Robert Peters

The debate on the return and restitution of cultural property is by no means a new one. In recent years, however, the debate – stimulated by French President Emmanuel Macron’s speech in 2017 – extended to include the question of how to deal with collections from colonial contexts. Whereas international law provides a legal framework for how to deal with war-time looting (the 1954 Hague Convention) and the present-day trafficking in cultural property (the 1970 UNESCO Convention), no such legal regime exists for cultural objects removed during colonial times. Nevertheless, as this article illustrates – with a focus on recent examples in Germany – current developments indicate a movement towards new political and ethical schemes on how to deal with collections from colonial contexts and, in a broader sense, how to come to terms with the colonial past. In Germany, this includes the return of cultural objects and human remains to Namibia as well as the transfer of ownership of all Benin Bronzes held by German institutions to Nigeria.

This article analyses the recent developments on the international, regional, and national level in preventing the trafficking in movable cultural property. The analysis starts by looking at the legal framework provided by the 1970 UNESCO Convention and the necessity of the Convention’s implementation into national law. It then focuses on the 2016 law reform in Germany implementing the 1970 UNESCO Convention as well as Directive 2014/60/EU. Whereas most States have adopted national export provisions protecting their own national cultural property, only a few States – like Canada and Germany – provide for general import provisions. Against the backdrop of the UN Security Council Resolution 2347 (2017)  nd the 2019 EU Import Regulation, the article illustrates that import and export provisions are two sides of the same coin in terms of preventing trafficking in cultural property.

This article analyses the new German cultural property law in the context of EU law and the 1970 UNESCO Convention on the protection of cultural property. The analysis starts by looking at the circumstances that led to the 2016 reform of Germany’s cultural property law. It then widens the perspective by looking at the overall legal framework of the Single European Market (SEM) in the context of the free movement of goods and the protection of cultural property. Both, the new Directive 2014/60/EU on the return of cultural property as well as the EU Regulation 116/2009 on the export of cultural property are scrutinized with a specific focus on their impact in shaping and developing national cultural property law. Specific focus is placed on the divergent notions of “national treasures” and “national patrimony” in Article 36 of the EU Treaty. On the basis of this overall legal framework, the four pillars of the 2016 German cultural property reform are described. The article concludes by showing what is lacking in current EU law: an import regulation for cultural property. Without such an import regulation, the 1970 UNESCO Convention cannot have full effect in the SEM and its EU Member States.