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Subscriber: null; date: 21 October 2019

Restitutionlocked

  • Noémie Goldman
  •  and Kim Oosterlinck

Term for the return of lost or looted cultural objects to their country of origin, former owners, or their heirs. The loss of the object may happen in a variety of contexts (armed conflicts, war, colonialism, imperialism, or genocide), and the nature of the looted cultural objects may also vary, ranging from artworks, such as paintings and sculptures, to human remains, books, manuscripts, and religious artefacts. An essential part of the process of restitution is the seemingly unavoidable conflict around the transfer of the objects in question from the current to the former owners. Ownership disputes of this nature raise legal, ethical, and diplomatic issues. The heightened tensions in the process arise because the looting of cultural objects challenges, if not breaks down, relationships between peoples, territories, cultures, and heritages.

1. History.

The history of plundering and art imperialism may be traced back to ancient times. Looting has been documented in many instances from the sack by the Romans of the Etruscan city of Veii in 396 BC to the Crusades and Napoleon’s Italian campaign in late 18th century. In 1907, as part of the agreements obtained in the Second Hague conference, pillage and the confiscation of private property in occupied territories were condemned by international law (Hague Convention art. 46 and 47). Therefore, in contrast to Napoleon’s looting, the Nazi despoliation of cultural objects was illegal. As a result, the politics of art plunder by the Third Reich represented a milestone because of its large scale and systemic organization but also because it breached international law.

The first restitution campaign started in 1943, when 18 states signed the Inter-Allied Declaration against Acts of Dispossession committed by the Germans in the occupied territories. Their objective was to recover after the war the artworks looted or acquired through illicit purchases. A second campaign of restitution was initiated following the fall of the Iron Curtain. This new effort culminated with the organization in 1998 of the Washington Conference on Nazi-confiscated art. The 44 countries that participated in the Conference committed themselves to a set of guidelines for dealing with art acquired by the Nazis. Many of these governments organized research panels to study the provenance of national collections and they also made available State archives. The principles agreed upon in Washington were followed in 1999 by the Council of Europe Resolution 1205 on the restitution of looted cultural property in Europe, and by the Terezin Declaration of 2009. The accumulation of intelligence gathered increased the number of restitutions, and since the beginning of the 21st century the trend has accelerated.

The discovery in 2014 of a collection of a thousand Nazi-looted artworks in the Munich apartment of Cornelius Gurlitt, the son of a Nazi-era art dealer, magnified public interest on the restitution issue and opened a new era.

2. Legal and ethical consideration.

The first legal definition of restitution occurred in the framework of the 1954 Hague Convention. For the first time, restitution was defined in public international law in the context of armed conflicts. After World War II, countries in western Europe established various decrees, for instance the ‘Raubgutbeschluss’ in Switzerland, to suspend normal national laws in order to promote restitution. These modifications of the national legal framework were not open ended, especially since victims had limited amounts of time to make their claims. These limits, combined with the fact that most of the victims were deceased or in exile, explain why more than 70 years after the war many claims were still pending. In 1996 victims used the American judicial system to bring to justice Swiss banks and recover Nazi-looted gold. Since then, numerous victims have relied on American laws to claim artworks and other reparation payments.

Restitution is difficult to achieve through judicial procedure because of two basic principles existing in most legal systems: the non-retroactivity of law and the existence of statutes of limitations. As a result, alternative routes are often taken: diplomatic agreements, financial settlement, or the sale of the object followed by a division of the proceeds amongst the parties. Ownership disputes are rendered even more complex depending on whether purchasers acted in bad or good faith. Restitution claims usually distinguish between the two, even though proof of good or bad faith is hard to establish. A good example occurred in France, when in 1989 a New York–based art dealer bought a portrait by Frans Hals. A few years later, the heirs of the famous French collector Adolphe Schloss (1842–1910) claimed and established that the painting had been looted during the war. The dealer was summoned to return the painting to the heirs, and was condemned to eight months in prison for being a purchaser in bad faith. The court decided that as an art professional, and a renowned specialist, the dealer was negligent because of the failure to check the provenance of the work. The increase in claims regarding looted art has had an impact on insurance and art loans, and thus on cultural exchange. Many art professionals defend the idea that restitution problems should not be the dependant of the judiciary system, and should not be regarded as a legal issue but as an ethical one. The ownership of artworks raises complex questions. Indeed, while cultural objects can be seen as private propriety, they may also be perceived as belonging to the general heritage of the humanity. This explains why organizations such as UNESCO contribute actively to restitution debates and prefer to position the discussion outside the judicial courts. Even if countries and museums have signed international conventions, like the Washington protocol in 1994, no control mechanism has ever been established. Governments and institutions are only morally bound to return property to their rightful owners.

