Translated from the French original.
For a long time, the laws of war recognised a « right to plunder ». The appropriation of the cultural heritage of defeated peoples was thus an integral part of the customs of the time, widely regarded as legitimate. In particular, it served as a means of enriching the collections of the dominant powers without raising any real ethical or legal objections to the removal of objects from their original context.
Towards the end of the 19th century and into the 20th century, emerging states adopted national legislation to protect and preserve their cultural heritage and regulate its movement. This fostered parallel movements to prevent or limit damage to cultural property caused by armed conflicts, looting, unregulated trade, and the effects of globalisation.
However, it was not until the end of the Second World War that the international community began to fundamentally question this approach. The systematic looting perpetrated by the Nazi regime, alongside widespread spoliation and destruction, prompted the victorious states to reconsider cultural heritage and the necessity of establishing a legal framework for its transfer.
Through the adoption of international legal instruments, cultural heritage gradually began to be regarded as a constituent element of peoples’ identities, and as the cultural heritage of humanity. States took upon themselves the collective responsibility to protect it in a specific manner given its unique nature.
The illicit transfer of cultural property gradually came under scrutiny, and the restitution process began to take shape. This was no longer merely a moral or diplomatic gesture, but a possible legal consequence of identifying an unlawful situation.
Nevertheless, cultural heritage, which constitutes a collective and universal wealth, remains particularly vulnerable today. The resurgence of armed conflicts, political instability in certain regions, and the globalisation of trade all threaten cultural heritage as a whole. Private collections, museums and archaeological sites continue to be subject to theft or looting, which deprives their communities of origin of their identity, history and memory.
Furthermore, the growing interest of collectors in antiquities fuels the international trafficking of cultural property, amongst other things. With increasingly organised networks of traffickers, objects can swiftly cross state borders, evading controls and making the detection of looted or stolen objects extremely difficult.
In this context, protecting and safeguarding humanity’s cultural heritage is one of the major contemporary challenges facing states.
Restituting cultural property enables historical injustices to be redressed, particularly by involving the communities of origin. They also constitute a mechanism for re-establishing the sacred bond between people and objects, and for recognising peoples’ right to self-determination. Restitutions arising from a specific legal framework also contribute to strengthening international cooperation. This is a mechanism that combines law, diplomacy, history, memory and ethics.
Contemporary cases of the restitution of cultural property illustrate a paradigm shift in efforts to combat the illicit transfer of such property. The return of the sarcophagus of the Egyptian priest Nedjemankh to Egypt by the Metropolitan Museum of Art in New York (MET) in March 2019 is a prime example of this development. Switzerland’s recent election to the Subsidiary Committee of the Meeting of States Parties to the 1970 UNESCO Convention, as well as the Neuchâtel Museum of Ethnography ‘s (MEN) voluntary return of ceremonial objects to South Africa, demonstrate a gradual redefinition of institutional practices. These cases raise questions about the role of cultural institutions in contemporary restitution mechanisms and the relationship between binding legal frameworks and voluntary ethical approaches.
In terms of international law, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property establishes a common legal framework for States Parties regarding the fight against illicit trafficking in cultural property in peacetime.
Article 2(1) of the Convention regards illicit trafficking as one of the main threats to the cultural heritage of countries of origin and establishes international cooperation as a central instrument designed to ensure compliance with national laws governing the transfer of cultural property and its export controls.
The restitution mechanism at the heart of this Convention contributes to safeguarding peoples’ cultural heritage and forms part of a process of international solidarity and promotion of peaceful societies.
Thus, under Article 7(a) of the Convention, States Parties must take all necessary measures to prevent museums and similar institutions situated within their territory from acquiring cultural property originating from another State Party to the Convention that has been illicitly exported after the Convention came into force for those States. According to Article 7(b)(1), States also undertake to prohibit the importation of cultural property stolen from a museum, public monument, or similar institution situated in the territory of another State Party after the Convention entered into force in respect of the States in question, provided it can be proven that the property was part of that institution’s inventory. Paragraph 2 requires States Parties to take appropriate measures to seize and return, at the request of the State of origin that is a Party to the Convention, any such stolen and imported cultural property after the Convention has entered into force in respect of both States concerned. In addition to this provision, Article 6 requires States of origin of cultural property to issue an export certificate for any cultural property lawfully exported, thereby enabling the legality of the export to be verified.
Although these mechanisms are set out in the Convention’s provisions, the latter are not directly applicable. Therefore, it is incumbent upon each ratifying state to implement the provisions of the Convention in its national legislation, either by adopting a new law or by amending existing legislation. Furthermore, the Convention has no retroactive effect, meaning that only illicit imports and exports occurring after its entry into force in respect of the relevant States are subject to it.
On 2 September 1983, the United States ratified the 1970 UNESCO Convention. The importation of stolen cultural property is governed by two laws. The first is the National Stolen Property Act (NSPA), which applies to the control of the importation of any type of stolen property. The second is the Convention on Cultural Property Implementation Act (CCPIA), which was adopted on 12 January 1983 to implement the 1970 UNESCO Convention.
