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Operating on Good-Faith Enforcement: The Current State of International Legal Instruments in Art Repatriation

Updated: Feb 20

About the Author: Eleanor Iris Gartstein is a first-year law student at Berkeley Law with a passion for art history and its intersections with international law. Eleanor's particular interests lie in topics surrounding cultural heritage and art repatriation.

 “Perhaps soon, the growing international trend of rectifying historical wrongs will realize the long-awaited repatriation of such pieces to their cultural homes across the planet.” 

-Erika Echeona and Christin Nadeau, Santa Clara Business Law Chronicle 

The Issue of Repatriation & its Modern-Day Prevalence

The global trade of art, antiquities, and cultural items is a multi-billion dollar industry. And as with any industry of such size, there comes with it an infestation of crime. The art world has seen powerful nations and institutions continuously profit off of the long-withstanding effects of illicit trafficking, colonialism, pillage, and theft.

Recent years have brought heightened scrutiny into art collections across the globe, calling into question the provenance and origin stories of how items wound up in museums or private possession in the first place. While ethical awareness has intensified within the art world, the next – much more crucial – step beyond awareness is to define a process in which we can rectify these wrongs. Identification and acknowledgment of a stolen artwork is simply not enough; how, then, can we effectively repatriate it?

Repatriation, or the return of cultural objects to their country of origin, has increasingly come to be seen as a human rights issue. While for decades there has been polarized discourse both in criticism and defense of repatriation, one fact that remains truly uncontested is that hundreds of thousands of culturally significant items have been mass-displaced from their native homes through improper channels. Many archaeologists and art historians argue that cultural property is a nonrenewable resource for nations and advocate for their return on the grounds that objects lost to their culture also take away with it their history. Even with such strongly rooted foundational interests, the actual execution of repatriation requires overcoming the extensive legal barriers that stand in the way of an object’s return. 

Existing Legal Mechanisms & their Current State of Effectiveness

Looting of art, archaeology, and other cultural property went on for many years without any regulation, but with shifting global perspectives toward postcolonial morality, cultural heritage has come to occupy a very distinct place in the body of international law. The last 70 years has seen a variety of legal instruments develop in the effort to defend heritage.

Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict

Adopted in response to the large-scale cultural destruction promulgated by World War II, the 1954 Hague Convention was the first international treaty to focus exclusively on the protection of cultural property during times of war. It defined the term ‘cultural property’ broadly, stating that it covered “movable or immovable property of great importance to the cultural heritage of every people.” In the central effort to ensure the proper treatment of cultural property during hostilities, the destruction of cultural items was recognized as a war crime on the grounds that it weakens foundations for peace and hinders reconciliation when hostilities end. Unfortunately, the Hague Convention has widely been considered ineffective. While drafted in 1954, the U.S. did not ratify it until 2007 under the Clinton Administration. Nonobservance of its framework by other member nations has been largely indicated by the fact that the destruction of cultural property has continued to be used as a military tactic during wartime.

UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

In acknowledgment that cultural property should be afforded protection beyond the context of armed conflict, the resulting 1970 Convention sought to fight crime against heritage by preventing the export of cultural objects from source countries and their import into other countries. The Convention emphasized that the true value of cultural property could be appreciated only when presented within its original context, and it was incumbent on every state to prevent the destruction of heritage by taking action in pursuit of these universally recognized moral principles. The agreement was rather broad and did not mandate any specific actions be taken; the terms thus remained solely prospective, requiring individual implementation by state party legislatures. The Convention did not provide any forum for the judicial settlement of repatriation disputes. As a result, a wide and conflicting range of legislative approaches to its terms developed among signatory states. While 1970 brought a shift in which many institutions took more aggressive positions to ensure that the art they acquired came through legitimate channels, the existing divergence in legal standards has posed a serious issue for cohesive international regulation.

