African cultural heritage disputes against the current context

After decades, if not centuries, of reluctance on the part of Western countries to acknowledge, let alone address, the looting of African art objects and their repatriation, things are beginning to change. In a landmark 2017 speech at the University of Ouagadougou, in Burkina Faso, French President Emmanuel Macron stated that he “c[ould] not accept that a large part of cultural heritage from several African countries is in France” and that “[i]n the next five years, [he] want[ed] the conditions to be met for the temporary or permanent restitution of African heritage to Africa.”Footnote ⁷ Following the appointment of two experts, Bénédicte Savoy (a French art historian) and Felwine Sarr (a Senegalese writer and professor), and the publication of their report calling for restitution and a more balanced distribution of African cultural heritage between European and African museums, France announced the return of 26 art objects from the Quai Branly–Jacques Chirac Museum, in Paris, to Benin in 2021. The National Council of Reflection on the Circulation and Return of Extra-European Cultural Goods (“Conseil national de réflexion sur la circulation et le retour de biens culturels extra-européens”) was created in 2022 for that purpose.Footnote ⁸ However, as Stahn highlights:

More recently, in June 2024 the Qingdao Recommendations for the Protection and Return of Cultural Objects Removed from Colonial Contexts or Acquired by Other Unjustifiable or Unethical Means was launched during the International Conference on the Protection and Return of Cultural Objects Removed from Colonial Contexts, which was held in Qingdao, China.Footnote ¹⁰ Naturally, these recommendations are not legally binding; however, as is often the case, they can be proven to be persuasive depending on the broader political consensus at the international level.

Questions regarding African cultural heritage cannot be treated in clinical isolation from fundamental questions regarding African states and societies. Such questions are often interrelated with the contestation of power and values within African states and the position of African states within the international and regional political, economic, and legal systems,Footnote ¹¹ especially in the light of the burden of history, which includes the traumatic experience of colonialism and the Cold War in African societies.Footnote ¹² At the same time, the broader context includes African countries’ attempt to “Africanize” international economic law, that is, “to formulate a regional/continental African view on [foreign direct investment]” so that African states could “make up for their low economic and political clout in the face of non-African investors” and “approach the issue more aggressively at the national level and then further coordinate the initiatives at the … continental level.”Footnote ¹³ Specifically, one initiative in the field of cultural heritage law is the African Union (AU) Model Law on the Protection of Cultural Property and Heritage developed from 2015 to 2018.Footnote ¹⁴

In the third decade of the twenty-first century, African states are beginning to assert their strategic autonomy both individually and collectively and participate more actively in international fora. Therefore, the time has come to prioritize the resolution of African cultural heritage disputes through arbitration to potentially facilitate the repatriation of African art objects.Footnote ¹⁵

International State-to-State Arbitration

International state-to-state arbitration historically precedes the establishment of the International Court of Justice (ICJ),Footnote ¹⁶ the primary judicial organ of the United Nations, and its predecessor, the Permanent Court of International Justice, which was created in 1919.Footnote ¹⁷ Nonetheless, state-to-state arbitration is rarely used by states to settle cultural heritage–related disputes. The ICJ has dealt directly with cultural heritage issues in the famous dispute of Preah Vihear Temple between Cambodia and Thailand, and even in that case, questions of border delimitation were of primary importance compared to cultural heritage issues.Footnote ¹⁸

Two similarities and two differences between (1) the ICJ (or, indeed, litigation between states before any standing international court or tribunal) and (2) international state-to-state arbitration are pertinent for present purposes.

The first similarity is the indispensable role of state consent. Νo state can be brought before an international court or arbitral tribunal unless and to the extent that it has given its consent. In the Certain Property case between Lichtenstein and Germany, which concerned the confiscation of a painting by the Flemish Pieter van Laer (1599–1642), the ICJ found that it lacked jurisdiction ratione temporis, thus highlighting the difficulties of bringing cultural heritage–related disputes before the World Court.Footnote ¹⁹ Consent can be given before the dispute has arisen in a compromissory clause included in an international treaty or (in the case of the ICJ) by accepting in advance the compulsory jurisdiction of the Court pursuant to Article 36 of the ICJ Statute. States can also provide its consent to litigate the matter before the ICJ (or before any other international court or arbitral tribunal) after the dispute erupts by concluding an ad hoc agreement for that purpose (compromis) or by accepting to participate in proceedings initiated by another state despite the fact that there is no consent and, therefore, no jurisdiction (before the state decides to participate [forum prorogatum]).Footnote ²⁰

