Abstract
As restitution claims seeking the return of looted or illegally exported works of art become more and more common, museums, private owners and the art world in general are becoming obliged to develop a proactive approach to finding solutions. In the context of Nazi looted art claims, claims on archeological artefacts and post-colonial claims among others, positive law often is at odds with rapidly evolving rules of soft law. This chapter deals with the question of how stakeholders can resolve those claims in an adequate manner. What procedure should parties choose, taking into account that often there is no clear cut legal framework? Should they try to negotiate, to mediate, to litigate, or should they refer to diplomatic channels?
Dispute resolution and claims regarding the restitution of cultural property will, traditionally, be a matter of law. More often than not, however, litigation in this context does not offer realistic possibilities for an assessment of a dispute on its merits. The non-retroactivity of conventional norms and specific limitation periods feature among a number of other legal obstacles that stand in the way of efficient litigation. At the same time, moral norms supporting restitution claims rapidly gain ground in this area and are codified in soft-law instruments like ethical codes. As a result, “grey areas” of tainted works of art came into being. In spite of a perfect legal title, some artefacts are unsalable or cannot be sent on international loans by their owners, and expectations are raised in the minds of claimants. Can these categories be distinguished?
For these “grey categories” alternative mechanisms for dispute resolution (ADR) may be a desirable approach to reach a final settlement to a dispute. In fact, often this is the only possibility for an assessment of a claim on the merits. Various forms of ADR can be adopted but not all of these will be a guarantee for “justice”. In the field of Holocaust related art claims several European governments created advisory panels. Most of these panels, however, can only deal with state property. In the Netherlands, parties have the option of submitting these cases to the Dutch Restitutions Committee. Apart from its advisory role relating to claims on the Dutch State collection, the committee can also be asked for a Binding Expert Opinion where other (private or institutional) parties are involved. This chapter will provide insight into this procedure. An important element of this procedure is the phase of active research. Active fact-finding by an independent team of researchers takes place before the assessment phase, with a view to arriving at a neutral assessment of the circumstances of the loss. To a certain extent, this activity appears to be important as it adds a level of procedural justice to the procedure by acknowledging the historical course of events and past injustices, irrespective of the outcome on the claim for restitution.
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Notes
- 1.
The Gonivindua Tairona is an indigenous group that inhabits the Sierra Nevada de Santa Marta in Colombia. Quotation from a speech given in January 1999 as translated by Alan Ereira and reproduced in Hoffman (2006), p. 27.
- 2.
Kowalski (2004), p. 50.
- 3.
- 4.
Hugo de Groot, De iure belli ac pacis (1625). See part III, Chap. 12, V on the protection of cultural objects during war. On restitution after ‘just’ wars, see Chap. 13, I, and on restitution after ‘unjust’ wars, see Chap. 16: ‘But things, taken in unjust war, are to be restored, not only by those, who have taken them, but by others also into whose hands they may have by any means fallen. For, as the Roman lawyers say, no one can convey to another a greater right than he himself possesses.’
- 5.
- 6.
- 7.
- 8.
Text in Declaration and the ‘Note on meaning, scope and application’, sub 4.
- 9.
- 10.
US Military Government Law no. 59 Restitution of Identifiable Property, section 3.75 (2).
- 11.
As an illustration of a solution found for the protection of the good faith acquisition in civil law countries (most Western European countries except the UK) see the Swiss implementation law (‘Swiss Booty Decree’ of December 10, 1945): the good faith possessor of the looted art works can have recourse against the mala fide seller, and ultimately the Swiss State will compensate that good faith possessor. In Sweden a similar recourse for the good faith possessor against the Swedish State was implemented. See Prott (2008), p. 179. In the Netherlands, no such clear rules were laid down. In fact, according to article 27 para 4 of E 100, the good faith possessor has to return the object on payment by the dispossessed owner of the value of the object. See footnote 13 below and part II of this article.
- 12.
US Military Government Law number 59, section 3.76 (1).
- 13.
Under these laws, claims had to be brought within a short period. See for a listing of national implementation laws in Austria, Belgium, Czech Republic, France and Greece Palmer (2000), p. 61. In the Netherlands implementation was through Besluit Herstel Rechtsverkeer E 100 of September 1944 and claims had to be filed before July 1951. For an analysis and comparison of the Dutch post-war restitution law with the French system, see Veraart (2005).
