But could Italy ask France to return the works requisitioned by Napoleon?

CouldItaly demand from France the return of all the works requisitioned during the Napoleonic spoliations that did not come back after the fall of Napoleon and that are still kept in French museums? This is a question that is often asked when one hears about the subject, and it is possible to answer it briefly and dryly: yes, theoretically Italy could make this kind of request, but any such request would be made solely for cultural or political reasons, would not be motivated by legal arguments, and would be unlikely to find acceptance. This laconic answer must be properly contextualized, as the issue is not simple: several dimensions must be taken into account: the history of restitutions, the international legal framework regulating repatriation, that is, the return of works of art to their places of origin, the diplomatic relations between different states, and also the wills of individual countries, since it has already happened that someone had posed the problem of understanding whether it was feasible, or opportune, to ask France for the restitution of what Napoleon took away during the wars he led in Europe. And then, of course, each case is its own story.

Perhaps the best-known case, just to start with an example, is that of Veronese’s Wedding at Cana , a work that now decorates the Mona Lisa Room in the Louvre, hanging just opposite Leonardo da Vinci’s celebrated masterpiece. In 1797, the large canvas, over six meters high by nearly ten meters wide, was dismantled from the refectory of the Monastery of San Giorgio Maggiore in Venice and taken to France. In 1815, at the time of the Congress of Vienna, in the context of which the restitution of works of art to the countries that had been occupied by Napoleon was also discussed (albeit without arriving at formal binding acts, as seen on these pages), the Marriage at Cana nevertheless remained in Paris: the commissioner for the Lombardy-Venetia restitutions, the painter Giuseppe Rosa, in fact reached an agreement with Dominique Vivant Denon, who during the French occupation of Italy had been in charge of choosing the works that were to go to France, and who was appointed director of the Louvre, a role in which he was confirmed in 1814. Vivant Denon had led Rosa to believe that The Marriage at Cana would suffer irreparable damage if the painting went on its way to Venice, and he therefore proposed an exchange: the Louvre would keep Veronese’s work, and Venice would get Charles Le Brun’s The Feast of the Pharisee in exchange. Rosa agreed, although the exchange was advantageous especially for the Louvre (Veronese’s large canvas was worth an estimated thirty times more than its counterpart), and today Le Brun’s work is on display at the Gallerie dell’Accademia in Venice.

These are the reasons that lead France to consider the idea of returning the Marriage at Cana to Italy impractical, although the hypothesis has often been aired, even though these are mostly nationalistic claims. In Italy, wrote the Louvre’s honorary director, Jean-Luc Martinez, in a 2023 report he addressed to French President Emmanuel Macron with a view to identifying possible restitution criteria for cultural property, public opinion, "completely ignoring the norms and exchanges although well researched, is regularly caught up in the case of the Marriage at Cana or the few Italian paintings remaining in the Louvre. Also in May 2022, the NGO ’International Restitutions,’ through its president Robert Casanovas, contacted the Ministry of Culture, the Louvre and the Council of State to request the return of a - very incomplete - list of ten Italian paintings seized under Napoleon and remaining in the Louvre after 1815.“ The question Martinez asks when faced with such claims is, ”to what extent can we question history?"

What international law provides for

The requisitioning of works of art during wars began to be regulated with the Hague Conventions of 1899 and 1907: Article 56 of the 1899 Convention stated that “All intentional seizures, destruction or damage done to such institutions, historic monuments, works of art or science are prohibited and should be prosecuted,” a principle also reiterated in the 1907 Convention. Since that time, therefore, all looting and plundering of works of art during conflicts became illegal. Today, however, the discipline is regulated by the Convention for the Protection of Cultural Property in the Event of Armed Conflict of theHague (1954), ratified by France in 1957, as well as by the UNIDROIT Convention on Stolen or Illicitly Exported Cultural Property, signed in Rome in 1995 (and which solved the problems left open by the Convention concerning the Measures to be Taken to Interdict and Prevent the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by UNESCO in Paris in 1970, which entered into force in 1972 and was ratified by France in 1997). Although France is among the signatory countries to the UNIDROIT Convention, it has not yet ratified it.

