Armed conflicts, whether international or intrastate, pose multiple threats to cultural heritage. The looting of art is one of them. History provides many examples of victorious armies plundering the vanquished and bringing home war trophies often justifying their actions by qualifying them as “war damage The looting of art across Europe and beyond by Napoleon and his army is but one of several examples. Art theft and looting also occurred on a massive scale during World War II, among others by Nazi Germany and later by the Red Army, looting numerous works of art from their owners and displacing valuable artworks from their original location. Recent conflicts, such as the wars in Iraq and Syria, show that the problem of looting is very much a contemporaneous one and far from concerning only last century's world conflicts, an additional concern being that looting is now used to finance terrorism.
This Report addresses the subject of restitution of art looted in armed conflicts and wars and alternatives to court litigation under five aspects. The legal bases of restitution claims are questioned first (1). The main legal difficulties relating to those claims are then identified (2). The third chapter focuses on the role of provenance research in this context (3). The next chapter deals with the resolution of disputes through court litigation and attempts to show the rising impact of alternative means (4). The Report concludes with some recommendations for future policy in this field (5).
Since the second half of the 20th century, States have adopted multiple international instruments such as the 1954 Hague Convention and its two Protocols, the 1970 UNESCO Convention, the 1995 UNIDROIT Convention, European Council Conventions and Recommendations, UN General Assembly and Security Council resolutions, etc. in an effort to prevent and repair the damage caused by the destruction and looting of cultural property during armed conflicts as well as in peace time. At the European level, the European Union and the Council of Europe have adopted a number of instruments that address the problem of the illicit trafficking and the question of the return of wrongfully removed cultural objects. Soft law instruments, despite their non-binding character, also play an important role in inspiring States and non-State actors (such as museums).
The existing international instruments appear sufficient, both on the prevention and the reparation/restitution sides; as such, there appears to be no need to change the body of existing international law with additional norms. Some of the international and European instruments have had more success than others, but the current attention focuses more on harmonizing rules on offences relating to cultural property. As for soft law instruments, they seem to have had tangible positive impacts so far.
However, the most urgent issue is that international rules are still not uniformly enforced by States including some European States and they should be effectively and promptly implemented at the national level through appropriate legislative and administrative measures. Indeed, in the absence of national laws rendering the international principles applicable in each State’s domestic system, the value of such principles remains theoretical. Initiatives taken by Switzerland, the Netherlands and Canada should notably inspire other States to that effect.
Due to the important quantity of art looted throughout the years, it is frequent that States, museums, galleries, auction houses and private collectors face restitution claims from the victims of plundering (and their heirs). Since art looted in armed conflicts and wars is more often than not exported out of the country where the looting took place, most restitution claims and the resulting judicial cases have an international element. Unfortunately, claimants involved in cross-border restitution cases face multiple legal obstacles, such as conflict of law and/or jurisdiction issues, the task of determining what constitutes looted art, the varying statutes of limitation, burden of proof issues and the applicability of anti-seizure legislation in some States. These issues, unfortunately quite generalized throughout national legal systems, render the outcome of claims less than certain.
Notwithstanding these legal difficulties, the rise of restitution claims and the resulting emphasis on ownership issues have made provenance research a major concern for all actors in the art market. Legal and ethical standards relating to provenance have greatly developed over the years. Today, many European States and museums have created provenance research programs or commissions to ensure that they do not possess looted object in their collections. This practice of provenance research certainly leads to a more transparent and responsible art market and discourages looting. However, experience shows that collecting institutions have not yet been able to overcome the limits of such provenance research such as the sometimes too short timespan covered by research, the inaccessibility of private collections and the loss of documentation and evidence on provenance over the years and hence to identify looted material.
For these reasons, disputes concerning ownership of looted art and requests for restitution remain frequent. Although dispossessed owners (or their heirs) can demand the restitution of their looted property before domestic courts, the previously mentioned procedural hurdles and other shortcomings of court litigation make alternative means of dispute resolution (ADR) such as arbitration, mediation, conciliation and negotiation and the possible associated solutions reached through such means more appealing. Some States have put in place non-judicial bodies to help solve Nazi-looted art cases through procedures resembling conciliation. Contrary to resolution through court litigation, where national judges are bound by the applicable rules of law (which on average tend to disadvantage claimants), ADR means allow the parties to explore solutions based on other considerations, such as ethical principles and their reciprocal interests, in order to reach just and fair solutions” that are often outside of a national court’s jurisdiction.
States who encourage the settlement of looted art conflicts through ADR and/or who have put in place non-judicial bodies in that regard are excellent examples of “good practices” in this field. However, these actions do not allow the preventing of plunder in the first place, nor are they sufficient to ensure subsequent restitution where it is required. Uniformity of solutions seems to be the most urgent matter to ensure, from the global perspective, an appropriate resolution of looted art restitution cases. Both in private and in public law, this uniformity could be reached at the level of the determination of the applicable law, by applying the law of the place of origin lex originis instead of the generally applied law of the artwork’s situation (lex rei sitae). Uniformity could also be achieved if States were to adopt common standards and rules through the effective implementation of existing international conventions, as well as rules providing for undisputable state ownership on undiscovered cultural property, uniform due diligence standards and specific statutes of limitations applicable to looted art claims. Moreover, it would also be advisable to set up some form of advisory body at the EU level, which would be in charge with proposing long term solutions and/or giving advice in specific cases.
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This research paper was requested by the European Parliament's Committee on Legal Affairs and commissioned, supervised and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.
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Professor Marc-André RENOLD, Director of the Art-Law Centre and Holder of the UNESCO Chair in the international law of Cultural Heritage, University of Geneva with the cooperation of the Art-Law Centre team: Dr. Alessandro Chechi, Ms. Justine Ferland and Mrs. Ece Velioglu-Yildizci.
Manuscript completed in May, 2016 © European Union, 2016
The study is available here.