01 · Observation

A law designed to protect,
called upon to transmit.

The French regime of the movable public domain obeys a logic of conservation. The cultural property it comprises is, by construction, inalienable, imprescriptible and immune from seizure. The legislator of 1995 and 2004, in consolidating this regime within the Code général de la propriété des personnes publiques, intended to equip the collectivity with a robust protective instrument. That instrument has proven its defensive effectiveness.

It was not designed for what is now asked of it. The trajectory begun in 2020, which has seen France transfer to receiving States several significant works, among them the twenty-six pieces of the Béhanzin Treasury to the Republic of Benin and the so-called El Hadj Omar Tall sabre to the Republic of Senegal, presupposes a reverse movement. A property must be removed from the public domain in order to be transferred to another State. French law does not allow for this through ordinary means.

The legislator has therefore proceeded case by case. A special law in December 2020, another in December 2023 for human remains. A third in July 2023 for property looted during the Occupation. Each operation has its own text. Each text has its debates, its parliamentary calendar, its political arbitrations.

What this method produces

From the French State’s perspective, the procedure is workable. It ensures parliamentary control over each operation, preserves legislative sovereignty and leaves the executive in control of the calendar. Three valuable qualities on a politically sensitive subject.

From the perspective of receiving States and partner institutions, the procedure produces something else. A structural unpredictability. No restitution is secured until the text has been voted. Negotiations begun upstream may, at any moment, be suspended by a parliamentary postponement or a change of majority. The museological and logistical work, which requires several years, is conducted under a constant resolutive condition.

The case-by-case approach, which secures the legislator’s sovereignty, undermines the State’s word.

This imbalance is not merely inconvenient. It is counterproductive. Part of the political value of restitution lies in the reliability of the process. Yet the diplomatic commitment precedes the actual transfer by years. The distance between the promise and the execution, sometimes measured in presidential terms, erodes the significance of the gesture.

02 · Analysis

Restitution as a sui generis
legal act.

Part of the difficulty lies in the legal characterisation of the operation. Doctrine and public debate have in turn likened restitution to familiar legal figures: donation between States, succession, regularisation of a contested appropriation, recognition of a prior right. Each comparison illuminates a dimension of the gesture. None exhausts its nature.

What restitution is not

It is not an expropriation of the French public collectivity, because there is, in domestic law, no expropriating party. The decision is voluntary and emanates from the State itself.

Nor is it a diplomatic donation, in the sense sometimes recognised by administrative case law. Donation presupposes a gratuitous gift granted for reasons of international courtesy. Restitution, by contrast, is grounded in a substantive reasoning on the legitimacy of the holding.

Neither is it a mere amicable transfer. The property leaves the public domain without financial consideration, in a framework where the economic value of the transfer is not at stake. To see it as a sale is to miss the point.

What it is

Restitution is a composite act, articulating three distinct legal temporalities. Each calls for its own instruments.

First time: the political decision. The French State acknowledges that the holding of a property, until then lawful, must cease. This acknowledgement is the initial spring. It takes the form of a commitment, almost always bilateral, by which two States agree on the principle and the contours of the transfer. This is the moment of intergovernmental conventions and joint declarations.

Second time: the administrative declassification. For the transfer to be legally possible, the property must cease to belong to the French public domain. This is the strictly legal moment of the operation. Under the current framework, it requires the intervention of the legislator. This moment, if better equipped, could be conducted with greater regularity.

Third time: the effective transfer. Once the property has left the public domain, its physical delivery must be organised, its entry into the receiving State’s patrimony, its conservation, its possible display. This moment, the most visible, is also where museological, logistical and technical concerns take precedence over the law. But it can only be conducted serenely if the first two have been stabilised.

To think of restitution as a single act conceals three. To think of these three times in parallel makes it possible to conduct them in sequence.

This three-stage reading is not a doctrinal indulgence. It has practical import. It indicates, for each temporality, the appropriate instrument. And it reveals that the weak link in the current arrangement is neither the political decision, which is taken, nor the effective transfer, which is carried out, but the declassification, which is built each time as if it were unprecedented.

03 · Proposals

Three paths towards a
stable operational framework.

The paths that follow do not claim to settle the legal debate on the nature of restitution. They propose, at a lower level, a method of execution. Their ambition is measured: to enable the French State to honour its commitments within legible timeframes, without surrendering political control over the operations.

Path A

A framework law of procedure

Rather than passing a special law for each restitution, Parliament could adopt a framework law setting the procedure applicable to any exit from the public domain for the purpose of transfer to a foreign State. This law would not preempt any political decision. It would merely fix the stages: opinion of a scientific commission, prior intergovernmental agreement, reasoned declassification decree, formalities of transfer.

Each restitution would thus remain subject to a political act of the executive, open to parliamentary scrutiny under the ordinary regime. But the procedural matrix would be stable and opposable, both to France and to its partners.

Path B

A model convention between governments

The bilateral conventions concluded to date have each been drafted in their own context, with their own solutions. This made-to-measure approach is a quality. It is also a factor of unpredictability for partner States, which do not know, when entering negotiations, towards which framework they will lead.

A model convention, drafted by the legal affairs directorate of the Ministry of Foreign Affairs in consultation with the Ministry of Culture, could provide a reference grid. It would address clauses on the transfer of ownership, conservation commitments, modalities of post-transfer scientific cooperation, documentary traceability and the conditions of the property’s subsequent circulation.

This model convention would not be binding. It would serve as a negotiable starting point, which is, in practice, a powerful accelerator.

Path C

A post-transfer follow-up mechanism

Restitution is not a final settlement. On the contrary, it opens a continuing relationship between the State of provenance and the receiving State: curatorial training, long-term loans, joint exhibitions, shared restorations, scientific exchanges. This relationship is conducted today, but without a durable legal framework.

A dedicated instrument, which might be called a protocol of patrimonial cooperation, could be systematically annexed to any restitution convention. It would fix, for a renewable duration, the mutual commitments of both States in matters of conservation, circulation and programming.

This protocol would transform restitution into a long-term relationship, which is what it in fact is, and give it its full political significance.

These three paths are independent. They may be adopted separately. Taken together, they sketch a coherent arrangement: a stable legislative framework, a legible bilateral instrument, a durable follow-up mechanism. None touches on the substance of the debate. All facilitate its implementation.