The 1954 Convention stipulates that the contracting countries undertake “to prohibit, prevent and, if necessary, put an end to any act of theft, pillage or misappropriation of cultural property, however practiced, and any act of vandalism towards the same,” undertake “to refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.” Not only that, the Convention also states that any occupying force is obligated to respect the cultural property of the occupied country. The 1970 UNESCO Convention, on the other hand, is the first to speak explicitly about restitution: in Article 7, in fact, the Convention commits states that choose to ratify it “to take appropriate measures to recover and return at the request of the State of origin party to the Convention any cultural property so stolen and imported after the entry into force of this Convention against the States concerned, provided that the requesting State pays just compensation to the person acquiring the property in good faith or lawfully holding title to such property.” Claims for recovery and restitution, according to the Convention, should be addressed to the requested state through diplomatic channels.

The UNIDROIT Convention, on the other hand, is the first international convention entirely devoted to the subject of restitution, in which the principle is enshrined that “the possessor of a stolen cultural property shall return it” (Article 3): the text, however, regulates the restitution of stolen property in the sense of illicitly exported, and makes no mention of property that has been requisitioned during armed conflicts. It should be specified, however, that all of these instruments, aimed primarily at creating an international framework for combating trafficking in cultural property, can be invoked only for disputes that have occurred following their entry into force in the contracting states. Consequently, they do not have retroactive effect and are not applicable to any claims for the return of works transferred to France during the Napoleonic spoliations. Finally, at the European Union level, there are no laws regarding the return of works of art. In essence, it can be said that to date there are no international laws that can regulate any restitution of works taken from a country during an armed conflict that predates the entry into force of today’s international conventions.

What the French law provides for

On January 4, 2002, a law was passed in France, the contents of which later merged into the Code du patrimoine, the “Heritage Code,” which in turn was enacted on February 20, 2004: this is the law that regulates the subject of cultural property in France. Article 11 of the law, which was later merged into Article L451-4 of the Code, states that “the goods constituting the collections of French museums belonging to a public entity are part of the public domain and are, as such, inalienable. Any decision to declassify any of these assets may be taken only after obtaining the consent of a scientific commission whose composition and operating methods shall be fixed by decree.” The law thus establishes the inalienability of objects belonging to French museum collections, and these objects include, of course, works requisitioned during the Napoleonic spoliations and never returned. Basically, then, French law would prohibit the separation of an object from state collections. However, the legislature has provided an exception to this rule: it is indeed possible to make a request for declassification, which must be vetted by a specific commission, which will decide whether to opt for this instrument and thus give the object the chance to be “declassified” and no longer be considered inalienable. Declassification, however, is not allowed for objects that are part of bequests or donations-these remain inalienable.

However, there is also another way, which has been practiced by France even recently: the passing of ad hoc laws. The best known case is the one that involved the return to Benin and Senegal of some objects that the French took away from the two African countries at the time of colonization and that were kept at the Musée du Quai Branly - Jacqus Chirac and the Musée de l’Armé: French Law 2020-1673 of December 24, 2020, effectively circumvented the Heritage Code with an exception to the principle of inalienability, granted by Article 1 of the law, and only for works returned to the two countries (for the twenty-six objects to be returned to Benin, moreover, declassification could not be carried out, as they were part of a bequest). France opted for this means because, reads the report that accompanied the law, “the principle of inalienability [...] such as that which is inscribed in the Code du patrimoine, has no constitutional value.” The Constitutional Court has also ruled along these lines regarding the principle of inalienability, and since it is therefore not enshrined in the Constitution, it can be subject to derogations. These exceptions, however, remain limited to exceptional cases: this is because the principle of inalienability is fundamental to ensuring that works of art preserved in French museums remain the patrimony of all and are not ceded to anyone who could make claims on them (the report of the Culture Committee of the Assemblée Nationale regarding the law on the objects of Senegal and Benin referred, as an example, to the property confiscated from the nobility during the French Revolution).

The subject, however, is new, and France is cultivating plans to work on a framework law on restitutions (given also the growing demands for this from former colonies, which have made several requests to France in recent years), which would establish a framework in such a way as to avoid the use of individual laws (such as the one on the twenty-seven objects of Senegal and Benin) each time a request for restitution is granted. For the time being, in 2023, a framework law on the restitution of property taken from Jews between 1933 and 1945, at the time of Nazi persecution, has been passed, but there is still no regulation covering restitution as a whole.