- 14.
- 15.
Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. 249 UNTS 240. Convention and First Protocol entered into force on 7 August 1956; according to information on the UNESCO website as of April 2013 the number of State Parties to the Convention was 126, to the Protocol 102. The US ratified the Convention in 2007.
- 16.
Cultural property falling under this protection includes monuments, works of art, manuscripts, books and other objects of artistic, historical or archaeological interest as well as scientific collections and archives. Article 1(a) UNESCO1954.
- 17.
Article 4 UNESCO 1954.
- 18.
Section I: 2, 3 and 4 of the Protocol to the UNESCO Convention1954.
- 19.
The Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, was adopted 26 March 1999 and came into force on 9 March 2004. As of April 2013, 64 States were parties according to information provided by UNESCO. The Netherlands acceded on 30 January 2007 (see footnote 30 below).
- 20.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, in force 24 April 1972, 823 UNTS 289.
- 21.
Article 11 UNESCO 1970.
- 22.
According to information provided by UNESCO as of April 2013, 123 countries are party to this Convention, including countries like the UK, the US and Switzerland. The Netherlands acceded on 17 July 2009 (see footnote 31 below).
- 23.
UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects, adopted in Rome, 24 June 1995, in force 1 July 1998; 34 ILM 1322. As of April 2013, according to the UNIDROIT website, 33 States are party to the UNIDROIT Convention.
- 24.
The position of the bona fide purchaser of stolen goods differs between common law countries (e.g. UK and US) and civil law countries (e.g. the Netherlands, Germany, France). UNESCO 1970 and the UNIDROIT Convention follow the common law system in their preference for the return or restitution of illegally exported or stolen cultural goods. See Renold (2004).
- 25.
According to Article 3 of the UNIDROIT Convention 3 years after discovery by the former owner, or 50 or 75 years—in the case of public collections or religious artefacts—is the minimum (absolute) limitation period after the misappropriation.
- 26.
UNIDROIT Convention Article 4.4: ‘In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances.’
- 27.
UNIDROIT Convention, Article 4(1), i.e. compensation by the claimant. However, Article 4(2) states that: ‘reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation (…)’; Article 4(2)(3) requires that: ‘Payment of compensation to the possessor by the claimant, (…), shall be without prejudice to the right of the claimant to recover it from any other person.’
- 28.
See Article 3(8) of the UNIDROIT Convention for the special status of indigenous artefacts.
- 29.
Siehr (2011), p. 180 and footnotes 27 and 28.
- 30.
The Netherlands ratified the Hague UNESCO 1954 Convention and its (first) Protocol in 1958. The implementation of the Protocol only followed in 2007 (Wet houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit een tijdens een gewapend conflict bezet gebied, Stb. 2007, 123). In fact here the norm appears to be retroactive: since the implementation law of 2007 restitution requests can be made regarding objects that were lost from the moment of ratification by the Netherlands in1958. Normal limitation periods are overruled by the 2007 Law and no other limitation period is mentioned in the law.
- 31.
Implementation of the UNESCO 1970 Convention—with elements of the UNIDROIT convention like limitation periods—followed in July 2009 (Uitvoeringswet UNESCO Verdag 1970 inzake nrechtmatige invoer, uitvoer of eigendomsoverdracht van cultuurgoederen, Stb. 2009, 255). For the Dutch implementation of UNESCO 1970, see Van der Horst (2009).
- 32.
Under the conventional rule, good faith is no longer assumed but dependent on the UNIDROIT criteria. In The Netherlands, limitation periods for the category of the UNESCO 1970 Convention are 5 years after discovery or 30 or 75 years (75 years for public collections or religious artefacts). The UNIDROIT standards were also adopted here. See footnote 31 above.
- 33.
See footnote 13 above.
- 34.
- 35.
In the US litigation is not unusual, see the Altmann case where the judge found grounds to adjudicate in a dispute between an American citizen and the Austrian State about Klimt paintings in Austria. US Supreme Court, 7 June 2004, Republic of Austria v. Altmann. See also a ruling of 19 April 2013 by the District of Columbia Circuit Court of Appeals, in a case between the heirs of the Herzog family and Hungary (Thomson/Reuters, 22 April 2013). For a German case, see the Sachs ruling of 16 March 2012, in which the judge found a way to honour a claim of heirs of Dr. Hans Sachs to a poster collection in a Berlin Museum (BHG of 16 March 2012, B ZR 279/10, reproduced in Art Antiquity and Law, vol. XVII, issue 4, December 2012). For indigenous artefacts, see footnote 60 below.