The second similarity is that in both international state-to-state litigation and investment treaty arbitration the applicable law is public international law. In investment treaty arbitration domestic laws can be also applicable (as for example Article 42(1) of the ICSID Convention provides), but international law prevails.Footnote ²¹ In international commercial arbitration the applicable law is usually the domestic law of a specific jurisdiction, although international law and/or transnational legal principles sometimes are also applicable. Article 38(1) of the ICJ Statute provides the applicable law for the Court:

1. 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

2. a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

3. b. international custom, as evidence of a general practice accepted as law;

4. c. the general principles of law recognized by civilized nations;

5. d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.Footnote ²²

Article 59 of the ICJ Statute makes clear that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case,” indicating that in the ICJ and international litigation and arbitration more generally there is no binding precedent system (stare decisis) as in common law jurisdictions. However, in what Hernández aptly describes as “a rare declaration which reveals its own claim to normative authority,”Footnote ²³ the ICJ highlighted in the Genocide case between Croatia and Serbia:

Both Articles 38 and 59 of the ICJ Statute concern proceedings before the ICJ, but it is generally accepted that they reflect the general norm in public international law (which is also applicable in state-to-state arbitration proceedings). As Judge Guillaume (the former president of the ICJ) wrote, “all the international jurisdictions distance themselves in principle from the rule of stare decisis.”Footnote ²⁵

The first major difference between litigation and arbitration is that while in the former the parties bring the matter before a standing international court (be it the World CourtFootnote ²⁶ or another international court or tribunal (such as the International Tribunal for the Law of the Sea [ITLOS] in Hamburg), in the latter the parties choose the arbitrators. In a sense, this is the raison d’être of arbitration. Selecting the arbitrators is significant for the resolution of African cultural heritage disputes for several reasons, including the underrepresentation of African jurists in international judicial postsFootnote ²⁷ and the need for adjudicators to be familiar not only with public international law but also cultural heritage and the unique African cultural, political, historical, and social context.Footnote ²⁸

The second difference concerns the greater control that parties can exert over the arbitral proceedings both from a substantive and a procedural perspective. Procedurally, international arbitration was aptly characterized as “a microcosm of potential procedural reform.”Footnote ²⁹ In the instrument providing consent to arbitrate the dispute (e.g., in the compromissory clause or in the compromis), African states can (and should) calibrate the precise parameters of the law applicable to both substance and procedure to ensure that their interests are fairly taken into consideration. One possible approach is to place greater emphasis on equity and equitable principles.Footnote ³⁰

These two differences between international litigation and arbitration also constitute two powerful arguments in favor of using arbitration to resolve African cultural heritage disputes, as both highlight the greater flexibility of arbitration (as opposed to litigation before standing courts).

Article 25(3) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001 UNESCO Convention) provides that:

Article 287(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which Article 25(3) of the 2001 UNESCO Convention partly refers, provides four different dispute settlement options comprising both litigation before the ICJ at the Hague or the International Tribunal for the Law of the Sea (ITLOS) in Hamburg and international arbitration:

1. (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

2. (b) the International Court of Justice;

3. (c) an arbitral tribunal constituted in accordance with Annex VII;

4. (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.Footnote ³²

Annex VII state-to-state arbitration serves as the default dispute resolution mechanism under the UNCLOS.Footnote ³³ Annex VIII arbitration is more technical and is available for specific categories of disputes concerning fisheries, navigation, marine scientific research, and the protection and preservation of the marine environment.Footnote ³⁴ It is unclear whether disputes concerning underwater cultural heritage (UCH) would be considered as falling within the scope of Annex VIII arbitration as related to “marine scientific research” or “the protection and preservation of the marine environment.” In general, and to the best of the author’s knowledge, no state has had recourse to arbitration in relation to the 2001 UNESCO Convention.

