Alternative Dispute Resolution in Restitution Claims ...

Chapter 3

Alternative Dispute Resolution in Restitution Claims and the Binding Expert Opinion Procedure of the Dutch Restitutions Committee Evelien Campfens

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 E. Campfens (*) Restitutions Committee, The Hague, The Netherlands e-mail: [email protected] V. Vadi and H.E.G.S. Schneider (eds.), Art, Cultural Heritage and the Market, DOI 10.1007/978-3-642-45094-5_3, © Springer-Verlag Berlin Heidelberg 2014

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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.

3.1

Introduction

Let us make clear that we are not demanding that all things should be done just as we want them, but to develop mechanisms that allow our voice to be heard, listened to, and, as much as possible, taken into account in the Younger Brother’s perspectives of the future. Ramo`n Gil, spokesman for the Gonivindua Tairona people1

How is it possible to give voice to past injustices and, at the same time, reconcile the interests of owners of cultural objects that were lost during times of historical injustice with the interests of present possessors? How can parties settle disputes arising from Holocaust related art claims or claims on colonial collections, on indigenous artefacts or even human remains? As such claims become more common, museums and the art world in general are increasingly confronted with this question. Taking account of the symbolic, emotional and historic aspects of these kinds of disputes, should parties choose to litigate, mediate, negotiate, or try to find a solution through diplomatic channels or the press? The answer depends, first of all, on the identity of the parties. If governments take an interest, solutions will be sought through diplomatic channels. Political arguments may then decide the outcome. But in many cases non-governmental entities or private parties have an interest. At the non-governmental level, dispute resolution is, traditionally, a matter of private law. Since ethical standards are changing faster than the law in this field, however, alternatives to traditional litigation may offer better options for addressing restitution claims. In fact, alternative dispute resolution frequently offers the only means of examining these cases on their merits. In this regard, the first part of this chapter refers to: (1) the complex legal landscape that affords few grounds for claims based on misappropriation in times of historical injustice (Sect. 3.2.1); (2) the emergence of moral norms in ethical codes and instruments of soft law that support restitution claims, thereby raising the

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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.

3 Alternative Dispute Resolution in Restitution Claims and the Binding. . .

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expectations of former owners and the wider public (Sect. 3.2.2); and as a consequence (3) the emergence of ‘grey categories’ of tainted works of art, the existence of which has in turn created a practical need for alternative mechanisms to deal with restitution claims (Sect. 3.2.3). In Sect. 3.2.4 some alternative procedures for dispute resolution in the field will be considered. Holocaust-related art claims form a clear example of a ‘grey category’ of restitution claims. An attempt will be made in Sect 3.2 of this chapter to place this category in the wider field of (historical) restitution claims. As many years will have passed since the object in question was lost, under most legal systems claims regarding Nazi-looted art have little realistic chance of success in the courts. Notwithstanding the lack of a legal basis in positive law, moral norms and soft law have resulted in developments which have seen the claims of owners who lost possession during the Nazi-era coming to be widely recognised. It is within this environment that alternative procedures for dispute resolution have developed. Apart from institutionalised alternative procedures, claims are often settled through negotiations, with or without the help of external facilitators. As an example of an institutionalised mechanism for alternative dispute resolution in the field of restitution claims, in Sect. 3.3 of this chapter, the binding expert opinion procedure developed by the Dutch Restitutions Committee for Holocaust related art claims in the public and private sector will be examined. To this end also the background and the two tasks of the Restitutions Committee will be discussed (Sect. 3.3.1). The first task regards claims on artefacts in the possession of the Dutch State (Sect. 3.3.2) while the second regards claims on artefacts in other (private or public) collections (Sect. 3.3.3). The binding opinion procedure falls within the scope of this second task. This particular mechanism for alternative dispute resolution offers parties, on a voluntary basis, the possibility of having their case reviewed by neutral experts in a non-adversarial and transparent manner. By including an active research phase in the procedure, during which the facts and backgrounds of the loss are assessed, it places special emphasis on the narrative element of procedural justice: the recognition of an individualised history of injustice. In restitution cases concerning historic injustices this is, in my opinion, an important objective that should not be overlooked.

3.2

Dispute Resolution and Restitution Claims

The legal concept of restitution (restitutio in integrum) aims to restore the previous state of affairs, and parallels the universally recognised legal standard which prohibits the looting or theft of cultural property, whether during times of peace or conflict.2

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Kowalski (2004), p. 50.

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To presuppose the illegality of the taking of the cultural object is, in the type of restitution claims currently under discussion, too simplistic a view. The kind of restitution claims this chapter takes into account originate from periods of historic injustice such as the Holocaust, colonialism or the suppression of (indigenous) peoples. These are contentious removals, where the core of the problem is often a changing idea about justice and legality. In some cases, the original taking of the art object can indeed be categorised as illegal, but in other cases it was in line with the law at the time. One can think of a forced sale by a Jewish owner during the Naziregime, colonial takings or the confiscation of Indian religious objects by missionaries. So, although the concept of illegality of the original taking should be a precondition for the use of the term ‘restitution’, it could be counterproductive to use that concept too strictly. The terms ‘return’ or ‘repatriation’ are usually reserved for cases where the illegality of the original taking is unclear or where the claim has a territorial link.3 After this initial discussion of the obstacles to adopting a formalistic legal approach to historical restitution claims, there follows an overview of that (complex) legal landscape. This is necessary as a background, even if the relevant legal norms cannot be applied directly and alternative procedures are therefore to be preferred.