- 36.
A Code of Ethics for Art Museum Directors Adopted by the membership of the Association of Art Museum Directors 1966, as amended on 29 January 2013 (4863796.12).
- 37.
A Code of Ethics for Art Museum Directors Adopted by the membership of the Association of Art Museum Directors 1966, as amended on 29 January 2013 (4863796.12), Guidelines under E.
- 38.
ICOM Code Article 2.3. More on the Ethical Code hereafter in Sect. 3.2.2.3.
- 39.
ICOM Code Article 7.2.
- 40.
ICOM Code, Article 2.2.
- 41.
See ICOM Code, Glossary p. 14 on the meaning of the term ‘legal title’: ‘a legal right to ownership of property in the country concerned. In certain countries this may be a conferred right and insufficient to meet the requirements of a due diligence search.’
- 42.
ICOM Code, Article 2.3.
- 43.
Allgemeine Versicherungsgesellschaft v. EK, ‘The Nigerian Bronze Case’ (BGHZ 59, 82 (1972) 86–87), and L. v. Indictment Chamber of the Canton of Geneva (First Public Law Division, 1 April 1997). See Prott (2009), pp. 33–36.
- 44.
Prott (2008), p. 185 and further.
- 45.
UNESCO Doc. SHC/MD/5 Annex II, 10.
- 46.
Prott (2008), p. 186.
- 47.
UNESCO Doc. SHC-6/Conf.615.5, 3 in. Prott (2008), pp. 189–192.
- 48.
UNESCO Intergovernmental Committee for the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation. See footnote 88 below.
- 49.
Prott (2008).
- 50.
Agreement 7 February 2011, as part of trade negotiations between France and South Korea. Arthemis database: http://unige.ch/art-adr.
- 51.
Van Beurden (2012), p. 34.
- 52.
Declaration on the Importance and Value of Universal Museums of 10 December, 2002, signed by 18 major museums such as the British Museum, the Metropolitan Museum, the Louvre, the State Museums in Berlin, the Hermitage and the Rijksmuseum. It states, in response to repatriation claims, these institutions mean to serve not just the citizens of one nation, but as ‘universal museums’, the people of every nation. Reproduced in: Prott (2009), p. 116.
- 53.
The ICOM Code of Ethics was adopted unanimously by the 15th General Assembly of ICOM on 4 November 1986, it was amended and renamed on 6 July 2001, and revised on 8 October 2004.
- 54.
See e.g. the Ethische code adopted by the Dutch Museum Association (NMV).
- 55.
See in this respect also the obligation to set up ethical rules for professionals in Article 5(e) of UNESCO 1970: ‘to establish, for the benefit of those concerned (curators, collectors, antique dealers, etc.) rules in conformity with the ethical principles set forth in this Convention; and taking steps to ensure the observance of those rules’.
- 56.
Article 6.2 of the ICOM Code.
- 57.
- 58.
UNDRIP, United Nations, General Assembly Document A/RES/61/295 of 2 October, 2007. One hundred and forty-three States voted in favour, 4 States (Australia, Canada, New Zealand and the United States) voted against, and 11 States abstained. In December 2010 the US signed the Declaration (US State Department press release 16 December 2010).
- 59.
Articles 11(2) and 12(2) of the UNDRIP.
- 60.
US Native American Graves Protection and Repatriation Act of 1990 (NAGPRA, 25 United States Code §§ 3001–3013), the Australian Aboriginal Cultural Heritage Act of 2003 and the UK Human Tissue Act 2004. s. 47. On NAGPRA, see Kuprecht (2012).
- 61.
- 62.
Resolution 1205 on Looted Jewish Cultural Property (1999).
- 63.
Washington Conference Principles on Nazi-Confiscated Art, 3 December 1998, no. VIII.
- 64.
Vilnius Forum Declaration 5 October 2000, adopted at a conference under the auspices of the Council of Europe; Terezín Declaration, 30 June 2009, adopted at a conference on Holocaust Era Assets in Prague.