Perhaps the most well-known example of international state-to-state arbitration dealing with cultural heritage issues in the African context is the settlement of border-related disputes between Eritrea and Ethiopia, by the Eritrea-Ethiopia Claims Commission (EECC). The EECC was set up to adjudicate all claims of loss, damage, or injury in relation to the armed conflict between Eritrea and Ethiopia (1998–2000) and was composed of five arbitrators.Footnote ³⁵ In one of the claims, Eritrea successfully argued that during their occupation of Eritrean territory Ethiopian forces violated international law by destroying objects of historical and cultural significance. These included the stele (obelisk) of Matara, once a major trading post of the Axumite Kingdom (from classical antiquity to the Middle Ages), now an archaeological site in Eritrea. The Commission held that:

For the EECC, “the felling of the stela was a violation of customary international humanitarian law,”Footnote ³⁷ and the Commission held that:

It should also be highlighted that “the Commission award[ed] Eritrea the amounts expended to attempt to restore the Stela, plus an additional amount to reflect, in part, the unique cultural significance of the Stela, for a total award of US$50,000.”Footnote ³⁹

International arbitration pursuant to contracts

In state-to-state arbitration and investment treaty arbitration, the source (and the limit) of the arbitrators’ power is the arbitration agreement contained in an international treaty; in commercial arbitration the arbitration agreement is included in a contract. The well accepted definition of a treaty provided in the Vienna Convention on the Law of the Treaties provides that “‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”Footnote ⁴⁰ By contrast, international law does not contain a definition of contract; different domestic legal systems contain similar (but not identical) understandings of the concept of a contract.Footnote ⁴¹

Most contractual arrangements are between nonstate parties. Typically, commercial arbitration proceedings involve private entities. Having said that, international commercial arbitration involving states and/or state entities is on the rise. According to the International Court of Arbitration of the International Chamber of Commerce (ICC), one of the oldest and most popular international arbitration institutions, “[i]n 2023, 16% of the new cases involved a state or state entity. The total number of state and state entities (162) comprised 40 states and 122 state-owned parties from all parts of the world.”Footnote ⁴² Although the origins of international arbitration can be traced back to antiquity,Footnote ⁴³ in its current form international arbitration is largely the product of the nineteenth and twentieth centuries.Footnote ⁴⁴

Apart from the Convention for the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Hague Convention),Footnote ⁴⁵ which deals with the specific situation of armed conflict and military occupation, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the 1970 UNESCO Convention)Footnote ⁴⁶ is the first major international cultural heritage convention. Currently it has 147 state parties, out of which 38 are African.Footnote ⁴⁷ The 1970 UNESCO Convention provides a legal framework aiming at combating illicit trade in cultural property, fostering international cooperation, supporting national initiatives, promoting awareness, and developing import and export controls.Footnote ⁴⁸ In particular, “[t]he Convention essentially attempts to balance the duties of importing States to limit the illicit trade with those of countries of origin to protect their cultural property within their borders and to prevent its illegal export.”Footnote ⁴⁹ The 1970 UNESCO Convention constituted a major step in the protection of cultural heritage at the global level; however, it also had inherent limits, which include the lack of self-executing provisions (as the treaty itself requires implementation at the domestic legal level through state action), the lack of uniformity in its implementation, its limited scope of application (only to objects specifically designated as cultural property by the states parties), and its focus on public law rather than private law. From a dispute resolution perspective, the 1970 UNESCO Convention does not contain a proper dispute resolution mechanism, although Article 17(5) provides that “[a]t the request of at least two States Parties to this Convention which are engaged in a dispute over its implementation, UNESCO may extend its good offices to reach a settlement between them.”Footnote ⁵⁰ Although good offices could be useful in certain cases, they constitute a nonbinding diplomatic, rather than a binding and formal legal, dispute resolution mechanism.

The pitfalls of the 1970 UNESCO Convention led to the negotiation and adoption of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (the 1995 UNIDROIT ConventionFootnote ⁵¹).Footnote ⁵² Essentially, “[t]he UNIDROIT Convention was … conceived, from the beginning, as an international tool that would supplement the existing conventions – mainly the UNESCO Convention – filling the gap resulting from the absence of private international law or uniform law rules concerning the circulation of movables and the transfer of ownership of cultural property.”Footnote ⁵³ Before the adoption of the 1995 UNIDROIT Convention, there was no binding international instrument that specifically addressed private law mechanisms for restitution and compensation in cases of stolen or illegally exported cultural property. Existing frameworks, such as the 1970 UNESCO Convention, focused on public law obligations between states and did not directly govern private ownership disputes or compensation for good-faith purchasers. The 1995 UNIDROIT Convention currently has 56 state parties, 14 of which are African states.Footnote ⁵⁴ Regarding arbitration as a dispute resolution method, Articles 8(1) and 8(2) of the 1995 UNIDROIT Convention read as follows:

1. (1) A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States.

2. (2) The parties may agree to submit the dispute to any court or other competent authority or to arbitration.Footnote ⁵⁵

Despite the reference to litigation and arbitration, the 1995 UNIDROIT Convention does not contain a dispute resolution clause providing for a single forum or, at least, a single method of dispute settlement.