3.2.1

A Complex Legal Landscape

The settlement of disputes about the restitution of cultural property is, traditionally, a matter for the private law of the specific country. That law may, or may not, be influenced by international conventions in the area. As to the development of international law norms in this area, one can refer to Hugo Grotius’s thoughts on the subject of looting,4 to early provisions for the return of looted private property in treaties like the 1648 Treaty of Westphalia,5 and to codification of the legal protection of cultural property in times of armed conflict in the 1907 Hague Convention concerning the Laws and Customs of War on Land.6 Since to do more than just mention these would exceed the limits of this chapter, they are

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Cornu and Renold (2010), p. 2, Kowalski (2004), p. 50. 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 Peace Treaty between the Holy Roman Emperor and the King of France and their Allies after the 30 Years’ War, signed at Mu¨nster in 1648, Article XXIV. See Kowalski (2004), p. 35 and Prott (2009), p. 2. 6 Convention concerning the Laws and Custom of War on land, Convention IV, The Hague, 18 Oct., 1907. See Kowalski (2004), p. 37 and Siehr (2011), p. 178. 4


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referred to here simply as a reminder that restitution of cultural property is not just a contemporary concern. Some important international instruments that came into existence after the outbreak of the Second World War and which deal with the subject are: (1) The 1943 Inter-Allied Declaration against acts of dispossession committed in Territories Under Enemy Occupation or Control; (2) the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; (3) the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property; and (4) the 1995 UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects. 1. The 1943 Inter-Allied Declaration against acts of dispossession committed in Territories under Enemy Occupation or Control7 was a formal warning and announcement by the Allies that looting in occupied territories during World War II, including the ‘stealing and forced purchase of works of art’, would be reversed.8 This warning was also directed at third parties, alerting possessors to the fact that acquisitions, even ‘apparently legal in form, and even when purporting to be voluntarily effected’, could be annulled. Although in itself not a convention, the Declaration was confirmed in post-war conventions and formed the legal basis for post-war national restitution laws which were implemented in various countries, even in neutral countries like Switzerland, Sweden and Portugal where objects came on the market.9 An important feature of the Declaration—or, more correctly, of the post-war implementation laws based on the Declaration—is the notion that restitution should be effected notwithstanding a subsequent good faith acquisition. For instance, Law number 59, adopted by the United States for the American zone in post-war Germany, stated: ‘Property shall be restored to its former owner [. . .] even though the interest of other persons who had no knowledge of the wrongful taking must be subordinated.’10 Some implementation laws specifically provided that the good-faith possessor could have recourse against earlier malafide sellers.11 Another important feature of the Declaration was the notion that

7 The London Declaration of 5 January 1943 in. Tractatenblad van het Koninkrijk der Nederlanden, 1951 No. 39. On the Declaration see e.g. Palmer (2000) and Prott (2008). 8 Text in Declaration and the ‘Note on meaning, scope and application’, sub 4. 9 The principle was confirmed in the Final Act of the Bretton Woods Conference of 1944 and in the Final Act of the Paris Conference on Reparations of 1945. Kowalski (2004), p. 40 and footnotes 29–30. See also Prott (2008), pp. 177–184. 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

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restitution was not only possible where there was loss through clear confiscation but also where there were transactions which appeared to be legal. Law number 59 mentions, in this regard, any transaction ‘contra bono mores, threats or duress, or an unlawful taking or any other tort’.12 Today, most post-war restitution laws implementing the principles of the Allied Declaration have ceased to have any direct meaning as a result of the lapse of time and the relatively short prescription periods which were implemented at a national level.13 However, the underlying principles and legal solutions for the restitution of cultural property after an occupation in general, and in the field of Nazi-looted art cases in particular, remain important.14 2. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO 1954) was adopted in the wake of the massive destruction of cultural heritage during the Second World War and is the first international treaty focussing exclusively on the protection of cultural heritage in the event of armed conflict.15 It concerns both immovable and movable cultural heritage that is of ‘great importance’, irrespective of its origin or ownership.16 To this effect, State Parties ‘undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.’17 This Convention was adopted (together with a Protocol) in order to prevent the export of cultural property from occupied territories and to arrange for the return of such property to the territory of the state from which it had been removed. The Protocol deals with the obligations and rights of states regarding the restitution of cultural objects that were taken from occupied territory. The norm is that a state should take into custody any cultural property imported into its territory and return it, at the close of

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 Authors that stress this importance are Kowalski (2004), p. 42 and Prott (2004), p. 123. And note that the UK Spoliation Advisory Panel regularly refers to the declaration in cases. 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.


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hostilities, to the competent authorities of the territory from which it came. The occupying State is obliged to pay an indemnity to the holders in good faith of any cultural property that has to be returned.18 The destruction of cultural property during the conflicts that took place at the end of the 1980s and the beginning of the 1990s resulted in the adoption of a Second Protocol in March 1999.19 This further elaborates on the provisions relating to safeguarding cultural property and the conduct of hostilities and also specifies the sanctions to be imposed for serious violations. 3. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (UNESCO 1970) set down a global norm for the prohibition on trading in stolen or illegally exported cultural property.20 The conventional norm aims at illicit trade in times of peace—export or excavations against national regulations—as well as in times of war, defining as illicit the ‘transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power’.21 It introduced a system for the restitution of misappropriated artefacts when claimed. According to Article 7(b)(ii) of the Convention, ‘States Parties undertake, at the request of the State Party ‘of origin’, to take steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.’ This Convention is now widely accepted.22 4. The 1995 UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects (UNIDROIT Convention) aims to put into effect the restitution principles of UNESCO 1970 by harmonising the private laws of the member states in the field of the restitution of stolen or illegally exported cultural objects.23 Where UNESCO 1970 aims to prevent illicit traffic (for example by setting standards for national services, export licenses and so forth) as well as setting some general norms for restitution, the UNIDROIT Convention focusses solely on the

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Section I: 2, 3 and 4 of the Protocol to the UNESCO Convention1954. 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. 19

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recovery phase and allows restitution claims by private as well as governmental claimants to be processed directly through national courts. The norm is restitution after illicit export or theft, with the possibility of compensation for the good faith possessor.24 The UNIDROIT Convention covers all stolen cultural objects, not just those that have been inventoried and declared. It also sets standards for limitation periods25 and due diligence.26 If the standards of due diligence are met by the current good faith possessor, he or she (or the institution) is entitled to receive payment of fair and reasonable compensation.27 To summarise, in broad terms, the international norm that can be distilled from these international conventions is that the wrongful removal of cultural property is prohibited, both during war and in times of peace, as well as the trade in art objects which have been illegally exported. Stolen or illegally exported works of art should be returned to the original owner, possibly in exchange for payment of fair and reasonable compensation to a good faith acquirer. Private law aspects are dealt with in the UNIDROIT Convention and national implementation laws. These follow the principles set down in the conventions, for example that good faith cannot be assumed but depends on the proven due diligence of the buyer before the acquisition. Public collections, indigenous artefacts and objects taken in times of armed conflict seem to have the strongest position.28 These norms, however important as a guide for future conduct in the art world, only apply directly to restitution claims where countries have ratified or acceded to and subsequently implemented these conventions so as to incorporate them into their national law. Generally speaking, laws do not work retroactively and therefore these norms cannot be used as the legal basis for claims for restitution of cultural property that was misappropriated before the time of implementation.29 Many 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.


