Colonial Restitution Is a Different Legal Problem

Ouagadougou, and the report that followed

In November 2017, speaking in Ouagadougou, the French president expressed the wish that within five years the conditions would exist for temporary or definitive returns of African heritage to Africa. On 23 November 2018 he received the report he had commissioned from Felwine Sarr and Benedicte Savoy, The Restitution of African Cultural Heritage: Toward a New Relational Ethics, and announced the immediate return of twenty-six objects taken by General Dodds from the palace of King Behanzin after the fighting of 1892, then held at the Musee du quai Branly-Jacques Chirac.

The report's central move was to propose that France recognise a moral right of restitution and make permanent transfers rather than long loans, which required confronting the principle that French public collections are inalienable. It is widely summarised as asserting that some ninety per cent of sub-Saharan African material heritage sits outside the continent and that the quai Branly holds around seventy thousand African objects. Those two figures are quoted here from secondary and tertiary summaries of the report rather than from the report's own pagination, and should be replaced with the primary text before they are relied on in print.

What the Elysee announced alongside the report is as revealing as the report itself: museums were directed to identify African partners and to inventory their African collections, and a Paris meeting of European and African partners was proposed for early 2019. The instruction was to build a process. No French institution was told that it had been holding stolen goods.

The obstacle was the museum's constitution, not the law of theft

French public collections are inalienable under article L.451-5 of the code du patrimoine. That is why the 2018 announcement took two years to execute and why it required primary legislation. LOI n. 2020-1673 of 24 December 2020 opens, in terms, by derogating from the principle of inalienability of French public collections inscribed in article L.451-5. Article 1 transfers the twenty-six Abomey objects to the Republic of Benin. Article 2, in identical form, transfers a sabre and scabbard attributed to El Hadj Omar Tall, held by the Musee de l'Armee, to the Republic of Senegal. Each article gives the administrative authority a maximum of one year from entry into force to complete the transfer. The statute creates no commission and lays down no general rule; two articles, one list, one deadline.

That structure is the point. In a Nazi-era claim the contest is usually about title: whether a transfer in 1938 was void, whether a good faith purchaser took clean, whether time has run. In a colonial-era claim in a civil law jurisdiction the contest is very often about whether the holding institution is legally capable of parting with anything at all, whatever the merits.

The English position makes this vivid. Section 5 of the British Museum Act 1963 permits the trustees to dispose of an object only in narrow cases: where it is a duplicate of another object, where it was made after 1850 and consists substantially of printed matter of which the trustees hold a photographic copy, or where it is unfit to be retained and can be disposed of without detriment to students, with a separate power to destroy objects damaged, deteriorated or infested. Nothing in that section contemplates returning an object because of how it was acquired. The museum holds roughly nine hundred Benin pieces and can lend them; on the face of the statute it cannot give them away.

Benin, 1897, and the German transfer

The facts of the Benin case are not seriously disputed by any party. In 1897 a British punitive expedition took the city of Benin. Thousands of objects were shipped to London as spoils of war and sold. The Ethnologisches Museum in Berlin assembled its holdings out of those dispersals, through networks of European and African businesspeople and traders. The provenance is documented, the taking was violent, and no museum claims otherwise.

On 1 July 2022 Germany and Nigeria signed an agreement in Berlin, attended by the German foreign minister Annalena Baerbock and by the Nigerian ministers Zubairu Dada and Lai Mohammed, covering 1,130 objects across five ethnological museums in Berlin, Stuttgart, Cologne, Leipzig and Hamburg. It was described as an unconditional transfer of ownership. The Berlin transfer of 512 objects took effect on 25 August 2022, characterised at the time as the most extensive transfer of ownership of museum objects from a colonial context yet made. About a third of the Berlin objects, roughly a hundred and seventy, remained in Germany on loan for an initial ten years for display at the Humboldt Forum. The first ten objects were physically returned in December 2022.

Note what Germany did not need. There was no arbitral tribunal, no claims commission, no finding that any German institution held stolen property in the private law sense, and no statute of the kind France had to pass. The transfer was executed as an act of state policy between two governments.

Then Nigeria changed the counterparty

On 23 March 2023 the outgoing Nigerian president issued a Notice of Presidential Declaration on the Recognition of Ownership and an Order Vesting Custody and Management of Repatriated Looted Benin Artefacts in the Oba of Benin. It recognised ownership, custody and management in Oba Ewuare II to the exclusion of any other person or persons and or institutions.

European museums had been negotiating with the National Commission for Museums and Monuments, and much of the planning had assumed the Edo Museum of West African Art as the destination. The declaration was reported to have blindsided the commission and left institutions asking who their counterparty now was. That question has not been resolved in public, and the arrangements remain in flux. Nothing in the declaration bears on the validity of the German transfers, which were completed before it; it concerns who within Nigeria holds what has been returned.

The episode exposes a structural feature of colonial-era restitution that has no analogue on the Nazi-era side. There, the claimant is normally an identifiable heir or an estate, and the question of who receives the object is answered by succession law. Here the claimant may be a state, a dynasty, a community or a museum, each with a real interest, and the receiving jurisdiction may allocate the object among them after the transfer and without consulting the transferor.

Four reasons the Nazi-era analogy will not carry the weight put on it

First, the identity of the claimant. Nazi-era claims run through documented private title and succession. Colonial-era claims are typically advanced by governments and traditional authorities, which is why the Benin case turned into an intergovernmental agreement and then a domestic Nigerian allocation question.

Second, the legal characterisation of the taking. The Nazi-era framework rests on wrongs that were recognised as wrongs by post-war restitution legislation, including Austria's 1946 statute voiding Nazi-motivated transactions, and it operates through doctrines of void transfer and duress. Colonial acquisitions were in general effected under the law of the colonising power and are not straightforwardly void under it. That is why the Sarr-Savoy report argued in the register of a moral right and a new relational ethics, and why France proceeded by statute rather than by litigation.

Third, the absence of an instrument. There is no Washington equivalent for colonial collections: no set of agreed principles, no national commissions with unilateral access, no arbitral tribunal. Germany's new Court of Arbitration is confined to cultural property lost through Nazi persecution between 30 January 1933 and 8 May 1945 and located in Germany. Switzerland's committee, established in 2024, does carry a mandate covering colonial contexts, but issues non-binding recommendations and can be seised only by joint agreement of both parties, which leaves the holder with a veto.

Fourth, the identity of the obstacle. For a Nazi-era claim the barriers are limitation periods and good faith purchase rules. For a colonial-era claim the barrier is usually the constitution of the museum: inalienability in France, section 5 of the British Museum Act 1963 in the United Kingdom. Those are rules about what a public institution may do with its property, and they are indifferent to the merits of the underlying history.

The practical consequence for anyone tracking this field is that progress on colonial collections has come, and will continue to come, from governments and trustees rather than from tribunals. That makes it faster where the political will exists, as in Germany in 2022, and immovable where it does not.