The inclusion of (and encouragement toward) arbitration in the UNIDROIT Convention was largely due to the participation of Pierre Lalive (one of the leading arbitration figures of the twentieth century), who chaired the four meetings of governmental experts on the draft Convention and the Committee of the Whole at the Diplomatic Conference.Footnote ⁵⁶ As one author persuasively argues:

Recourse to international arbitration has been suggested by various scholars to resolve art disputes in generalFootnote ⁵⁸ or specifically in relation to African cultural heritage disputes.

First, arbitral tribunals by design constitute a neutral forum compared to the domestic courts of one of the parties to the dispute.Footnote ⁵⁹ As Chechi explains, “arbitration may provide significant advantages in disputes concerning objects requested by the State of origin because arbitrators are in a neutral position to decide questions of sovereignty, cultural policy, national and international law, as well as moral and ethical arguments.”Footnote ⁶⁰ One key example of the role that arbitration can play in resolving cultural heritage disputes is the agreement of 21 February 2006 between the Italian Ministry of Cultural Heritage and Activities and the Commission for Cultural Assets of the Region of Sicily on the one hand, and the Metropolitan Museum of Art of New York on the other, which contains a clause according to which “[i]f the Parties are unable to reach a mutually satisfactory resolution to their dispute, the disputed issues shall be settled in private by arbitration on the basis of the Rules of Arbitration and Conciliation of the International Chamber of Commerce by three arbitrators appointed in accordance with said Rules.”Footnote ⁶¹ Recourse to arbitration avoids legal difficulties related to the jurisdiction of foreign domestic courts, which “for political, historical, or other reasons” may not be “favourable to the claim in question.”Footnote ⁶²

Second, the applicable law could include one or more domestic laws as well as international law or international or transnational legal principles,Footnote ⁶³ which could lead to a fairer and more equitable result in favor of African states or entities, especially in cases where the legal issue is rather complex.

Third, due to the confidential nature of arbitral proceedings, arbitration is particularly useful “to solve cases concerning contractual claims over authenticity and attribution,” given that confidentiality “is important for the professionals involved as well as the work of art itself.”Footnote ⁶⁴ By contrast, “[c]ourt proceedings may have considerable detrimental effects on the reputation and on the business of the traders and experts who may have been asked to give an estimation of the object.”Footnote ⁶⁵

Fourth, arbitration avoids (1) complex issues of jurisdiction and admissibility, including questions of conflict of laws (private international law); (2) “diplomatic and political ramifications” of litigation involving states before foreign domestic courts; and (3) “the significant expense of having to fund the legal costs of complex interlocutory hearings pertaining to jurisdiction and state immunity – hearings that whilst a state is well placed to afford, individuals are not.”Footnote ⁶⁶ This does not mean that arbitral proceedings will always constitute the most cost-effective dispute resolution process; in certain cases, litigation could be preferable, and any decision should be taken on an ad hoc basis.

Last but not least, enforcement of arbitral awards is easier due to the Convention on Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention),Footnote ⁶⁷ which has quasi-universal acceptance (with 172 state parties). Essentially, an arbitral award could be enforced in all these jurisdictions, as enforcement can be denied only on a limited set of grounds contained in Article V of the New York Convention.Footnote ⁶⁸

Although arbitration is not a panacea for the settlement of cultural heritage-related disputes, several authors have recognized that its benefits outweigh its shortcomings. Already in 1998 Gegas argued that “[u]ndoubtedly, arbitration is a superior forum to resolve the legal questions raised in a cultural property dispute under the current international framework.”Footnote ⁶⁹ This view is also shared by Varner, who concludes that “[a]rbitration is better suited for the art world and cultural property disputes than litigation.”Footnote ⁷⁰

Should an arbitral institution be established to settle cultural heritage–related disputes? Gegas argues that “in order for cultural property disputes to be resolved efficiently under the best possible conditions, it is essential that these disputes be submitted to a single arbitral body.”Footnote ⁷¹ This single arbitral body, the same author suggests, should be modeled after the Permanent Court of Arbitration.Footnote ⁷² While this article is not categorically against the designation of an existingFootnote ⁷³ (or the creation of a new) single institution to administer and/or support arbitration proceedings regarding cultural heritage disputes, it would perhaps be better to tap into the great diversity and pluralism of the world of international arbitration. The subject of diversity in international arbitration cannot be fully explored here, but some (limited) progress is currently being made.Footnote ⁷⁴

