Introduction

The commentary on the Federal Act on the International Transfer of Cultural Property is the result of a group project carried out by ten Master's students in law at the University of Geneva. The research and drafting took place during the 2024-2025 academic year as part of the Legal Clinic on Cultural Property Law offered by the Faculty of Law and with the support of the University Center for Art Law. The introduction was written by Laurence Amsalem, Esther Boccia, Camille Bögli, Xinyin Hu, Selly Lagun, Margaux Rod, Lisa Salama, Vincent Tschannen, Audrey Tschiffeli, and Eliane Vasseur.

1 With the creation of the modern federal state in 1848, the Swiss cantons saw their sovereignty limited in areas expressly provided for in the Federal Constitution, particularly in cultural matters in Articles 3, 69, and 78 of the Federal Constitution. This federal model, as opposed to that of a centralized state, has had ambivalent effects on the construction of a national heritage identity. On the one hand, it has allowed each canton to preserve its own culture; on the other, it has hindered the development of a coherent heritage policy at the federal level. For a long time, the only federal provision relating to the protection of cultural property was Article 724 of the Civil Code, which came into force in 1912 and stipulates that archaeological objects found by chance become the property of the canton. Apart from this provision, there was no specific legislative framework governing the import or export of cultural property in Switzerland.

2 This lack of regulation in a country located at the crossroads of Europe, surrounded by powerful cultural and financial markets, created fertile ground for the development of a largely unregulated international art trade. Add to this a general climate of deregulation in several areas, as well as pressure from powerful financial lobbies, and Switzerland became a major hub for the illicit trade in cultural property in the second half of the 20th century. This alarming situation, coupled with widespread international criticism, led to a re-examination of the status quo.

3 Two major international conventions marked this growing awareness: the UNESCO Convention of November 14, 1970, on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (RS 0.444.1; hereinafter: UNESCO Convention) and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995 (hereinafter: UNIDROIT Convention). UNESCO Convention of 1970) and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995 (hereinafter: UNIDROIT Convention of 1995). The first, adopted at the instigation of Latin American countries such as Mexico and Peru, aimed to curb the massive looting of their cultural heritage. This text, the result of a compromise between so-called “source” countries and “market” countries, uses deliberately broad terms to allow States Parties to implement it within their own legal frameworks. Not directly applicable, this UNESCO Convention requires transposition into national law. It is now the main multilateral instrument for the protection of cultural property in times of peace, ratified by 147 States.

4 The 1995 UNIDROIT Convention, although seen as an extension of the 1970 UNESCO Convention, differs from it in that it lays down directly applicable civil obligations, particularly with regard to restitution. It proposes a stricter and more binding regime but has only been ratified by 56 States, not including Switzerland. Nevertheless, its principles still influenced the legislature when drafting the Federal Act on the International Transfer of Cultural Property (RS 444.1; hereinafter: LTBC). LTBC), particularly on the introduction of due diligence in the art trade.

5 Before the LTBC was adopted, Switzerland had no federal standards governing international trade in cultural property. Restitution claims were rare due to the lack of adequate legal mechanisms for recognizing foreign export regulations. In addition, the short period of time available for claiming stolen objects (Art. 934 para. 1 CC) facilitated money laundering linked to illicit trafficking in cultural property. In response to these shortcomings, the Federal Council submitted a message to the Federal Assembly in 2001 with a view to ratifying the 1970 UNESCO Convention and adopting a domestic implementing act based in particular on Articles 69 para. 2 and 95 para. 1 of the Federal Constitution.

6 The LTBC, which entered into force on June 1, 2005, is thus based on a solid constitutional foundation and reflects a clear desire to anchor Switzerland in the international framework for combating illicit trafficking in cultural property. This law is supplemented by implementing ordinances: the Ordinance on the International Transfer of Cultural Property (RS 444.11; hereinafter: OTBC) of 2005 and the Ordinance on the Federal Inventory of Cultural Property (RS 444.12; hereinafter: OIBC) of 2014. In 2024, an ordinance establishing an Independent Commission for Cultural Heritage with a Problematic Past (RS 444.21; hereinafter: OCPCP) was adopted. All of these contain only secondary norms and are intended to clarify the practical application of the law, with the second focusing specifically on the management of the inventory provided for in Art. 3 LTBC.

