The restitution of illicitly exported cultural properties: Recent Italian cases

Abstract

The question of restitution of removed cultural properties to which existing treaties do not apply for chronological or other reasons, is far from being settled under customary international law. It seems that an evolutionary trend is developing in present customary international law according to which claims related to the movements of cultural properties should be addressed in order to achieve an equitable solution, taking into account all relevant circumstances. These circumstances include: factors surrounding the removal of the cultural property from the state of origin, in particular the legality of the removal under the law of the state of origin or the substantive injustice of the removal; the importance of the cultural property for the state of origin, including its emblematic character; harm to the integrity of the cultural context from which the cultural property was removed; the amount of time since the cultural property was removed from the state of origin; the appreciation for and the care used to preserve the cultural property in the state of destination; the state of origin’s commitment to care for the preservation of the cultural property if it is returned to it. Agreements between the Italian Ministry of Cultural Properties and activities by American museums are aimed at resolving disputes over the return of cultural properties in order to reach an equitable solution taking into account all relevant circumstances. This objective should govern relations between states of origin and states of destination of cultural properties, and should also be shared, if this is the case, also by nonstate entities concerned. Non-adversarial procedures, such as negotiation, mediation or conciliation, should be put in place to achieve the objective.