For the French version [with thanks to translator Agathe Diabou of Retours & Restitutions], see https://retours.hypotheses.org/2974
In November 2017, French President Emmanuel Macron promised in Ouagadougou, the capital of Burkina Faso, a new relationship between France and countries on the African continent.
One of his promises was to create the conditions, within five years, ‘for temporary or permanent returns of African heritage to Africa’, with the aim to reduce the disparity between the number of objects from France’s former colonial possessions now in French museums and the number now in Africa.
The fact that only about thirty objects have been returned since then might have created the impression that France was already in a post-restitution era. Until 30 July 2025. That day, culture minister Rachida Dati presented a government’s bill that reaffirms the principle that French public collections are ‘inalienable’ but provides a general exemption for items taken by force or under duress between 1815 and 1972.
Minister Rati will discuss the draft-law with the French Senate on 24 September 2025. Shortly before, on 11 September the Senate will present a report about it. Already, on 23 July 2025, the Council of State, came with an advice.
Looted from Mali
The law
Currently, each return of looted cultural property from colonial regions needs to be subject to a specific law that makes an exception to the principle of the inalienability of France’s national heritage.
For years, a former colony such as the Republic of Benin and certain actors in and outside France had asked for the replacement of this case-by-case approach with a general legal framework for restitution of contested objects that had entered the public domain. The proposed bill contains such a framework.
The bill allows for restitution of cultural property items that are proven to have been illicitly taken between 1815 and 1972 ‘through theft, looting, transfer or gift obtained through coercion or violence, or from a person who was not entitled to dispose of it’ (Art. L.115-I-10).
Several items, however, are explicitly not covered by the law (Art. L.115-15.-II):
- Items found during archaeological digs for which specific legal arrangements have been made;
- Public archives;
- Property of a military nature or function seized by the armed forces.
Only a sovereign state can submit a restitution request.
To examine the request for restitution, a scientific committee set up in consultation with the requesting State may be consulted for its opinion on whether the items were illicitly taken or not.
The last word is to the Council of State, France’s most senior administrative institution. It will study if all procedures have been followed and all requirements have been met. Only then will it be able to announce the object’s restitution.
Sarr-Savoy report vs. Martinez report
In the restitution debate in France, two groups can be distinguished:
- Those who show understanding for the need to address colonial injustices and for the longings of Africans and others who have been unjustly deprived of their cultural heritage and favour a generous restitution policy with a big say for former colonies.
- Those who emphasise both the importance of France’s national heritage and the sacredness of private property, and who understand a policy of restitutions primarily as an instrument to strengthen France’s foreign influence and diplomatic relations.
Felwine Sarr and Bénédicte Savoy belong to the first group. After his 2017 speech, Macron asked them for an advice.
Their 2018 report emphasised the systematic nature of the looting of African cultural objects in the colonial era and the need for different rounds of restitutions to Africa, ‘in a swift and thorough manner without any supplementary research regarding their provenance or origins, of any objects taken by force or presumed to be acquired through inequitable conditions’ (p. 61).
They pleaded for a framework law and also favoured the creation of joint commissions between France and each of one of the concerned African nation-states desiring to recover their cultural heritage (p. 68).
Their definition of items eligible for restitution was rather broad and included war booty, the finds of exploratory missions and scientific raids, etc. (p. 54). They also emphasised the need to make archives accessible for countries of origin (p. 41).
Fresco, taken by French expedition in the 1930s. Will this law help Ethiopia to get it back?
Jean-Luc Martinez, a former Louvre director and currently France’s ambassador for International Cultural Policy, is a representative of the second group.
At Macron’s 2021 request, he published a report in April 2023. In it he warned against the connection between restitution and colonialism, and in particular against the ‘logic of reparations’ this connection would tend to unlock (p. 51). Instead, he favoured a framework law which would encompass many more categories of ‘translocated’ objects (the Martinez report favours the term ‘translocated’ over ‘looted’).
According to Martinez, the spirit of the speech of Ouagadougou would elicit ‘neither positive discrimination, nor a logic of reparation or repentance, but a desire to create new partnerships and work towards a shared memory’ (p. 52).
The framework law must be accompanied by a careful case-by-case-approach, minimising the number of items to be restituted – and obliterating the risk that French museum collections would be emptied (p. 53).
Not eligible for restitution, in the view of Martinez, were items of a military nature or function seized by the armed force, as well as items acquired through private donations and bequests (p.47).
He favours a strong supervising role for the French Council of State (p. 75).
Fresco, taken by French expedition in the 1930s.
Major influence
A preliminary analysis of the bill shows that Martinez’s proposals have been preferred over those of Sarr and Savoy on almost all points. Because of his official position, Martinez has had a big say in its making, as well in two other restitution laws: Law 2023-650 of 22 July 2023 about Nazi-looted art works, and Law 2023-1251 of 26 December 2023 about the restitution of human remains in public collections.
In the draft-law, the framework is not directly connected to colonialism but focuses more broadly on ‘illicit acquisitions’ between 1815 and 1972.
Sarr and Savoy’s call for a swift step-by-step approach to enable comprehensive restitutions to Africa is not followed either. Instead, a case-by-case approach is chosen, as was advocated in the Martinez report.
Restitution requests will be processed in a potentially cumbersome procedure, with a pivotal role for the Council of State.
In addition, Martinez’ narrow definition of loot has been greatly adopted: no captured military items, no public archives, no archaeological shares.
Conservative opinion of the Council of State
The Council of State largely approves of the draft-law, but disagrees on one point: the position of donors and testators. In the draft law, items can be restituted, even if they were previously donated by private individuals.
However, even if they have no longer the property title of their object in a public collection, current French legislation requires that the state
- ‘establishes a specific mechanism for informing the donor or his or her beneficiaries of the intention to return the cultural property in question, with a view to inviting the interested parties to renounce it’.
According to the Council of State – the same point was also made in the report-Martinez, but not followed in the bill – restituting items without consent of previous donators or their heirs would amount to an infringement on their property rights, which would amount to an injustice to them.
According to the Council of State, redressing colonial injustice (in contrast to Nazi-looted art) is not of such a paramount general interest that it can ‘override’ their vested interests.
If the French legislator adopts this suggestion of the Council of State, the result would be that a claim is rejected, not because there was no illicit acquisition, but because the private party that once donated it to a museum does not want the rightfully claimed item to be returned to its country of origin.
Stolen from Mali. Will it go back?
In conclusion
It is gratifying that the French government has proposed a much-needed framework law on restitution. It will prevent the need for special laws for each and every restitution request and will offer more legal certainty to countries of origin.
How much claimants will gain from the law is unclear. The many restrictive provisions do not inspire much optimism.
The definition of colonial loot should be of greater concern to the countries of origin than to the Musée du quai Branly, the Musée de l’Armée in Paris and other public museums in France.
The central role of the Council of State and the protection of donors could also be bad news for the countries of origin.
The spirit of president Macron’s 2017 speech in Ouagadougou is far away.