7 The LTBC also introduced a number of concrete measures to protect cultural heritage. In particular, it provides for the establishment of a federal inventory of important cultural property, with options for restitution in the event of illegal export. Temporary measures may be taken in cases of exceptional threat, and the duty of care in the art trade is formalized in Art. 16. International cooperation mechanisms have been established, such as bilateral agreements (Art. 7), financial support (Art. 14), mutual legal assistance (Arts. 22–23), and administrative and criminal control and penalty measures. The entire system is designed to prevent, deter, and punish violations, while encouraging voluntary restitution.

8 Over time, the LTBC has had to evolve, particularly as a result of the reform of customs law in 2005, which led to an amendment of section 8 of the OTBC with regard to free ports. The application of the LTBC has also been marked by a landmark court ruling: the Federal Court's “Isabelle d'Este” judgment revealed an overly broad interpretation of the law that went beyond the legislature's intent. Following this case law, the Federal Council undertook a substantial revision of the LTBC in an attempt to bring the law back in line with its original, correct interpretation.

9 The introduction of Articles 4a and 24(1)(c^bis) of the LTBC, as well as the amendment of Articles 2(5) and 24(1)(c) and (d) and (3) of the LTBC, led to an extension of the sanctions regime and created new obligations outside the initial treaty framework.

10 Even today, case law remains limited on several key concepts of the LTBC, leaving some legal uncertainty. At the same time, a new political dynamic has emerged. In 2022, the Federal Council announced the creation of an independent commission on cultural heritage with a problematic past, a project approved by Parliament in March 2025. The 2025–2028 Culture Dispatch confirms this direction, while also emphasizing the need for enhanced cooperation with sub-Saharan African countries. To provide a framework for this policy, several legislative amendments have been approved by the Chambers and are expected to enter into force in the second half of 2025: the provisions of a new Article 2bis will define “heritage with a problematic past,” while the scope of Article 14 will be extended to create a research platform. Article 18a will form the legal basis for the independent commission.

11 Despite these advances, criticisms remain regarding the consistency and practical application of the LTBC. The Swiss law has mainly a deterrent and incentive effect, rather than a repressive one, as is clear from the periodic report submitted by Switzerland to UNESCO for the period 2019–2022. It has facilitated voluntary restitutions, but remains partly dependent on the goodwill of all actors in the sector. To be fully effective, the mechanism would benefit from being strengthened and clarified, in particular through better coordination between domestic law and international commitments.

The commentary on the Federal Act on the International Transfer of Cultural Property is supported by

Bibliography

Boillat Marie, Trafic illicite de biens culturels et coopération judiciaire internationale en matière pénale, Genève 2012.

O’Keefe Patrick J., Commentary on the UNESCO 1970 Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, 2^e éd., Leicester 2007.

Renold Marc-André/Contel Raphael, Rapport national - Suisse, in: Cornu, Marie (éd.), Protection de la propriété culturelle et circulation des biens culturels - Étude de droit comparé Europe/Asie, Paris 2008, p. 323–428.

Torggler Barbara/Abakova Margarita/Rubin Anna/Vrdoljak Ana Filipa, Evaluation of UNESCO’s Standard-setting Work of the Culture Sector Part II – 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Final Report, Paris 2014, IOS/EVS/PI/133 REV.

Materials

Message du Conseil fédéral relatif à la Convention de l’UNESCO de 1970 et à la loi fédérale sur le transfert international des biens culturels (LTBC), 21.11.2001, FF 2002 505 (cité : Message 2001)

Message du Conseil fédéral concernant l’encouragement de la culture pour la période 2021 à 2024, du 26.02.2020, FF 2020 3037 (cité : Message culture 2021-2024)

Message du Conseil fédéral concernant l’encouragement de la culture pour la période 2025-2028, du 1.03.2024, FF 2020 3037 (cité : Message culture 2025-2028)

Office fédéral de la culture, Rapport périodique national 2023 sur la mise en œuvre de la Convention concernant les mesures à prendre pour interdire et empêcher l’importation, l’exportation et le transfert de propriété illicite des biens culturels, Suisse, période de référence 2019-2022 (cité : Rapport périodique de la Suisse à l’UNESCO 2019-2022)