The debate in France: why restitutions to African countries yes, and Western countries no?

However, the law on restitutions to Benin and Senegal has been the subject of heated debate in France, not only among the public, but also in the newspapers and, of course, in committee debate. The argument against it, which is moreover bipartisan, is that with this law France would have set a precedent, that of derogating from the principle of inalienability according to the cases, and furthermore, it would not be understood why repatriations to African countries can be discussed, while instead, at least at the moment, repatriations of objects that the French requisitioned during the Napoleonic period are to be ruled out. “What is the difference,” Congresswoman Catherine Dumas asked during the proceedings, “between Napoleonic spoils of war and the repatriation of more recently appropriated objects? These are the questions that the general public is asking.” The editor of La Tribune de l’Art, Didier Rykner, has also spoken out against the Benin-Senegal law on several occasions, speaking of a “victory of the irrational over the facts.” Critics believe that the derogation from the principle of inalienability means that requests from other countries, such as Italy or Egypt, which on the basis of this law could be deemed as legitimate as those from African countries, will have to be accommodated.

And on the issue, indeed, the contours are still smoky. Lawyer Yves-Bernard Debie, in an interview also given to La Tribune de l’Art, points out that many objects that we now consider looted at the time of the plundering were brought back to France without any laws being broken (since before the Hague Conventions of 1899 and 1907, which for the first time established that works ofart could not be included among the spoils of war, the requisitioning of art objects during wars of conquest was legal), and that at the legislative level “a clear philosophy of what we want” has not been established, and until it is established “we will not be able to move forward consistently on these issues [...]: what do we want to fix? The whole 20th century? A thousand years of history? We should explain how far back we intend to go. And then we should explain why we should repair up to the year 1000 and not up to the Roman invasion, up to Julius Caesar, who waged a private war and invaded Gaul.” The same arguments those advanced by Senator Pierre Ouzulias during the proceedings: his example is that of the horses of St. Mark, requisitioned by Napoleon from Venice, but which in turn came to Venice from Constantinople, a city that at the time they were brought to the lagoon was under Byzantine domination (and therefore, according to the naysayers, following the reasoning all the way and going back eight centuries... perhaps Italy should return them to Greece).

The position of those who believe that there is a discrepancy between restitutions to African countries and other possible requests is less firm, but it can be read between the lines in what the then French culture minister Roselyne Bachelot stated during the debate in the culture committee: “In addition to having returned works of art requisitioned by Napoleon’s armies from the European powers as part of the Congress of Vienna, our country has more recently returned art objects to Laos as a result of bilateral agreements, a stolen statue of Amon Min toEgypt in 1981 in application of a French court ruling, twenty-one Maori heads to New Zealand following a law voted in 2010 on the initiative of Senator Catherine-Morin Dessailly, or even thirty-two gold plates to China, in application of the 1970 UNESCO Convention for Combating the Illicit Trafficking of Cultural Property, ratified by France in 1997.” Basically, what the minister seemed to want to say is that between the possible return of works that were the result of Napoleonic spoliations and the other cases there does indeed seem to be a difference: the fact that already after the fall of Napoleon, following the Congress of Vienna, many European powers took back several works that were thus able to return to their countries of origin (by force, moreover: Indeed, there were no agreements or treaties that legitimized the returns, which is why, reasoning in point of law, since many works were requisitioned by Napoleon on the basis of the peace treaties, some have even gone so far as to say that it should be ... France to demand back the works requisitioned during the spoliations and returned to Italy and other countries!). In contrast, for colonized African countries, and other more recent situations, there have been no such cases, i.e., no African country has ever gone to France to claim its works, as European countries did after the fall of Napoleon. And this, too, seems to be the orientation of the aforementioned Martinez, who in his report in view of a framework law does not consider the idea of extending the criteria for restitution to works requisitioned in the Napoleonic era, since they were already subject to repatriation at the time of the Congress of Vienna.

