Are the principles set out for identifying Nazi-looted art fit for purpose?

Apollo 29 October 2018
By Nicholas O'Donnell

Twenty years after the Washington Principles provided a framework for the restitution of Nazi-confiscated art – and with an anniversary conference held in Berlin this November – their effectiveness is up for debate

The 20th anniversary of the Washington Principles on Nazi-Confiscated Art is an appropriate occasion for reflection on their historical effect and future usefulness. The dynamic of the discussion about the restitution of Nazi-looted art is very different from what it was in 1998, and the principles deserve credit for that. Like any high-level pronouncement, however, the principles are always at risk of losing their strength when wielded as generalisations to justify any particular decision.

The legal context that preceded the Washington conference is instructive. Nazi-tainted provenance was little-discussed with respect to collections in Europe, where private claims were almost universally time-barred under laws that expired in the 1960s and where cultural property laws forbade the removal of any art from state ownership. In the United States, time standards were more flexible but courts had simply not grappled with whether and how the passage of time had to be considered in this context.

The most important aspect of the Washington Principles is the moral imperative that they state: regardless of the strict application of property law, the issue must be grappled with. It is worth considering the terminology underlying the principles: ‘Nazi-confiscated art’ evokes the most overt kind of theft, but an understanding has evolved since of the continuum of ways in which Nazi persecution dispossessed Jews of their property, ranging from outright seizure, to sales under questionable circumstances, or ‘flight goods’ – property sold out of necessity by people fleeing persecution. There is no consensus on how flight goods should be handled, while the sharpest disagreements have come over which kinds of transactions are forced sale, and which are not.

As detailed in a report by the Claims Conference in 2014, the majority of nations who signed the Washington Principles have since done nothing. The United States has no applicable commission, but it also has no state collections to speak of. After early struggles, the Austrian Art Restitution Advisory Board has shown a positive attitude towards historical nuance and who should bear the burden of dealing with historical uncertainty. The Dutch commission, too, has handled a commendable number of claims, but has engendered controversy in weighing the interests of the present-day museums. The United Kingdom Spoliation Panel has been the most consistently even-handed, but has fewer occasions to address the topic. France has processed many claims but the state of progress is uncertain. And Germany’s Advisory Commission has been in disarray since at least 2014, unable to compel museums to submit to it and having issued some deeply questionable recommendations that waved away undeniable persecution. Increasingly, one sees the principles invoked to defend a refusal to restitute, along the lines of ‘while we are committed to the Washington Principles, nonetheless…’. In the United States, the Washington Principles have informed negotiated restitutions and court cases. In court, judges have recognised the principles as part of US policy and turned down foreign sovereign powers seeking to dismiss cases against them, in no small part because of the explicit references to the principles in the Holocaust Expropriated Art Recovery Act of 2016. The guidance of the major museum organisations has been instrumental in encouraging American institutions either to return objects with suspect provenance or to engage in a meaningful dialogue to reach a negotiated solution.

What does the future hold? The existing European commissions need refinement and support. Accountability is lacking – not a surprise in a soft-law realm of international agreement. The effect of the JUST Act – which compels the US State Department to track and report on progress on Holocaust issues – will be interesting to watch. Some have called for a revised set of principles, but this does not seem worth the effort. More drafting and wordsmithing would likely be a distraction from the question of whether the original signatories are striving for real progress.

Nicholas O’Donnell is an art lawyer and a litigation partner at Sullivan & Worcester LLP.
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