In July 2018, the MET opened the « Nedjemankh and His Gilded Coffin », exhibition, centred on the gilded sarcophagus of the high-ranking Egyptian priest Nedjemankh of the ram god Heryshef (1st century BC). Engraved and covered in gold, the sarcophagus was designed to protect and guide the deceased on their journey to the afterlife.
Acquired by the MET in 2017 from a Parisian art dealer specialising in Greek, Roman, Egyptian, and Near Eastern antiquities, the sarcophagus was believed to have been legally exported from Egypt in 1971. However, in 2019, following a joint investigation by the Egyptian, German and French authorities, it was revealed that the sarcophagus had in fact been stolen in the Minya region in October 2011, in the aftermath of the Arab Spring revolution, before being illegally exported from Egypt. It then passed through the United Arab Emirates before being imported into Germany for restoration. Finally, it was transported to France, where the MET acquired it. However, it was accompanied by a false provenance due to a forged Egyptian export licence dated 1971.
The MET stated that all its acquisitions of ancient art followed the same verification process. This was in accordance with the 1970 UNESCO Convention and the Association of Art Museum Directors’ guidelines on the acquisition of ancient art and archaeological material. It also complied with federal and state laws. However, the discovery of the sarcophagus’s true origin raised questions about the rigour with which the accompanying documents had been examined, as part of the due diligence required prior to purchase. The date of 1971 indicated on the Egyptian export licence referred to a time when Egyptian law did not explicitly prohibit the export of antiquities without authorisation in writing. Consequently, many antiquities were vulnerable to looting and frequently smuggled abroad. It was not until 1983, with the adoption of Law No. 117 on the Protection of Antiquities, that a modernised regime was put in place which subjected the export of antiquities to strict restrictions, thereby complicating their export.
Acknowledging that it had been misled at the time of acquisition, the MET finally returned the sarcophagus to Egypt in March 2019. Following this, the museum announced that it would review and strengthen its acquisition process.
This case of restitution illustrates a shift in museum practices towards greater ethical and legal diligence. A similar trend is also evident in Switzerland, where museums are reflecting on the legitimacy of their collections and their acquisition methods within a legal and ethical framework.
In Switzerland, the 1970 UNESCO Convention is implemented through the Federal Act on the International Transfer of Cultural Property (CPTA), which is supplemented by the Ordinance on the International Transfer of Cultural Property (CPTO). Both texts came into force on 1 June 2005. The Swiss legislation is primarily aimed at preventing the illicit import of cultural property and facilitating its return, taking an approach based on the legality of the transfer and international cooperation.
On 20 May 2025, Switzerland was elected to the subsidiary committee of the Meeting of States Parties to the 1970 UNESCO Convention alongside 17 other countries. This demonstrates the Confederation’s significant commitment to combatting the illicit trafficking of cultural property. Until 2029, the Swiss Confederation will therefore work to promote the objectives of the Convention, share best practices in the fight against illicit trafficking in cultural property and participate in developing recommendations and guidelines aimed at improving the Convention’s implementation by States Parties. By sitting on this committee, Switzerland reaffirms its commitment to actively contributing to the fight against illicit trafficking in cultural property in a spirit of international cooperation, as a country with a significant art market.
This international commitment is reflected in Swiss domestic law, notably through the implementation of the CPTA.
Although the CPTA provides a solid legal basis for the international transfer of cultural property, recent practices suggest that voluntary measures are sometimes employed in addition to this. Certain recent initiatives demonstrate that Swiss museums are incorporating historical and ethical considerations into the management of their collections, thereby exceeding the scope of the legal framework.
This can be seen, for example, in restitutions carried out by museums despite there being no formal legal obligation.
The restitution of three cultural objects from the Neuchâtel Museum of Ethnography’s (MEN) collection to South Africa on 28 October 2025 is an example of this.
In 2016, the MEN received a request from a South African royal family for the restitution of three ritual objects: a basket containing a set of knucklebones, a bovine astragalus used as an amulet, and a carved wooden walking stick. These objects had been legally acquired by the Neuchâtel-based Protestant missionary Henri-Alexandre Junod, who was active in South Africa from 1889 to 1921, before being sold to the MEN between 1899 and 1911.
This restitution, resulting from the MEN’s voluntary initiative, is fully in line with an institutional review of the legitimacy of holding certain objects. It reflects an evolution in Swiss museum standards, which are increasingly incorporating ethical considerations and institutional accountability, even in the absence of a formal legal obligation. Furthermore, the event also resulted in the signing of a scientific collaboration agreement between the MEN and the Ditsong National Museum of Natural History in Pretoria.
The MEN’s approach forms part of an observable international trend involving a rethink of policies on the holding and acquisition of cultural property, moving beyond contexts of illegality or spoliation alone.
This shift in institutional practices is reflected in the return of the sarcophagus of the priest Nedjemankh by the Metropolitan Museum of Art in 2019. In both cases, the return is based on a comprehensive assessment of the legitimacy of holding cultural property, taking into account historical context and contemporary ethical standards. This demonstrates that cultural institutions are redefining their responsibilities by balancing law, ethics, and cultural diplomacy whilst contributing to the gradual evolution of institutional and state frameworks regarding the validity of restitution claims.