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Western nations acceded only recently to the 1970 UNESCO Convention. Both UNESCO conventions (in the case of the 1954 Convention, the Protocol) were, for example, implemented in the Netherlands only a few years ago, namely in 200730 and 2009.31 Given the preference in these instruments for restitution of the misappropriated object to the original owner (or the original state), rather than for the legal validity of a bona fide acquisition, along with limitation periods that are much longer than usual, for civil law countries like the Netherlands this means a major change (an improvement) in the position of the former owner.32 As far as Holocaust related art claims are concerned, the possibilities of filing a claim on the basis of the Dutch post-war restitution law ended in July 1951.33 In conclusion, a number of international law instruments provide clear norms as a basis for legal action to redress present and future misappropriations of cultural property and these norms may soon form part of binding international law. However, given the need for implementation of these norms at the national level, the non-retroactivity (in general) of legal norms, the validity of the good faith acquisition in civil law countries, the limitation periods and other possible ‘technical defences’, it is clear that the legal possibilities for bringing restitution claims regarding losses incurred in the past are very limited, if available at all. In as far as Holocaust related claims are concerned, restitution laws adopted in the post-war era in Western countries have often lost their original meaning owing to short limitation periods. In addition, the cross border nature of restitution claims and the resulting conflicts between national laws make litigation very complicated and the outcome uncertain.34 Although in some countries litigation—most notably when it concerns Holocaust related art or indigenous artefacts—does offer claimants some

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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 See Palmer (2004), and as to the labyrith like situation also Prowda (2014) contribution in this volume.

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chances,35 it is an understatement to say that litigating in this field is a major challenge and not very promising for claimants.

3.2.2

Ethical Norms and Soft Law

Ethical standards and soft law have developed rapidly in the area of (historical) restitution claims over the past half-century. Some of these instruments, which may lack the force of binding rules of law but are not without legal importance, will be touched upon hereunder. This overview intends merely to highlight some developments and does not aim at completeness. I will start with more general norms in the area and conclude with the category of Nazi-looted art, a category that has been given a special status over the last decades.

3.2.2.1

The Post-1970 Norm

1970 marked a turning point for restitution claims regarding stolen or illegally exported cultural property. With the adoption of the 1970 UNESCO Convention global awareness about unethical trading and illicit exports was raised, for example by the publication of ‘red flagged’ lists of categories of illegally exported artefacts. This resulted in what could be called a general ethical rule that has operated in the art world ever since, namely that works of art unprovenanced after 1970 should not be bought or traded. This rule can be seen very clearly for example in the 2008 Guidelines on the acquisition of archaeological material and ancient art, adopted by the (American) Association of Art Museum Directors36: ‘Museums should not acquire a work unless provenance research substantiates that the work was outside its country of probable modern discovery before 1970 or was legally exported from its probable country of modern discovery after 1970’.37 The equivalent of this rule adopted by the International Council of Museums Code (the ICOM Code) states: ‘Every effort must be made before acquisition to ensure that any object [..] has not 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.


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been illegally obtained, in, or exported from, its country of origin [..]. Due diligence in this regard should establish the full history of the item since discovery or production’.38 Although there is no specific reference to the year 1970, the ICOM Code of Ethics has, in general terms, elevated the UNESCO (and UNIDROIT) conventions to the status of the minimum accepted standards of behaviour, irrespective of whether they have been implemented (or the form in which they have been implemented) in national law.39 That sometimes more than compliance with legal obligations is needed is clear from the explanation of a ‘valid title’: ‘No object or specimen should be acquired by purchase, gift, loan, bequest, or exchange unless the acquiring museum is satisfied that a valid title is held. Evidence of lawful ownership in a country is not necessarily valid title’.40 Apart from evidence of lawful ownership upon acquisition of an artefact a due diligence search is needed in the following way41: Every effort must be made before acquisition to ensure that any object [..] has not been illegally obtained in, or exported from its country of origin or any country in which it might have been owned legally (including the museum’s own country). Due diligence in this regard should establish the full history of the item since discovery or production.42

It is interesting to note that in at least two court decisions, the first in Germany in 1972 and the second in Switzerland in 1997, the 1970 rule was applied and upheld as ‘emerging public policy’, notwithstanding the fact that neither of the states concerned were party to the 1970 UNESCO Convention at the time.43

3.2.2.2

Pre-1970 Contentious Takings

The history of the UNESCO 1970 Convention can be viewed in the light of competing interests between ‘source’ countries, often newly independent states, and the traditional ‘importing’ countries, amongst which are the former colonial powers. The latter include both trading countries and collecting countries. As Lyndel Prott explains, the newly independent nations, apart from their concern at the continuing loss of their cultural heritage, wanted to see the same restitution standards as have been applied in the inter-state relations of the Western powers

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ICOM Code Article 2.3. More on the Ethical Code hereafter in Sect. 3.2.2.3. 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. 39

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after the Second World War used in their own situation.44 In that sense, many countries wanted to recover items seen as important to their cultural heritage that were in the possession of Western museums. An illustration of this is a Chinese proposal to include the following provision: ‘Any State party which, (. . .), is in possession of important cultural property, illicitly acquired, inalienable to, and inseparable from, the history and civilization of another State, shall, in the interest of international goodwill, endeavour to restore such property to that State’.45 This would have entailed the retroactivity of the 1970 norm. Many countries objected to such an idea and the 1970 Convention, as it is now, applies only to claims for the return of cultural objects taken after the convention came into force. As Prott concludes: ‘Thus title to cultural property taken from colonies and recognised at that date by the domestic law of the holding States (and by that version of international law which they had insisted upon in the preceding centuries), was challenged, but the 1970 Convention did not decide on this issue.’46 Notwithstanding the non-retroactivity of the conventional norm, UNESCO has been the driving force in the promotion of the inter-state return of cultural heritage, including pre-1970 takings, to the country of origin. In this spirit, in 1978 the Director-General of UNESCO launched A plea for the Return of an Irreplaceable Cultural Heritage to those who created it.47 In this plea, UNESCO called upon States to conclude bilateral agreements for the return of cultural property to the countries from which it had been taken, and to promote long-term loans, deposits, sales and donations between the institutions concerned, in order to encourage a ‘fairer international exchange of cultural property’. Also under the aegis of UNESCO, an Intergovernmental Committee was established in 1978.48 Its objective was to ‘seek ways and means of facilitating bilateral negotiations for the restitution or return of cultural property to its countries of origin’. The Committee’s primary function has been to engender an atmosphere that is favourable to returns, and to raising awareness of the issues.49 These appeals and initiatives by UNESCO raised expectations. Those restitutions that have taken place in the pre-1970 field, mostly through bilateral agreements and several with the help of the UNESCO Intergovermental Committee, point to some kind of morally felt obligation. However, the returns that have taken place in this field seem to have been decided very much on an ad hoc basis, and underlying political motives seem to have been decisive instead of a clear moral norm. An example is the restitution of Korean royal Manuscripts, taken in 1866 during punitive action by a French official, and returned as part of a trade agreement