- 65.
Draft of the Declaration of Principles relating to Cultural Objects displaces in connection with the Second World War of 31 July 2009 (UNESCO 35 C/24). See Principle III. It further reinforces the Washington Principles and the ‘return’ principle in Principle VI.
- 66.
See the conference proceedings ‘Fair & Just’, Restitutions Committee (2012).
- 67.
Siehr (2011), p. 201.
- 68.
This is a view that also reflects the principle in the Allied Declaration of 1943 and subsequent implementation laws; This solution has been chosen in opinions given by the Restitutions Committee in for example RC 3.45, RC 3.48. For an overview of the binding opinions see: http://www.restitutiecommissie.nl/en/binding_opinions.html.
- 69.
In the spirit of recourse ‘upstream’ for compensation, see Article 4 of the UNIDROIT Convention, supra note 27, and several post-war restitution laws (e.g. Swiss and Swedish), supra note 12. In this sense also Palmer (2007), p. 14.
- 70.
Weller (2012).
- 71.
See for example recommendations by the Dutch Restitutions Committee and UK Spoliation Panel.
- 72.
Supra footnote 7; The terms of reference of the Dutch Restitutions Committee, Decree Article 2, introduces as criterion: ‘involuntary loss of possession as a consequence of circumstances directly related to the Nazi-regime’; See also Palmer (2000).
- 73.
Renold (2012), p. 292.
- 74.
- 75.
O’Donnell (2011).
- 76.
Art Newspaper, February 2013, issue 243, p. 9: ‘Turkey says return objects or forget loans’, after many returns by US Museums lately to now ‘Turkey is pressing ahead with restitution claims for key objects in international museums, using the threat of refusing exhibition loans.’ According to this same article, Turkey plans to initiate legal action at the European Court of Human Rights regarding a return claim for objects from the Mausoleum of Halicarnassus at the British Museum. I am not sure whether these claims concern pre-1970 or post-1970 takings, however many other examples can be found concerning the listed categories, such as the well-known case of Portrait of Wally by Egon Schiele (sequestered while on loan from Austria to the US and held for many years).
- 77.
Palmer (2012), p. 104 quotes a recommendation of the Salzburg Expert Legal Committee of May 2008 that was made in relation to the EU Lisbon Treaty of 2007 promoting cultural exchange: ‘Museums must recognise that the existence and continuation of unresolved repatriation and restitution disputes can, in the absence at least of serious efforts at conciliation, paralyse the circulation and sharing of significant cultural objects. Museums that are seriously committed to the more liberal circulation of cultural material must act positively and resourcefully to resolve or neutralise such disputes and bring such objects into circulation.’
- 78.
Cornu and Renold (2012), p. 251.
- 79.
In an analysis of the ‘cultural affiliation’ concept in the US Native American Graves Protection and Repatriation Act (NAGPRA), Kuprecht illustrates that traditional standards of property and ownership may need amendment in the area of cultural property rights. It may require less focus on ownership as an absolute individual right in the Roman Law sense where rights, entitlements or dominion over things are key, and more on group interests, custody, care and trusteeship. Kuprecht (2012), p. 37.
- 80.
- 81.
Promoting the use of Mediation in Resolution of disputes over the Ownership of objects in Museum Collections: Statement by the President of ICOM Alissandra Cummins, January 2006.
- 82.
- 83.
Renold (2012), p. 289.
- 84.
- 85.
See footnote 48 above.
- 86.
Zedde (2012), pp. 107–131.
- 87.
Article 14(a) of the WIPO–ICOM Mediation Rules states ‘the mediator and the parties shall bear in mind the ICOM Code of Ethics for Museums.’ The meaning of this provision, however, remains unclear.
- 88.
On April 2013, see: http://portal.unesco.org/culture/en.
- 89.
On April 2013, see: http://portal.unesco.org/culture/en, Rec. No. 4 of Sept. 2010. One of the cases that has been discussed for decades is the claim of Greece to the Parthenon Marbles, removed by Lord Elgin at the beginning of the nineteenth century and now in the British Museum. See also Siehr (2011), p. 180.
- 90.
Supra, footnotes 48 and 49.
- 91.
A first meeting of these five committees was held in the Peace Palace in The Hague in November 2012. For more information on the committees: http://www.restitutiecommissie.nl/en/committees.html.