The case of the Netherlands

At the moment, the only country that has seriously addressed the issue of whether or not to demand the return of assets taken during the Napoleonic occupation is the Netherlands. In 2023, an exhibition, entitled Loot - 10 stories, was held at the Mauritshuis inThe Hague in which the issue was addressed. It has been estimated that Napoleon’s armies shipped 194 works of art from the Netherlands to France, which ended up in the Louvre. No small damage: the paintings belonged to the museum that was opened in 1774, just twenty-one years before the French occupation, by William V. It was the first museum in the Netherlands, and its collection was requisitioned in its entirety. Fortunately for the Dutch, there was no systematic and widespread despoliation as happened in Italy: the Republic of Batava, that is, the state that the French established on the territory of the Netherlands, was declared by France to be a “sister republic,” and by virtue of this friendly relationship it was difficult to justify any looting, which is why the only works to be requisitioned were those of the last Statolder of the Republic of the Seven United Provinces.

After Napoleon’s defeat at Waterloo, a Dutch delegation went to Paris with the task of negotiating restitution, just as many other countries affected by requisitions did. Two-thirds of the works returned to the Netherlands: today, France still has in its collections 67 works that were on Dutch soil before Napoleon invaded the country. These are mostly works that had been transferred from the Louvre to other French museums, a fate they share with several Italian works, still scattered in various museums throughout France. The Netherlands, however, has made it known that it is not interested in requesting the return of the 67 works that are missing from the roll call. “One of the big questions nagging us about this exhibition,” Mauritshuis director Martine Gosselink told The Art Newspaper , “is: do we want the works back? We are returning art that was looted by the colonizers, so why not this one?” Her answer is, “Do we really need it? Do we have empty repositories or museums? The answer is no.”

Two (irreconcilable?) orientations: law versus morality

As mentioned at the outset, therefore, in the absence of legal instruments, following an established history (that of post-1815 restitutions), any request for the restitution of the works that Napoleon requisitioned in Italy and that are still in France would be solely a cultural or political matter. The same is true, moreover, for restitutions to African countries: from the exposition of the reasons behind the law on restitutions to Benin and Senegal, we learn that the measure was necessary to affirm France’s position in the debate on the issue of repatriations, a position of openness with regard to the restitution of works emblematic of Africa’s heritage, as well as to enshrine its role in a framework of partnership with African countries of origin.

Thus being a cultural and political issue, the debate is still open. And there are essentially two positions, well summarized by art historian Bénédicte Savoy, author, together with Felwine Sarr, of the famous report Restitution du patrimoine culturel africain. Vers une nouvelle éthique relationelle, presented to the President of the French Republic on November 23, 2018, and a document that has actually ignited the debate around the issue of restitution. One position is about law, while the opposite position is about morality. Proponents of the right, opposed to restitution, Savoy wrote in his 2022 article, “rely on legal arguments to claim that allied acquisitions unjust and illegal. The invocation of the right of plunder, which historically sealed consent to the disposal of stolen property, allows the question of the geographical origin of the works to be shifted to that of their legal origin: were they taken as part of military campaigns that gave rise to armistices or treaties? Was their appropriation formalized with any legal title? Did the people who suffered the spoliations agree to it, and did they sign and countersign it?” Moral advocates’ arguments in favor of restitution “are not on the plane of the law of war but on the plane of international law, of human rights, therefore on the moral plane. They are interested not in the legal provenance in the sense of how the works were acquired, but in their title, which they link to the question of territories: it is, in their eyes, only a matter of considering these works according to their origin.” It should then be added, with respect to what Savoy specified, that other elements could add to the discussion. For example, the fact that Italian works exhibited in France, at the time when Paris was the main capital of the world, helped to spread Italian culture abroad, and continue to do so nowadays. Moreover, as Gosselink said, the countries of origin may not need to bring back their works-Italy is already rich in masterpieces, so perhaps there would be no point in asking for those now in French museums, except to pander to certain nationalistic claims. Not to mention that works from the Louvre and other French museums have been missing from their original locations for more than two hundred years, and in the meantime history has moved on, looking for ways to fill the gaps. In short, for all the reasons mentioned above, it is entirely unlikely that Italy would seriously make a request for restitution, and it is even more unlikely that France would accept it.

Warning: the translation into English of the original Italian article was created using automatic tools. We undertake to review all articles, but we do not guarantee the total absence of inaccuracies in the translation due to the program. You can find the original by clicking on the ITA button. If you find any mistake,please contact us.