Rightful Owners: International Restitution and Repatriation

NB: This was originally written for my library school course LIS 619-01 International Information Sources on April 16, 2013. I have not made any additions or revisions since that time except to update any broken embedded URLs.

If you go to the Metropolitan Museum of Art, you will notice that most of the artwork is not from the United States. How did it get there? Should it even be there? In the past few decades, the issue of looted art has become a controversial problem in the art world. Antiquities illegally exported from Italy, Turkey or other source countries have been added to the collections of prominent art institutions. Similarly, many Nazi-plundered artworks have not been returned to victims’ families but continue to move around the art market. Source countries and individual claimants want their artworks restituted, and look to the international community to support their claims.

Looting is an international problem. International agreements charge nation-states with certain legal and moral obligations regarding art restitution, but how do countries successfully (or not) fulfill these obligations?

Legal Framework

Important international agreements regarding restitution have been produced within the last 70 years. The Paris Treaties which ended the Second World War demanded that Germany and its allies make restitutions of property to the victims of Nazi oppression. For example, the Paris Peace Treaty with Hungary (a German ally) states in Article 27 that Hungary must make restitutions or reparations for property, rights or interests to persons who were persecuted under the Fascist government.[1] However, these Treaties were not uniformly enforced across Europe, and the problem of Nazi art restitution persists to this day.

In 1970 UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. It urges States to strengthen export laws regarding cultural objects, and tasks cultural institutions within States to ensure that they are not purchasing illegally exported objects. Cultural property is defined as “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science.”[2] The Convention emphasizes the importance of cultural property to the nation of origin as well as to all mankind. It allows an individual State to decide what, if any, cultural items may be moved legally out of its country. Although it applies to any kind of cultural property, restitution cases involving antiquities will usually refer back to this Convention. Additionally, many countries created new domestic legislation regarding antiquities as a result of this Convention. After the Convention passed, many source countries (Italy in particular) banned antiquities from export and have highly restricted loans of antiquities to foreign museums. Yet demand for antiquities has not ceased, and so looting remains a problem.

Since the original Paris Treaties, there have been several major agreements regarding Nazi-looted objects. In the 1990s, around the time the 50th anniversaries of Holocaust events, the woeful state of restitutions was brought to the forefront of the international arena.[3] In 1998, 44 governments participated in the Washington Conference on Holocaust-Era Assets. This conference adopted the Washington Conference Principles on Nazi-Confiscated Art. The Washington Principles reaffirm the importance of expediting claims, stating: “2. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives. 3. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.”[4]

It concludes, “11. Nations are encouraged to develop national processes to implement these principles…”[5] Herein lies the unfortunate (but necessary) last clause of so many well-intentioned declarations and principles: ultimately, national sovereignty must be respected and nations can only be encouraged to act. If nation-states do not prioritize these projects–which demand a lot of resources–the burden remains with the claimants to conduct research. And even if a claim is made, there is no guarantee that a nation will honor the terms of an international convention.

The Washington Principles were reasserted in two declarations within the decade. The Vilnius International Forum on Holocaust Era Looted Cultural Assets in 2000 produced the Vilnius Forum Declaration. It tasked signatory States with facilitating restitution claims by making all relevant information available online to the public, including “ the identification of looted assets; the identification and provision of access to archives, public and commercial.”[6] It was signed by 38 governments. More recently, the Terezin Declaration came from the 2009 Holocaust Era Assets Conference and was signed by 46 governments. It also supports opening up archives and records: “2. In particular, recognizing that restitution cannot be accomplished without knowledge of potentially looted art and cultural property, we stress the importance for all stakeholders to continue and support intensified systematic provenance research, with due regard to legislation, in both public and private archives, and where relevant to make the results of this research, including ongoing updates, available via the internet…”[7] Legally, the document is non-binding.

What these agreements share in common is the emphasis on a State’s moral obligation to ensure that it protects its cultural property and does not benefit from property that has been illegally seized. Particularly in the case of Nazi-looted art, States must facilitate access to records in order to help those researching restitution claims.

