing example in this area came from the Washington Conference in December 1998, at the end of which 44 countries agreed on eleven guiding principles governing the return of cultural property stolen from Jews during the Second World War. The principles adopted mark a decisive step in introducing a renewed approach to questions of art dispossession: they encourage searches for origins, seek to facilitate the submission of applicants' requests and push for the implementation of fair and equitable solutions. Les Soft Laws are also behind the recognition of the concept of “due diligence” defined in the UNESCO and UNIDROIT Conventions, through increased control over the origin of cultural goods. By imposing particular vigilance on the art market as to the origin of cultural goods, this concept of “due diligence”, which requires the purchaser of a cultural object to ensure its availability at the time of its acquisition, influences the functioning of the art market.

Thus, tools such as databases listing missing objects or the ICOM red lists are made available to art market professionals who, forced to check the availability of objects that pass through their hands, now become actors in the fight against trafficking in cultural goods.^[12].

European law also plays a role in the protection of cultural goods. The provisions of the European Convention adopted in Delphi on 23 June 1985 on “Offences relating to movable cultural property” reinforce the criminal aspect of the law of renditions. Controlling the import and export of cultural goods within the Union is an exception to the principle of free movement of goods between Member States.^[13]. With regard to return, as early as 1993, the Community adopted a directive guaranteeing the return between Member States of any cultural object considered to be a “national treasure of artistic, historical or archaeological value” that had illegally left the territory of the claiming State after 1^Er January 1993. However, as the scope and conditions for the exercise of the action for reimbursement were considered too restrictive under the provisions of Directive 93/7/EEC of 15 March 1993, the text was revised by Directive 2014/60/EU of 15 May 2014. The main novelty of this text lies in the adoption of the concept of due care required at the time of the acquisition of the claimed property, the proof of completion of which must be provided by the owner who claims to be paid compensation in the event of the return of the cultural object exported illicitly.

The concept of “due diligence”, defined in the UNESCO and UNIDROIT Conventions and included in Directive 2014/60/EU mentioned above, has profoundly changed the classical approach to possession in French law. In this respect, article 2276 of the Civil Code (which states that “in fact of furniture, possession is equivalent to title”) traditionally established a presumption of ownership for the benefit of the owner of cultural property. The presumption of ownership arising from the material possession of the thing thus prevailed on the art market until the introduction into domestic law, through the transposition of the provisions of the Directive of 15 May 2014.^[14], of the concept of due diligence.

Indeed, the obligation placed on the purchaser of a cultural object to verify the availability of the property at the time of its acquisition and to be in a position to provide evidence of the due diligence carried out in this regard, reverses the burden of proof and puts an end to the presumption of ownership arising from simple physical possession. However, this paradigm shift only applies to cultural goods, and the presumption of ownership under article 2276 remains valid for other moveable assets. Since 2004, the provisions of French law concerning cultural heritage have been grouped together in the Heritage Code, which contains in particular a definition of national treasures, provisions relating to the protection of cultural goods, their circulation, their circulation, their return, their return, their deposit and their acquisition. Its creation reflects France's desire to reaffirm the methods of protecting cultural heritage, which are based on the inalienability and imprescriptibility of assets in national collections. In criminal matters, the provisions of the 2008 Act^[15] providing for the increase of the penalties provided for by the legislator to combat the theft of cultural property were very effective in practice.

While these various international, European and national rules constitute a legal framework for the return of cultural goods, each claim responds to political, geopolitical but also ethical considerations that necessarily influence its outcome.

Geopolitical issues and current trends in the return of cultural goods

The place and actors of its creation, the context of its apprehension and its movement are all questions that must be studied as part of the reflection that can lead to the restoration of a cultural asset. Although legal instruments are numerous, the application of legal rules alone no longer makes it possible today to respond to all the problems arising from the location of cultural heritage. Globalization, the flow of information, the complexity of situations and the diversity of historical, political, diplomatic, economic or spiritual issues are all reasons to use other types of rules, which are more flexible and often better shared. In order to take stock of the many variables that can surround requests for refunds, it seems necessary to mention a few concrete examples.