UNIDROIT Convention of 1995 of Stolen or Illegally Exported Cultural Objects

Subsequent years came with the realization that private law disputes in cultural property required their own set of regulations, and UNESCO requested that UNIDROIT, an independent intergovernmental organization, make efforts to govern international rules for recovery. This prompted the UNIDROIT Convention of 1995, in which protection was expanded to give private parties the right to make a claim for restitution. This came with a variety of mandates for Contracting States: uniform treatment of claims, due diligence and burden of proof standards, time limits, permitted arbitration, possibility of compensation, and venue specifications. Similarly to its predecessors, however, the palpable impact of the UNIDROIT Convention has been restricted to the good faith efforts of its member nations.

Washington Conference of 1998 on Holocaust-Era Assets

Recognizing a great lack of adequate measures for repatriation remained, the 44 countries and 13 non-governmental organizations in attendance at the Washington Conference of 1998 came to agree (but with no formal agreement drafted) upon 11 moral principles that would assist in the repatriation of Nazi-looted artifacts. While the efforts presented a general consensus, they were non-binding principles considered to be “soft law,” serving more as encouragement. There have been a variety of responses amongst member nations, some of which are incredibly positive. To name a few, Austria has embedded provenance research throughout their public institutions and Germany has dedicated an entire commission to the cause. Other nations present at the Washington Conference, however, have so far failed to be accountable to its ethical code. Those accused of being slow to address issues of Nazi-looted artifacts thus far include Hungary, Poland, Italy, Russia, and Spain. 

Each year, more countries recognize the need for cultural property protection and decide to join the international treaty regime. While the above presents major instruments that do have significant global resonance, the truth is that they remain very limited in their executory ability. Without a nation’s legislature making drastic moves to affirmatively implement the provisions within these agreements, they have no effect. This narrow scope of existing mechanisms has thus proved problematic, and certainly not all-encompassing for issues of repatriation. There is only so far this can take us in sufficiently adjudicating disputes of repatriation. 

How can we mitigate these challenges?

With the current state of repatriation efforts being notoriously ineffective, we must assess what can realistically be done to mitigate the many international hurdles involved in returning artifacts. Major institutions and invested actors have advocated for a variety of solutions that can smooth the process.

Creation of National Cultural Heritage Units

INTERPOL, an international organization facilitating worldwide police cooperation, has been attempting to fight crimes against cultural property since 1946. Echoing the situation of the above instruments, its effectiveness is entirely dependent on international cooperation. INTERPOL has made strong attempts at counteracting these limitations by advocating for each nation to have a specialized unit dedicated to cultural property. Through providing a proposal detailing a uniform basis on how this can be achieved, they’ve urged countries to recognize the benefits a dedicated team would provide. Cultural Heritage Units would assist each nation-state in fulfilling their international obligations and, perhaps even more importantly, facilitate a greater respect for that of other countries through a more reciprocal relationship. 

Databases & Accessibility to Information

Information is one of the most major ingredients to cross-cultural understanding. A prominent topic of the Washington Conference was the consensus that effective change necessitated open and accessible records. This has contributed to the growing need to maintain digital databases as a tool to track stolen and looted art. Notable examples of databases that have been formed as a result are the Art Loss Register, the Nazi-Era Provenance Portal (NEPIP), INTERPOL’s Stolen Works of Art Database, and the FBI’s National Stolen Art File. Digitization of records has proved very challenging, however, as the passage of time experienced by much of cultural property has led to unavoidable gaps in provenance, prompting evidentiary concerns. It is up to the due diligence of theft victims to fill these gaps through conscious efforts to ensure the item they seek returned is reported and accessible via multiple databases.

While the above is by no means an exhaustive presentation of ways to mitigate the challenges involved in repatriation, they do present two options that are realistic and achievable. Repatriation of cultural heritage is no simple task; the international exchange involved requires overcoming a web of complexities that can only be achieved through a genuine dedication to continuously cooperate among governments, law enforcement, museums, and private actors across the globe. 

In the ethical returns era of modern-day, the process of repatriation necessitates much more than the attendance of Conventions and signing of treaties. Additional measures must be taken by the members of each individual state in order to become holistically effective for cultural preservation worldwide.

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