Artwork and Identity

Why are artworks and, more particularly, owning artworks, so important and the source of so much international discussion? In his book, Who Owns Antiquity?, James Cuno observes that artworks, particularly antiquities, are integral to a country’s cultural identity. He writes, “That’s the nature of nation building. It subjects the past and the present to the rigors of identity control. And archaeology and national museums are used as a means of enforcing that control.”[8] Antiquities are used to connect the present country with a glorious past. It is not enough that these works exist, they must be owned and controlled to exploit their power.

Artworks also shape an individual’s identity. In the early 20th century, art-collecting and art patronage were key components of a bourgeois or upper-class lifestyle, and for Jews it was also a visible way of assimilating and contributing to Western European culture.[9] That Nazis looted so much art from Jewish collections is a testament to its power: the artworks they “reclaimed” and the subject matter of the works served to bolster Nazi ideology.[10]

The Public Benefit

Many international agreements emphasize that these artworks and other cultural objects are for the benefit of the world. For example, the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage 1972 considers “that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.”[11] However, what that benefit is is not necessarily defined the same way by each State. International agreements allow States to determine what objects are culturally important.

Austria is a particularly harsh example of the failure of early restitution laws. Restitution laws in Austria were only put in place on the urging of the Allies, and allowed Austria to determine if an object was too important to national culture to be restored to the original owners. It would sometimes demand the claimant offer works to replace the restituted ones. Thérèse O’Donnell (2011) writes, “Although international treaties stress the importance of cultural artefacts to national identity, this does not envisage blackmail.”[12] Just recently Austria fiercely resisted the restitution claims of the heirs of Adele Bloch-Bauer over the Gustav Klimt portrait, Adele Bloch-Bauer I (pictured). The work had hung in the Austrian Gallery for decades; they argued that it was part of Austrian culture and removing it to a foreign country would de-contextualize the work.[13] After six years of litigation, the painting was returned to Bloch-Bauer’s heirs and now hangs in the Neue Galerie in New York City.

Gustav Klimt, Portrait of Adele Bloch-Bauer I. 1907 Image via Wikimedia Commons.

Just like the Austrian Gallery, some museums may interpret that the public or the world is best served by objects remaining where they are–even if the object has been trafficked. A museum’s mission is to care for and display its artworks for the benefit of the public; how can the public benefit if a work is returned to a private collection or a source country’s storeroom?

For example, in 2004 the heirs of one Holocaust victim made a claim for a painting in the Detroit Institute of Arts (DIA). Instead of returning the painting, the museum declared it would keep the artwork. The DIA justified their stance because they insisted it was the museum’s responsibility to retain the painting for the benefit of the public.[14] Although the DIA’s actions were upheld in court, it runs contrary to the view the international community (including the U.S.) has publicly declared regarding looted artwork. According to the code of ethics of the International Council of Museums (ICOM), museums must not acquire or, by extension, retain Nazi-seized artwork. It is a fundamental part of a museum’s ethical responsibility to the public. This policy fits with the Washington Principles, which asked countries to identify looted art and, when possible, reach out to the original owners. Additionally, the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) have both affirmed that it is a museum’s duty to ensure that objects acquired do not have a history of looting or unlawful appropriation, whether Nazi or modern.[15]

The ownership of important objects is less important than a museum’s ethical obligation to the public. The Berlin Library returned 13 Nazi-looted books to the Berlin Jewish Congregation in 2011. Regarding the return, Bernd Neumann, the German Federal Commissioner for Culture, stated, “the search for Nazi looted art and the development of fair and just solutions in restitutions cares is a moral obligation.”[16] This moral obligation is an integral part of its duty to the public, and applies to a cultural institution or a national government. The objects in question go beyond individual property. Even if the returned artwork is taken down from a public museum’s walls and put in a private collection, this act of reparation and healing is indeed for the public and world benefit.

Modern Implementations

There are many international organizations that handle the restitution of artworks. However, many of these organizations have only advisory powers and do not bring legal action against offending parties. More often, it remains with victims to investigate and pursue restitutions claims. UNESCO has established the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, which provides a space for mediation and makes recommendations regarding restitution cases. It primarily sees cases regarding antiquities. The Commission for Looted Art in Europe, an international non-profit organization, specifically seeks to carry out the tasks of the major international agreements concerning looted art. It provides support for victims, promotes legislative reform and identifies looted art. Its sister organization, the Central Registry of Information on Looted Cultural Property 1933-1945 handles Nazi-plundered objects. It has two online searchable databases, one for looted objects and one for information on restitution laws and cases in individual countries.

New digitization technology will hopefully go a long way in reuniting looted artwork with the rightful owners. In 2011, in order to abide by the Washington Principles, the Vilnius Declaration and the Terezin Declaration (regarding public access to records), the International Research Portal was established. It includes electronic records relating to Nazi plunder from the State Archives in Belgium, U.S. National Archives, the British National Archives, the Commission for Looted Art in Europe, and Germany’s Bundesarchiv. It has an unprecedented level of access to hundreds of documents–over 128,000 pages–in national archives and international organizations. Anne Webber, co-chair of the Commission for Looted Art in Europe, said of the project: “It’s been enormously difficult for families to access these records because before you had to physically go to them. But now they’re all digitised and you can search by the name of the victim, the perpetrator, the artist and the artwork. It will dramatically change the possibilities for people, but there’s still more to come.”[17] There are also plans to host a wiki where individuals can share their research.

Some of this work is now shifting to the institutions who hold illegal art, rather than claimants. In 2010, Germany put up an online searchable database of 20,000 objects seized by Nazis, based on the records of the Einsatzstab Reichsleiter Rosenberg (ERR) which was charged with cataloging the loot. It includes archival material from the U.S. National Archives, the German Federal Archives and the French foreign ministry. The website hosts advanced search capabilities, a list of art owners (with names, cities and countries), a list of collections, and further resources such as a history of the material and a link to the French online art database. With these resources available, museums and other institutions should research the works in their own collections as well as any potential purchases. Julius Berman, chairman of the Claims Conference, states, “It is now the responsibility of museums, art dealers, and auction houses to check their holdings against these records to determine whether they might be in possession of art stolen from Holocaust victims.”[18] In the same vein, France recently publicized its mission to actively return looted artworks with a project headed by a group of historians, curators, archivists and regulators. A Senate report in January urged the government to increase access to archives regarding looted art and to digitize relevant documents. Typically, victims of Nazi theft would have to contact a museum or the Commission for the Compensation of Spoliation Victims in order to pursue a restitution case. Now, the goal is for the French government to reach out to victims and their families directly. The Ministry of Culture and Communication has a list of 2,000 works, which they hope to return to their rightful owners, on its website, and also links to historical documentation and relevant French or international laws on restitution (it specifically references the Washington Principles, the Vilnius Declaration, and Terezin Declaration).[19]

Similar digitization efforts also exist for antiquities. The J. Paul Getty Museum in Los Angeles has begun efforts to identity and publish online the provenances of some 45,000 objects in its collection. The Getty Museum has faced numerous repatriation scandals involving its antiquities: since 2007, almost 50 looted objects have been returned to source countries. Jason Felch writes, “Having largely abandoned the purchase of ancient art, it is using its unparalleled resources to restore meaning to objects whose history it had a hand in destroying.”[20] Hopefully, this will result in objects being returned to the right place and encourage the Getty and other prominent museums to be more scrupulous when researching ownership histories.

The more information that is publicly available online, the better chance museums, national governments and other authorities have to find looted objects. However, national governments and cultural institutions should take it upon themselves to return looted works even if no claimant comes forward.

Where to Go from Here

For antiquities, looting is still a real and present danger. When objects are plundered from archaeological sites, valuable information about the site and the context in which they are found is lost forever. But to looters, context is nothing compared to the cash antiquities can bring. These objects are still very much in demand, and the difficulty in obtaining them only drives their value up; damage to archaeological sites is especially prevalent in poorer source countries.  Laws are not enough to prevent looting when the incentives are too great.

How can countries make up for the laws’ shortcomings? One solution is the Sustainable Prevention Initiative (SPI), an international, non-profit organization that aims to create jobs associated with cultural heritage sites in impoverished nations. This benefits both the local community by linking economic growth with the preservation and care of the heritage site. In San José de Moro, Peru, SPI helped locals set up their archaeological site as a tourist center, with a visitor center, craft workshop and other amenities. The site and community has flourished.[21] Source countries have a better chance of protecting their cultural objects when there is local support–and when they support locals.

And what about when looted objects are uncovered? The language of treaties and conventions usually urges States to act in compliance, rather than setting out penalties for breaking rules.