At the end of the day, using arbitration (which is open to both states and private actors in the same manner) to resolve cultural heritage–related disputes could also create more opportunities for broader participation (e.g., through the submission of amicus curiae briefs). The need for broader participation was recently highlighted in the Final Report of the International Law Association’s Committee on Participation in Global Cultural Heritage Governance.Footnote ⁷⁵ Specifically, the Final Report recommended “additional work on the creation of uniform rules on the legal standing of non-state actors for the safeguarding of cultural heritage by non-state actors” and “further guidance on the status and role of minorities or Indigenous peoples in controlling their heritage, particularly in relation to substantive and procedural rules about cultural objects.”Footnote ⁷⁶ It is also noteworthy that the Final Report specifically referred to the African Charter for Cultural Renaissance and highlighted the specific difficulties arising in the African context:

The African Charter for Cultural Renaissance was adopted by the sixth Ordinary Session of the Assembly of the African Union in Khartoum on 24 January 2006 and, in Article 15, provides inter alia that “African States should create an enabling environment to enhance the access and participation of all in culture, including marginalized and underprivileged communities.”Footnote ⁷⁸

In the light of the unique features of international arbitration set out previously, and in particular its procedural flexibility, substantive law pluralism, and the potential to put in place a diverse (and African or culturally-sensitive to African perspectives) tribunal to adjudicate African cultural heritage disputes, African policy and decision makers should consider adopting arbitration as their preferred dispute resolution mechanism. This can be done by introducing arbitration clauses in the relevant contracts or persuading the other party to the existing, unresolved disputes to conclude ad hoc arbitration agreements for the resolution of such disputes.

Arbitration pursuant to international investment treaties

Since the 1960s, and in particular during the 1990s, the proliferation of (mostly bilateral) investment treaties with similar content from a substantive and procedural perspective led to the “multilateralisation” of international investment lawFootnote ⁷⁹ and to the rise of “arbitration without privity.”Footnote ⁸⁰ Unlike arbitration pursuant to arbitration agreements contained in contracts between two parties, in investment treaty arbitration, consent to arbitrate, and thereby the jurisdiction of the arbitral tribunal, stems from a treaty provision. In addition to substantive protection standards offering protection against unlawful expropriation,Footnote ⁸¹ discrimination,Footnote ⁸² and arbitrary,Footnote ⁸³ unfair, or inequitable treatment,Footnote ⁸⁴ investment treaties contain standing offers to arbitrate which the investors of the other state party can accept by initiating arbitration.Footnote ⁸⁵

Investment treaty tribunals have taken into consideration cultural heritage issues when determining questions of expropriation (as in Glamis Gold v USA Footnote ⁸⁶), calculation of the quantum of compensation (SPP v Egypt Footnote ⁸⁷), as well as fair and equitable treatment and discrimination (Parkerings v Lithuania Footnote ⁸⁸).Footnote ⁸⁹ Investment tribunals have also dealt – and continue to deal – with issues of underwater cultural heritage.Footnote ⁹⁰ The ongoing dispute between investors and Colombia regarding the shipwreck of San José (a galleon that sank in 1708 off the coast of Cartagena carrying an extremely valuable cargo) is a case in pointFootnote ⁹¹ and remains ongoing. In 2024 the arbitral tribunal dismissed Colombia’s jurisdictional objections, clearing the way for the hearing on the merits, which is currently scheduled for later 2025.Footnote ⁹²

In Gosling v Mauritius, one of the key points of disagreement between the foreign investors and the state was the government’s refusal to give a building permission due to the inscription of the Le Morne site on the UNESCO World Heritage List.Footnote ⁹³ The majority of the arbitral tribunal found no breach of international law on the part of Mauritius.Footnote ⁹⁴

African countries’ role has now come to the forefront of legal debate as they are proactively changing the system from within, and this can change not only the African international investment regime but international investment law as a whole.Footnote ⁹⁵ Now, the momentum is clearly here and is also fueled by the increasing confidence with which African states act in the international arena (as evidenced, inter alia, by robust and ambitious integration efforts such as the African Continental Free Trade Agreement.Footnote ⁹⁶

Vadi accurately observes that “[a]s international cultural heritage law instruments often do not include a dispute settlement mechanism, cultural heritage-related investment disputes have gravitated toward a number of national, regional, and international courts and tribunals.”Footnote ⁹⁷ As a result, the analysis of: