By: Miriam Xia Hanson
International jurisprudence has documented a historical heritage of inequity within the art restitution framework. The judiciary powers of biased states and non-governmental entities are reproduced on the international stage. In times of war and regime change, unscrupulous socio-political circumstances become notoriously convenient for the expropriation, theft and devastation of celebrated cultural property; the Second World War proved to be no exception. Between 1933 and 1945, Europe’s masterpieces were dispossessed and scattered worldwide under the Third Reich’s state-sanctioned looting network.
Under the direction of Adolf Hitler, the Nazi Party facilitated the dispossession of over 600,000 works of art, cementing an unrivalled reputation amongst the most infamous art thieves in history. Claimants confronted a labyrinth of inequitable restitution legislation in their efforts to recover lost cultural heritage. Over the past few decades, an evolution of judicial administration in the form of arbitral institutions have emerged and aspire to fill legal voids in the art restitution network.
A Need for Firm Consequences
Following the end of the Second World War, the Allied powers faced the task of facilitating the recovery and repatriation of thousands of works of art and cultural objects, however, the system was relatively ineffective due to the lack of existing art restitution legislation.
Further, although Raphael Lemkin conceptualized cultural genocide as a cornerstone of the crime itself, it was omitted from the 1948 Genocide Convention. A legal codification of the broader definition produced by Lemkin would have qualified an international platform for the scrutinization of Allied treatment of colonial populations in a world only on the cusp of decolonization.
Although cultural looting was criminalized as a war crime and crime against humanity, the omission relegated cultural restitution to ad hoc agreements, regional councils and private claims effectively denying individuals access to an international platform.
Varying Solutions
Restitution remained an act of good faith by states unbound by positive legal obligations which set the stage for a fragmented labyrinth of conflicting legislation and jurisdictional clashes. For example, while courts in the United States afforded disposed owners and their heirs an inclination to assert jurisdiction, European laws often overtly favored the rights of the most current owner.
In Germany, relevant statute of limitations time-barred many Nazi-era losses which would see cultural heritage looted by the Third Reich from victims of the Holocaust devolve to the ownership of state. In the absence of an international legal framework to establish the parameters of cultural genocide and prescribe a universal obligation towards restitution, many claimants faced the insurmountable task of establishing a substantive legal basis for their claims.
An Emerging Protocol
As the Iron Curtain fell across Europe, various protocols and declarations emerged to reconcile international legal obligations with post-Shoah human rights commitments. In 1998, the Washington Conference on Holocaust-Era Assets convened forty-four state delegates alongside art, history and Jewish affiliated NGOs.
While the principles produced were non-binding, they attempted to provide common ground using policy guidelines to direct the implementation of domestic legislation within the context of each nation’s legal system. The Conference recognized said principles as incompatible with adversarial litigation and encouraged the introduction of alternative dispute resolution mechanisms. The sensitive, complex, and historically rooted nature of Nazi-era claims require the flexibility afforded in negotiation, conciliation, mediation, and arbitration making them more appropriate forums to reveal a work of art’s true provenance and expedite a settlement.
The sensitive, complex, and historically rooted nature of Nazi-era claims require the flexibility afforded in negotiation, conciliation, mediation, and arbitration making them more appropriate forums to reveal a work of art’s true provenance and expedite a settlement.
These forums afford more privacy to private claimants and can guard the international reputations of auction houses and museums which may make them more complacent to concessions. In 2018, the Court of Arbitration for Art (CAfA) was established as a joint initiative between the Authentication in Art Foundation and the Netherlands Arbitration Institute. The court further employs neutral forensic and historical experts to establish provenance research which may otherwise be inaccessible to claimants.
While the future of the court is unknown it presents a useful international forum that addresses the idiosyncratic nature of art-law and the extra-legal solutions required to deal with historically pertinent claims. The institutionalization of alternative dispute resolution mechanisms holds tremendous potential in establishing equitable and culturally sensitive forums equipped to fill legal gaps in the international restitution network.
referenced works
Von Richthofen, Luisa. 2018. “Nazi-looted art: Why are restitutions still the exception?.” Deutsche Welle, March 12, 2018. https://www.dw.com/en/nazi-looted-art-why-arerestitutionsstill-the-exception/a-46507241
further reading
Department of National Heritage, Wartime losses (an official webpage of Polish Ministry of Culture, Art and National Heritage)
