The Art of Law Series: Stolen Art and Modern Restitution
Foreword
In the grand mosaic of human culture, where art reflects the zenith of human creativity and law the structure of societal order, their intersection forms a compelling narrative of protection, rights and ethical considerations. The realm of art, with its boundless expressions, serves not only as a mirror reflecting societal values, mores and collective memory, but also as a vanguard challenging the status quo and pushing the boundaries of what is socially and morally acceptable. In contrast, law, with its codified norms and principles, seeks to establish order, protect rights and resolve conflicts. At the crossroads of these two domains lies a dynamic and often contentious dialogue about the value of art, the rights of creators and the role of law in protecting these elements in a rapidly evolving digital age.
The protection of art and artists through legal means is not a modern concept but one that has evolved over centuries, adapting to new forms of artistic expression and technological advancements. From the earliest copyright laws designed to protect literary works to contemporary debates over digital rights management and the moral rights of artists, the legal system has been instrumental in defining how art is created, distributed and preserved. This legal scaffolding not only ensures that artists can earn a livelihood from their creations but also plays a crucial role in the cultural preservation of art for future generations. This relationship is fraught with challenges. The very nature of art, constantly evolving and pushing boundaries, often outpaces the legal frameworks designed to protect it. Issues such as copyright infringement, plagiarism and the unauthorized use of artistic works in the digital realm highlight the ongoing struggle to balance the rights of artists with the public’s access to art.
Furthermore, the legal system’s ability to adapt to these challenges is crucial in maintaining this balance, ensuring that protection does not stifle creativity. In essence, the dialogue between art and law concerning the protection of art and artists is a reflection of the broader human condition, encapsulating our desires for expression, innovation and the need for boundaries. As we navigate this complex relationship, let us remember the essential role that both art and law play in enriching our lives and shaping the contours of our collective cultural heritage.
This Research Series consists of seven articles, each dedicated to exploring the intersection between art and law, underscoring the pivotal role those legal frameworks play in safeguarding the sanctity of art and the rights of artists.
The Art of Law Series: Convention of Berne: The First Act to Protect Artistic Works
The Art of Law Series: Copyright: Legal Implications for Visual Artists
The Art of Law Series: Stolen Art and Modern Restitution
The Art of Law Series: The Italian Cultural Heritage Law and the EU
The Art of Law Series: Artificial Intelligence and Legal Frameworks: A Comprehensive Overview
The Art of Law Series: Artificial Intelligence and Copyright: Navigating Legal Challenges and Opportunities
The Art of Law Series: Case Studies and Insights into Legal Issues Facing Artists and Collectors
Introduction
The issue of repatriation is deeply embedded in the broader conversation of post-colonial morality and national identity. As nations grapple with the legacies of colonialism, the question of whether culturally significant artifacts should be returned to their countries of origin has become increasingly pressing. This debate touches on fundamental issues of justice, historical accountability, and the right to cultural heritage. It also raises critical questions about the adequacy of existing legal frameworks and the potential for alternative mechanisms to address these complex disputes.
One of the central points of contention in the repatriation debate is the role of international law. While numerous arguments support the return of stolen artworks, the legal obligation to do so is not universally mandated. Instead, it is often contingent upon adherence to key international conventions and treaties, such as the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. These agreements provide a framework for the protection and return of cultural property but are not binding on all nations and do not cover all scenarios.
This article seeks to examine the extent to which these historical agreements genuinely compel major powers to repatriate cultural artworks. It also explores the efficacy of these legal instruments in achieving their intended goals. Are they sufficient in addressing the complexities of cultural restitution, or do they fall short in the face of contemporary challenges? Moreover, the article investigates alternative mechanisms for dispute resolution, considering whether more efficient and equitable solutions exist outside the traditional legal avenues.
Evolution of International Treaty Art Law
Until the late 19th century, the concept of jus praedae, or "prize right," was the de facto international standard. This principle allowed the victorious army or nation to seize and destroy the property of the enemy following a conflict. Tracing back to ancient Rome, this practice was considered an accepted method of wealth transfer after a "just, fairly declared war," legitimizing the appropriation of the enemy’s movable assets. This approach provided a pragmatic justification for the historical transfer of wealth post-conflict, based on the declaration of hostilities rather than unprovoked raids. The Brussels Declaration of 1874 was a pioneering effort, although it remained unratified. It responded to Napoleon’s extensive European campaigns that seized numerous national treasuries and private estates. The Declaration made several significant references and provisions to protect private property. The 1907 Hague Convention built upon the principles established in the Brussels Declaration by incorporating provisions that were nearly identical regarding the protection of significant art and personal property.
It obligated participating nations, and later extended this obligation to all nations through customary international law, to "spare […] buildings dedicated to religion, art, science… charitable purposes, historic monuments, hospital [...from bombardments] provided they are not being used at the time for military purposes" (Art. 27). Furthermore, the Convention explicitly prohibited the confiscation of private property (Art. 46). Despite these advancements, the agreements did not explicitly address the concept of cultural property as a distinct category. In the aftermath of World War II, which saw extensive destruction of cultural institutions and looting of treasuries, the 1954 Hague Convention specifically protected cultural property during armed conflict. This convention, heavily influenced by the 1943 London Declaration that invalidated all War World II property transfers of seized artworks, was adopted by over 100 countries. It prescribed measures to avoid the destruction of art and cultural heritage during wartime. The most significant updates came with the First and Second Protocols to the 1954 Convention.
Modern Restitution Mechanisms after the World War II
The First Protocol directly addressed the circulation of cultural property during wartime, requiring occupying nations to prevent the exportation of such property. In cases of prior exportation, the protocol mandated the return of the property and fair compensation for the purchaser, if applicable. This marked the first time the principle of returning cultural property was officially introduced and recognized in the international legal arena. The Second Protocol, adopted in 1999, aimed to curb criminal acts against cultural property towards the end of the 20th century. It enhanced the 1954 agreement by incorporating stronger measures developed from advancements in international humanitarian and property protection law. This update also codified tangible sanctions for nations breaching their obligations and enshrined criminal liability for individuals who intentionally target, use, destroy, pillage, or vandalize protected cultural property.
In response to the surge of cultural object seizures by colonial powers and the growing desire to reclaim cultural artifacts, the 1970 UNESCO Convention was pushed forward by emerging nations to combat the illegal trafficking of cultural property. This convention, based on the principles of prevention, restitution, and international cooperation, targeted the black market for stolen cultural artifacts prevalent in Europe. Unlike earlier conventions, it specifically addressed art stolen outside traditional warfare contexts. The final relevant international agreement is the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. This convention addressed the issue of statutes of limitations that barred restitution claims and entitled good faith purchasers of such objects to fair compensation for their loss. While historical treaties provide a foundation for the repatriation of cultural property, modern restitution mechanisms often involve alternative dispute resolution methods, such as negotiation, mediation, and arbitration.
These methods offer a more efficient and flexible approach to resolving disputes over cultural property, often leading to amicable settlements that respect the interests of both parties involved. The evolution of international law concerning the restitution of cultural property highlights a shift from the acceptance of post-conflict plunder to a recognition of the importance of preserving cultural heritage. Although no overarching international legal obligation mandates the repatriation of cultural artworks, various treaties and conventions provide a framework for addressing such issues. Modern restitution mechanisms complement these legal frameworks, offering alternative avenues for resolving disputes and ensuring that culturally significant art is returned to its rightful place. As the debate over art restitution continues, it is essential for nations to balance historical justice with practical considerations, fostering international cooperation and respect for cultural heritage. The progress made in international law reflects a growing acknowledgment of the need to protect and return cultural property, ensuring that future generations can appreciate and learn from these invaluable artifacts.
International Legal Challenges for Art Repatriation
The repatriation of stolen cultural and artistic property is a significant issue in international law, even though enforcing these legal frameworks presents considerable challenges. Without these agreements, there would be no international mandate for the return of such property. Yet, these treaties and conventions are only as effective as the contexts and purposes for which they are utilized. This article examines the two primary shortcomings of these international agreements and the complexities of enforcing them. One of the critical limitations of international treaties concerning the repatriation of cultural property is that they are not self-executing. This means that even if a country signs an international agreement, the treaty will not automatically become enforceable law within that country.