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Prott (2008), p. 185 and further. 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). 45


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at the beginning of 2011 by the French government.50 In the Netherlands, meanwhile, an example of a return of colonial objects is the so-called Lombok Treasure, concerning thousands of golden artefacts from the Indonesian island of Lombok, taken during punitive action by the Dutch army in 1894 and restituted eventually (in part) in 1978 on the occasion of the 200th birthday of the National Museum of Indonesia (Museum Nasional) in Jakarta, at a time when efforts were being made to improve bilateral relations.51 Other examples of items from the pre-1970 field returned range from spoils of war and objects taken during colonial rule, to antiquities taken in the course of excavation. The return by Germany in July 2011 of the Bog˘azkoÿ Sphinx—an item excavated at the beginning of the twentieth century at the Turkish archaeological site of Bog˘azkoÿ, and located in Germany since 1917—also falls into this last category. There are the many other famous unsolved cases in this category where title is still being challenged, like the Parthenon Marbles or the Benin Bronzes. The plea by 18 major Western Museums in a 2002 Declaration ‘On the Importance and Value of the Idea of the Universal Museum’ did not put an end to these challenges or to the ongoing discussions on this point.52

3.2.2.3

The ICOM Code of Ethics for Museums

The ICOM Code of Ethics for Museums is an important non-legally binding instrument prepared by the International Council for Museums (ICOM).53 It is of direct importance for members of the ICOM, and indirectly because national museum associations have often implemented the code in national instruments.54 Since 1986 the ICOM Ethical Code has been mandatory for its members and has set minimum standards of professional practice and performance for museums and their staff.55 Of specific importance in this regard are the following articles:

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’.

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E. Campfens (6.2) Return of Cultural Property Museums should be prepared to initiate dialogues for the return of cultural property to a country or people of origin. This should be undertaken in an impartial manner, based on scientific, professional and humanitarian principles as well as applicable local, national and international legislation, in preference to action at a governmental or political level. (6.3) Restitution of Cultural Property When a country or people of origin seeks the restitution of an object or specimen that can be demonstrated to have been exported or otherwise transferred in violation of the principles of international and national conventions, and shown to be part of that country’s or people’s cultural or national heritage, the museum concerned should, if legally free to do so, take prompt and responsible steps to co-operate in its return.

If one takes the ICOM Code as a reflection of museum morality, one can state that the conventional principles on the restitution of illegally exported or stolen artefacts in the museum world have been elevated as the standard. This means that post-1970 illegally exported or stolen artefacts should be restituted upon request even if UNESCO and the other relevant conventions have not been implemented in the laws of the specific country (the UNESCO 1970 norm). This obligation to return should also include objects taken from territories involved in armed conflict (the UNESCO 1954 norm). This norm is much clearer (‘return’) than the norm in the Code for other contentious (viz pre-1970) takings, as these would fall under the weaker guideline of Article 6.2 of the Code. However, according to Article 6.2 of the ICOM Code museums are also expected to ‘initiate dialogues’.56

3.2.2.4

Human Remains and the Cultural Property of Indigenous Peoples

Human remains and materials of emotional and spiritual value to a group of people enjoy a special status and recognition under cultural property law.57 In the area of human remains and indigenous artefacts the (non-binding) UN Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 was an important milestone.58 According to this Declaration, individual States must do everything within their power to return the cultural property of indigenous peoples which has been taken from them without their permission and repatriate ceremonial objects and human remains. States must do so ‘through fair, transparent and effective mechanisms developed in conjunction with the indigenous peoples concerned’.59 The importance of this declaration may be inferred from the number of signatory States, its 56

Article 6.2 of the ICOM Code. See for instance Siehr (2011), p. 184, and for human remains Lubina (2009). 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. 57


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form (being a declaration of the General Assembly of the United Nations) and the number of years of negotiations which led up to it. Both in the area of indigenous artefacts and human remains, specific provisions in various codes of ethics often apply (for example: ICOM Code article 3.7). In countries such as the United States, Australia and the United Kingdom there are special laws providing for the possibility of the return of human remains and indigenous artefacts from public collections.60

3.2.2.5

Soft Law Norms for Holocaust Related Claims

Nowadays, everyone seems to share the conviction that claims for the restitution of Nazi-looted art should be treated seriously. Such claims represent a clearly identifiable category of restitution claims. However, this has not always been the case. Such a belief became common ground only in the 1990s after the methods used by the Nazi regime and the scale of its looting became widely known, and after it was realised that thousands of those works of art were still in national collections as ‘heirless’ art—often without the justification of a proper search in the post-war era for the original owners from whom the art had been taken. Publications by historians and others played a key role in this process.61 The Washington Principles of 1998, adopted at an international conference by 44 governments, stated that claims should be dealt with in a ‘just and fair’ way, and this was echoed in a resolution adopted by the Parliamentary Assembly of the Council of Europe.62 The relevant phrase in the Washington principles states: ‘If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case’.63 This non-binding principle has been reinforced since then in other inter-governmental declarations—namely Vilnius and Terezin—and numerous ethical codes.64 UNESCO had been working since 2003 on a declaration on the return of Holocaust related art, building further on the principle of inter-state restitution. However, a 2009 draft declaration—based on the principle of inter-state restitution—was not accepted, leaving further regulation to be dealt with at a

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 See e.g. Nicholas (1994), Petropoulos (1996) and Feliciano (1998). 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; Terezıń Declaration, 30 June 2009, adopted at a conference on Holocaust Era Assets in Prague.

