Translated from the French original.
N.B.: In this article, the terms ‘cultural property’ and ‘object’ are used interchangeably and synonymously to refer to artistic and cultural creations, religious artefacts and human remains claimed by their States and communities of origin. It is understood, however, that not all of these are necessarily included in the definition of cultural property as set out in the 1970 UNESCO Convention.
In May 2026, Arthur Brand, a detective specialising in the restitution of works looted during the Second World War, announced that the painting Portrait of a Young Girl by the artist Toon Kelder would be exhibited in the home of the descendants of Hendrik Seyffardt, a high-ranking official of the Nazi regime in the Netherlands. The painting belonged to Jacques Goudstikker, a prominent European art dealer specialising in works by Flemish and Dutch Masters. In this case, neither the Dutch Restitution Commission (Restitutiecommissie) nor the competent judicial authorities would have been able to intervene to seize the work.
In May 2026 also, UNESCO’s Intergovernmental Committee on “Return & Restitution” (ICPRCP) placed on its agenda the issue of the Parthenon Marbles from the Acropolis, currently held at the British Museum (London), following their removal by Lord Elgin between 1801 and 1805. Nearly forty-two years after the issue was first raised within the Committee, the debates have continued to intensify. This year, following the United Kingdom’s intervention — which relied on the firman (the authorisation purportedly granted by the Ottoman authorities to Lord Elgin) to justify the legality of their acquisition— Turkey, as in 2024, highlighted the total lack of documentary evidence regarding the existence of such a document and urged the United Kingdom to cease relying on this argument.
These two illustrations have this in common: the restitution of the cultural property in question should take place on a voluntary basis, on the part of the heirs of Hendrik Seyffardt on the one hand and the British Museum on the other.
Voluntary restitution of cultural property
To date, there are no guidelines in Switzerland regarding the voluntary restitution of cultural property. However, these issues are of concern to both museums and private individuals. By way of illustration, eight Swiss museums have decided to re-examine the cultural property in their collections originating from the former Kingdom of Benin, located in present-day Nigeria, and to initiate a dialogue with representatives of Nigerian museums and historians. The first report by the Benin-Switzerland Initiative (IBS) thus provides for the classification of the objects under review based on a specific historical event: the British punitive expedition to Benin in 1897.
In this report, the cultural property is divided into four categories:
- Object looted in 1897 (category 1);
- Objects likely to have been looted in 1897 (category 2);
- Objects not likely to have been looted in 1897 (category 3);
- Objects not looted in 1897 (category 4).
This categorisation follows a logic similar to that proposed in the Sarr/Savoy report (2018), which places objects into similar categories based on the time, context and circumstances of their acquisition. In the 2018 report, cultural property is divided into three categories:
- objects established to have been acquired under unfair conditions (such as war booty), objects acquired by persons linked to a colonial regime in power, those originating from so-called ‘exploration’ and scientific ‘raids’, as well as loans for restoration that were never returned,
- objects where the circumstances of acquisition cannot be clearly established but which are likely to have left the African continent before 1960; and
- objects where legitimate acquisition is clearly established.
Where it is certain that an object was looted or acquired in circumstances where the seller could not freely consent to the transaction, the reasoning seems relatively clearer to us. In such cases, the decision-making process should enable the terms of return to be finalised. The difficulty is greater where grey areas remain. As reflected in the IBS’s first report (2023), more than half of the objects from the Kingdom of Benin in the collections of participating Swiss museums are listed in categories 2 and 3. In this case, and in our view, it is necessary to engage in a reflection that goes beyond provenance research, in order to establish a clear and structured decision-making framework.
In the same way as cultural property looted during the Holocaust, objects removed from a museum, a community or a foreign state decades or even centuries ago cannot be repatriated on the basis of a civil action, as the statute of limitations for such a claim has now expired. In some of these cases, the host institution may even argue that a special bond has been formed between the object and its new environment, even as its absence is felt at its place of origin.