For instance, the 1970 UNESCO Convention, which aims to combat the illicit trafficking of cultural property, necessitates that member states establish national services for the protection of cultural heritage and create legal and administrative measures to prevent the illegal import, export, and transfer of ownership of cultural property. However, the effectiveness of this convention hinges on the extent to which individual countries incorporate these measures into their domestic laws. Another significant challenge in enforcing international treaties is that they do not apply retroactively. This limitation means that treaties cannot be used to address actions that occurred before the treaties were enacted. For example, while many international agreements were designed to protect art stolen during World War II, they cannot compel the return of artwork looted before these treaties came into force unless explicitly stated otherwise. One notable example is the long-standing legal battle over the Elgin Marbles, a collection of classical Greek marble sculptures currently housed in the British Museum.
For a treaty to have any practical effect, it must be affirmatively implemented into the nation's domestic legal framework. This process can be complicated and politically charged, often requiring legislative action and the cooperation of various governmental bodies. The Elgin Marbles controversy represents a prominent example of the ongoing debate over the restitution of cultural heritage. Removed from the Parthenon in Athens in the early 19th century and now housed in the British Museum, their repatriation remains a contentious issue. This case highlights the broader challenges in international art restitution, where legal frameworks often lack clarity or enforceability, leaving nations with limited recourse to reclaim artifacts taken under colonial or contentious circumstances.
The continued dialogue around the Elgin Marbles underscores the need for comprehensive, enforceable international legislation that respects historical and cultural contexts, balancing the interests of origin countries and current holders. As cultural heritage increasingly becomes a focal point of global identity, advancing such frameworks is not just a legal imperative but a moral one.
The Case of Cassirer: The Complexity of Legal Interpretation
The pursuit of justice in the realm of art restitution, particularly regarding German occupiers looted artworks, often spans decades and crosses multiple legal and moral boundaries. A poignant example of this enduring struggle is the case of Cassirer v. Thyssen-Bornemisza Collection Foundation. Initiated by Claude Cassirer in 2005, the lawsuit targets the Thyssen-Bornemisza Collection Foundation, a property of the Kingdom of Spain, over the ownership of Camille Pissarro’s painting Rue Saint-Honoré in the Afternoon. Effect of Rain. This painting, stolen from Cassirer’s Jewish grandmother during her escape from Germany, had eventually found its way to the Foundation’s Museum in Madrid. At the heart of the case lies a complex legal conundrum that reached the U.S. Supreme Court. The primary issue under scrutiny was determining the appropriate choice-of-law rule to apply in the Foreign Sovereign Immunities Act of 1976 (FSIA) lawsuit involving non-federal claims. This legal dilemma underscores the profound challenges in reconciling different legal systems and their principles when adjudicating cases of art restitution. In Spain, the legal concept of adverse possession allows for the acquisition of ownership over personal property if it is held in good faith over a certain period. This principle sharply contrasts with U.S. common law, which operates on the doctrine of nemo dat quod non habet, "no one gives what he does not have." Essentially, under U.S. law, the acquisition of stolen property, regardless of the possessor’s good faith, is considered theft. This "irreconcilable and unbridgeable gulf" between the common law and civil law systems plays a pivotal role in the Cassirer case, where the choice of applying either U.S. or Spanish law could determine the outcome.
The Cassirer case exemplifies the complexities and frustrations inherent in the enforcement of international art restitution agreements. Taddheus J. Stauber, an attorney representing the Foundation who also participated in drafting the Washington Principles, highlighted a critical perspective. He pointed out that these agreements are intended to foster respect for the laws of other countries. Imposing U.S. law universally is impractical and politically untenable, much like a hypothetical scenario where a Spanish court would adjudicate claims against an American institution like the Smithsonian. The protracted nature of the Cassirer litigation highlights the limitations of relying solely on traditional judicial processes for resolving art restitution claims.
The Cassirer v. Thyssen-Bornemisza Collection Foundation case serves as a stark reminder of the enduring challenges in the realm of art restitution. The case illustrates the profound legal, moral, and practical complexities involved in reconciling different legal traditions and international commitments. While international treaties and conventions provide a framework for addressing these issues, their enforcement is often hindered by domestic legal systems and the non-binding nature of these agreements.
Alternative dispute resolution (ADR)
Alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, offer promising avenues for addressing these complex issues. ADR can provide a more flexible and expedited path to justice, allowing parties to reach mutually satisfactory outcomes without the prolonged and adversarial nature of court proceedings. These approaches can offer more effective and humane solutions, respecting both legal principles and the moral imperatives of restitution. As the global community continues to grapple with these issues, fostering international cooperation and a commitment to ethical principles will be crucial in ensuring that cultural heritage is preserved and restored to its rightful place.
ADR encompasses various methods of resolving disputes without litigation, including mediation, arbitration, conciliation, negotiation, and transactions. These methods are increasingly common in the art world, providing more flexible and often faster solutions to restitution claims. A notable case of ADR in art restitution is the case of Maria Altmann, who sought the return of her uncle’s Gustav Klimt paintings, looted by the Germans and later held by the Austrian government. Although the case initially reached the U.S. Supreme Court, it was ultimately settled through mediation. Altmann agreed to a mediation process in Austria before a three-person panel and was awarded all the paintings. This case demonstrates how ADR can provide a satisfactory resolution outside the prolonged and contentious litigation process.
Another example involves the Cerruti Foundation of Turin, which possessed a Renaissance Madonna painting looted from Jewish art collector Gustav Arens. The Foundation entered into a financial settlement with Arens’ heirs, allowing them to retain the painting. This resolution highlights the flexibility of ADR in accommodating both parties' interests while providing justice and closure. A more unconventional ADR case involved Lèone Meyer, a French Holocaust survivor, who filed suit against the University of Oklahoma's Board of Regents over another Pissarro painting, Shepherdess Bringing in Sheep, lost during the 1940 Hitler's regime invasion of France. This case was settled out of court, with Meyer agreeing to a unique visitation schedule: the painting would rotate every three years between the University of Oklahoma museum and any French institution of Meyer’s choice, eventually finding a permanent home in France. Meyer also contributed $500,000 towards the rotation costs, and the museum waived its claim for legal fees.
One of the primary advantages of ADR is its flexibility. Unlike the rigid procedures of court cases, ADR processes can be adapted to fit the specific context and needs of the disputing parties. This flexibility can lead to more creative and satisfactory resolutions, as seen in the Meyer case with its unique visitation schedule for the Pissarro painting. ADR can significantly reduce the time and costs associated with traditional litigation. Court cases, especially those involving international parties and complex historical claims, can drag on for years, as illustrated by the Cassirer case. In contrast, ADR processes like mediation and arbitration can be completed more quickly and with lower legal expenses.
For ADR to be effectively implemented in art restitution cases, several factors need to be considered:
Establishing Clear Frameworks
Clear frameworks and guidelines for ADR processes should be established, ensuring that all parties understand the procedures and expectations. This clarity can help build trust in the process and increase the likelihood of successful outcomes.
Involvement of Experts
The involvement of experts in art history, provenance research, and cultural heritage law can be crucial in ADR processes. These experts can provide the necessary context and knowledge to inform fair and just resolutions.
International Cooperation
International cooperation is vital for the success of ADR in art restitution. Countries need to work together to facilitate these processes, respecting each other’s legal systems and cultural heritage policies. This cooperation can be fostered through international agreements and frameworks that encourage ADR as a preferred method of resolving art restitution disputes.
The Benin Bronzes: A Case Study in Art Restitution
The Benin Bronzes, a collection of several thousand art pieces looted from Benin City by British soldiers during the 1897 Expedition, exemplify the complexities and challenges of art restitution in the modern era. These artworks, which once adorned the royal palace of the Kingdom (now part of Nigeria), have been dispersed across museums and collections worldwide. Today, the movement to return these culturally significant artifacts to their place of origin highlights the evolving ethical standards and legal frameworks governing the restitution of colonially seized art. The use of alternative dispute resolution mechanisms in art restitution offers a promising path forward for addressing historical injustices in a more efficient and humane manner. The cases of Maria Altmann, the Cerruti Foundation, and Lèone Meyer illustrate the potential of ADR to provide creative, flexible, and satisfactory solutions that traditional litigation may not achieve.