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bilateral, national or non-governmental level.65 Dispute resolution in this field seems to have developed mostly at the national and non-governmental level. As to the requirement of ‘just and fair’, it is not very clear from the various declarations exactly what is meant by this norm. It seems that the focus is on restitution, with regard had to the specific circumstances of the case and interests involved. Some interpret the norm as meaning that Nazi-looted art should always be returned at once to its former owner, without further regard to the position of the present holder or possessor, while others interpret it as meaning that the current good faith (private) possessor cannot be held accountable and therefore that claims should be settled through compensation by the original aggressor.66 One author summarises the norm as follows: ‘cultural goods which have been expropriated as a result of persecution must be unconditionally returned to the victims or their descendants, if need be in return for the reimbursement of whatever sums bona fide purchasers may have spent on the acquisition and the upkeep of these objects’.67 This last interpretation would be in line with the international conventional norm as adopted in the UNESCO and UNIDROIT conventions.68 The question of the treatment of the good faith possessor however is not always simple. Who should bear the burden of possible compensation for the good faith possessor? Should it be the claimant (UNIDROIT 1995 and UNESCO 1970 norms), States (whether a former occupying state—as in UNESCO 1954s Protocol—or the National State), or rather should the burden be shared where the good faith possessor has recourse ‘upstream’ against an earlier—maybe mala fide—seller, as has been suggested by some?69 Another aspect is double compensation, something that should be avoided according to some.70 In this sense, sale proceeds and post-war compensation received by dispossessed owners could be taken into account in finding a solution.71 That the norm relates to more than just works of art confiscated by the Nazi’s— ‘confiscation’ being the terminology in the Washington Principles—and extends to forced sales, seems common ground. This had already been accepted in the

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.


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post-war regulations and Allied Declaration.72 What exactly is meant by ‘Nazilooted art’, however, is not always clear. Similarly, on the basis of the number of settlements in the private sector, one can furthermore conclude that the norm does not exclusively apply to public collections. The confidentiality of private settlements, however, makes it difficult to judge how the norm is applied and on what basis private parties have reached a settlement. A comparative study by the Art Law Centre in Geneva into the methods used and results achieved in the field of Nazi-looted art dispute settlement shows that, to date, there has been both a wide variety of devices and a solid element of pragmatism in the solutions adopted.73 However it does not (yet) yield much insight into the criteria used. An intermediate conclusion in the field of dispute resolution regarding Holocaust related art claims can be that there is little common ground for substantive justice in this area. Therefore, the demands of procedural justice and the necessary elements of due process deserve attention.74

3.2.3

Grey Areas?

The absence—or at times overload75—of binding positive law dealing with restitution claims, on the one hand, and the emergence of soft law norms in the area of restitution and return, on the other, seem to have led to the emergence of certain grey areas. By grey areas I mean categories of objects that may be in the possession of individuals or institutions with a perfectly valid legal title, but which are nevertheless tainted by the existence of some moral right operating in favour of the former owners. These works are susceptible to restitution claims and claimants (individuals, groups or nation states) will have legitimate expectations that are based, not on any individual idea of morality, but rather on ethical codes and other soft law norms, supported by examples of previous restitutions. If nothing else, this means that certain works of art cannot be easily traded or shared by museums as international loans.76 This can be problematic in regard to the policy of

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 In this sense Weller (2012), and Veraart (2012). 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

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cultural mobility.77 It seems also logical to see this category of tainted objects as one reason behind the growing need for immunity from seizure legislation worldwide. What categories should count as ‘grey’—i.e. claims that fall outside the scope of binding legal norms of positive law but fall within the scope of moral norms— depends on the law in individual countries. Whether a contentious taking falls outside the scope of the norm as implemented at national level differs from country to country and requires legal analysis. The question of whether there is a generally felt moral obligation is of a more subjective nature and is certainly open to debate. Grey categories may include: (1) Holocaust related art; (2) post-1970 illegally exported or stolen cultural heritage, in as far the relevant conventions are not part of the national positive law (for example because they were only implemented much later or not at all (see above under (1))); (3) Claims regarding human remains; and (4) Claims regarding cultural objects taken from indigenous peoples without their permission. It is difficult, on the basis of this preliminary research, to discern a clear and generally felt norm regarding pre-1970 contentious takings. In fact, this category may be too wide. Of course, persistent claims regarding pre-1970 takings from countries like Turkey or China (or other countries that have become, over time, politically more powerful) might well change any present balance. This listing by no means implies that objects within one of these categories should always and immediately be restituted to the original owners. In fact, it might be that in this whole discussion the traditional approach of ownership disputes as a choice between the title of the original owner and the title of the present owner, is losing ground to more creative solutions like shared ownership or other cooperative solutions.78 In this regard, a concept like ‘stewardship’—as opposed to absolute ownership rights regarding cultural property—may have significant potential.79 The existence of a grey category does however point to a need, if only from a

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.


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practical point of view, for a proactive approach and mechanisms for dispute resolution. If amicable bilateral negotiations fail, then alternative dispute resolution is an option to achieve settlement.

3.2.4

Alternative Dispute Resolution

Many authors have argued that, for many reasons, (voluntary) alternative dispute resolution mechanisms are to be preferred to normal litigation in cultural property claims in general, and by now this idea seems well established.80 Organisations such as UNESCO and ICOM also seem to favour using alternative procedures in disputes regarding claims for the return or restitution of cultural property. See, in this respect, a 2006 declaration by the Director General of ICOM: Since at least its 1983 (London) General Conference, it has been the policy of ICOM to encourage the amicable resolution of disputes regarding the ownership of objects in museum collections that allegedly were stolen or illegally exported from the country of origin, settling such disputes where possible through voluntary settlement procedures rather than through lengthy and expensive litigation (or through political deals between governments with little or no museum involvement).81

But what voluntary procedures are available to the parties? The traditional available options include arbitration, mediation and negotiated settlements, intergovernmental good offices, and government advisory panels. A new form, as will be introduced in Sect. 3.3, could be the Binding Expert Opinion procedure. – Arbitration The 1995 UNIDROIT Convention contains the provision ‘The parties may agree to submit the dispute to any court or other competent authority or to arbitration’ (Article 8.2). Subsequently, in 2003, during the seventh International Law Seminar organised by the Permanent Court of Arbitration, the idea of creating special arbitral regimes equipped with unique substantive and procedural rules capable of handling cultural property claims was launched.82 However, from comparative research, it appears that arbitration plays a surprisingly modest role in restitution claims.83 The adversarial and formal nature of the process could be mentioned as a reason. – Mediation and Negotiated Settlements Mediation is a method that seems to be preferred in cultural property disputes and is continuing to gain popularity. As a sign of this development, one can point

80 See e.g. Palmer (2000), pp. 105–109, Palmer (2004), Pell (2004), Hoffman (2006), p. 464, Cornu and Renold (2010), p. 17, Kaye (2012), p.3, Palmer (2012), p. 81. 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 Resolution of Cultural Property Disputes, organised in 2003 by the PCA in The Hague. See Van den Hout (2004) and Pell (2004), p. 309. 83 Renold (2012), p. 289.