3. Antiques.

The Elgin Marbles is the most famous example of problems in restitution of antique works. This case raises the question of the protection of national cultural heritage and the restitution or repatriation of antiques taken from their country of origin during periods of colonization or war. In the 19th century Lord Elgin, a British ambassador, brought back to England marble sculptures and architectural fragments from the Parthenon of Athens, with the authorization of the local authorities. After being sold by Lord Elgin to the British Parliament, the marbles became property of the British Museum in London. Since 1924 Greece has made several attempts to recover the fragments. In the 21st century Greece succeeded in repatriating parts of the Acropolis from Germany, Italy, and the Vatican, but failed to recover the objects held by the British Museum. Since the objects were removed from the country legally and legally purchased by the museum, the Greek government has in effect no legal power to enforce restitution. Directors from the British Museum argue that the Parthenon marbles are part of the universal cultural heritage and that conservation of the objects for future generations ought to be the priority.

Other examples illustrate that if the provenance of antiques is illicit, restitution is easier to achieve. This was the case of the Euphronios Krater, a red-figure Greek vase dating from the 6th century BC, bought in 1972 by the Metropolitan Museum of Art, New York. Research on the vase’s provenance undertaken by Italy demonstrated that the object was stolen from an archaeological site and subsequently smuggled to the USA. In 2006 the Metropolitan Museum and the Italian government reached an agreement: the vase and other antiques were repatriated to Italy in exchange for long-term loans from Italy to the Museum. Chinese antiques, especially the objects looted at the Old Summer Palace, Beijing, by Anglo-French armies during the Second Opium War, have become the focus of a very popular and patriotic campaign encouraged by the Chinese government. In the 21st century these cultural objects have mainly been repurchased by the China Cultural Relics Recovery Fund, the Poly Art Museums, and Chinese private collectors. In 2009 the battle in a French Court to prevent the sale of Imperial bronzes during the highly publicized Pierre Bergé/Yves Saint Laurent Christie’s sale exposed the problems of Chinese antiques restitution to the Western public.

4. Nazi-looted art.

During the Third Reich the looting of art became a highly organized phenomenon. The operation was mostly managed by a Nazi official and ideologue Alfred Rosenberg, who was in charge of a ‘Special Task force’ (Einsatzstab Reichsleiter Rosenberg). In Germany and in occupied countries, art dealers also contributed to the pillaging during the war. The interest Nazi leaders had for the art world helps to explain the large scale of the looting operations. The Nazi dignitaries constructed a cultural propaganda that condemned ‘degenerate art’ ( Entartete Kunst ), and confiscated masterpieces all throughout Europe for their personal benefits. When the artworks were not brought directly to these collections, the Germans stored them in various places in Germany, France, and Austria. The most famous ones were the Musée du Jeu de Paume in Paris, and the salt mine of Altaussee in Austria. After the end of the war, when the Allies discovered these secret storages, they centralized the looted objects at different collecting points. A special American intelligence unit dealing with looted art was created to research artworks and identify the protagonists responsible for the plundering. The identified artworks were transferred from the collecting points to the countries they had been looted from. Each country dealt with the recovered artworks in different ways, depending on its own political, social, and economic context. During the first phase of restitution, directly after the war, different elements slowed down the process: private property was forbidden in countries under communist law, and in western Europe most of the former owners were not alive any more or had left the continent. The second movement for restitution came after the collapse of the Communist regimes in the countries of eastern Europe. At the same time, the World Jewish Restitution Organization was established to pursue and intensify the restitution of Jewish property around the world. Important collections were partially recovered. This was the case for collections belonging to famous collectors and art dealers, such as the French art dealer Paul Rosenberg, the Dutch collector Jacques Goudstikker, and the French collector Alphonse Kahn. Since the 1990s there have been several very long-running Nazi-looted art cases. A famous example is the ‘Portrait of Wally case’: in 1997 the painting Portrait of Wally by Egon Schiele was loaned by Dr Rudolf Leopold for an exhibition in New York when the American authorities seized the portrait to investigate its status as a possible Nazi-looted art. Even though Dr Leopold claimed that he did not know the illicit provenance of the work, it was proven that a Nazi art dealer had owned the portrait after the ‘aryanization’ of a Jewish art dealership owned by Lea Bondi Jaray. A week before the trial in 2010, the US government, the Estate of Lea Bondi Jaray, and the Leopold Museum of Vienna settled and agreed that the Leopold Foundation would pay the Jaray estate to keep the painting and permanently display signage next to the painting detailing the painting’s Nazi-looted history.