Hence the question: which criteria should be prioritised to reach a fair solution when provenance is marred by doubts and uncertainties, when legal action is time-barred, or when the current legal framework does not apply?
The DARCA platform
The Uehiro Centre at the University of Oxford, in partnership with the Institute of Art and Law, has developed a tool, the Decision Aid for the Restitution of Cultural Artefacts (or DARCA), which may provide some answers.
In March 2026, the Uehiro Oxford Institute launched the DARCA platform, a decision aid designed to support museums, institutions and private individuals faced with a claim for the restitution of one or more cultural artefacts.
The platform is of interest in several respects.
Firstly, it prioritises an ethical approach rather than a legal one. This is notably due to the fact that under English law (see section 106 of the Charities Act 2011), trustees (members of the board of directors of English museum institutions) may refer a case to the Charity Commission to obtain decisions based on a “moral obligation” in the event of a restitution claim. Since 2022, sections 15 and 16 of the Charities Act 2022 have also allowed trustees to transfer ownership of objects (ex gratia payment) without involving the Charity Commission. As this concept of moral obligation is not defined in law, DARCA aims to highlight the various ethical principles that should guide the reasoning of trustees. It should be noted, however, that English national museums, which are subject to their own statutes—such as the British Museum—are, for the time being, excluded from the scope of these provisions (see in particular section 5 of the British Museum Act 1963, which severely restricts the deaccessioning of objects from its collections).
Secondly, and beyond the issue of limitation periods, legal claims for the restitution of cultural property often come up against the principle of non-retroactivity of the 1970 UNESCO Convention and national legislation when the object has been in Europe for several decades. Claims filed by states, communities or private individuals can therefore only be pursued through extrajudicial channels. Thus, many cases of the return of cultural property, particularly items removed during a period of colonial rule, are carried out on a voluntary basis rather than following legal proceedings (see the final report on the restitution of cultural property looted during colonisation, p. 20). The establishment of criteria and a framework for reasoning is therefore particularly useful in supporting the deliberations of institutions dealing with restitution claims.
Thirdly, DARCA is a decision-aid tool and not a decision-making tool. Its use allows various ethical criteria to be taken into account in the decision-making process, without imposing a decision, and thus leaves the final say to the institutions. This flexibility also allows, in our view, for creative solutions to be chosen that are likely to suit the various parties concerned.
The scope of the platform
It should first be noted that DARCA is not intended to address cases of the spoliation of cultural property during the Nazi era. This is because the principles of the Washington Declaration (1998) and the Terezin Declaration (2009) already address the need to identify fair and just solutions. Furthermore, some states have a commission dedicated to addressing these issues; this is the case in the United Kingdom, which established the Spoliation Advisory Panel in 2000.
The platform is thus primarily designed to guide users in responding to restitution claims. These claims may concern objects originating from a colonial context, but also any object whose export from the country of origin took place in circumstances that would today be considered unlawful under current national legislation, or any object where the circumstances of its export from the country of origin remain unclear.
In our view, this platform is therefore particularly relevant for cultural property whose provenance and context of acquisition cannot be clarified despite the research undertaken. Indeed, if provenance research fails to establish looting during a period of colonisation or an export contravening the legislation of the country of origin, additional criteria are required to determine the object’s fate.
The criteria used by the platform
As noted in the Academic Rationale, the platform brings together two conflicting moral obligations. The first is the obligation to return an object, in order to respect a community’s property rights and/or to redress a historical injustice. This is countered by the moral obligation to retain an object in a museum to preserve access to cultural heritage that is essential for education, knowledge and the dissemination of aesthetic values, whilst ensuring its security.
It is by breaking down these conflicting obligations into several themes, or sub-questions, that DARCA enables the construction of a line of reasoning leading to a reasoned decision.
In favour of return, the platform examines the provenance of the object (N.B.: it is possible to indicate that this is unknown), its importance and role for the community from which it originates, the claimant’s relationship to the object, and the object’s value to the claimant’s culture.