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to two recent mediation mechanisms set up by ICOM and UNESCO. In 2011 ICOM, in cooperation with the World Intellectual Property Organization (WIPO), established a mediation programme for the museum sector. This was done, after positive experience in a restitution case regarding a Makonde Mask, stolen from a museum in Tanzania and acquired in 1985 by a Swiss museum. This was long before Switzerland acceded to the UNESCO Conventions. The ICOM mediation is administered by ICOM–WIPO in Geneva, and is meant both for ICOM-members as well as non-members.84 In 2005, UNESCO’s Inter-governmental Committee (from the outset a forum for discussion at the political level about restitution claims for the repatriation of cultural heritage to source countries) amended its statutes to facilitate mediation or conciliation. This seems to be an extension of its existing involvement in disputes, and offers the possibility of some confidentiality as opposed to the public character of the proceedings before the Committee itself.85 This mechanism focusses on resolving restitution disputes by an inter-governmental approach.86 The voluntary nature of mediation, its confidentiality, as well as the leading role taken by the parties, offer many advantages. This is particularly the case if the outcome can achieve some form of future co-operation about objects between museums and original owners where building a future relationship during the mediation could prove very useful. On the other hand, one could say that confidentiality is of little help if the objective is some publiclyaccessible clarification of vague norms and the development of a prescriptive precedent, although this cannot of course be expected to be the main interest of the particular parties involved in a conflict. One can question, however, the leading principles. What is the status of moral norms in these procedures, given that the sole guiding principle in traditional mediation is the interest of the parties concerned?87 The fact that parties opt, in what might be an unequal balance of power, for a specific solution, is not necessarily a guarantee of a fair or just solution. This last remark seems even more valid in situations where there is no neutral third party at all involved—or available—and settlements remain confidential. Negotiated settlements are very common in the area of Nazi-looted art claims in the private sector, with or without the help of commercial organisations such as specialised law firms, auction houses or the Art Loss Register. When parties cannot rely on terms of reference or rules of due process to guarantee that an unequal balance of power between the parties will be adjusted

84 ICOM–WIPO Art and Cultural Heritage Mediation Program. Slimani and Theurich (2012), pp. 51–64 and Urbinati (2014). 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.


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if the atmosphere turns unpleasant, negotiated settlements—however useful in amicable situations—could also be a source of unjust solutions. – Intergovernmental Good Offices (UNESCO) In 1978 the UNESCO Intergovernmental Committee for the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation was set up to discuss claims and render good offices to governments in cases that fall outside the ambit of the UNESCO Convention. A request for return or restitution can be made for cultural objects with a ‘fundamental significance’ for the particular State and that have been lost because of an illicit appropriation. Before bringing a case to the Intergovernmental Committee, the requesting State must have initiated bilateral negotiations with the State in which the requested object is located. Only when such negotiations have failed or are suspended can the case be brought before the Committee. The Committee has, to date, been involved in (the relatively small number of) nine cases for the return of cultural property.88 So far, it has not played a role in Holocaust related cases, which is not surprising given the non-intergovernmental character of those cases and the direct bilateral approach concerning inter-state claims.89 The Committee’s main role has established its function in raising awareness of the issues of illicit trafficking of cultural heritage from countries of origin and creating an atmosphere favourable to those kinds of restitution cases.90 As mentioned above, the Committee recently amended its statutes to allow for mediation. – Government Advisory Panels in Holocaust Related Claims The Washington Principles (no. XI), as well as the Vilnius and Terezin declarations, propose alternative dispute resolution mechanisms as an instrument for resolving ownership issues. Around the year 2000 several European States established advisory panels to advise on claims regarding Nazi-looted art, such as the British Spoliation Advisory Panel, the French Commission for the Compensation of Victims of Spoliation (CIVS), the Austrian Beirat der Kommission f€ ur Provenienzforschung, the Beratende Kommission in Germany and the Restitutions Committee in the Netherlands.91 With the exception of the Spoliation Panel, their origin can be linked to the existence of so-called ‘heirless’ art collections, leftovers, one could say, of the Holocaust looting and loose ends of the post-war restitution efforts. In these countries, measures were

88

On April 2013, see: http://portal.unesco.org/culture/en. 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. 89

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adopted to make it easier for owners who had lost possession to come forward with claims to works of art in these collections, and normal limitation periods were often disregarded. It should be added that the specific responsibility that states had for ‘heirless’ art collections was based, in large part, on a less than perfect restitution effort carried out directly after the Second World War. The reversal of looting that had been carried out on an individual basis was not a post-war priority for many European governments, as they were focussed on restoring the collective legal order. This is certainly true of the situation in the Netherlands.92 In the United States, discussions about whether an Art Commission should be established still seem to be on-going.93 Government panels deal mostly with art found in collections under the direct authority of the national governments. The Dutch Restitutions Committee can also be asked to act as a binding expert advisor—or as a mediator—where private or other institutional parties are involved. More details of this aspect will be given in Sect. 3.3 of this chapter. – Conclusion on Alternatives to Litigation The results of the comparative research into dispute resolution mechanisms in the field of cultural property in 2012 show a diversity of methods.94 It seems fair to conclude that, although a formalistic legal approach might not result in a satisfactory or just solution, legal principles will nevertheless be important, if only by way of analogy, for the achievement of just solutions in restitution matters.95 Leaving the application of vague norms solely to the persuasive power or commercial interests of individual parties might also lead to obvious injustice. Wherever norms are as vague as they are in this area, the role of law should be at least to provide for procedures that offer due process.96 Settling restitution disputes at an intergovernmental level seems to lead to a situation where resolutions depend on political motives. Another objection to the intergovernmental approach of restitution matters may be that groups of people (communities) or individuals who are most closely connected with the cultural objects might be alienated by a nationalistic approach.97

92 O’Donnell (2011), p. 49. For the Netherlands, see Muller and Schretlen (2002) and Veraart (2005). 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).