5. Colonialism.

States transferred a considerable number of cultural objects from their colonies. Several operations contributed to the displacement of these objects: the looting during military operations, the exportation of artefacts for scientific curiosity, or the confiscation of art collections from museums in former colonies. Since decolonization, the international community has mainly focused on ways to prevent illicit exports and transfer of cultural objects across borders. In 1970 UNESCO organized an important conference on cultural property to raise awareness in the way museums acquire property. Subsequently, in 1980, a movement emerged in Africa to demand restitution of their national cultural heritage. However, these claims were not very effective and no international framework for the regulation of cultural objects’ displacement was ever reached. At the end of the 20th century, many governments recognized their colonial past and their collective guilt and started negotiating settlements with former colonies. Without any international legal tools, restitutions were mainly decided during diplomatic discussions concluded by bilateral agreements. For example, Japan agreed to the repatriation of about a thousand objects to Korea in the treaty both countries signed in 1965. Denmark and its former colonies, Iceland and Greenland, decided to declare the displaced objects as co-propriety. In some cases, diplomatic negotiations were incompatible with local legislation on restitution. In 2010 the French government agreed during negotiations with South Korea to return the Uigwe manuscripts, taken by force in 1866. The royal manuscripts were part of the collection of the Bibliothèque Nationale de France, and there was no national or international law authorizing their restitution to Korea. The return of the manuscripts was, in fact, in contradiction of the principle of the inalienability of French public collections. The restitution, the result of a political and diplomatic act, was effectively illegal. A famous example of an ownership dispute in a post-colonial context is the Benin Bronzes, looted from the Royal Palace of Edo by the British army in 1897. After the massacre of English emissaries, the British forces lead a punitive operation and confiscated thousands of objects from the Palace. Some of the objects were given to the British Museum and the remainder were sold to reimburse the state for the military costs incurred and to compensate the families of English soldiers killed during the massacre. At the time, the military operation and confiscation of objects respected international law. As of today, many bronzes remain in the British Museum. In the post-colonial era, the restitution of human remains has received considerable attention. France returned the Hottentot Venus to South Africa, England had signed the Human Tissue Act of 2004 promoting the return of human remains, and in Australia and the USA a similar type of restitution was achieved regarding the remains of the indigenous population.

6. Practice.

  • Noémie Goldman and Kim Oosterlinck

Museum professionals and specialists from the art market are progressively contributing to raise the awareness about the provenance of artworks. The main auction houses, such as Sotheby’s and Christie’s, have created Restitution departments in which researchers verify the ownership history of the objects before putting them on sale. Museums, especially in Germany, Israel, and the USA, have developed Provenance Research Programmes to analyse the ownership history of artworks in their collection. Following the code of ethics established by the International Council of Museums (ICOM), museums have also contributed to raising awareness about restitution problems by organizing exhibitions and publishing studies on the matter. Private cultural organizations, such as auction houses or famous museums, also try to avoid damage to their reputations in case artworks associated with the institution should be publicly identified as looted. However, the majority of art dealers and cultural institutions still underestimate the importance of conducting provenance research of the objects they are selling or purchasing. Because of the failure of many governments and international authorities to globally manage restitution problems, commercial restitution firms in the private sector have emerged. This has led to many controversies, as some art restitution specialists have gained substantial amounts of money following successful restitutions. The secrecy and the commercial aspect of the field influence the manner in which research is conducted and oriented. Consequently, the research community is now defending the concept of independent provenance research that would not be bound by legal, commercial, and political pressures.

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