Translated from the French original.
Following the devastating explosion at the Port of Beirut in 2020, a painting previously displayed on the walls of the Sursock Palace was newly identified as a work by the Italian artist Artemisia Gentileschi. The painting was restored and exhibited at the Getty Museum in Los Angeles before returning to the palace walls. The restoration work also made it possible to attribute the depiction of Hercules and Omphale to Gentileschi, rekindling interest art historians have for this work.
This anecdote prompts us to reflect on several issues, namely: to what extent should a painting—with or without an identified author—be classified as cultural property, and if so, under what conditions and with what legal consequences?
Cultural Property
The UNESCO Convention of 14 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention) arose from the observation that the looting of cultural property and the resulting trafficking are of such magnitude that they significantly damage the heritage of the affected States (FF 2002 506). This Convention, with its 149 State Parties, makes it possible to analyze the importance of an object in relation to the cultural and historical context from which it originates, detaching its aesthetic qualities. Indeed, as reflected in the Federal Council’s Message, cultural properties are special goods, namely « sources of individual and collective identity, unique and irreplaceable witnesses of culture and history »; furthermore, they « shape the image that the individual and society have of themselves and promote social cohesion » (FF 2002 509).
The definition of cultural property as proposed by the 1970 UNESCO Convention encompasses any property of importance for archaeology, prehistory, history, literature, art, or science and falling within the exhaustive enumeration of categories, including inter alia products of archaeological excavations, antiquities more than 100 years old, objects of artistic interest, rare manuscripts and incunabula, but also postage stamps, archives, and furniture more than 100 years old (Art. 2 para. 1 CPTA cum Art. 1 of the 1970 UNESCO Convention). Cultural properties are designated by « each State, » which reflects the vision of cultural nationalism.
In Switzerland, the definition of cultural property from the 1970 UNESCO Convention is adopted by the Federal Act on the International Transfer of Cultural Property (CPTA; SR 444.1), allowing for a broad definition of these objects which are subject to a special regime. Cultural properties must be declared as such to customs authorities upon import, transit, and export (Art. 4a CPTA). In customs law, the principle of self-declaration applies (cf. Art. 18, 21, 25, and 26 of the Customs Act). Every person importing an object likely to be cultural property must therefore analyze its conditions to declare it correctly.
Although one might feel that the qualities of the object must be analyzed by specialists capable of placing it within the heritage to which it belongs, we are of the opinion that, particularly regarding archaeological properties, the criterion of importance should be admitted quite readily. Indeed, a large majority of objects that have come down to us are likely to shed light on the lifestyles of their creators or users and present, at the very least, an interest for history. As for a painting or sculpture, references are often made to the criterion of « museum quality. » In our view, as soon as an object presents sufficient interest to be exhibited or acquired by a museum, an artistic institution, or an art gallery, the condition of importance is presumed to be met.
In the conception upheld by the 1970 UNESCO Convention, cultural property is linked to the geographical context from which it originates, in particular to facilitate its return to its State of origin. However, this conception encounters several obstacles.
Firstly, similar to debates regarding whether the Mona Lisa belongs to the French or Italian cultural heritage, some specialists question the possibility for cultural property to develop, a posteriori, a significant link with the State in which it has been kept for a long time—more than 500 years in the case of Leonardo da Vinci’s work—even though the State of origin is different. However, we are of the opinion that this argument cannot be invoked in the context of colonisation or war.
Secondly, under Swiss law, foreign cultural property established to have been exported in violation of foreign legislation does not necessarily have to be confiscated and returned. The Federal Tribunal had the opportunity to specify that only the presence of a bilateral agreement allows for the violation of foreign (public) legislation to be taken into account within the framework of the action for return provided for in Article 9 CPTA. In this case, Indian legislation prohibited the export of gold coins (cf. BGE 131 III 418). Subsequently, our high Court specified that it was only possible to confiscate an object imported illicitly—i.e., in violation of a bilateral agreement (cf. Art. 24 para. 1 let. c CPTA cum Art. 2 para. 5 CPTA)—if the cultural property was included in the list of cultural properties covered by the agreement (cf. BGE 145 IV 294; https://lawinside.ch/772 and see the annexes of the bilateral agreements). However, the vast majority of bilateral agreements concluded between Switzerland and other States limit their scope of application to objects created before the 16th century. The Swiss implementation of the 1970 UNESCO Convention thus grants special protection to older cultural properties. It should be noted that these also lend themselves more easily to attribution to a specific State due to territorial importance prevailing over the identification of an author, particularly regarding archaeological properties. One must also mention a possible acquisition in good faith of cultural property, acquisitive prescription (cf. Art. 728 CC), as well as the non-retroactivity of the law when the cultural property removed from its State of origin was already in the possession of a private person or a museum before the entry into force of the 1970 Convention and the CPTA (see in particular the Ruling of the Criminal Appeals Chamber of the Court of Justice of 2 May 2016 ACPR/252/2016, consid. 9.4; FF 2002 533). Objects located in collections before the entry into force of the CPTA cannot therefore be subject to criminal proceedings, regardless of their origin, as long as they are not subject to a new transfer.