In 1897, British forces invaded Benin City, leading to the annexation of the kingdom into the British Empire. The looted artifacts, known collectively as the Benin Bronzes, were subsequently sold to the British Museum and other collections across Europe. These objects have since become symbols of cultural heritage and colonial injustice. In recent years, various institutions have announced decisions to voluntarily return the Benin Bronzes to Nigeria. The British Museum, which holds the largest collection, remains the focal point of international repatriation efforts. The Benin Dialogue Group is a key player in the negotiation process for the return of the Benin Bronzes. Formed in 2010, this consortium includes European museums that hold the Bronzes and engages in discussions with Nigerian authorities. Initially, the group sought to manage expectations by proposing a permanent rotating display of the artworks in Benin City, based on European loans. However, it has since evolved into a meaningful dialogue aimed at restoring ownership of the Bronzes to Nigeria.
The movement for the restitution of the Benin Bronzes gained significant traction following a 2018 report commissioned by French President Emmanuel Macron. This report assessed the history of French collections of African artworks and prompted a broader "decolonization" of museums in several countries. As of December 2022, institutions in Scotland, Germany, the United Kingdom, and the United States, among others, have committed to returning numerous pieces to Nigeria and other African nations. While the process of returning the Benin Bronzes is widely supported, it poses several challenges. Changes in the nature of sovereignty, legal frameworks, and national issues such as corruption complicate the restitution process. However, the movement represents a significant achievement in international relations, offering hope for the future of art restitution claims.
The repatriation of the Benin Bronzes could serve as a major step toward addressing historical inequities and fostering a "cultural renaissance" in Africa. The creation of new museums and cultural institutions in Nigeria and other African countries could challenge the traditional narrative that objects cannot be adequately preserved or guarded in non-Western contexts. Restituting the Benin Bronzes to Nigeria holds profound cultural and symbolic significance. It acknowledges the historical injustices perpetrated during colonial rule and affirms the right of nations to reclaim their cultural heritage. Moreover, the return of these artifacts can contribute to the revitalization of cultural identity and pride among the people of Nigeria.
The process of restitution also encourages greater transparency and ethical responsibility among museums and collectors worldwide. By engaging in provenance research and re-evaluating their collections, institutions can contribute to a more accurate and inclusive understanding of history. This self-reflective approach can transform museums from displays of conquest to spaces of education and reconciliation. As the international community continues to grapple with the legacy of colonialism, the return of the Benin Bronzes serves as a powerful reminder of the importance of respecting and restoring cultural heritage to its rightful owners.
Conclusion
A century ago, the notion that colonial or post-conflict powers might return looted or illegitimately acquired cultural artworks seemed an unattainable ideal. However, the contemporary landscape of art restitution has evolved significantly. Alternative Dispute Resolution (ADR) and voluntary negotiations have emerged as viable and increasingly effective mechanisms for facilitating the return of these invaluable cultural artifacts. These methods provide a flexible, less adversarial approach compared to traditional litigation, often leading to mutually satisfactory outcomes that honor both the historical significance and the rightful ownership of the artworks.
The successes seen in high-profile cases, such as the restitution of the Benin Bronzes and the resolution of claims involving Nazi-looted art, underscore the potential of ADR and negotiations in addressing the complex legal and ethical dimensions of art restitution. These approaches not only expedite the process but also foster international cooperation and respect for cultural heritage. The growing willingness of museums and national governments to engage in these processes reflects a broader shift towards recognizing and rectifying historical injustices. As global awareness and ethical standards continue to rise, the trend towards the repatriation of cultural property is likely to gain further momentum.
This movement is supported by international agreements and frameworks that, while non-binding, encourage moral and cooperative solutions to art restitution. The increasing transparency brought about by digital technologies also plays a crucial role in holding institutions accountable and ensuring that the histories of these artifacts are acknowledged and respected. In conclusion, the progress made in the realm of art restitution through ADR and voluntary negotiations represents a significant step towards healing historical wounds and restoring cultural heritage to its rightful stewards. The continued commitment to these methods promises a future where cultural artifacts are not only preserved but also returned to the communities and nations from which they originate, fostering a more equitable and respectful global cultural landscape.
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