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The Legality of Stolen Cultural Property Reparation: A Case Study of France’s New Heritage Code

Cultural property is a distinct branch within international law is marked by its transnational and historical complexity. Cultural property law was established to mitigate the violence of war around the early 20th century to mitigate the effects of World War I. However, the Hague Convention of 1907 and its associated regulations proved to be inadequate to address the scope of destruction and illicit trade during World War II decades later. Initially conceived as a safeguard for the rights and integrity of cultural objects in times of conflict, cultural property law’s evolution since the late twentieth century is rooted in a necessity to repair the damages inflicted by military violence through cultural reparation.

On June 29th 2023, the National Assembly in France unanimously passed the Heritage Code Amendment which restores stolen properties under Nazi antisemitic persecution from 1933 to 1945. This amendment was another legislative milestone in cultural repatriation especially within the public domain of museums and institutional collections. This new amendment therefore overrules the legisative procedures of determining the legality of cultural objects on a case-by-case basis. The amendment in Book I Title I Article L115-2 of the Heritage Code included a specific requirement on the restitution of cultural objects within public collections in the context of antisemitic persecutions perpetuated between the given timeframe. The article also applies to properties that have been subject to spoilation and incorporated by donations and bequests into the collections of non-profit and public museums of France. The branch of cultural property repatriation within a public museum collection is proven to be a complex legal issue. As a public non-profit institution, museums in France along with their collections are deemed “inalienable by law”, meaning objects are prohibited from being removed permanently without a change in legislation.

In force since 2004, the legislative part of the Heritage Code Article L451-10 indicates that the assets from the collections of French museums “belonging to non-private legal entities acquired by donations and bequests or with the assistance of the State or a local authority cannot be transferred”, where a transfer can “only take place after approval by the administrative authority following advice from the High Council of Museums of France.” As a result, every time an object from public museum collections is suggested to be de-accessed either for repatriation or sold in the commercial market, legislation specific to the case must be drafted and passed by the French Government. Hence it often results in prolonged political debates that greatly hinder France’s progress in heritage restitution. Therefore, this new amendment overruled the need to draft new legislation, where every cultural property or work deemed as perpetuated by antisemitic violence from 1933 to 45 will undergo the process of restitution without Parliament.

Since the 1990s, further legal efforts were made especially by Western countries on the focus of cultural repatriation. In May 1993, a decision was approved by the UNESCO Executive Board on a proposal by Italy, the Netherlands, and Russia to strengthen the 1954 Convention on cultural property laws as an amendment after the failure of its predecessor in 1907. The proposal widened and strengthened the 1954 Convention on The Protection of Cultural Property in The Event of Armed Conflict and its Protocols, including the “Special Protection” on inscribing cultural properties of exceptional quality of mankind, and most importantly, a prohibition on the reprisals against cultural property. By introducing the “Second Protocol” in 1999 that added further layers of norms in the acquisition, collection, and ownership of cultural property, these objects were no longer seen as a single entity, but as a linear history of anthropological activities that are put into legal considerations. In the case of art objects acquired by the Nazis as a form of antisemitic persecution, however, France is one of only five countries that are actively commissioning resources on the restitution and research of art objects with a history of antisemitic violence.

France’s history of public museum collections obtained via conflict and violence has long been under the scope of heated debate on legislative reforms with the basis of repatriation. Under the legal inalienability of public collections, many objects looted or acquired through exploitations are still kept in these collections without justice to their original owners. With the new French amendment that derogates the principle of alienability, a framework is finally established for the removal of stolen goods from the public domain without specific legislative actions to be made. In France, at least l00,000 artworks were stolen from the art market and Jewish collections under the Nazi regime. From Jewish families hoping to escape by selling their collections to government administrators selling Jewish collections in hopes of avoiding accusations of aiding and abetting, these objects would eventually fall within the Nazi government’s ownership. Although around 60,000 works were returned by the Allies to France after World War II, 13,000 unclaimed objects were either sold by the state or labelled Musée Nationaux Récupération (MNR) (Museum of National Recuperation) and selected to be under the collections of French public museums.

However, what they failed to realize the sheer number of unclaimed properties due to the devastating aftermath of the Nazi genocide. Therefore, with the passage of new amendments regarding Nazi restitutions, more works will be returned to the closest descendants of its original owners without further legal complexities. The new amendment within the French Heritage Code shines a light on the close relationship between human rights and law surrounding art and related decorative objects. The discussion on the history of a piece of artwork’s acquisition also opens grounds for debate on the history of public museum collections. Is it time to see objects in museums as not stagnant archaeological fragments, but objects with agency and history concerning conflict, colonialism, and human rights? If so, how can the law perform justice in support of the modern anti-colonial narrative? Other than its Nazi-occupational period, France’s problematic history of invasion and colonialism also put into question the cultural restitution of these countries that underwent French colonial violence. Hopefully, France’s amendment of its Heritage Code can be the first step of a series of international efforts to amend, expand, and simplify the legal procedures needed in the context of cultural repatriation to uphold the core of the rule of law: equality and justice.


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