Finally, the removal of a cultural object from its country of origin can sometimes make it difficult to establish proof that the object was looted (see Art. 24 para. 1 let. a CPTA). Indeed, without further contextual information – particularly in cases where the provenance is incomplete – placing the object within a specific territory and determining the time of looting can become a virtually impossible task for specialists.
In order to protect their cultural heritage, States may make public lists or registers of particularly important cultural properties. This is the case for Switzerland, which maintains a federal inventory— containing 75 objects —and gives Cantons the possibility to do the same (cf. Art. 3 and 4 CPTA). The cultural properties listed therein are part of the collections of museums belonging to the Confederation and may only be exported from Switzerland temporarily and with authorization from the Specialised Body (Art. 5 CPTA cum Art. 18 CPTA). These include, among others, liturgical furniture, a sculpture by Giacometti, and several paintings by Ferdinand Hodler.
In France, the Heritage Code provides that properties belonging to the collections of the Museums of France and other properties presenting a major interest for the national heritage from the point of view of history, art, archaeology, or knowledge of the French language and regional languages are national treasures (Art. L111-1 of the French Heritage Code). This qualification notably allows authorities to block an export outside of France and to repurchase cultural property not yet belonging to national collections, such as a calculating machine invented by Blaise Pascal. In Italy, the Ministry of Culture has published a general catalogue of cultural artefacts with the aim of identifying cultural properties for which the State expressly recognizes artistic, historical, archaeological, or ethnographic interest. Germany also has a similar database.
Nevertheless, in practice, many States have seen their cultural heritage looted, and numerous objects removed from their territory in sometimes impressive proportions, due to certain historical contexts where colonialism and armed conflicts play a major role. In such situations, many objects were removed from their original context, sometimes several decades or even centuries ago, which further complicates geographical attribution. Moreover, many excavated cultural properties are unknown to the authorities since they were not registered before being commercialized.
The ICOM Red Lists aim to publicize categories of cultural properties particularly subject to looting in several States, including Yemen, Colombia, Afghanistan, Cambodia, and the West African region. In cases of commercialization of an object belonging to one of the categories of these lists, the provenance of the object available to art dealers is all the more important as it makes it possible to understand the context in which the cultural property at risk was commercialized for the first time.
To allow for better application of the 1970 UNESCO Convention, the authorities of Member States must be able to understand whether a cultural property is protected, or whether its export is illicit in its State of origin. Several initiatives aimed at clarifying the implementation of the Convention should be welcomed; among them, that aiming to « revisit the law on Sub-Saharan African heritage » led by UNESCO and the African Heritage School, which consists of publishing a collective work on heritage law in Sub-Saharan Africa. Furthermore, to make the transnational application of the 1970 UNESCO Convention easier, the laws, decrees, amendments, and ordinances concerning the cultural heritage of State Parties are recorded in the corresponding database on the UNESCO website. The platform was revised in 2025 and should feature new search functionalities in the future.
Returning to the Artemisia Gentileschi painting mentioned at the beginning of this contribution, if the pictorial qualities of the Sursock Palace painting already allowed it to be classified as cultural property, its connection to the career of the Italian painter further enriches the work by providing additional context, facilitating its interpretation.
Unlike pictorial works for which it is easier to identify the author and establish provenance, an ancient cultural property that has been looted, or stolen appears on the market with incomplete or falsified provenance, often no longer allowing the object to be linked with its territory of origin. In addition to being an indicator of possible illicit provenance, a cultural property detached from its community of origin sees its value reduced, as it can only be apprehended through the information drawn from its aesthetic qualities to the detriment of its historical, symbolic, and collective anchoring.
Thus, the qualification of an object as cultural property goes beyond a simple declaration obligation (cf. Art. 4a CPTA); it makes it possible to identify which objects we choose to inscribe in the narrative of the cultural heritage of humanity and to which we wish to give special protection.