- 92.
- 93.
See on this point US Special Envoy for Holocaust Issues Douglas Davidson at the ‘Fair & Just?’ conference. Restitutions Committee (2012).
- 94.
See the Arthemis project at the Art Law centre in Geneva, described by Renold (2012), p. 292.
- 95.
Palmer (2007).
- 96.
In this sense see also Weller (2012).
- 97.
A purely state-to-state level resolution of disputes may ‘lead to dilatory behavior which acts against the interests of injured individuals’. Prott (2004).
- 98.
Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War of 16 November, 2001 (‘Establishing Decree’). Since January 2009 the Committee has been chaired by the former president of the Dutch Supreme Court (Hoge Raad) Mr. W.J.M. Davids. For more information, see the yearly Reports and other information published through www.restitutiecommissie.nl.
- 99.
The largest cases, by number of artworks, were: the May-II claim (RC 1.112, withdrawn so no recommendation published); Goudstikker (RC 1.15) concerning 267 works of art; the Katz claim (RC 1.90 A and RC 1.90 B) concerning a total of 219 works of art; Koenigs (RC 1.6) concerning 71 works of art; the first Gutmann case (RC 1.2) concerning 93 works of art. Recommendations of the committee are published: www.restitutiecommissie.nl. Accessed 2 June 2013.
- 100.
The NK collection consists of paintings, drawings, prints, ceramics, silver, furniture, carpets, tapestries and other special items. Some objects are in museums and government institutions in the Netherlands and abroad, while others are in storage.
- 101.
See footnote 7 above.
- 102.
For the post-war handling of restitution claims and its flaws, see Muller and Schretlen (2002).
- 103.
Government reaction of 21 March 2000 (Kamerstukken II, 1999/00, 25 839, nr. 13) and a letter of the Secretary of State for Education, Culture and Science of 29 June 2001 (Kamerstukken 2000/2001, 25 839, nr 26).
- 104.
See Veraart (2011), pp. 1–34 (explaining that the Dutch implementation of the Allied Declaration focussed almost solely on the restoration of the Dutch legal system, rather than the restoration of the individual rights of Dutch Jews.
- 105.
Royal Decree E 100.
- 106.
Based on criteria recommended by the Ekkart Committee. For those, see: http://www.herkomstgezocht.nl/eng/rapportage/.
- 107.
On the basis that claims to works falling under the ‘Miedl transaction’ were finally settled in the 1950s. See: http://www.restitutiecommissie.nl/en/summary_rc_115.html.
- 108.
In the Netherlands, many museums have collections that are of a diverse legal status. Establishing Decree, Article 2, paras 4 and 5, and see the explanatory notes to the Decree.
- 109.
Article 4 para 2 of the Establishing Decree states that ‘The Committee may draw up regulations concerning further working methods’. It did so in its ‘Regulations for opinion procedure under article 2, paragraph 2, and article 4, paragraph 2 of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War’ (the Regulations).
- 110.
Establishing Decree, Article 2 paras 4 and 5.
- 111.
By means of prescription or limitation periods or third party good faith acquisition.
- 112.
See e.g. RC 3.128 and RC 3.131, http://www.restitutiecommissie.nl/bindende_adviezen.html.
- 113.
See for more information: http://www.museumvereniging.nl/ProjectenOnderzoek/Musealeverwervingen.aspx. Accessed 11 May 2013.
- 114.
Letter of the Secretary of Education, Culture and Science to Parliament dated 22 June, 2012 (ref. 373435).
- 115.
See for this warning Palmer (2011) and Weller (2011).
- 116.
Veraart (2012) ‘the law’s principal contribution seems to consist in offering (international and or national) general legal and ethical guidelines which contain elementary rules and principles of due process and provide for an acceptable structure in which parties can operate on an equal level of mutual respect’. On restitution as a form of transitional justice see also O’Donnell (2011).
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This article reflects the personal views of the author. I would like to thank Professor Norman E. Palmer and my colleagues Annemarie Marck and Eelke Muller for their comments on an earlier version.
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Campfens, E. (2014). Alternative Dispute Resolution in Restitution Claims and the Binding Expert Opinion Procedure of the Dutch Restitutions Committee. In: Vadi, V., Schneider, H. (eds) Art, Cultural Heritage and the Market. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-45094-5_3
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