In this context, the question of identifying the community of origin arises in particular. For example, the restitution of cultural property originating from the Kingdom of Benin (located in present-day Nigeria) has been claimed by both the Nigerian government and the heirs of the family of the Oba of Benin. The developers of DARCA specify that, in the event that multiple claimants come forward, “users are advised to complete DARCA separately for each respective claim, and to compare outcomes across these claims”.
In favour of retaining the object, the platform assesses whether it possesses significant cultural value that has been sufficiently served by the holding institution, and whether its return could jeopardise the object’s security, its cultural value, the claimant’s access to it, or the institution’s legitimate expectations. Finally, the platform invites consideration of whether retaining the object in the holding institution is incompatible with respectful treatment, or whether its return could enhance its value and accessibility.
This raises two questions. Firstly, cultural property originating from a State currently in a situation of armed conflict or ecological disaster. In our view, these considerations should not be an obstacle to the return of the object. The holding institution may decide to return the object whilst ensuring it remains in its possession, for example as a long-term loan, in order to preserve it as a precautionary measure. Provided the parties concerned consent, such an agreement could help to exhibit the object, raise awareness of the circumstances of its removal and thus sensitise the public to this issue.
Using the platform
The DARCA tool allows users to answer each question and add a comment or written explanation. At the end of the questionnaire, it provides a general assessment based on the binary answers given, but not on the written explanations, which are for the user’s benefit only.
It is worth noting that at a time when many aspects of the fight against illicit trafficking in cultural property and provenance research appear to be new playgrounds for the use of artificial intelligence software, DARCA does not make use of it. The answers entered by the user are for their own use, without being read by an AI that would form its “own view” of the situation.
Anyone entering data into DARCA does so to inform and substantiate the requested binary responses, not to be handed a result on a plate. This choice, which prioritises a structured approach grounded in ethical considerations, is to be commended.
Voluntary restitution and private individuals
From the perspective of the private use of a tool developed to guide the trustees of public institutions, one might ask how this reasoning applies to individuals who possess cultural property whose provenance they are unsure of. If we apply the DARCA methodology, we see that the balance would shift towards a moral obligation to return the object, insofar as it is not on display and is not kept under museum conditions. Since the object serves no public interest, it is difficult to argue that a Buddha statue or an ancient figurine would not be better off somewhere other than on a living room shelf.
It is important to recall that, in the absence of voluntary restitution of privately held objects, the states and communities concerned often have no legal mechanism at their disposal to request the return of cultural property held by private individuals. Under Swiss law, a seizure or confiscation based on the CPTA is not applicable without a post-CPTA disputed transfer (see Art. 24(1)(a) CPTA), bearing in mind that the criminal action relating to Art. 24 of the Cultural Property Act is, in principle, subject to a seven-year limitation period (see Art. 97(1)(d) of the Swiss Criminal Code). Civil proceedings, meanwhile, are subject to a thirty-year limitation period for cultural property (see Art. 934(1bis) of the Swiss Civil Code).
In this sense, the restitution of cultural property held in private hands also relies primarily on voluntary action, at the risk of the items remaining hanging on the walls of a living room – as was the case with the painting by the artist Toon Kelder, which has since been returned. It should be noted, however, that voluntary restitutions are easier for private individuals, who are exempt from the legislative obstacles and cumbersome administrative procedures imposed on museums. As for the Parthenon Marbles, History still has a long way to go.
Note
DARCA is an interesting initiative, the relevance of which, in our view, is not limited to English museums subject to the Charities Act nor to the forthcoming decisions taken by their trustees. In reality, many museums, having examined their consciences alongside their collections, are actively seeking to achieve a just outcome and initiate constructive dialogues with the states and communities concerned.
In Switzerland, it will be particularly interesting to see whether some of the moral arguments used by DARCA to underpin the tool’s rationale will be taken up by the Commission for Cultural Heritage with a Problematic Past in its recommendations, particularly in cases where the circumstances of the object’s removal are unclear.