Following a debate that started in June 2021, on June 30, 2022, the Belgian Parliament adopted the law "recognising the alienable character of assets linked to the colonial past of the Belgian State and determining a legal framework for their restitution and return".
This legal framework is part of a desire for dialogue and cooperation between the Belgian State on the one hand and the Democratic Republic of Congo, Rwanda and Burundi on the other. It could be based on a bilateral agreement on scientific and cultural cooperation, through a treaty to be concluded between the Belgian State and the State of origin.
The main points of this legal framework are as follows.
1. Scope of application
The law in question covers all movable property that is the property of the Belgian State and that is present in federal museum collections. Among these movable assets, human remains and archives are expressly excluded from the scope of the law.
In order to be restitutable to the State of origin, the law stipulates that an asset must originate from the territory of the State of origin and have been acquired during the period between the signing of the Act of the Berlin Conference (26.02.1885) and the Independence of the State of origin.
Finally, in application of the division of powers established by the Belgian Constitution and the special laws adopted in implementation of the Constitution, the restitutable assets must be the property of the Belgian State and belong to one of the federal scientific institutions. These institutions include, for example, the Royal Museum for Central Africa. Consequently, assets that are the property of federated entities or other legal persons under public law are not concerned. The same applies to assets belonging to private (natural or legal) persons.
2. Principle of alienability
The law provides that the property of the Belgian State is characterised by a system of protection and unavailability of assets in the public domain, which are inalienable, imprescriptible and unseizable.
The law provides for an exception to this rule, under the conditions it lays down, with a view to the legal restitution of title to the assets free of charge, and their physical return to the State of origin.
3. Bilateral treaty
The law specifies that restitution and return of an asset can only take place in execution of a treaty between the Belgian State and the State of origin.
In addition, the law also provides for a scientific examination, at the initiative of the Belgian State or the State of origin, of the illegitimate nature of the acquisition of the said asset, in particular in that it was acquired under duress or as a result of circumstances of violence.
Following this scientific examination, the Belgian government may decide to remove the restitutable asset from the public domain and return it to the State of origin.
The bilateral treaty will define the modalities of the scientific examination.
Since the adoption of the law, Belgium has communicated a draft bilateral treaty to the Democratic Republic of Congo so that it can be negotiated with that State. Belgium proposes the establishment of a joint commission that would carry out the scientific examination mentioned above. The project concerns in particular the constitution of a joint scientific commission, the method of referral to the commission and the procedure for examining the restitution files.
4. Distinction between the transfer of ownership of the property and its physical return to the State of origin
Restitution may only take place following scientific examination and a recommendation to that effect by the Joint Scientific Commission. The restitution decision shall entail the transfer of ownership of the restitutable asset to the State of origin. Once the restitution decision has been issued, the physical return of the property will only take place at the specific request of the State of origin. It will be for the bilateral treaty to determine the conditions for ensuring the return of the asset.
If the return cannot take place immediately, and as long as the restitutable asset is not physically handed over to the State of origin, it shall be kept in the museum collection where it is located and shall benefit, during this period, from the guarantee of inalienability, imprescriptibility and unseizability. During this period, the State of origin shall be associated with the conservation, management and valorisation of the good.
5. Transparence and publication
In order to ensure the transparency of the restitution and return process, decisions on the restitution of property will be published on the Internet.
Last updated: 23 January 2023