France’s new law: Can China get back its looted treasures?

The restitution of art and cultural property is an area of the law where emotions run high — especially in terms of what we perceive as patriotism. But is this misplaced? 

Furthermore, as the restitution of art and cultural property tends to operate on a national and international level, it does not appear to concern the individual — so why should we even care? 

The historical wound of Old Summer Palace

Beijing’s Old Summer Palace or Yuanmingyuan is what comes to mind when one thinks of restitution in Asia. The incident remains a gaping historical wound that China described as its ground zero, and what writer Donna Rouviere Anderson described as in part fuelled by a “fiercely nationalistic grievance-based state ideology” coupled with a move to “rebuild public support for the government and cast the Communists as the sole force enabling China to overcome its humiliation at foreign hands” post-Tiananmen.  

Before it was sacked and torched by the French and British in 1860, the Old Summer Palace, constructed in the 18th and early 19th century and which served as the main imperial residence of Emperor Qianlong, housed the greatest collection of treasures, art, architecture and gardens in China. 

As retaliation for the imprisonment and torture of a delegation sent to negotiate Chinese surrender during the Second Opium War, the 8th Earl of Elgin, the British high commissioner to China, ordered that the entire palace complex be burnt — the fire lasted several days. As the troops had reached the Old Summer Palace days earlier, they had looted the palace of its porcelain, silk and other treasures, which then made their way to public auction in Britain, and to museums and collections in France. 

In France, Empress Eugénie personally supervised the unpacking of crates of artefacts and antiquities shipped from China and selected the best ones for her Asian art collection, which was spread across the Fontainebleau Palace, Tuileries Palace and other locations where the treasures remain in place till today. 

Looting the enemy was also a customary process where the profits from spoils would be distributed among the British soldiers involved and used to pay the expenses of families of injured or fallen men. Along with an imperial sceptre, the first Pekingese dog was brought to Britain by a soldier and presented to Queen Victoria, who named it Looty — demonstrating the then blithe attitude towards war-time loot and sparking a frenzy among high-society women for the breed that was carried around in the large sleeves of members of the Chinese imperial household.

Restitution is not usually within the contemplation of the individual, unless it makes headline news. In 2009, all eyes were on the Christie’s auction in Paris during the estate sale of fashion designer Yves Saint Laurent, where his partner Pierre Bergé had put up the rabbit and rat bronze Chinese zodiac heads for sale. The heads were a pair out of the 12 looted from the Old Summer Palace that had been part of a water clock created by Jesuits for Emperor Qianlong. 

The winning bidder for the heads was a Chinese who had bid 28 million euros but refused to pay on moral and patriotic grounds. The zodiac heads remained in the private collection of Bergé who stated that he would have gladly returned them to China only if it guaranteed human rights and allowed the exiled Dalai Lama to return to Tibet. 

It was subsequently revealed that Bergé later sold the heads privately to François-Henri Pinault, then CEO of luxury and fashion conglomerate Kering, who donated them to China in 2013.  The debacle was so compelling that Jackie Chan even wrote and starred in a movie about the stolen zodiac heads, and Chinese artist Ai Wei Wei had recreated them as part of a large public art installation. 

While five of the 12 zodiac heads still remain at large, it has been said that should the treasures like them not have been looted, they would have most certainly been considered as decadent and smashed during the 1966-1976 Cultural Revolution, or stolen from mismanaged Chinese museums and shipped to Hong Kong to be sold.

Legal reform or loss of collections?

Traditionally, imperialist type laws and statutes prevented museums from repatriating objects in their collections. This is unsurprising, as their extensive collections extracted from the Chinese empire should be protected from being dissipated. The British Museum Act 1963 only permits the trustees to dispose of an object or repatriate it under limited grounds: if it is a duplicate, if it is a printed object made after 1850 of which a copy is already held, if it is unfit to be retained and can be disposed without detriment to students, or if it has become useless by physical damage, deterioration or pest infestation.

