Principles of restitution disputes

The 1970 (UNESCO) and 1995 (UNIDROIT) conventions lay down rules on illicit trafficking and the restitution of stolen or illicitly exported property. They are not retroactive and apply only between States parties, but inspire arbitral solutions.

National laws on the ownership of archaeological property, export regimes and restitutions of spoliated property complete the framework. In the absence of a clear rule, the arbitrators apply general principles and customs.

The tribunal considers the cultural link between the object and the claimant (ritual use, identity value, continuity of the community), the circumstances of the removal (theft, looting, forced sale, authorised export), the good faith of successive holders and the importance of the object for understanding the heritage.

These criteria are weighted according to the case. A sacred object illicitly removed will weigh more than an everyday object regularly exported two centuries ago.

The tribunal is not limited to the alternative of restitution or refusal. It may order a transfer of ownership, co-ownership, a long-term loan, shared custody, restitution coupled with a right of study for the current holder, or compensation.

Most agreements provide for cooperation measures: training, digitisation, joint exhibitions, research. These provisions ensure a lasting relationship between the parties.

To understand the importance of an object, the tribunal may appoint an expert in anthropology, art history or archaeology. It may also hear representatives of the community concerned, with the parties' agreement.

Such insights help to appreciate the cultural and spiritual value of the object, which goes beyond the logic of property law alone.