3.3

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Binding Expert Opinion Procedure of the Dutch Restitutions Committee98

The so-called binding expert opinion procedure introduced by the Dutch Restitutions Committee for resolution of claims regarding Nazi-looted art takes up the middle ground between mediation and arbitration. It is a voluntary procedure. If parties agree to the procedure, any opinion given is binding on the parties: it constitutes a settlement agreement between the parties in accordance with Article 7:900 of the Dutch Civil Code. The opinion must be based on the principles of ‘reasonableness and fairness’. Probably the most important distinguishing feature of the procedure as it has been implemented is the active role which the committee takes upon itself in carrying out any necessary research. What will follow below is, first, a general background on the committee and its tasks and, second, an explanation of the binding opinion procedure.

3.3.1

Background: Two Tasks

The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, the official name of the ‘Restitutions Committee’, was established by the Dutch government by a Decree dated 16 November 2001.99 The committee and its research team consist of lawyers, historians and art-historians. In the Establishing Decree the Committee’s task is described as: 1. To advise the Minister on decisions to be taken concerning claims for the restitution of artefacts of which the original owners involuntarily lost possession owing to circumstances directly related to the Nazi regime and which [i.e. the items] are currently in the possession of the State of the Netherlands. 2. To issue an opinion on disputes concerning the restitution of items of cultural value between the original owner who, owing to circumstances directly related to the Nazi regime, involuntarily lost possession of such an item, or the owner’s heirs, and the current possessor which is not the State of the Netherlands.

98

Part II is based on text in several Reports of the Committee, text prepared by myself and other members of the research office of the Restitutions Committee, See also Restitutions Committee (2011, 2012). 99 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.

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Today, works of art lost by their original owners as a consequence of the Nazi regime may be in public or private hands. It can be found in the collection of the Dutch State (National Art Collection), or form part of the collection of a provincial or local authority, a foundation or a private individual. Claims regarding the Dutch state collection are automatically referred for advice to the committee by the Minister of Culture. This is the Committee’s first task. Besides that, ownership issues regarding works of art in collections other than the State collection can also be referred to the committee on a voluntary basis. As of today a total of 137 cases have been referred to the Committee. The cases that the Committee deals with vary from a single piece of art, to claims involving hundreds of artworks.100

3.3.2

Dutch State Collection (NK-Collection)

To understand the recommendations of the committee regarding the so-called National Art collection (‘NK-collection’), something must be said about the history of those works of art. The existence of a large collection of art in the Netherlands, which ended up in the possession of the Dutch State after the war, is the reason the Committee was established. Most cases that have been handled until now concern art objects that are part of this so-called ‘NK-collection’, which currently contains over 3,800 works of art.101 During the Second World War, the Nazis in the Netherlands, as in other occupied territories, seized, stole or purchased art from private individuals and art galleries on a large scale. As was discussed before, in Sect. 3.2 of this chapter, as early as 1943 the Allied Forces issued the Allied Declaration, an official warning that all transactions, even in the form of ordinary sales, were illegal and would be reversed.102 After the war, many of these items were located in Germany and, on the basis of the inter-state approach to restitution set out in the Allied Declaration, were sent back to the countries the objects were taken from. National governments had to ensure that these works were returned to their rightful owners. In the Netherlands, the Netherlands Art Property Foundation (Stichting Nederlandsch Kunstbezit) was given the task of carrying out these recoveries and also the handling of restitution claims.103 During the post-war era hundreds of works of

100

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. 101 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. 102 See footnote 7 above. 103 For the post-war handling of restitution claims and its flaws, see Muller and Schretlen (2002).


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art did indeed find their way to their rightful owners, however, the chances of recovery open to the dispossessed owners were very limited—for example, because the requirements of proof could not be met. The attitude towards claimants at that time can, at best, be described as ‘cold and bureaucratic’, words used by the Dutch government in 2001.104 Looking back, the focus of the authorities in the post-war era in the Netherlands was not so much on the restoration of the rights of individual Jewish owners but much more on a restoration of society in general.105 The possibility of claiming ownership under the post-war restoration of rights law lapsed relatively quickly, in 1951, leaving many possible claims unsettled.106 Some of the art objects that were not recovered after the war were auctioned off by the Dutch State during the 1950s. The remainder was brought together in the Netherlands Art Property Collection (NK collection), as the finest part of the Dutch State Collection. At the end of the 1990s there was renewed interest in these art treasures. Recommendations were made at an international level to opt for alternative dispute resolution outside the standard judicial process. The actions taken in the Netherlands included establishing the Restitutions Committee in 2002. At the same time, the government announced a liberal restitutions policy for claims to NK-works.107 Some elements of this policy are: (1) a reversal of the normal burden of proof so as to assume the involuntary nature of a loss of possession by a Jewish private owner during the Nazi period; (2) relaxed standards of proof for ownership; and (3) a differentiation between privately owned works of art and those that were part of the stock in trade of an art dealer. One of the most best-known NK-cases is the Goudstikker case in which the Committee advised that restitution should be made of 202 art objects from the National Art collection that had belonged to the stock of the Jewish art dealer, Jacques Goudstikker. In the same recommendation, however, the Committee denied claims for another 31 works of art.108

104

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). 105 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. 106 Royal Decree E 100. 107 Based on criteria recommended by the Ekkart Committee. For those, see: http://www. herkomstgezocht.nl/eng/rapportage/. 108 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.