Are more explicit international agreements regarding restitution and repatriation needed? Will the conventions currently in place be enough to deal with the modern conflicts in our world?

Traditionally, claimants usually resort to threats of litigation, and sometimes carry them out. But this is hardly the best system. Litigation involving multiple countries is difficult and costly for claimants, especially individuals. Alternative methods (other than arbitration) would be more useful in dealing both with individual and national restitution cases, which is recommended by the Washington Principles. A better use of international resources would be the utilization of non-judicial commissions or councils to oversee mediation and restitution negotiations.[22]

Trafficked antiquities and plundered art are an embarrassment on the art world and the international community. They represent the destruction of history and callous disregard for cultural identity, whether it is that of a source country’s archaeological past or an heir of a Nazi victim. International agreements like the 1970 UNESCO Convention and Washington Principles strongly condemn these practices and call for the restitution of objects as a State’s moral duty. Signing an international agreement announces publicly, “This is who we are as a nation. This is the kind of world we want to live in and to help shape.”

Restitution allow for silenced voices to be heard again. Forgotten eras, cultures and peoples are brought into the spotlight.

Notes:

[1] Australian Treaty Series 1948 No 2. (1948). Retrieved from http://www.austlii.edu.au/au/other/dfat/treaties/1948/2.html

[2]UNESCO, United Nations. (1970). Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property 1970. Retrieved from http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html

[3] O’Donnell, T. (2011). The restitution of Holocaust looted art and transitional justice: The perfect storm or the raft of the Medusa? The European Journal of International Law, 20(1), 49-80. Retrieved from http://ejil.oxfordjournals.org/content/22/1/49.full

[4] Washington Conference principles on Nazi-confiscated art. (1998). Retrieved from http://www.state.gov/p/eur/rt/hlcst/122038.htm

[5] Ibid.

[6] Vilnius Forum Declaration. (2000). Retrieved from http://www.lootedartcommission.com/vilnius-forum

[7] Terezin Declaration 30 June 2009. (2009). Retrieved from http://www.lootedartcommission.com/NPNMG484641

[8] Cuno, J. (2008). Who owns antiquity? Museums and the battle over our ancient heritage. Princeton, NJ: Princeton University Press. p. 87

[9] O’Donnell, 2011, p. 57.

[10] O’Donnell, 2011, p. 58.

[11] UNESCO, United Nations. (1972). Convention concerning the protection of the world cultural and natural heritage 1972. Retrieved from http://portal.unesco.org/en/ev.php-URL_ID=13055&URL_DO=DO_TOPIC&URL_SECTION=201.html

[12] O’Donnell, 2011, p. 62.

[13] O’Donnell, 2011, p. 53.

[14] Goldstein, C.A., & Weitz, Y.M. (2013). Claim by museums of public trusteeship and their response to restitution claims. Retrieved from http://www.lexology.com/library/detail.aspx?g=5059d9e0-3a6a-42aa-a159-13533e3a71cd

[15] Ibid.

[16] Quoted in ibid.

[17] Quoted in Jones, S. (2011, May 5). Archive of artworks stolen by Nazis goes online. The Guardian. Retrieved from http://www.guardian.co.uk/world/2011/may/05/archive-artworks-stolen-nazis-online

[18] Quoted in Messana, P. (2010). List of art works looted by Nazis goes online. AFP. Retrieved from http://www.google.com/hostednews/afp/article/ALeqM5gsaNBpzY5FLgqote-gr6h706cZ-A?docId=CNG.19150b1b67c62c47b0bb0979b034af6b.181

[19] Fouquet, H. (2013, February 18). Nazi-looted art’s Jewish owners sought by France. Bloomberg. Retrieved from http://www.bloomberg.com/news/2013-02-18/nazi-looted-art-s-jewish-owners-sought-by-france-in-new-quest.html

[20] Felch, J. (2013, January 19). Getty studies its antiquities. Los Angeles Times. Retrieved from http://articles.latimes.com/2013/jan/19/entertainment/la-et-getty-ambers-20130119

[21] Sustainable Preservation Initiative. (2013). San Jose de Moro, Peru. Retrieved from http://sustainablepreservation.org/projects/san-jose-de-moro-peru/

[22] O’Donnell, 2011, p. 73.