The “MNR” and the goods plundered from Jews during the Second World War

At the end of the Second World War, the implementation of the provisions of the London Solemn Declaration signed on 5 January 1943 included the question of the return of stolen cultural property to its legitimate owners. The agreements provided that it was up to each State to conduct inquiries in order to establish a list of works that their nationals and public museums had been possessed of. In September 1944, an Artistic Recovery Commission (CRA) was created in France to implement the arrangements made by the Allies for the return of looted works to their owners^[16]. His work came to an end in 1949 after a colossal census. In 1997, the Mattéoli Mission (responsible for carrying out a global study on the plunder of Jews in France), estimated that 61,233 works had been recovered in Germany after the conflict, 45,000 of which had been returned to their owners (Mission d'Étude sur la Spoliation des Juif de France 2000). Among the some 15,000 works that had not found their owner, 2,143 were listed on specific inventories and deposited in national museums under the name MNR (National Museums Recovery) and in the form of precarious deposits, in order to remain available to owners who would claim them.

After more than forty-five years of silence, the question of the fate of these works that remained in the hands of French museums resurfaced in the 1990s. Among the numerous cases of the return of works of art stolen from Jewish collectors that have been widely reported in the press, the Federico Gentili di Giuseppe case is emblematic of France's position in this field. Faced with the refusal made as early as 1951 by the administration to return to the family the five works from the Gentili di Giuseppe collection deposited at the Louvre Museum under the acronym “MNR”, the heirs, in 1996, filed a request for return to the Paris Tribunal de Grande Instance with the Tribunal de Grande Instance of Paris with a request for restitution, based on the provisions of theOrdonnance n° 45-770 du 21 avril 1945 portant deuxième application de l’ordonnance du 12 novembre 1943 sur la nullité des actes de spoliation accomplis par l’ennemi ou sous son contrôle et édictant la restitution aux victimes de ces actes de ceux de leurs biens qui ont fait l’objet d’actes de disposition.

Drawing largely on the provisions of the London Declaration of 1943, this text contains a definition of plunder. However, if the judge of first instance refused to consider that the auction of the Federico Gentili di Giuseppe collection, organized at the Hôtel Drouot in Paris between May and June 1942, was plundering, the Paris Court of Appeal ruled, in a judgment of 2 June 1999^[17], that there was a link between the absence of the heirs, a consequence of racial legislation from which they had to flee, the placing under judicial administration of Federico Gentili di Giuseppe's assets and the sale of the collection to the public. The dispersion of this collection, apparently legal, nevertheless met the definition of spoliation as contained in the provisions of the ordinance of April 21, 1945. The Court of Appeal therefore ordered the Louvre Museum to return the five works to the collector's heirs.^[18] deposited in its collections, in application of the provisions of Decree no.^O 49-1344 of September 30, 1949 relating to the end of the operations of the artistic recovery commission.

The individual nature of the plunder of Jewish property induces an individual treatment of claims, thus marking a profound difference with the claims formulated by peoples who are victims of the looting of non-Western works of art. Under French law, in cases where the claim concerns a MNR, the Service des Musées de France, subject to being convinced of the identity of the claimant with the plundered owner or his assigns, will proceed with its restoration in conjunction with the Ministry of Foreign Affairs. In other cases, the claimant may base his request either on the restitution orders promulgated by General de Gaulle as soon as republican legality is restored, or on the principles resulting from the Washington Conference for the implementation of just and equitable solutions.

The return of human remains

Cases where human remains are claimed are of particular ethical and moral importance. At the beginning of the 19th century^E In the 19th century, a British entrepreneur traveling to South Africa convinced a young Khoisan woman to follow him to London in order to be exhibited for his physical particularities. Saartjie Baartman spent four years in the United Kingdom before being taken to France by a show organizer. She died on December 29, 1815 and her remains were donated to the Natural History Museum of the City of Paris, where they were exhibited until 1970. His body was molded and his organs put in jars.

In 1994, Nelson Mandela asked François Mitterrand to return the remains of Saarjtie Baartman, nicknamed the “Hottentote Venus”, to his native village. There was no response to his request. In 2000, Senator Nicolas About introduced a bill examining the question of the status of human remains in public collections. On 21 February 2002, a law aimed at the return of the Hottentote Venus was passed, under which “the mortal remains of the person known as Saartjie Baartman ceases to be part of the collections of the public establishment of the National Museum of Natural History”. However, the more global question of the fate of human remains preserved in national collections remained unresolved, since the purpose of this law was only to solve a particular problem. By returning the remains of the Hottentote Venus to the South African authorities, the French government clearly obeyed not legal, but political and ethical considerations.

Ethical considerations also led the City of Rouen to agree to return to New Zealand the head of a Maori warrior who had been there since the end of the 19th century.^E century in the collections of its Natural History Museum^[19].