It is unlikely that a significant cultural object would satisfy these grounds to be repatriated, and that there would surely be detriment to researchers or students who would still be interested to study it. 

Among its most contested holdings are the Parthenon Marbles, removed from Ottoman Greece in the early 19th century by the 7th Earl of Elgin (father of the abovementioned 8th Earl of Elgin) and claimed by Greece. In fact, Chinese President Xi Jinping has in 2019 called for the Parthenon marbles to be returned to Greece in solidarity, and stated, “Not only will you have our support, but we thank you because we, too, have a lot of our sculptures abroad, and we try as much we can, as soon as we can, for these things to return to their homeland”. 

Notably, the various international treaties have no or a merely signalling effect on the UK and France and cannot compel institutions to return cultural property — especially if they have statutes like the British Museum Act 1963, which generally prohibits deaccession and repatriation of holdings. 

Moreover, the objects acquired pre-date the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; and the treaties are not retroactive.

While the treaties apply in the same way to France, France is a party to the 1995 Convention on Stolen or Illegally Exported Cultural Objects, which compels both museums and private collectors to return stolen or illegally exported cultural objects, notwithstanding the blanket national prohibition on the alienation of cultural property held in public institutions.

France rewrites the rules

In France, the principle of inalienability of the public domain also applied. Cultural property held in public institutions was considered inalienable and could not be removed. On a few occasions when they could, they were presented by the French president as diplomatic gifts or were removed under specific legislation that had to be passed on a case-by-case basis.

This changed in May 2026 after a unanimous vote in the French senate pursuant to the belated honouring of a promise made in 2017 by French President Emmanuel Macron, who in Burkina Faso pledged that “within five years, the conditions would be in place for temporary or permanent restitutions of African heritage [artifacts] to Africa”, which had deprived communities from essential aspects of their culture as these had been extracted from and withheld from them outside Africa. 

France is the first European country to enact a universal law allowing the restitution of cultural property illicitly incorporated into its national collections. These developments naturally interest China, where there are an estimated 2.6 million pieces of Chinese cultural property in French holdings, including at the Louvre and the Fontainebleau Palace, which had been looted from the Old Summer Palace.

The move to decolonise?

In terms of the repatriation of cultural property, the objects in question bear a tremendous significance to the communities or people that they have been taken from, so much so that for some, their ancestors would never be able to rest after having had their remains taken and locked-up in a museum, or that certain ceremonial or sacred objects had been removed. 

Museum goers or citizens of the receiving countries may not even care about or know of the existence of these items, demolishing any argument that the objects were well regarded in their receiving countries and should not be returned. Another oft-cited justification against repatriation is that taxpayers dollars had been spent to purchase the objects, and it would be remiss to return them.

Macron’s 2017 promise demonstrates a wider move towards the decolonisation of collections, especially those in the Global North — but this is not without trenchant opposition. 

Macron’s promise was followed up by him commissioning Senegelese economist and philosopher Felwine Sarr and art historian Bénédicte Savoy to produce what would be the 2018 report “The Restitution of African Cultural Heritage. Toward a Relational Ethics”. The report’s conclusion to repatriate on the basis of various reasons, including that of not depriving the next generation of Sub-Saharan Africans of their own cultural heritage in shaping their futures, had cut “so sharply across standard European and North American museum practice, [that] the report has been received as a scandal there,” as described by New York University professor Nicholas Mirzoeff. 

The New York Times cited experts in stating that the new law has been described as “a game changer for France’s former colonies looking to regain their cultural property, and that it reflects a seismic shift in how France thinks about its colonial history”.

And no, the world’s greatest museums will not be emptied of their immense collections.

It is just that a myriad of museums, particularly in the Global South, may now find themselves housing objects that were looted from their own countries. Some of these would most certainly have been destroyed in subsequent revolutions or wars had they not been taken away by colonialists or conquerors — such as in the case of the treasures of the Old Summer Palace. Indeed, as Macron put it, our mutual histories may be more complex than we think.

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