Timid steps in the Belgian legal framework for restitution

Restitution of cultural goods has been a preoccupation on the international scene for quite some time. Several international conventions have been adopted since the end of the Second World War, albeit with limited application for most of them. One of the main weaknesses of this also fragmented international framework lies in the fact that the Conventions are non-retroactive. Therefore, cases concerning the restitution of objects stolen or illegally exported during the colonial times risk limited success. Belgium has ratified most of the international Conventions, although not implemented all of them, such as the 1970 UNESCO Convention. European legislation also applies in Belgium, even though the European Directive EU 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State is limited to claims between Member States. In 2004, Belgium has, quite interestingly, adopted a favorable rule for applying the law of the State of origin in the specific case of stolen cultural goods, even though it concerns, again, only cases after the entry into force of this Article 90 of the Code of Private International Law, i.e. the 1st of July 2004. Notwithstanding these difficulties surrounding the non-retroactivity of the legal framework, restitution claims are formulated and may follow two paths. The first one is the judicial restitution, when a request is filed by the original owner for the recovery of his or her cultural good or when a criminal action is pursued for theft and/or concealment. Few cases have been granted restitution in Belgium, but recent case law shows a certain willingness of the judge to take foreign public law into consideration when examining the ownership question. Yet, some obstacles remain, especially for colonial collections: proof of the illicit character of the actual ownership, inalienability of public collections, cost and duration of a judicial procedure, divergences in applicable law, black/white solutions and, of course, the risk that the claim is time-barred. The second path seeks to explore alternative ways of restitution such as Marie Cornu and Marc-André Renold analyzed in 2009 already, being twofold: unilateral (legislation, administrative decision) or bilateral (negotiation, mediation, conciliation, arbitration) restitutions. This second approach also allows for a nuanced and gradual approach, enhancing chances of effective restitution. The restitution context has however recently evolved, both internationally as in Belgium. In international law, rights of communities or other groups to their cultural heritage are progressively being recognized, opening the way to non-State restitutions. Furthermore, the institutional context has widened, accepting alternative ways of restitutions and holding debates in new locations. In Belgium, public debate has emerged with the recent reopening of the AfricaMuseum and with the media attention around colonial human remains. These last months, several resolutions have been adopted in federal Parliaments calling for dialogue and for the implementation of an expert group focusing on a framework for restitution