However, the decision of the City Council of the City of Rouen dated 19 October 2007, which ordered the return of the Maori head to New Zealand, was annulled, at the request of the Ministry of Culture, by the Rouen Administrative Court^[20] based on the provisions of the law of 4 January 2002 relating to museums in France^[21] of the principle of the inalienability of public collections. This decision was confirmed by the Douai Administrative Court of Appeal on 24 July 2008^[22]. Reading this decision, Senator Catherine Morin-Desailly took the initiative to file a bill allowing the return of all Maori heads preserved in French public collections. The law n^O 2010-501 of 18 May 2010, at the end of which “the Maori heads preserved by museums in France cease to be part of their collections to be handed over to New Zealand”, was adopted unanimously.

The Maori heads were returned on January 23, 2012, following an official ceremony held at the Quai Branly-Jacques Chirac Museum. The law of 18 May 2010 therefore allowed the return of all Maori heads, but also provided for the reorganization of procedures for the decommissioning of assets from the public collections of museums in France, by setting up a scientific commission for national collections.^[23].

Korean manuscripts from the Joseon dynasty

The return of cultural property can also have an economic purpose, as was the case when 297 royal manuscripts were returned to Korea in November 2010. In 1867, the French fleet took punitive action in Korea following the massacre of Christian civilians and missionaries by the Koreans. At the end of their mission, the buildings of the royal archives on Kangwha Island had been plundered by the French military. The royal manuscripts had been seized and deposited in the collections of the National Library.

After a team of Korean scientists discovered the presence of these manuscripts classified in the Chinese section of the National Library in 1975, Korea made several requests for the return of these documents, which it considered linked to its history and memory. In 1993, while France was trying to sell its TGVs to Korea, François Mitterrand created a surprise by offering one of the manuscripts as part of commercial negotiations conducted on the spot. Then Nicolas Sarkozy announced in November 2010, on the sidelines of the G20 organized in Seoul, that France was committed to returning to Korea all the manuscripts seized militarily 143 years earlier. This declaration of intent became effective the following year, in the form of a five-year renewable loan accompanied by cultural cooperation between the two states. The form chosen for the return of manuscripts must be assessed in light of their legal situation: because of their belonging to national collections, protected by the principles of inalienability and imprescriptibility, manuscripts could not be returned without recourse to a law or, at the very least, to the approval of the scientific commission established by the law of 18 May 2010.

The “revolving loan” solution therefore made it possible to avoid these legal pitfalls. Under the guise of legality, the return of manuscripts to Korea is a purely political act, an “act of the prince” that has aroused numerous reactions and the anger of the curators of the National Library.

African heritage and the geopolitical consequences of colonialism

The question of the return of cultural property acquired during colonization is another particular case. Among its multiple geopolitical consequences, colonialism has led to numerous movements of objects whose ownership is likely to be claimed by former colonized countries. The speech of President Emmanuel Macron in Ouagadougou on November 28, 2017, reflects a desire for reparation and affirms a desire to use culture as one of the means of ending colonialism. In the words used by President Macron, the first remedy is culture. In this field, I cannot accept that a large part of the cultural heritage of several African countries is in France. There are historical explanations for this but there is no valid, lasting and unconditional justification, African heritage cannot only be found in private collections and European museums. [...] Within five years, I want the conditions to be met for temporary or permanent returns of African heritage in Africa. This French desire to organize the return of African cultural heritage to Africa heralds a revival in the law of the return of cultural goods, based on the idea of scientific and museographic partnerships between civilizations. Reflection on the specificity and roots of cultural goods seems to be acquiring a new place in the law of renditions.

Without, however, recognizing a legal personality to the cultural object, are we moving towards moral recognition, a right of plundered peoples to their cultural objects, supported by the right to memory and to the heritage of the soil?

Conclusion

The various examples mentioned in the preceding developments demonstrate that the time of the claim is often very far removed from the context in which the cultural object was moved. The place of culture seems to be rethought in the light of the political and international agenda of States. The contemporary approach to the return of cultural goods heralds a fundamental change in the very perception of the concept of restitution.

The increasingly frequent use of the legal tool “lending” in response to the claim of cultural property highlights the advent of a new approach. The director of the Victoria and Albert Museum in London thus offers a long-term loan to Ethiopia, for the return of objects plundered in 1868.^[24]. Restitution is the deposit or return of the object to the place where it is supposed to belong. National heritage is no longer intended to be considered as an intangible whole. The cultural object has roots and it is these roots that President Macron recognizes by announcing the return of African cultural goods to Africa. At the same time, the mostly hostile reactions of art market professionals and curators are perfectly understandable. Committed to the intangibility of national collections, a feeling of dispossession could emerge within the museum community, but the door seems to have been opened to a new path.