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3.3.3

Other Disputes: Binding Expert Opinion

The second task described in the Establishing Decree is to rule on disputes between the heirs (or the legal successors) of the original owners of an art object and current owners other than the Dutch State. The current owners can be private individuals, foundations or provincial or municipal government institutions.109 With the attribution of this second task, the Dutch government wanted to give other parties in restitution cases the possibility to access the committee as well. To give effect to this second task, the Committee drew up regulations based on Article 4, paragraph 2 of the Establishing Decree, outlining the procedure for such cases.110 In these regulations two options are provided for the parties who turn to the Committee on a voluntarily basis. First, there is the binding expert opinion procedure and, secondly, there is mediation. In fact, in cases brought to date before the committee, no parties have yet opted for mediation. The starting point for submitting a case for a binding opinion is that the parties decide, after consultation, to call upon the Committee. An important feature is the voluntary character of the process. The parties agree beforehand that they will accept the opinion given by the Committee as binding. Having no other possibility for an assessment of the claim on its merits, parties seem to welcome this possibility in the cases dealt with by the Committee, and they voluntarily opt for the procedure. After the formalities have been taken care of, the parties are given the opportunity to explain their positions. To this end they receive questions that are important to help ascertain the facts and focus on the elements listed in Article 3 of the Regulations, cited below. The relevant information received from the parties, as well as research carried out by the committee itself during the investigation phase, is summarised and cited in a draft investigation report. This draft report is sent to both parties for comment. After the Committee has received the parties’ responses to the draft report, it decides whether further investigation, a hearing or consultation between the parties or others is desirable before issuing its opinion. Summarising, these are the central elements of the procedure: 1. The committee (research team) takes an active role in collecting information; 2. The research report prepared by the Committee is central to the procedure; and 3. The parties comment and react to this report, (non-adversarial).

In accordance with the Establishing Decree, the Committee is guided by ‘principles of reasonableness and fairness’ in delivering binding opinions.111 This is an open 109

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. 110 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). 111 Establishing Decree, Article 2 paras 4 and 5.


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norm in which the committee is free to balance the interests of former and current possessors—the latter of whom must almost invariably according to Dutch civil law be seen as the legitimate owner.112 An overview of the considerations that the Committee may take into account is given in Article 3 of the regulations: Article 3 The Committee gives its opinion on the basis of reasonableness and fairness, in regard to which the Committee may, in the course of its considerations, in any event include: a. internationally and nationally accepted principles such as the Washington Principles and the government’s policy guidelines concerning the restitution of looted art in so far as they are correspondingly applicable; b. the circumstances in which possession of the work was lost; c. the extent to which the applicant has made efforts to recover the work; d. the circumstances in which the owner acquired the work and the research that he/she did prior to acquiring it; e. the importance of the work to the applicant; f. the importance of the work to the owner; g. the interest of the general public.

As to the possible solutions or outcomes, Article 11 of the Regulations provides for all kinds of creative solutions depending on what the Committee deems fit, so the Committee is not limited to the attribution of ownership rights. In this sense, there have been several occasions when a recommendation has been made for the commemoration of a former owner who was persecuted by the Nazis by means of a plaque or exhibition.113

3.3.4

Museum Research Project and the Binding Opinion Procedure

Advising on claims regarding the Dutch state collection has been the biggest task to date for the Restitutions Committee. However, this balance seems to be shifting. It can be anticipated that the coming years will see a rise in the number of cases where parties other than the Dutch State will ask the Committee for a settlement of their dispute through means of a binding expert opinion. This is, partly, a consequence of the launch of a nationwide research project into museum acquisitions since 1933 with the aim of identifying Nazi-looted art.114 This provenance research was initiated in 2009 by the Netherlands Museums Association (NMV). The purpose of this study by the NMV is, above all, to establish the extent to which Dutch museum collections still contain objects with a problematic provenance. Apart from this, the NMV also hopes that this research will help at adopting a more critical attitude in general towards provenance research and ethical acceptability of the art in museum collections. 112

By means of prescription or limitation periods or third party good faith acquisition. See e.g. RC 3.128 and RC 3.131, http://www.restitutiecommissie.nl/bindende_adviezen.html. 114 See for more information: http://www.museumvereniging.nl/ProjectenOnderzoek/ Musealeverwervingen.aspx. Accessed 11 May 2013. 113

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The results of this research, in as far as it concerns possible problematic provenances with regard to the Nazi-period, are to be published on a special website, expected to be launched by the end of 2013. Claims to museum collections resulting from this research can be referred to the Restitutions Committee on the basis of its second task as described above. The Dutch Museum Association has advised its members to do so if they cannot reach an amicable solution with claimants.115

3.4

Concluding Remarks

Certain categories of restitution claims regarding cultural property that are legally ‘stale’ deserve consideration, notwithstanding the fact there is no solid basis in positive law. This is particularly true for restitution claims about objects that fall within certain ‘grey categories’ as explained in this chapter, where expectations have become raised that generally felt moral norms should apply. These moral norms seem to oblige present holders to do more than the legal minimum and thus create a practical need for a claim to be assessed on its merits. Even so far as concerns restitution claims that do not (yet) fall in a clear grey category, for example pre-1970 contentious takings, reasons may exist for working proactively on the development of restitution criteria. In a situation of changing political power relations in the world, grey zones can rapidly come into being. Today it is common ground to state that a formalistic legal approach towards restitution claims is not the best way to achieve a mutually satisfactory solution. On the other hand, leaving the application of vague norms solely up to the persuasive power or commercial interests of the parties (in the private sector) or to current political motives (on the intergovernmental level) might also cause injustice. Too many conflicting ad hoc decisions mean inconsistency and injustice, since one of the objectives of justice should be an equal treatment of equal cases.116 So a legal approach (or law inspired approach) certainly has its advantages, especially in the area of alternative dispute resolution on a voluntary basis. That legal approach should not be formalistic but rather designed with flexibility in mind, with an emphasis on creative and cooperative solutions. The question of whether any specific procedure can serve as an example for future models will, in the end, depend on the use, acceptance and authority of the solutions to deal with disputes as they emerge. One last remark is appropriate on the narrative aspect of such procedures. In restitution cases regarding cultural property that originate in times of historic injustice, emotions and issues such as cultural identity or family history are at stake. What is the role of law in this regard? One view is to see restitution procedures as a means of reconciliation. The role of law in this sense is limited

115

Letter of the Secretary of Education, Culture and Science to Parliament dated 22 June, 2012 (ref. 373435). 116 See for this warning Palmer (2011) and Weller (2011).


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and defined by the task of offering due process and by the narrative function of the procedure.117 Where restitution claims regarding specific pieces of art are interrelated with individualised histories of suffering, one role of a legal procedure is to ensure that those stories are told and heard. In this sense, a neutral fact finding phase, as developed by the Dutch Restitutions Committee in its binding opinion procedure, could serve as an example of the integration of that narrative function in a procedure. Acknowledgements 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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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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